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Trials of the Rocky Flats Nuclear Weapons Plant SuperFund MegaSite Operators: Rockwell International & The Dow Chemical Company.

Forward: The following are true, appalling examples of how big government and their contractors work when oversight is absent, inadequate or is operating in `national security' or `top secret', among apathetic citizenry. Read: let's do anything we want and sock the taxpayers with the bills! Citizens must always force oversight on a stubborn government and its contractors, especially when they have 'sole supplier contracts'.

The following court transcripts are the whole, unbelievable, closing arguments in the prosecution of sloppy, irresponsible, negligent, totally incompetent plutonium processing operators & operations of the Rocky Flats Nuclear Weapons Plant SuperFund MegaSite (RFP)*. This is just 25 kms upwind and upstream of one of the largest population centers in the Old West.

Some Scientists see Plutonium 239 as one of the five most toxic substances known to man. Its non settling particulate size found in 'fugitive emissions' makes it much worse. Even worse yet, its pyrophoric nature means that it burns spontaneously in air and thus necessarily forms too small to filter molecular sized particles of PuO2. This fact wasn't really that important on a practical level, since plant contractors would simply puncture filters in the huge filter plenums, installed to protect the communities, with a screwdriver, to protect the , instead of replacing the filters!

The polluters peddled the lies that plutonium had little risks, was under control, and wasn't continually migrating off the plant site as `fugitive emissions', with the help of expensive PR firm's technically incompetent ignoramuses. Among other things they proclaiming plutonium oxide(s) were insoluble and thus immobile in the environment, inspite of published, peer reviewed scientific findings to the contrary. These lies were peddled at poorly advertized public meetings and in the press. Some RFP employees and environmental contractors actually stated in public meetings that exposure to low levels of plutonium were actually beneficial to longevity and good health!

The Rocky Flats Cleanup Commission (RFCC) found and published the truth, proving that the government & its contractors cannot be trusted, and that victims must do the research needed to protect themselves and shut down polluting operations. Colorado is the only State in the Union that has a plutonium in soil standard. The soil reference standard from the National Institute for Standards and Technology [formerly the National Bureau of Standards], made this Standard Reference Material from soils taken from just inside the outer most perimeter fence at the SE corner of the RFP!

This text was written by Marsh, who, along with Paula and Sue, and about a dozen others, were the founding members of the RFCC that administered the Technical Assistant Grant (TAG) from the U.S. Environmental Protection Agency, starting in 1988 thru 1995. It was illegally defunded in a totally arbitrary and capricious manner by Region 8, U.S. Environmental Protection Agency, because we were too effective, competent, and couldn't be bought nor paid off. TAGs have a very strict charter that precludes membership of anyone connected with the polluters' in question, their relatives, and pollutors' attorneys, and other conflicts of interest. The E.P.A., along with a totally spineless state health department did the dirty work that included distribution of dirty hush money from D.o.E., to key locals and other crooks. They then started a Citizens Advisory Board (CAB), in 1995, that never produced anything of value to downwinders but deflected criticism from the government and its crooked contractors. Advice from this board was essentially never taken. The RFP CAB was staffed with loads of incompetent, unprepared people with tons of conflicts of interest.

The trial was about corporate crimes that were against the People, good business practices, the government, the environment, future generations, contractors, economics, morals, and taxpayers. These crimes maximized profits for unprofessional corporate liars, crooks and thieves. From the beginning in 1952, the DOW Chemical Company was reported, by the old timers, to have employed plant construction workers to provide these delicate, dangerous, risky, toxic operations, that were poorly understood, in spite of lacking any relevant education needed for such work. This included processing plutonium! These contractors showed no respect for local people, employees, nor the environment. This continued to the final demolition and "cleanup" of the site in December, 2005. The former operation is still swimming in controversy of defrauding the taxpayers.

Later on, totally inappropriate people were arrogantly hired to conduct day to day ultra high risk manufacture of plutonium pits (triggers), which are atomic bombs needed to 'trigger' the thermonuclear explosion in all the 'nukes' of the entire U.S. nuclear arsenal. This was the norm for highly paid plant contractors. Some workers processing plutonium never finished high school and had careers in fine art! In at least one such case this was actually good news, for one became a key whistleblower because of a letter they wrote that was intercepted by Marsh after being rejected by dozens of others who are paid to protect us! Paying Scientists' wages to folks who were totally unqualified, who would otherwise be flipping burgers, was done to keep out qualified professional Scientists and Nuclear Technicians who would blow the whistle. In the end, this policy failed miserably as the crimes and pollution continued, resulting in the infamous raid of the RFP, ironically, in the early morning hours of 6 June, 1989, to the hour of the 45th anniversary of the Allied Invasion, in Normandy, France - the beginning of the end of adolf hitler. This was the only time in American history when one arm of the Federal government attacked another with guns drawn!

The beginning of the end started when James S. Stone, P.E., was illegally fired by an arrogant Rockwell International (RI) and went to the Federal Bureau of Investigation to report environmental crimes and violations of the False Claims Act. He soon attracted the undivided attention of another American hero, Special Agent, Jon Lipsky. He had to get permission to proceed from the highest levels in the Land. Please see: www.jonlipsky.com. The rest is history. Call for Marsh's fascinating presentation(s) on this and other such topics. Will the present Bush regime learn from this disaster and change its same old ways?

The first to be tried, pp 5058 thru 5276, was Mr. James S. Stone, P.E., a real American Hero, who wouldn't shutup nor go away, and stood up fearlessly to the crooks, sycophants, weasels & lap dogs, and relentlessly pursued the case: THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OFCOLORADO, 89 M 1154), Stone v. Rockwell. This was the consummate David v. Goliath battle, under the False Claims Act, 31 USC Sec. 3729. He prevailed in the end in spite of mountains of roadblocks, stonewalling contractors, his first legal firm's probable collusion with the defendant, and three dozen frivolous defense appeals from R.I.'s spineless, deceitful, unscrupulous lawyers who stalled the trial for months and months but not the outcome! The closing arguments of the defendants' senior attorney were particularly arrogant, immoral, hollow, and illegitimate. But he was being paid really big money [our tax dollars] to defend the indefensible.

This case patiently revealed mountains of damning testimony, as well as countless, true, unreported day to day spills, accidents, and 'unexpected occurrences', from once top secret diaries of former plant supervisors. Some of the most incriminating testimony starts near p. 5065. 'Pondcrete' & 'Saltcrete' was made by mixing portland cement with dangerous, plutonium containing sludges from the bottoms of holding ponds. Hundreds of illegally stored, one ton cardboard boxes of this mixture failed to hardened and collapsed due to the fact they failed to use enough cement and totally failed to have a suitable QC/QA program to discover this problem in time. This was endemic to many extremely lucrative operations performed by R.I. with its' sole supplier contracts. All of these revelations were the complete opposite of what plant contractors and the U.S. Department of Energy were telling concerned citizens, watchdog groups, and activists in public presentations and their publications. As it turned out, nearly all plant contractor public statements were false while all statements of plant opponents and the suspicious were true, no matter how radical or unbelievable.

Sadly the trial was interrupted by the timothy mcveigh trial, the infamous Oklahoma City Bomber. Many say that mcveigh only killed (murdered) 168 citizens, but the Plutonium 239 that was knowingly spilled, illegally dumped, and allowed to waft off the RFP site as 'fugitive emissions', will kill and maim countless others, indiscriminately, for the next 240,000 years, all the way to St. Louis! Thank many greedy, stupid, ignorant unregulated real estate developers that have already put permanent infrastructure and homes far too close to this site in violation of the 10 mile edict of the Executive Dir. of the Colorado Department of Health, Dr. Roy A. Cleere.

The Stone v. Rockwell trial generated a great deal less interest in the media than the trial of McDonald's in London, England, for its many restaurant crimes. As in that trial, the defendant(s) huge advertising budgets' seemed to preclude its reporting in the 'main stream' media. In Denver, it was worse, as even the weekly undergrounds didn't want to jeopardize their advertising revenue either. Judge Matsch's courtroom, during the Stone trial, never had a dozen concerned citizens and media until it was interrupted by the mcveigh trial. Many media giants from the East coast, like the NYT, Washington Post, all local rags, and many, many others packed the courtroom until the end of that trial. As soon as the Stone trial resumed, all of these 'reporters' bolted out the door like rats in a burning garbage dump!

Sadly, the totally stupid jury agreed with him on everything but the amount of monetary damages. After hearing months of massive, permanent, crooked, incompetent contract performance on the part of the defendants, Rockwell/Boeing and DOW Chemical Co., they decided to award him about $4.5 Million of $192 Million in assessed damages and let American taxpayers pay the defendants' damages! Very sadly, to August 2006, Mr. Stone has never received a penny in judgments due, and is in an assisted care home with his wife of many, many years with early stages of dementia.

The second case, pp 10226 thru 10661, THE UNITED STATES DISTRICT COURT THE DISTRICT OF COLORADO, Civil Action No. 90-CV-00181(JLK), filed 16 years prior to the start of the trial, concerned about 14,000 local residents were awarded $352 Million for lost property values! Never mind cancers, sick children, child amputees, and fatal cancers. Again, the overwhelming evidence in the closing arguments, presented here, makes it clear the degree of wholesale, crooked, deceitful, fraudulent operations by well paid 'sole supplier' government contractors.

Neither of these revealing cases' closing arguments can be found elsewhere on the InterNet, nor were they disseminated in or by the press. Hopefully, other folks fighting these caliber defense contractors elsewhere will implement this information and start getting their nuclear weapons plant removed and cleaned up from the face of the Earth. Peace Farm, are you listening and taking appropriate ACTION yet? Think of the training you received in 1989.

The list of sleazy, bottom feeding, cheating contractors, collecting (robbing) the taxpayers of $ Millions in fraud, waste and junk science is unimaginable and continued until the site was cleared of all facilities December 2005, and vacated! Some say it hasn't ended yet as the 'cleaned up site' still contains tons of abandon, plutonium contaminated hardware below the surface. One of the original eight Boulder, Colorado Scientists, who started bringing the problems to light in the early 1970s, was Prof. Harvey Nichols, Ph.D. Biologist, a proper, former Englishman, frequently referred to RFP information officers as being: 'Very economical with the truth'!

The first forth of this document wraps the text from the original legal form. Numbers in this text from 1 to 25, are the line numbers corresponding to the original legal form. This will save paper for those wishing to print it out. Four digit numbers are running page numbers. The latter 3/4 of the document appears in the normal court form.

Following are the verbatim closing arguments transcripts provided by Mr. Hartley Alley, Esq. Paula Elofson-Gardine and her sister Susan Elofson-Hurst, two indefatigable RFP stake holders (victims), and founding members of the Rocky Flats Cleanup Commission, who wouldn't shut up, roll over dead, nor go away. They were present during most of the trial and long before lead the way in many actions for many years without recognition nor compensation. This is a lesson for all the apathetic who think people have no power. It was solely we folks, maybe a couple dozen, who caused this admission by a defense witness, Sam Cassiday, Lt. Governor of Colorado, etc.: From November 8, 2005.

23 Q. No, it says no. It says, Is the value at all affected?

24 There is an objection and the answer is no. The next question

25 is, Has the value of Church Ranch Corporate Center ever been

1 impacted by Rocky Flats? You see the answer to that is yes.

2 Did he ever tell you that?

3 A. Sure.

4 Q. He then goes on to say, And over what period of time was

5 the value of Church Ranch Corporate Center impacted by Rocky

6 Flats?

7 His answer was, It was during the 1980s when it was

8 getting its approvals.

9 Did he tell you that?

10 A. Yes.

11 Q. So beginning -- further questions, So beginning in the

12 early '80s, the value of Church Ranch Corporate Center was

13 impacted by Rocky Flats?

14 [Mr. Cassiday] Answer: Yes, from the early '80s through 1989 when we

15 had public hearings, we would get Rocky Flats -- the Rocky

16 Flats -- the people who were the -- I'm going to call them the

17 enemies of Rocky Flats. The people who were protesters against

18 Rocky Flats showed up at our public hearings and pounded on

19 both the city council and the planning commission and handed

20 out papers talking about how bad Rocky Flats was, and spoke at

21 the public hearings trying to stop our project.

22 In these same conversations with Mr. Church, did he

23 describe to you these protesters and how they used to come to

24 the council and pound on the councils?

25 A. Yes, among other problems.

Page 4536

1 Q. And was he then asked this question moving forward? I

2 guess he had said '89 on the prior page, through 1989 was his

3 testimony. He was asked --

4 MR. DAVIDOFF: Objection to the characterization of

5 the testimony, Your Honor.

It should be noted that this action demonstrates the veracity of Noam Chomsky's teachings: "If you go to one demonstration and then go home, that's something, but the people in power can live with that. What they can't live with is�sustained�pressure that keeps building, organisations that keep doing things, people that keep learning lessons from the last time and doing it better the next time."

Very sadly Ms. Susan Elofson-Hurst lost her first baby to rare birth defects associated at the time with industrial pollution. Much later, people started 'connecting the dots' as to Rocky Flats being the source(s) to neighbors' elevated levels of birth defects being linked with high probability to plutonium exposures.

*Fed. Reg., TAG Final Rule, v. 57, No. 191, 10/1/92, p.45312.

"Smart People Who Are Apathetic, Gullible, or Lack Courage May As Well Be DUMB"! James S. Stone, P.E., after many years fighting the bastards alone.

Running Page Number 5058

1 2 IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

3 4 UNITED STATES OF AMERICA and

UNITED STATES OF AMERICA, ex rel.

5 JAMES S. STONE, )

)

6 Plaintiffs, )

)

7 vs. ) 89 M 1154

)

8 ROCKWELL INTERNATIONAL CORPORATION, et al., )

)

9 Defendants. ) 10 _____________________________________________________________ 11 TRIAL TO JURY - DAY 24

TRANSCRIPT OF PROCEEDINGS

12 _____________________________________________________________ 13 Proceedings held before the HONORABLE RICHARD P. 14 MATSCH, U.S. District Judge for the District of Colorado, 15 beginning at 9:00 a.m. on the 29th day of March, 1999, in 16 Courtroom C-204, United States Courthouse, Denver, Colorado. 17 APPEARANCES 18 For the Plaintiffs: Maria T. Vullo, Esq.

Jeannie S. Kang, Esq.

19 Matthew Chevez, Esq.

Robert E. Montgomery, Jr., Esq.

20 Paul, Weiss, Rifkind, Wharton

& Garrison

21 1285 Avenue of the Americas

Suite 2607

22 New York, New York 10019 23 24

Proceedings recorded by electronic sound recording;

25 transcript produced by transcription service.

5059 1 APPEARANCES: (Continued) 2 Hartley D. Alley, Esq.

4251 Kipling Street, #130

3 Wheat Ridge, Colorado 80033 4 For Defendant Rockwell: Christopher J. Koenigs, Esq.

Michael A. Williams, Esq.

5 Brian Eberle, Esq.

Amy Benson, Esq.

6 Michael Brian Carroll, Esq.

Karen DuWaldt, Esq.

7 Michael T. Gilbert, Esq.

Williams, Youle & Koenigs

8 950 17th Street

Suite 2450

9 Denver, Colorado 80202 10 For USA, ex rel: John A. Kolar, Esq.

Joel D. Hesch, Esq.

11 Donald Williamson, Esq.

U.S. Department of Justice

12 Civil Division

P.O. Box 261

13 Ben Franklin Station

Washington, D.C. 20044

14

Page 5060

1 P R O C E E D I N G S 2 (At 9:00 a.m. on March 23, 1999, in the United States 3 District Court at Denver, Colorado, before the HONORABLE 4 RICHARD P. MATSCH, U.S. District Judge, with counsel for the 5 parties present, the following proceedings were had:) 6 THE COURT: Be seated, please. Good morning. Are we 7 ready to go? 8 MS. VULLO: Yes, Your Honor. 9 THE COURT: I think for scheduling here 90 minutes is 10 about as long as we could expect the jury to be attentive to 11 argument, so if you're going to go beyond that, find a 12 breaking point where we can do that so we can take a recess 13 about then, and we'll see where we are for the noon recess. 14 I'm going to provide the jury with a lunch, so--and I think 15 we'll keep the luncheon recess to an hour so that we can 16 proceed and get it all in today. Okay? 17 MR. KOLAR: That's fine. 18 MS. VULLO: That's fine. 19 THE COURT: Okay. Bring them in. Are you going to 20 divide argument on the defense side? 21 MR. WILLIAMS: No, Your Honor. 22 THE COURT: Okay. It will be you? 23 MR. WILLIAMS: Yes. 24 THE COURT: All right. 25 (9:02 a.m. - Jury present.)

5061

1 THE COURT: Members of the jury, good morning. 2 THE JURY: Good morning. 3 THE COURT: We're ready now to present this case to you, 4 and just a reminder about the procedure. Each side of course 5 has the opportunity to address you now on closing argument. 6 And you'll hear first from the plaintiffs. Plaintiffs are 7 going to divide their argument. Ms. Vullo and Mr. Kolar will 8 both address you. And then you'll hear from Mr. Williams for 9 the defendant, then the plaintiffs have an opportunity for 10 what's called a rebuttal argument. And then I will instruct 11 you on the law. 12 Now we've had a pretty long trial here, a lot of 13 evidence has been presented, so we're going to give the 14 attorneys a full opportunity to argue their respective 15 positions in the case, and it may take us a good part of the 16 day to accomplish the arguments and the instructions. We'll 17 take breaks, then, accordingly, as it progresses. And you've 18 already been advised, I think, that we'll bring lunch to you 19 today and we'll be keeping the noon recess to an hour so that 20 we can complete this within the day. 21 And then the case will be given to you to decide, 22 and of course I just want to repeat again that you will be on 23 your regular work day schedule. That is to say, you don't 24 need to worry about being here after 5:00 because we'll give 25 you all the time that you need for your consideration of the

5062

1 issues and deliberation in the case, but we won't be 2 deliberating past 5:00 on any day if there are other days 3 involved. 4 So that's our schedule. Please sit back, listen 5 carefully to what the lawyers have to say. This is an 6 important part of the trial. So we'll hear first from Ms. 7 Vullo for the plaintiffs. 8 MS. VULLO: Thank you, Your Honor. 9 Good morning. Members of the jury, you have now 10 heard all of the evidence. By my count, you have heard from 11 55 witnesses and you have seen parts of about 500 documents, 12 and it is now time for the plaintiffs to tell you what we 13 believe we have proven to you from the evidence actually 14 presented to you during the course of this trial and why that 15 evidence compels a verdict for the plaintiffs in the amount 16 of some $164 million. 17 Now before I detail the evidence for you, I want to 18 thank you on behalf of my client, James Stone, for your 19 incredible attention throughout this trial and for the 20 attention that I know you will give during your 21 deliberations. As you know, my client initially filed this 22 case, and the Government, represented by the Department of 23 Justice, joined in the lawsuit and we have presented this 24 case to you jointly as a team effort. And as we did 25 throughout the trial, we will present our closing argument to

5063

1 you as a team effort. After I am through, Mr. Jack Kolar, 2 the lead lawyer here from the Department of Justice, will 3 speak to you. But don't worry, we won't be repetitive. I 4 will discuss with you the first of the two claims that you 5 will have to consider in this case, and that is the claim 6 under the Federal False Claims Act. And when I am done, Mr. 7 Kolar will discuss with you the Government's second claim, 8 which is a breach of contract claim. 9 Now turning to the False Claims Act, as the judge 10 will later instruct you, you, the jury, should find the 11 defendant, Rockwell, liable under the False Claims Act if you 12 determine by a preponderance of the evidence that Rockwell, 13 one, made or used a false record or statement; two, to get a 14 false or fraudulent claim paid or approved under its 15 government contract; and three, with knowledge that the 16 statement or record was false. So in other words, the 17 question for you is, did Rockwell knowingly make false 18 statements in order to get paid money under its government 19 contract. I submit to you, ladies and gentlemen, that the 20 evidence clearly demonstrated that Rockwell did knowingly 21 make false statements under its contract with respect to its 22 pondcrete, saltcrete and spray irrigation operations. 23 Certainly it is more likely so than not so that Rockwell made 24 false statements, which is what "preponderance of the 25 evidence" means.

5064

1 Now, as for pondcrete and saltcrete, as you know, 2 the key date is May 23, 1988, because that is when there was 3 a spill on the 904 Pad that was reported to the Department of 4 Energy. So the question for you to decide on this claim is 5 whether prior to that date Rockwell had knowledge of problems 6 with these pondcrete and saltcrete operations that made its 7 statements to DOE in regard to those operations false. 8 And as for spray irrigation, the key date is March 9 2, 1987, about a year earlier, because that is the date on 10 which Rockwell informed the Department of Energy of a runoff 11 incident into Woman Creek. So the question on that claim is 12 whether Rockwell knew of other runoff incidents before that, 13 in January 1987, which it did not report to DOE in connection 14 with that award fee, period. 15 Now the judge will also instruct you that in 16 determining whether statements made by Rockwell are false, 17 you need not find an explicit falsehood, although we believe 18 there were many. Implicit misrepresentations, misleading 19 statements, statements that create an inaccurate impression 20 on the part of a Government official may be deemed by you to 21 be false statements under the False Claims Act. Likewise, in 22 a mission of fact that if known might have reduced the amount 23 of money the Government was willing to pay to Rockwell could 24 make a statement that was made false. 25 Now, it is our contention that Rockwell made

5065

1 numerous false statements affirmatively about its pondcrete 2 operations while it knew that those operations were resulting 3 in leaking, leaching and spills. But certainly, ladies and 4 gentlemen, Rockwell gave a misleading impression to the 5 Department of Energy about those operations when it failed to 6 alert the DOE about the problems it was having on the 750 and 7 904 Pads while it was saying that pondcrete was a concrete 8 stable matrix that was not releasing constituents into the 9 environment. 10 Ladies and gentlemen, May 23, 1988, was not the 11 first time that Rockwell knew about spills of pondcrete or 12 about leaking pondcrete on the pads. But the evidence is 13 unrefuted that that was the first time the Government knew 14 about that. 15 Now the judge will also instruct you that Rockwell, 16 since it is a corporation, can only act through its agents or 17 employees, and therefore its employees may bind the 18 corporation by their acts and declarations when made in the 19 course of performing their duties as employees. And also, 20 this knowledge by Rockwell through its employees need not be 21 actual knowledge, it can be deliberate ignorance, it can be 22 reckless disregard for the truth. So if Rockwell made a 23 false statement to the Department of Energy with an absence 24 of concern for its truth or falsity, then that is reckless 25 disregard and you must find it liable under the False Claims

5066

1 Act. 2 Now you've heard a lot of evidence in this case--I 3 think there were 22 trial days--about what was known and 4 when. In the limited time I have, I'm going to try to 5 outline that evidence for you and I'm going to do it in 6 chronological order. 7 The false statements essentially begin in January 8 of 1987. And with that, I'm going to start with spray 9 irrigation. Now there are four important facts that are not 10 in dispute as to this claim. First, there is no dispute that 11 on March 2, 1987, spray irrigation resulted in runoff of this 12 sewage treatment plant effluent directly into Woman Creek due 13 to the amount of the effluent sprayed and the snow melt 14 conditions on that day. Second, there is no dispute that 15 spray irrigation runoff into Woman Creek was not to happen at 16 Rocky Flats, it was a violation of the permit, and those 17 types of violations must be reported to the Department of 18 Energy. Third, there is no dispute that prior to this March 19 of '87 incident, in fact two years prior to that, in 1985, a 20 Rockwell employee filled out an engineering job order to 21 build a trench to prevent Woman Creek runoff, which it never 22 built. That fact was admitted in those Request for 23 Admissions that I read to you earlier in the trial. And 24 fourth, there is no dispute that the March 2, 1987, incident 25 had a negative effect on Rockwell's award fee for that

5067

1 period, which was the October 1, '86, through March 30, 1987, 2 award fee period, and that's the first award fee period that 3 you will need to consider in this case. 4 Now you might recall Gary Potter's testimony on 5 this point. He testified that the Department of Energy's 6 award fee evaluation for that period was accurate in its 7 description of what happened with respect to the Woman Creek 8 runoff incident, and that's Exhibit 398. And in this award 9 fee evaluation, DOE gave Rockwell a notable deficiency, and 10 it described the situation as follows: "Another example 11 involves the east spray field where the DOE identified a 12 NPDES permit violation due to runoff flowing directly into 13 Woman Creek. Rockwell middle management was informed of the 14 situation, but upper management contact was required to 15 initiate action. An inspection failed to identify the 16 problem, but the violation was later confirmed with the aid 17 of DOE personnel and corrective action was initiated. 18 Rockwell did not have an adequate system of monitoring in 19 place and failed to act properly when the issue was brought 20 to their attention." 21 Now that was in March of '87. And you heard Mr. 22 Romatowski's testimony, he was a DOE contracting officer. 23 You heard his testimony as to why this bothered him so much. 24 It bothered him because Rockwell did not bring the matter to 25 DOE's attention promptly. And I submit to you, ladies and

5068

1 gentlemen, that that type of activity is what plagued 2 Rockwell's operations of Rocky Flats, including with respect 3 to its pondcrete operations. Rockwell did not fully and 4 promptly bring information to the Department of Energy's 5 attention. 6 Now, was March 2, 1987, the first Woman Creek 7 runoff incident as Rockwell told DOE? Did Rockwell know of 8 others or was it deliberately ignorant or did it act in 9 reckless disregard for the truth about prior runoff 10 incidents? We submit to you that the answer to that question 11 is yes, at least for the month of January of 1987. 12 I'm sure you recall Mr. Robert Ringer, who 13 testified about his turning on of the spray irrigation pumps, 14 and he even showed you his logbook, which stated the volume 15 in gallons of spray irrigation for the months of January 16 through May of 1987. The logbook indicated the times of day 17 when the spray irrigation was done. And you also heard some 18 testimony about the weather conditions in January and 19 February of 1987. And Mr. Henry testified that the weather 20 conditions that he recorded in his logbook for those months 21 were the same snow melt conditions that occurred on March 2, 22 1987, which caused the runoff on that day. 23 Now the only proof that Rockwell submitted to 24 counter this testimony and this documentary evidence is 25 testimony by John Krueger to the effect that there were tire

5069

1 tracks on March 2. But Mr. Krueger himself admitted that the 2 tire tracks were not the cause for this runoff incident. 3 Now back to Ron Henry. Mr. Henry testified that he 4 recalled witnessing Woman Creek runoff on at least one 5 occasion in 1987. His own logbook demonstrates that that one 6 occasion could not have been March 2. But when you look at 7 his logbook, Exhibit 361, page 16, and if you look at his 8 logbook for the March '87 incident, he's writing on March 3 9 or March 2 about that incident, and he notes that on the 10 morning of that day he accompanied George Setlock and Gary 11 Potter when they did not see runoff into Woman Creek. And he 12 notes in his second entry that later that day Gary Potter, 13 George Setlock and John Krueger witnessed Woman Creek runoff. 14 Mr. Henry was not there later that day when they witnessed 15 the runoff incident, and therefore the one incident that Mr. 16 Henry admitted to during trial could not have been the March 17 2 incident as the defense claims. 18 Now there's additional evidence of prior Woman 19 Creek runoff from Mr. Henry's logbook. Mr. Henry testified 20 about the two pages from his logbook, and you might recall we 21 pieced them side by side and he read the entries of icy 22 fields on January 28 and runoff on February 2 and February 23 18, 1987. And those are pages 126 and 127 of Exhibit 361. 24 And Mr. Henry in his logbook noted that he recommended on 25 February 2 the building of a culvert, and he noted that that

5070

1 same recommendation was made to Rockwell management two years 2 earlier but was not accepted. Mr. Henry also noted in the 3 next entry that he observed runoff under snow melt 4 conditions, the same conditions that caused the March 2 5 incident. 6 Now Rockwell has argued that there could not have 7 been earlier runoff into Woman Creek because Rockwell now 8 claims that the movement of the spray sprinklers on February 9 23 is what caused the March 2 incident. But ladies and 10 gentlemen, none of this was said back in 1987. There is 11 evidence in Mr. Henry's own logbook as well as from his 12 testimony and the testimony of Mr. Ringer that Woman Creek 13 runoff occurred before February 23, so it cannot be the case 14 that the movement of the spray sprinklers caused the March 2 15 incident. 16 Now you also heard John Krueger's testimony that he 17 felt responsible for the March 2 incident, but you also heard 18 his testimony on cross-examination that he never said that to 19 anyone before this trial. And none of the documents supports 20 the position that the runoff incident on March 2 had anything 21 to do with the movement of the sprinklers or tire tracks. In 22 fact, there was a notable omission in John Krueger's 23 testimony. Mr. Krueger did not say that he knew of runoff 24 into Woman Creek prior to his visit to the spray fields on 25 the afternoon of March 2. So there can be no claim of DOE

5071

1 knowledge of that fact. In fact, Mr. Krueger did not deny 2 that DOE, when it learned of the March 2 violation, asked 3 Rockwell to confirm that its monthly monitoring report for 4 the month of January 1987, which said that there were no 5 permit violations, was in fact accurate. 6 And in Exhibit 2640, Mr. Earl Whiteman, this is a 7 letter that he wrote to the Colorado Department of Health and 8 to the Environmental Protection Agency, and he told them that 9 DOE had requested Rockwell's HS and E division to conduct an 10 investigation to determine if a violation could have occurred 11 and not been reported in January. And Rockwell informed DOE 12 that it had done the requested interviews and that there were 13 no violations in January '87. That, too, is a false 14 statement. 15 Now what was the evidence that Rockwell performed 16 this so-called review and investigation requested by Mr. 17 Whiteman, which Mr. Whiteman reported to the regulators? 18 There was none. We called the person who was responsible for 19 turning on the spray irrigation pumps--that was Mr. Ringer-- 20 we called the person who was responsible for monitoring the 21 spray fields--that was Mr. Henry. Both testified that they 22 were unaware of any such investigation. And we also called 23 Gary Potter, who was the responsible ES and H official, and 24 he was the one that was present and witnessed the March 2 25 incident, and he said nothing about any investigation into

5072

1 runoff. In fact, he said he did not recall being asked to do 2 interviews or doing interviews, but he just presumed that if 3 it was asked it would have been done. And not a single 4 Rockwell witness said that these interviews were done. It 5 was false. 6 So what does this mean? It means that there is 7 unrefuted evidence that runoff into Woman Creek occurred in 8 January of 1987, or at least Rockwell acted with reckless 9 disregard for the truth of that fact, and therefore its 10 reporting for the month of January 1987, signed by Mr. 11 Potter, which stated that there were no permit violations for 12 that month, is a false statement. And that false statement 13 was compounded when Rockwell repeated it to DOE after it was 14 asked to conduct an investigation for that month and it did 15 no investigation and said there was no runoff. 16 Now Mr. Whiteman and Mr. Romatowski testified about 17 the actual effect of the March 2 incident on Rockwell's award 18 fees and that additional incidents would have further reduced 19 Rockwell's award fee for that period. They also testified 20 that Rockwell's concealment of this knowledge would have 21 resulted in a zero award fee had it been known. Therefore, 22 ladies and gentlemen, on plaintiff's spray irrigation claim, 23 we are asking you to find that Rockwell made false statements 24 in order to get paid award fees for the award fee period of 25 October 1, 1986, through March 30, 1987, and that Rockwell is

5073

1 not entitled, as a result, to any award fee for that period. 2 And that was about a $4 million award fee that it received. 3 You might recall also Dean Olson's testimony. He 4 was the gentleman who came in here and talked about those 5 Voucher Accounting for Net Expenditures Accrued, which were 6 the yearly vouchers that Rockwell gave to the Government 7 reporting on the amounts of monies that Rockwell had taken 8 out of the Government's bank account, including the award 9 fees. So based upon Rockwell's false statements regarding 10 spray irrigation for this period, the yearly VANEA, which is 11 the acronym for that document, for Fiscal Year 1987 was a 12 false claim because Rockwell made false statements in order 13 to get monies paid under its Government contract. 14 Now that's the essence of the spray irrigation 15 claim, all limited to this period of January, February and 16 March of 1987, and the damages that we're asking you to award 17 to the plaintiffs are limited to that award fee period as 18 well. And again, that's about a $4 million amount. 19 With that I'm going to turn back to pondcrete. And 20 we're about in the same time frame. In fact, the starting 21 point for what Rockwell knew about pondcrete and when it knew 22 it is its own admissions in the plea agreement that it signed 23 in March of 1992. That's Exhibit 1. 24 Now as you heard throughout this trial, Rockwell 25 pleaded guilty to ten crimes relating to its operation of

5074

1 Rocky Flats, and several of those crimes related to its 2 pondcrete and saltcrete operations. In fact, the first count 3 relates to the storage of pondcrete and saltcrete on the 750 4 and 904 Pads, and as part of this Rockwell admitted some very 5 critical facts that demonstrate its fraud. Rockwell 6 admitted, Paragraph--it's on pages 9 through 10, Paragraphs 7 12 and 14--Rockwell admitted that beginning on June 15, 1987, 8 almost a year before the May 23 reported incident, that it 9 knowingly stored approximately 12,000 pondcrete and saltcrete 10 blocks on the 750 Pad. Rockwell admitted further that during 11 or about the same period Rockwell knew that a substantial 12 number of pondcrete and saltcrete blocks were not in fact 13 solid. Pondcrete was often a sludge-like or semi-liquid 14 material. Saltcrete was prone to expansion and 15 crystallization. 16 Now Rockwell might argue that the during or about 17 the same time period" doesn't refer to June '87 but only 18 refers to the later dates. You read the document and you 19 make that interpretation. 20 Now going on to the next page, Paragraph 17 of its 21 guilty plea--and again, this was guilt beyond a reasonable 22 doubt that Rockwell admitted to. Rockwell admitted here that 23 it was aware that pondcrete and saltcrete constituents were 24 leaching and being released from the pondcrete and saltcrete 25 containers onto the 750 and 904 pads and failed to remedy

5075

1 this condition. 2 And in the next paragraph, Paragraph 18, Rockwell 3 admitted that it was also aware that pondcrete and saltcrete 4 constituents were running off the 750 and 904 Pads and failed 5 to remedy this condition as well. 6 So, ladies and gentlemen, as early as June 1987, 7 according to its own plea agreement, Rockwell knew that 8 pondcrete and saltcrete stored on these outside pads were not 9 in fact solid or sludge-like or semi-liquid or leaching and 10 being released onto the pads or running off the pads and that 11 saltcrete in addition was prone to expansion and 12 crystallization. Rockwell admitted these facts beyond a 13 reasonable doubt and you should accept these admissions as 14 true. 15 Now we didn't stop with the evidence of its plea 16 agreement in this case. We demonstrated to you a number of 17 additional specific facts about Rockwell's knowledge that 18 were fully consistent with its plea agreement admissions. 19 And with that, I'm going to go back a little bit to 20 February of 1987. You might recall those inspection logs, 21 Exhibit 171. And in February of 1987, it was the first 22 inspection log where Leif Swenson--you remember, he was one 23 of the pondcrete operators--he noted in his log evidence of 24 leaking from the containers. And in this note he stated that 25 a leaking box was moved to the process area for repackaging.

5076

1 In other words, his note says there was a leaking box 2 discovered on the pad and then removed and brought back for 3 repackaging. 4 Now you might also recall one of the latter 5 witnesses in this trial, Mr. Glen Sjoblom, who was one of the 6 expert witnesses retained by Rockwell who testified before 7 you. And you might recall Mr. Sjoblom's testimony when I 8 asked him some questions that a prudent contractor who notes 9 a leaking container looks inside the box to see what is 10 causing the leaking. We submit to you, ladies and gentlemen, 11 that that is exactly what Rockwell did, and as early as 12 February of '87 it knew that the blocks inside were not in 13 fact solid. 14 And that continues into March of 1987. And going 15 back to Mr. Henry, who was not only monitoring the spray 16 irrigation fields, he was monitoring the runoff off of the 17 pads. And back to his logbook, Exhibit 361, page 65, Mr. 18 Henry noted leaching from the pondcrete on March 17, 1987. 19 And in this note he says that "an analysis of the water by 20 the 750 Pad showed high nitrates, which indicated leaching 21 from the pondcrete." Those are the words that he used. And 22 Mr. Henry and Mr. Blaha explained to you that leaching occurs 23 when the waste form comes into contact with water. 24 Now, with this knowledge, what did Rockwell say 25 about the pondcrete operations in March of 1987? What did it

5077

1 tell the Department of Energy? In its closure plan for the 2 solar operation--solar evaporation ponds, which was dated 3 March 1 of '87, Exhibit 1423, page 46, and it's highlighted 4 here, "Rockwell told DOE that pondcreting was selected since 5 the basic technology had been used and proven to be effective 6 since the plant has experience with the process and since 7 pondcreting meets the requirements of the Nevada Test Site 8 for the solidification of radioactive waste." So Rockwell 9 was here telling the Department of Energy that it had 10 experience with this process, that it was proven to be 11 effective, and that it meets the requirements of the Nevada 12 Test Site. 13 As Chuck Wickland told you--he was one of our 14 earlier witnesses, I think our second witness, and he was the 15 manager of waste operations before he was replaced with Mr. 16 Naimon by Mr. Weston--and Mr. Wickland told you that insolid 17 pondcrete and leaching pondcrete does not meet the Nevada 18 Test Site requirements. In fact, Mr. Wickland explained to 19 you the correspondence that he had several years earlier with 20 the Department of Energy and how he described pondcrete to 21 the Department of Energy-Nevada Test Site at that time. 22 That's Exhibit 190, and it's his May 14, 1985, letter, and 23 here is how Mr. Wickland described pondcrete, as "a cemented 24 monolithic block that was a nearly incompressible waste 25 form." And Mr. Whiteman also testified that he had a

5078

1 conversation with Mr. Dom Sanchini, the president for 2 Rockwell, when Mr. Sanchini said that the pondcrete was like 3 the cement in his driveway. And Mr. Wickland told you that 4 he was not aware of any different description for pondcrete 5 that was told by Rockwell to the Department of Energy through 6 December of 1988 when he left the plant. So that is what 7 Rockwell told DOE about its pondcrete waste form in 1985 and 8 then again in 1987, and it never took back that 9 representation. 10 But by March of '87, as I've shown you, Mr. Henry's 11 logbook demonstrates that Rockwell had knowledge of high 12 nitrates leaching on the pad. The only reason to have high 13 nitrates is the nitrates are coming from the pondcrete 14 itself, because it's spilling, because it's not solid. 15 Going forward a couple of months to May of 1987, 16 which was a very significant month at Rockwell about its 17 pondcrete operations, and with that I move to Norman Fryback. 18 You might recall Mr. Fryback, he was the foreman of the 19 pondcrete operations in 1985, and you might recall that he 20 talked about the testing that he did of the pondcrete with a 21 hammer and a screwdriver, and I think he even used his arm to 22 demonstrate to you how he did the testing for the pondcrete 23 when he was foreman before Ron Teel replaced him. And 24 Fryback described pondcrete to you as "a concrete matrix 25 which forms a concrete monolith." He testified about his

5079

1 testing of it and he said that if the screwdriver penetrated, 2 he would look at it to see if there was liquid in it, and if 3 it did that, it was not acceptable. 4 Fryback also testified about problems with a 5 clogged star valve, which would cause reduction in the amount 6 of cement. He testified that he told Ed Naimon, the manager 7 of waste operations at the time because he was replacing Mr. 8 Wickland, and Fryback also told you that he told Mr. Weston 9 of these problems and he expected them to take care of it 10 after he was no longer the foreman. 11 He also explained to you that something called 12 "capping," where you put cement on the top and the pondcrete 13 is hard on top but not hard in the middle, is not something 14 that was allowed under him because it would give a false 15 impression that the block was solid when it was not. 16 Mr. Fryback also testified that a few weeks after 17 Teel--and you remember Ron Teel, he was our last witness--a 18 few weeks after Ron Teel replaced him as foreman--and that 19 was in late 1986--Teel told Fryback that Teel was reducing 20 the amount of cement to some 150 to 200 pounds per block, 21 from 600 to some 150 to 200 pounds per block. Fryback also 22 testified that before he was replaced by Teel Rockwell 23 management was pressuring him to make more pondcrete, and 24 Fryback told Hewitt and Naimon that the pressure would result 25 in boxes that were not the right quality of monoliths that

5080

1 Fryback was shipping to Nevada at the time. 2 Now, although Fryback was no longer a foreman in 3 '87, he continued to keep a notebook and he even did some 4 inspections of the 750 Pad. He said that one-third of the 5 boxes he inspected were bulging, and it was his opinion that 6 the bulging was because they were not completely solidified. 7 Now, one of Mr. Fryback's inspections is 8 particularly enlightening. It's Exhibit 5. This is Mr. 9 Fryback's May 1, 1987, inspection, where he says that "many 10 boxes in the stack of pondcrete are badly distorted due to 11 rain, weather damage, and they appear to have berms, plastic, 12 not fully set when stacked," and then he gives an example. 13 So Fryback is noting in his own book in May of 1987 that at 14 least one box on the pad was not fully set when stacked. Not 15 fully set means not solid the way it was supposed to be. 16 Going on to his next critical entry for this date, 17 Fryback writes about Stack 56. There is a container that has 18 a hole in it clear through the plastic, and then it says, 19 "About four inches or nine inches," I'm not sure, "into the 20 cement some solidified"--he says that should have been 21 "solidified" instead of "solified"--"material has spilled out 22 of the container onto the pads." That's spill of pondcrete 23 onto the pads in May of 1987, consistent with the June date 24 in the plea agreement. 25 Now the next entry for this same date, you see in

5081

1 this entry--that's not the right one, that's not the right 2 one. 3 (Pause.) 4 MS. VULLO: This is an entry that Mr. Fryback discussed 5 with you and then we came back to it during Ron Teel's 6 testimony, the last witness. And in this entry Mr. Fryback 7 says, "Building 750 Pad area," and he goes on and talks about 8 some missing labels, and then he says, "Stack No. 15, south 9 side, no has labels," and then he underlines "Southeast 10 corner has leaker, top two." And Fryback told you that in 11 the original log, which he showed you, he underlined that in 12 red, and that was the reference to "leakers," and he told you 13 that he wrote a note about this to Hewitt and Teel. And he 14 told you that that note has since disappeared. But it really 15 doesn't matter whether the note was here or not because 16 Fryback told you that he wrote it and his diary indicates a 17 May 1, 1987, inspection with "Stack 15, southeast corner, 18 leaker, top two," and that he told Ron Teel, who was the 19 foreman at the time, about that. 20 Now you heard Ron Teel's testimony about this 21 reference to the southeast corner of Stack 15, and there was 22 a one-page exhibit, 376A, that I'd like you to look at in 23 full. Now as Mr. Teel testified, and there's also some 24 testimony from Howard Long and Jolaine Fenner, the pondcrete 25 operators kept a map of the boxes that were stored on the

5082

1 pad. Each box had a number assigned to it, as did each 2 stack, and the boxes were stacked three high, as is shown 3 here. And this document on the top right is for Stack 15, 4 same stack in Fryback's notebook. And Teel testified that 5 the handwriting on the bottom right corner--you see the "W" 6 and the "E", "southeast corner"--Teel's handwriting, which 7 says, "Repack in coffins, end of aisle." Those are the same 8 boxes that Fryback noted had "leakers, top two." And Teel 9 testified and other witnesses testified that "coffins" were 10 either metal or wooden crates into which sewer sludge was 11 placed. "Coffins" were not the pondcrete containers, the 12 tri-wall containers. 13 Now Fryback testified that these sewer sludge 14 coffins were stored in wooden boxes on the 750 Pad. And you 15 might remember the photograph of the 750 Pad showing not only 16 the pondcrete stored there but also some sewer sludge stored 17 at the end of the aisle in these wooden coffins. That's P17. 18 And this photograph, it's been stipulated, was taken on April 19 24, 1987, just a week before Fryback's note and just a week 20 before Teel repacked them. And you can see the pondcrete in 21 the tri-walls and you can see some coffins at the end of the 22 aisle, those wooden crates. 23 Now, why was Teel repackaging these leaking 24 pondcrete boxes into containers used for sewer sludge? I 25 submit to you that the reason is that the Colorado Department

5083

1 of Health was about to come for an inspection of the 2 pondcrete, Teel knew it, and he knew that if he put it in the 3 sewer sludge boxes they wouldn't see that there were leaking 4 pondcrete boxes on that pad. 5 And in fact Exhibit 311 is an April 23, 1987, 6 letter from Mr. Wickland to, among others, Ron Teel. Ron 7 Teel's name is in the distribution, as he told you. On April 8 23 they are informed that the Colorado Department of Health 9 is about to come for an inspection. That's April 23, the 10 photograph is April 24, the Fryback entry is May 1, and the 11 Teel note about repacking those same boxes shows they were 12 put into sewer sludge so the regulators couldn't find it. 13 Now back to Fryback's other notations in his 14 notebook. It's not just May 1 that he noted problems. And 15 the Colorado Department of Health inspectors were coming 16 later on in that month. He also noted on May 14, 1987, as we 17 read before, that "there are some boxes that were not fully 18 set and some solidified material having spilled out on the 19 pads." He made some references in there about the rain and 20 the weather, and you've heard a lot about the weather during 21 this trial. And Rockwell has tried to convince you and the 22 witnesses that the weather damage caused deterioration of the 23 waste form itself. But if you look at Fryback's May 14 note, 24 which is page 6 of Exhibit 5, when he talks about weather, he 25 says, "Many boxes in the stack of pondcrete are badly

5084

1 distorted." The boxes are distorted due to the weather 2 damage, "and they appear to have been plastic, not fully set 3 when stacked when put on the pads before weather hit them." 4 Fryback knew the difference between weather affecting the 5 boxes and the waste form itself that was not affected by the 6 weather but was insolid when it was brought out there on the 7 pads. 8 Now Fryback not only put this in his notebook, he 9 also did those weekly inspections, the RCRA inspections, on 10 the pads. The ones that I told you Leif Swenson did, Fryback 11 did some as well in May of '87, and for the same date, May 1 12 of 1987, which is Exhibit 171, he checked off the Box 6 for 13 leaking from the container. And Hewitt, who was Fryback's 14 boss--and Fryback told you he shared an office with Hewitt-- 15 was also on this inspection for May 1, '87. Hewitt also got 16 that memo that the Colorado Department of Health was coming 17 later in the month. 18 And Hewitt continued on the next week inspection, 19 May 7 of 1987, and he noted leaking in that inspection as 20 well. It's 171. We don't need the exhibit. He noted on May 21 7, '87, a note to repack the box. 22 And then on May 14, 1987, Fryback again noted 23 leaking in his inspection sheet, same date as the references 24 in his notebook to spills on the pads and boxes not being 25 fully set. Fryback told you that he told Teel and Hewitt

5085

1 about this. 2 And then the inspection log for May 21, 1987, the 3 same week that the CDH inspectors were there, there was no 4 indication of leaking. What happened to the leaking boxes of 5 the prior three weeks that were not shown to the CDH 6 inspectors? And you'll recall Mike Sattler came here from 7 the Colorado Department of Health. He's not connected to the 8 Department of Energy. He came here and said he didn't see 9 this when he came for an inspection and Rockwell didn't tell 10 him about any problems. He thought it was a concrete waste 11 form. And Teel, too, admitted he didn't say anything to the 12 Colorado Department of Health when they came for that 13 inspection. And Teel also said that he couldn't deny that he 14 moved those boxes before the inspection. 15 Now, is it just a coincidence that this is the same 16 month, May of '87, when you see leaking in the inspection 17 logs, leaking in Fryback's notebook? Is it a coincidence 18 that that's the same month when the Colorado Department of 19 Health was coming to inspect? Was it a surprise to you that 20 Mike Sattler testified he didn't know of any problems? And 21 is it also a coincidence that in December of 1987, when DOE- 22 Nevada came and Teel took over the inspections for that 23 month--remember Teel told you, "Well, maybe Swenson was on 24 vacation," until he saw that it was a full month that he did 25 the inspections? Swenson wasn't on vacation that month.

5086

1 Teel took it over and he didn't note any leaking on the 2 inspection sheets and he didn't tell the Nevada people that 3 there were problems on the pads, about which he knew. And 4 Mr. Brich--the defense called Mr. Brich from Nevada and he 5 said he wasn't informed of it, and Teel confirmed that fact 6 when I asked him that question. 7 Now, Fryback was not the only one who had an entry 8 in his notebook for May of 1987. Teel was not the only one 9 who noted that leaking boxes should be repacked or 10 overpacked. You might recall Ed Naimon. Ed Naimon was the 11 manager of waste operations, he was Bill Weston's buddy, he 12 replaced Chuck Wickland, and he came in here and he testified 13 about a different entry in his notebook for May 11, 1987. 14 Same month, before CDH comes to visit. Exhibit 341. And in 15 this note, "5-11-87, meeting with D'Ann"--that's Bretzke-- 16 "and Beerly and Garvin Hewitt"--and he testified three 17 Rockwell employees. They have a meeting. It says, "30 boxes 18 need overpacking. Overpack, use plywood for now," and then 19 it says something about "proposed for tri-wall overpack." So 20 Naimon is saying he has 30 boxes need overpacking and he 21 mentions plywood and he mentions tri-wall. 22 And you heard what "overpacking" means, you heard 23 Mr. Sjoblom say "overpacking" means you take a waste form in 24 one container, you put it in another container, and two 25 things are required. The container into which you put it has

5087

1 to be at least as big as the first one and should be better 2 than the first one. So what is Naimon saying here? He's 3 taking the tri-wall pondcrete in the tri-wall and putting it 4 into the bigger and stronger plywood boxes. 5 Now, to recall what Mr. Naimon's testimony was 6 about this note. He claimed it had to do with sewer sludge. 7 He claimed that sewer sludge, which is admittedly less solid 8 than pondcrete and was in these plywood on the pads, he said 9 he was taking the sewer sludge, putting it into tri-wall to 10 put it back into plywood. It makes no sense. And he was 11 trying to give an excuse for you for what they were really 12 doing, which was taking pondcrete from the tri-walls, putting 13 it into the plywood, and he got confused. Sewer sludge was 14 the coffins on that pad. And that was the truth that he 15 didn't tell you. He was talking about the same thing in his 16 note that Teel was doing based on Fryback's note, based upon 17 Fryback's note to Hewitt and Teel about those "leakers, top 18 two" on that pad. And Hewitt is in this meeting with Naimon. 19 Now, that's not all for May of 1987. Back to Mr. 20 Henry's monitoring of the runoff, Exhibit 1163. This is an 21 analytical report for May 5, 1987, a couple of days after 22 Fryback notes these leaking boxes. And there's a pondcrete 23 analysis showing--you see gross alpha, gross beta. Those are 24 elevated levels. Those numbers 132, 148, 173, 148. Those 25 are elevated levels, and that's what Mr. Henry told you in

5088

1 his testimony. And he also told you about his other 2 monitoring. There was an April '87 handwritten note that was 3 attached to a September '87 Blaha document, which I'll get to 4 later. So Mr. Henry notes, very consistent with Fryback's 5 note, there's elevated levels because there's leaking of this 6 pondcrete and it's going into the runoff on that pad. 7 Now there's another item for May of 1987, Mr. 8 Swenson's April 3, 1990, memo, where he gives the history of 9 pondcrete, Exhibit 172. This memo, Mr. Swenson refers to May 10 of 1987. It starts off by saying, "In December of 1986"--and 11 you can read the whole document, there's a chronology there. 12 Starts off with '86, where Teel takes over for Fryback, and 13 then Swenson writes, "Problems first appeared in May, when 14 operators noticed the blocks were not curing properly. Waste 15 engineering sampled effluent and reported that possible 16 causes were changing sludge density or pH. At this time, 17 operators were told to sprinkle cement on top and down the 18 sides of the boxes to attempt to solidify the existing 19 boxes." Remember the testimony, the testimony you put cement 20 on top and on the sides it appears hard here, not in the 21 middle. So in other words, what is Swenson saying in April 22 of '90? He's saying additional cement was added to bad boxes 23 and the middle would not be solid. Fryback explained that 24 was not allowed when he was foreman. 25 Now, you might recall that Swenson claimed that

5089

1 some of the dates in his memo were wrong, but even if you 2 believe that correction, he never said that the reference to 3 May '87 was wrong. He was talking about the later reference 4 to August '87, when he claimed that the rainstorm was a 5 different rainstorm--and I'll get to that later--but he never 6 said that this reference of pondcrete not curing properly was 7 wrong. 8 Now, with all this knowledge, leaking boxes, spills 9 on the pad, repacking into coffins, Swenson's note about not 10 curing properly, what does Rockwell tell the Department of 11 Energy in May of 1987 about its pondcrete operations? Ed 12 Naimon again, Ed Naimon who knows all this, in his waste 13 management report to Mr. Whiteman, Exhibit 1299, Naimon says 14 --that's May of '87, waste management, and on pondcrete he 15 says, "Production of pondcrete waste boxes continues to 16 exceed the established goals. It is expected at the initial 17 storage pad in the old Building 750 parking lot"--that's the 18 750 Pad--"will be full in September '87." He says nothing 19 here or elsewhere about the poor condition of the pondcrete 20 on the 750 Pad that he knew about in May of '87. And as he 21 admitted, saying that it exceeds the goals was a credit to 22 his organization, and in fact Rockwell benefitted from that 23 with a nice award fee for the next award fee period, which 24 was April 1, '87, through September 30, 1987, and Rockwell 25 got another $4 million for that period.

5090

1 Now, certainly, due to the knowledge that Rockwell 2 had by this time, even if you stop at May--you don't even 3 have to go through September, but there's a lot in September 4 --this award fee period, Rockwell was not entitled to a cent. 5 That's what Romatowski said, that's what Whiteman said, 6 that's what Twining said. 7 Now, there were other false statements in May of 8 '87, and the next one was a false statement by Dom Sanchini 9 himself with Weston and Naimon copied on it. That's Exhibit 10 567. 11 It's June 4, 1987. You might recall the testimony 12 about deregulation or delisting of the pondcrete, which had 13 been noted to be a mixed waste, and to try to ship it to 14 Nevada, you would try to get it delisted as a mixed waste, 15 and in order to do that, Rockwell made some 16 misrepresentations about the nature of the waste form. And 17 this is the first one that it made, and there were more 18 later. 19 And in this one, Mr. Sanchini, himself, he drafts a 20 letter, or someone drafts it for his signature. But he 21 drafts a letter for Mr. Whiteman to send to the Colorado 22 Department of Health. And in that letter, among other 23 things, he says, that the inability of the constituents to 24 migrate from the stable concrete matrix. He calls the 25 pondcrete a stable concrete matrix when it was not, and he

5091

1 said that they're unable to migrate from that matrix when 2 they were actually migrating from that, as Mr. Henry noted in 3 his runoff data. 4 So that's what Sanchini is telling Mr. Whiteman, 5 and he's telling Mr. Whiteman to tell that to the Colorado 6 Department of Health, Mr. Sattler of the Colorado Department 7 of Health. Actually, this letter was going to go to his 8 boss. And Weston and Naimon knew this. They were copied on 9 the letter, and they never corrected it. 10 Now, by this time, of course, this is June 4 of 11 '87, CDH came for the inspection, and Mike Sattler told you 12 he believed, in fact, it was a stable concrete matrix because 13 he had no knowledge of the leaching, he had no knowledge of 14 the leaking, and he certainly had no knowledge of the 15 restacking done by Teel. 16 But Rockwell had that knowledge. They had it based 17 on Fryback's notebook, based on the RCRA weekly inspections 18 for that entire month, based upon Fryback and Swenson's 19 reporting the information to Hewitt and Teel and based upon 20 Teel's own knowledge of what he was doing about this problem. 21 That is false statement by Rockwell's top management. 22 Now, Rockwell might want to say to you that this 23 deregulation statement really had only to do with the 24 hazardous nature of the constituents and not the waste form 25 itself or its solidity. But in that regard, look at a

5092

1 Rockwell internal letter on this subject back to Gary Potter, 2 April 28, 1987, right about this time, Exhibit 249. 3 And in this memo that Potter writes where he talks 4 about the deregulation petition, how does he explain 5 Rockwell's argument in the second paragraph. He says, "Our 6 argument is that the material and its contained constituents 7 do not pose a threat to the environment because of the form 8 that it's in, i.e., solidified concrete blocks." 9 The delisting was precisely because of a 10 representation that the form was a stable concrete matrix. 11 That's what Potter understood. That's what they falsely told 12 DOE and asked DOE to tell the Colorado Department of Health. 13 That's May and June of 1987; knowledge of leaking and 14 leaching, false statements to the Department of Energy. 15 Turning to July of '87, Rockwell's knowledge of 16 leaking pondcrete on the 750 Pad continues through July of 17 '87. Swenson goes back to doing his RCRA inspection. He 18 notes, and you can look at the whole Exhibit 171, he notes 19 leaking from the containers in the weeks of July 13, July 20, 20 July 27. That's evidence of leaking from the pondcrete on 21 the pad where it was being stored. 22 And on the point that this was evidence of leaking 23 from the containers, meaning leaking from the pondcrete, 24 recall when Mr. Williams showed Swenson and showed Fryback a 25 photograph that had some water stain on it. And it was a

5093

1 photograph that Rockwell provided to DOE in February of 1988. 2 And recall that Fryback said, and Swenson said the same 3 thing, "That's a damaged box. That's not leaking." A 4 damaged box is a separate items on here. Here they note 5 leaking. That's not the box. That's the container. That's 6 the pondcrete. 7 And again, according to their own expert, Mr. 8 Sjoblom, when you see this leaking, you look inside, and you 9 see what's inside. And they saw it, and it was insolid 10 pondcrete. Yet in July of '87, Rockwell still makes false 11 statements to the Department of Energy about pondcrete. 12 Next one is Exhibit C060. This is its 13 implementation plan for the month. It's signed by Weston, 14 it's signed by Campbell, it's signed by Meyers, all direct 15 reports to Mr. Sanchini. And in this document Rockwell says, 16 "To date, no confirmed leaching of hazardous constituents out 17 of the pondcrete has been identified." 18 Recall Mr. Henry's testimony. When I showed him 19 this, he said, "That's not accurate based upon what I knew at 20 the time." And then Ms. Benson tried again on cross- 21 examination, said, "Did you say that was accurate?" And he 22 said, "No, I said that was inaccurate," and admitted false 23 statement based upon what Rockwell knew at that time. 24 Turning forward to August of '87, back to Mr. 25 Swenson's memo, which discusses August, '87, Exhibit 172.

5094

1 Here, this is what he says; remember, he starts with 2 December, '86, then he talks about May, now he goes to 3 August. Later on he uses 1988. Therefore, this is all 1987 4 in his memo. And this is what he says: "In late August, a 5 severe rainstorm buffeted the tarps and soaked the bottom 6 rows of boxes stored at both pads, approximately 9,000 at 7 750, 2,200 at 904. The pondcrete in the boxes which had 8 collapsed was not hard at all, but, in fact, a gooey mess." 9 Remember that he noted in his inspections leaking in July of 10 '87. 11 Now, Swenson didn't get it all right. He was wrong 12 about the 9,000 and the 2,200 as for the division between the 13 two pads. But all you have to do is look at Naimon's waste 14 management report for September of '87, which I'll get to in 15 a few moments, and in there Naimon said, "In September of 16 '87, there were 12,000 boxes." Swenson is saying 11,200 in 17 August. That's correct for the 750 Pad, not for the two 18 pads. But that's correct. He was talking about August of 19 1987. He tried to say before you in this trial that he made 20 a mistake, that that was really not August, '87. He was 21 talking about the rainstorm some seven months later in May of 22 '88, and the reason he was saying that was because he knew 23 that that was the first time that DOE found out about a 24 spill. And he tried to suggest, I suppose, that it only 25 rains in May in Colorado, but you know better than that.

5095

1 Now, there are other reasons why Swenson's memo 2 were correct and not what he tried to take back from that 3 memo. That's how he testified before the Grand Jury. That's 4 what he told Harold Bodley, Rockwell's investigator, when he 5 interviewed him in September of 1991. And you heard from Mr. 6 Bodley's notes, and you heard from his handwritten--his 7 handwritten notes and his typed notes that Swenson told him 8 in September of 1991 the exact same thing that was written in 9 his memo. In fact, Bodley said, yes, what he told me is 10 consistent with this document. 11 He also said to Bodley that upper management knew, 12 both before and after the 904 Pad spill, both before and 13 after, that the pondcrete crew was producing bad pondcrete 14 boxes, those that failed and ones that were a gooey mess, the 15 same phrase as in his memo. 16 And again, it doesn't only rain in May in Colorado. 17 In fact, you might recall when I showed Mr. Swenson his 18 inspection sheets for July, '87, and for June, '87, he tried 19 to get around that. He said leaking by saying, well, there 20 was a rainstorm. Was it the same rainstorm as in August of 21 '87? Was it a different one. In August of '87 he knew that 22 the pondcrete was not curing, he knew it was leaking, he knew 23 it was a gooey mess. That's what he said back then. 24 And finally, if he really believed that it was 25 August of '87, why does the memo continue? I'm sorry, if he

5096

1 really believed it was May of 1988 when he was talking about 2 the rainstorm, why does the memo continue after that to 3 January, '88, and then May of '88, because he did mean August 4 of '87 because he knew of the problems, and he knew they 5 weren't reported to the Department of Energy, and he was 6 trying to take that back in this trial. 7 Now, with all of this, what did Rockwell tell the 8 Department of Energy in this month, in this very month, of 9 August of '87? The same thing that Rockwell told the 10 Department of Energy before. The first document is Exhibit 11 2365. 12 It's a letter from Campbell to Whiteman regarding 13 an environmental survey, finding too, this is August 19, 14 1987, Rockwell says, "The pondcrete and saltcrete are stored 15 in stable form as concrete blocks," and he says "They're 16 meeting all of the RCRA storage requirements." 17 And we know that's not so by the plea agreement 18 itself and by Weston's testimony that leaking and leaching 19 and insolid does not meet the requirements of RCRA. 20 Rockwell repeats this on the same date, Exhibit 14, 21 and this is George Campbell to Earl Whiteman of DOE, with 22 copies to Weston, Bader, Meyers, Potter and others, and it's 23 signed by Meyers, Campbell and Weston, all people very much 24 involved in these problems. 25 And here Rockwell says about pondcrete and other

5097

1 waste management activities, "No response action necessary. 2 Conducted in full compliance with the regulations. No 3 leaching of hazardous constituents from pondcrete has been 4 identified." Here it doesn't even say no confirmed leaching; 5 they just say no leaching at all. That's inconsistent with 6 Henry's data. That's inconsistent with the knowledge of the 7 leaking and it coming off of the pads and the spills. 8 Now, elsewhere in this document, Rockwell's counsel 9 might point out to you that there are some statements about 10 containers being susceptible to damage and/or deterioration 11 and about a potential for release of constituents into the 12 environment; a potential. But here they say as a matter of 13 fact, there was no leaching, and they say nothing about the 14 waste form problems anywhere in this document. That's August 15 of '87. 16 The next month is probably the biggest month at 17 Rockwell for knowledge of pondcrete problems. During this 18 month, Rockwell continued to learn about problems with the 19 solidity of the pondcrete and the effects of that insolidity 20 on the pad conditions. And at about this time, they're about 21 to open a new pad, the 904 Pad. 22 Production continues, and Rockwell continues to pat 23 itself on the back on how it's meeting the goals of the 24 compliance agreement, and it continues to get award fees for 25 superior performance, or supposed superior performance in

5098

1 that area. 2 But what Rockwell management did not tell DOE is 3 that in September of '87, it was learning of more spills, of 4 leaching, and about the efforts to try to fix the problem by 5 adding more cement to the boxes again so they'd be hard on 6 top, but not in the middle, and not, therefore, subject to 7 discovery. 8 And the evidence that Rockwell was discussing these 9 issues internally goes all the way up to Mr. Sanchini 10 himself. 11 Exhibit 12 starts with September 9, 1987. Wayne 12 Meyers writes this handwritten note to George Campbell, at 13 this time a direct report to Mr. Sanchini, and he references 14 Sanchini in the note. And Gary Potter also testified there's 15 a note on the left of it in Gary Potter's handwriting 16 referencing a September 14, '98, HS&E meeting. That's 17 Potter's group. 18 And you heard Ed Naimon say he knew this 19 information, Bill Weston knew it, and Dom Sanchini knew it. 20 And what's the information in here that's most critical? 21 Meyers writes, "He," referring to Dom Sanchini, "is looking 22 for ideas on alternate approaches, e.g., mix more concrete to 23 really make a solid block." 24 Now, you don't need to mix more concrete to really 25 make a solid block if it's already solid. This is a

5099

1 reference to the waste form itself that it was not solid, and 2 the very top of Rockwell management knew it, and DOE did not. 3 Now, we also called Exhibit 2400--2400A. Laura 4 Johnson, who was the person who kept Mr. Sanchini's calendar. 5 And on September 9, '87, she had a reference. At the top is 6 "RCRA." That's the RCRA meeting that DOE attends. Later on, 7 9:15, 9:30, it says, "Ferra." Then it says, "GWM." Those 8 are Meyers's initials; CPB, Bader, Naimon and Bretzke. 9 That's a separate meeting after the morning RCRA meeting when 10 they were discussing what to do about this problem, by mixing 11 more concrete to really make a solid block. 12 Now, you heard Ms. Johnson say that those lines 13 through it might have meant that this was a canceled meeting, 14 and I'm sure Rockwell is going to argue this meeting never 15 occurred. But the best evidence that the lines through it 16 does not mean a canceled meeting in the rest of Ms. Johnson's 17 calendars because there are numerous places in that calendar 18 where lines through it have no names under it. And if there 19 are no names under it, it's not a canceled meeting. 20 Look at the next page, 12:00 to 12:30, there are 21 lines through it. That's not a canceled meeting. That's 22 just lines through the calendar. And Ms. Johnson explained 23 that there were times when Mr. Sanchini wanted his timeouts, 24 meaning time alone. 25 And I submit to you, ladies and gentlemen, that

5100

1 what happened here was that he was having a timeout, and they 2 came in to talk to him, and that's why Ms. Johnson referenced 3 it there. It wasn't a canceled meeting because you don't 4 cancel meetings that are not written in the first place in 5 other parts of the calendar. 6 And look through the rest of the calendar. You'll 7 see there are places where there are lines through meetings, 8 but you won't see this in places that are just where there is 9 writing. You will see this in places where there is not 10 writing. That's a timeout, and he was interrupted by these 11 people because they had a big problem to talk to him about. 12 Now, Rockwell might argue instead that this was a 13 discussion that occurred at the RCRA meeting that morning 14 when DOE was present. And I believe Mr. Williams told you 15 several times in his opening statement that there was going 16 to be evidence, there was going to be testimony, that 17 witnesses were going to tell you that it was discussed there. 18 There's not a single witness that testified that this 19 discussion occurred in that morning meeting. 20 The only witness who talked about RCRA meetings was 21 Candy Jierree, and you recall Candy Jierree's testimony. 22 They called her. And you recall, in fact, she had some very 23 strong opinions about storing the pondcrete outdoors, but she 24 was very firm in her conviction. I showed her that note, and 25 she said she didn't know of that. She didn't know that there

5101

1 were problems with the waste form, and she testified 2 emphatically to that effect, and that's because she didn't 3 know about solidity problems until May 23, 1988. 4 And you recall what happened on or about that day 5 when she found out about the spill, when she went to Ed 6 Naimon and said, "You have to do a UOR." And he fought with 7 her on that. And two hours later Bill Weston shows up in her 8 office, and she says, "No, you have to do a UOR," and he 9 tries to convince her otherwise. 10 Ms. Jierree didn't hear this at any RCRA meeting, 11 and they didn't call a single witness. They didn't call Mr. 12 Meyers, they didn't call Mr. Campbell, they didn't call--they 13 didn't ask Mr. Potter whether any of this was discussed with 14 the Department of Energy. In fact, the witnesses all said, 15 no, we didn't tell the Department of Energy about insolid 16 pondcrete before May 23, '88. Mr. Weston, one of the earlier 17 witnesses said, no, I didn't tell DOE because I didn't know 18 either. 19 He did know. Look at the documents. He did know. 20 And listen to the operator's testimony, and listen to the 21 other people's testimony, the foreman. They told everybody 22 right up the chain. They reported to their management. They 23 kept the books. Their management saw it. DOE didn't. 24 Now, in fact, there's another note that shows this, 25 and that's an ED Naimon note two days later, September 11,

5102

1 1987, two days after the September 9 note. That's Exhibit 2 342. 3 Here's Ed Naimon writing directly to Dom Sanchini 4 two days afterwards. This note wasn't shown to DOE. This is 5 a separate conversation. And in it, Naimon recommends 6 continued use of the tri-wall containers. He doesn't mention 7 any problems with the weather, but in any event he says, 8 "Continued use of the tri-wall containers." And he 9 specifically mentions in this note, he says, "I think cost 10 wise we should continue as we're doing for the 2--for Pond 11 207A." They want to save money and continue to use tri- 12 walls. 13 Later on this note, he says, "HS&E concerns, 14 leaching, et cetera, would very likely negate this option." 15 The option he's talking about there is not using containers 16 at all. What is he saying? HS&E, that's Gary Potter, 17 concerns about leaching, the concerns that led to a meeting 18 that Potter wrote about on the September 9 note that actually 19 occurred several days later. Leaching means pondcrete and 20 water are coming together off the pad. Why? Because it's 21 leaking, it's spilling on the pads. 22 So Sanchini knows this at least as of September 11, 23 '87, and he chooses to continue with the tri-wall containers. 24 Doesn't choose plywood, doesn't choose anything else. 25 Now, in the same period, actually three days later,

p. 5103

1 there's evidence in the record of a spill of pondcrete. 2 There's specific evidence of that. We think there's other 3 evidence, but there's specific evidence of a spill of 4 pondcrete on September 14, 1987, while they're having all 5 these meetings about the solidity problems, and that's why 6 there's a spill. 7 2475. You might recall Mr. Wayne Stetson, who came 8 in here, testified for a very brief period of time about his 9 note, said he couldn't recall anything except what was stated 10 in the note. The note says it all. "Old 750 parking lot, 11 liquid from box." That's on the pad, that's liquid. And 12 then later down he says, "They took over the decon." And you 13 heard what witnesses said decon means, decontamination. 14 You've got to clean up the contamination. That's not 15 rainwater. That's pondcrete having to be deconned because it 16 spilled on the pad on September 14, 1987. 17 And who else knew about this? Frank Blaha. 18 There's a note about him as well, Exhibit 930. There's 19 Blaha's September 22, 1987, note. He testified about this, 20 "750 parking lot, only checked after accidents last week." 21 September 14th, maybe? And found--and there was a dispute as 22 to whether that was greater than two, greater than 20, 72. 23 It doesn't matter. He says after that, "Deconned with wet 24 Chem-wipes." That's cleaning up the spill right on the pad. 25 750 parking lot, eight in a building, it's on the pad.

5104

1 And, in fact, when I showed Mr. Blaha this note, he 2 said, oh, yes, I knew about the spill. And when I showed him 3 a letter that he wrote a year later for Mr. McKinley's 4 signature that said there have only been spills on the 904 5 Pad, he said, whoops, it should have said 752 because, yes, 6 we did know about spills. He admitted that it was a false 7 statement. He knew of this spill, so did the others. They 8 were all talking about it internally in September of 1987. 9 There's other places on this same document. Up top 10 Blaha writes, "Forklifts often smeared up to"--and there's 11 another radiological reading--"often have spills." That's 12 when they take the pondcrete from the building, bring them on 13 the pad, or maybe bring them back, they're having spills not 14 reported to the Department of Energy. 15 There were other witnesses who talked about spills 16 and other leaking problems in the fall of '87. Probably one 17 of the most credible of that was Jolaine Fenner. You might 18 recall she came in here, and she talked about her working on 19 the pondcrete operations under Ron Teel. And remember, Dan 20 Tallman takes over for Ron Teel in January of '88. So when 21 people are talking about what happened under Teel, that's 22 before May 23, 1988, and that's what Fenner said. 23 Teel was her foreman. She had a spill moving from 24 Building 788, maybe with this forklift, to the 750 Pad. She 25 said she was at the 750 Pad at the time, and it was three

5105

1 quarters full. I submit to you that means it was before the 2 904 Pad was constructed in September or October of '87. 3 That's when Fenner has a spill, and she said, the boxes fell, 4 and one broke open onto the pad. She said the boxes had just 5 been manufactured, not exposed to the weather. She said it 6 was mushy, the substance inside. And then when asked on 7 cross-examination by Rockwell's counsel, "Was it leaking?" 8 She said, "It was beyond leaking, it was spilling," more than 9 one pound, more than one pint. That's a lot. That's a lot 10 of hazardous mixed waste on the pad. 11 Now, Fenner also told you that before this spill 12 she was part of a discussion about finishing out the clean- 13 out of the pond, and that if you finished it out sooner, you 14 wouldn't be able to make the concrete set up as well. That's 15 under Teel, trying to get it without setting up as well, to 16 finish it, to meet the goals, to get paid more money. 17 Now, she also testified, again all under Teel, that 18 there were leaners on the pad due to soft and mushy boxes, 19 that the boxes were brought back from the 750 Pad that had 20 problems into the 788 building. And she also explained to 21 you an occurrence that she recalled inside the 788 building 22 with one of these boxes that were brought back from the pad 23 where Teel was present, and that she looked inside. The top 24 was hard, but underneath it was soft. 25 And these boxes, she said, were put into wooden

5106

1 crates, the same sort of crates as that sewer sludge that I 2 talked to you about before. 3 Now, Rockwell's counsel tried to argue that this 4 actually occurred in 1989, what Ms. Fenner was telling you 5 about. But remember what Ms. Fenner said when she was asked 6 that question. She said, "Yeah, but in 1989 I wasn't working 7 on the pads. Yeah, there were these repackaging efforts 8 after the spill, but I wasn't working on the pads then." And 9 remember, she said it was all under Ron Teel. And it was her 10 spill on the pad, it was 1987, Rockwell knew it, didn't tell 11 DOE. 12 So that's in the fall of '87, and around this time, 13 you've got Ron Henry's elevated levels data now circulating. 14 So we talked about September 9, September 11, September 14, 15 Blaha's September 22 note about the 750 Pad spill. And upper 16 management is getting the attention of all this, and that's 17 when Blaha writes his memo, his September 28, 1987, memo. 18 And he writes it after several meetings that Gary Potter is 19 having with his staff, and that starts on September 16. We 20 don't need to see all the documents. On September--you can 21 look at them all. 22 September 16 he starts. There's a note, a weekly 23 highlight note, about a brainstorming meeting attended by 24 Blaha, Potter and others. I submit to you that was the 25 September 14 meeting that Mr. Potter wrote about on the note,

p.5107

1 his copy of the September 9 note. And then this meeting was 2 followed by a weekly highlights report from Potter to 3 Campbell. That I'd like to show you. It's Exhibit 599. 4 September 18, '87, this is after the September 14 5 spill, probably after the Fenner spills and all of that 6 testimony, after the Henry runoff data is being made by 7 Henry. And here Potter says to Mr. Campbell, his boss, the 8 first paragraph, "Runoff from the 750 building parking lot 9 used for storage of pondcrete has occasionally shown slightly 10 elevated alpha and beta counts. This may be coming off of 11 pallets used for pondcrete storage or from the pondcrete 12 itself or from other nationally-occurring isotopes." And 13 then he suggests a solution to do some sampling of more 14 volumes. 15 This is all internal. This is Potter writing to 16 his boss, Campbell. 17 Now, the next document I want to show you is 18 Exhibit 2476, the last page of this exhibit. And you'll have 19 the original in the jury room, so you'll probably be able to 20 read the note better than on the copy. This is a note on 21 that same paragraph that I just referenced you, which 22 Campbell sends up. Potter writes it to Campbell, Campbell 23 copies the same paragraph, sends it up. Chris Bader, another 24 Rockwell top manager, he makes a note on here, and he says, 25 "George," meaning George Campbell, "this isn't a solution.

5108

1 This is an evaluation to determine if we have a problem. My 2 interest is that we need to know ASAP. As you know, we do 3 not have berm. We do not berm the storage area, and the 4 runoff goes down the hill." 5 That's what Chris Bader says to George Campbell. 6 Do they do anything about this afterwards? Yet, this is a 7 September 21, '87, document. On that same day, you can look 8 back in Swenson's inspection log, he notes leaking from the 9 pondcrete. He notes that the next week as well, September 10 28, '87. And after all this, that's when Blaha writes his 11 September 28, 1987, memo with the elevated levels data. And 12 that memo, Exhibit 51. 13 Blaha tells Potter--and recall Blaha said his boss 14 was Setlock, but he went straight to Potter with this memo. 15 "As can be seen, the average of the means for gross alpha and 16 beta are significantly 95 percent and 90 percent confidence 17 level respectively elevated for the period after pondcrete 18 storage began." 19 And you'll see in the attachments, which are Ron 20 Henry's attachments, he compares before pondcrete storage, 21 after pondcrete storage, and after has elevated levels. 22 Now, Blaha, in this same memo, he discusses some 23 suggested actions. He says on the next page that "No samples 24 have been taken since June 18, 1987." You can ask yourself 25 why they didn't take any since then. And then he says,

5109

1 again, "The source may be naturally occurring from pondcrete 2 from contamination and other potential sources." 3 Do they ever check to find out? What did Blaha 4 say? Blaha said, "I didn't do anything after this memo. The 5 only thing I remember is that I had a conversation with Daryl 6 Hornbacher after he had a meeting with Potter in October of 7 '87. But I," Blaha, "I didn't do anything after this. I 8 didn't do any more samples, and I don't think--I don't think 9 or I don't know whether those suggested actions that he made 10 were ever taken." 11 I submit to you the reason they didn't do anything 12 is because they knew the cause, because they knew of the 13 spills, they knew that it was insolid, and they knew that's 14 the reason that this stuff was resulting in elevated levels. 15 Now, I mention Mr. Potter, and Mr. Potter takes 16 this information, and he passes it on up as well. He passes 17 it on to Ed Naimon, and he asks for a meeting. And he 18 attaches--I showed you the last page of that document. It's 19 an October, '87, document. Potter sends that off to Ed 20 Naimon. He asks Naimon for a meeting. He has the meeting on 21 October 13, '87, and you can see that in Potter's diary, 22 Exhibit 675, page 103. 23 October 13, '87, "750 meeting, pondcrete. Ficklin, 24 Naimon, Hornbacher, Hickle, Setlock, Potter talks about it." 25 Down it says, "Ficklin will take care of" something. "Put

5110

1 berm"--or "telling engineering, put berm around new pad west 2 of 904." The new pad is the 904 Pad. 3 Why do you suggest putting a pad--or a berm around 4 the pad? Because you know there's runoff, and they knew that 5 it had elevated levels. They knew it was coming from the 6 pondcrete itself. Nonetheless, they didn't put the berm on 7 it until after the May 23 spill, and there's no evidence that 8 they even told DOE to put a berm on this pad. 9 Now, in this document the October document, Potter 10 doesn't say that the pondcrete should be stored outside. He 11 doesn't say anything about weather conditions. It's because 12 they knew that weather is not going to make something that's 13 already insolid, insolid. It already was insolid, and they 14 knew that weather only had an impact on the boxes. So he 15 doesn't even recommend doing anything other than keeping this 16 stuff out on the pads, maybe putting a berm around the new 17 pad. But I'm not going to say put around this pad because 18 maybe, then, I'm going to admit to DOE that there's a problem 19 here. And they didn't want to do that. That's at least 20 deliberate ignorance and reckless disregard. 21 Now, there's not a single document that has been 22 shows to you that these readings, these elevated level 23 readings, were given to the Department of Energy until after 24 the May 23, 1988, spill. The only evidence presented by 25 Rockwell on this point is the testimony of John Krueger.

5111

1 And you recall Mr. Krueger said that Blaha showed 2 him his September 28 memo, not Mr. Potter's memo, but the 3 September 28 memo. Now, you might recall that Krueger worked 4 for DOE straight from college, and then after about two 5 years, he went into private industry, in fact, Roy F. Weston, 6 Rockwell's subcontractor. And you might recall his testimony 7 about a thesis article that he wrote, which took a very 8 aggressive pro-Rockwell position. 9 And you also heard his testimony about his May 13, 10 1987, note directly to Mr. Sanchini. That's Exhibit 2781. 11 In this note, May 13, '87, Krueger writes directly to 12 Sanchini, "Treat confidentially." And that's in hand, and in 13 the last paragraph on the note, he says it again, "If you 14 require further insight or information, please contact me. 15 This letter is for your information only and should not be 16 referenced. Please treat it confidentially." 17 This is Krueger, who obtained information in 18 confidence from his boss and supposed mentor, John Whitsett. 19 And when Krueger gives the information to Sanchini, he tells 20 Sanchini to keep it confidential. That's how he treated his 21 boss and supposed mentor. He write directly to Sanchini and 22 told Sanchini to keep it confidential. 23 Now, there are other reasons why Krueger's 24 testimony that he received Blaha's memo just doesn't make 25 sense based upon the objective evidence. First, Blaha's memo

5112

1 doesn't have him as a recipient of it. Krueger says, well, 2 yeah, that's right. I was often shown some things. No, I 3 didn't get a copy of it. I saw it. I didn't get a copy of 4 it. 5 But there's not a single piece of paper. Blaha had 6 a big notebook. Is there any reference shown to you in the 7 notebook that he talked to Krueger about this? No. And, in 8 fact, Blaha's own testimony contradicts Krueger. As I 9 mentioned before, he testified he didn't tell anyone from DOE 10 about the elevated levels, and after his September 28 memo 11 all the way up to after the May 23 spill, the only 12 conversation he recalls about this was a conversation he had 13 with Rockwell's Daryl Hornbacher when Hornbacher reported to 14 him about the Gary Potter meeting with Ed Naimon. That's the 15 only thing that Blaha said. He never said, "I talked to 16 Krueger." He never said, "I gave that to Krueger," because 17 he didn't. 18 And there's not a single piece of other evidence 19 that any of these other people, who of the Rockwell people, 20 who had copies of this memo, said anything to DOE about it 21 until after the May 23, 1988, spill. 22 And, in fact, when you think about the testimony of 23 Candy Jierree, about what she found out after the May 23, 24 '88, spill, it proves the point. 25 In September, 1988, there are documents about these

5113

1 elevated levels. No documents between this whole time period 2 to DOE, but September, '88, there are documents about the 3 elevated levels, and the document you should look at is 4 Exhibit 43. 5 This is a letter, September 14, 1988, months after 6 the spill was reported to DOE. It's a letter from Kirk 7 McKinley to Albert Whiteman. Look in the left-hand corner, 8 the initials FJB. Frank J. Blaha drafted this letter, the 9 person that Krueger said gave him the document of the year 10 before. 11 And in the middle paragraph there is reference to 12 the 750 Pad storage, and there is reference to elevated 13 levels. They don't say that the elevated levels were coming 14 from the pondcrete when they knew about it. In fact, it's in 15 this same letter, the first paragraph of this same letter 16 where they tell DOE, "Spills have only occurred to date at 17 the 904 Pad," and it's that same sentence that Blaha said was 18 false because he knew about the 750 Pad spill in 1987. 19 And this is the letter when DOE is told about the 20 elevated level. They are told there are spills on the 904 21 Pad. They are told there's elevated levels from the 22 pondcrete on the 904 Pad, and then they say, whoops, let's 23 give you some data on the 750 Pad. And they don't say there 24 were spills on that pad, and they don't say that the elevated 25 levels on that pad were caused by the pondcrete.

5114

1 And do you think that if Blaha had given this stuff 2 to Krueger the year before, in the second paragraph when they 3 talk about the 750 Pad data, you think maybe he would say, 4 "as I told John Krueger a year ago"? Do you think maybe he 5 would want to protect himself if he actually did give it? He 6 doesn't. He just gives the data. 7 And there's more evidence as to why the first time 8 this data was provided to the DOE was in September, '88, and 9 that's again Candy Jierree's testimony and Candy Jierree's 10 notes from a September, '88, meeting, and that's Exhibit 804. 11 This is a RCRA meeting where they discuss elevated 12 levels. It's September, '88. It's not September, '87. The 13 page that you should look at, I think it's the fifth page, 14 actually has the heading of 750 Pad data, and it's the same 15 data from the year before. And there's a note that Candy 16 Jierree wrote during the meeting that says, "Rick says didn't 17 come from blocks." That's Rick Lawton that she said and 18 Rockwell said at this meeting, no, that's 750 Pad data, the 19 elevated levels. That didn't come from the pondcrete. 20 And Candy Jierree told you, I didn't know about any 21 of this before May 23, '88, and even when they told me about 22 the 750 Pad data, they said it didn't come from the pondcrete 23 blocks themselves. 24 Now, Rockwell's counsel might want you to believe 25 that Candy Jierree--there was some questioning of Candy

5115

1 Jierree--"Did you give all of this data to the Colorado 2 Department of Health," and the data that was given to the 3 Colorado Department of Health was the 904 Pad data. Why was 4 that? Because DOE was being told 904 Pad spills, 904 Pad 5 elevated levels resulting from the spills. 750 Pad, no, no 6 spills, and the data not caused by the pondcrete. That's why 7 they gave the 904 Pad data to the CDH when Rockwell knew from 8 the year earlier and otherwise that there were spills on the 9 750 Pad, and the elevated levels were caused by that. 10 Now, going back to Krueger's testimony for just a 11 moment. Even if you accept Krueger's testimony that Blaha 12 showed him the data in September of '87, remember what 13 Krueger said Blaha told him about that. He said that the 14 reason was housekeeping, that Blaha said it was housekeeping. 15 Krueger admitted to you he didn't know of any spills prior to 16 May 23, '88. In fact, he was gone way before that. But he 17 didn't know of it, and he didn't have any idea that the 18 elevated levels were caused from the pondcrete itself because 19 he didn't know about spills. No one from DOE knew about 20 spills. 21 Now, just one thing on this issue, and then maybe 22 we'll take a morning break. But the connection between 23 spills and elevated levels is very critical here because when 24 you know about spills and you have the elevated levels, you 25 know that the elevated levels are caused by the pondcrete.

5116

1 You know that for sure. You know it definitively. 2 Now, Rockwell certainly knew because it knew about 3 insolid pondcrete, and it knew that that was the cause. When 4 you have spills, you know for sure that it was the cause. 5 And all you have to do is look at the documentation after May 6 23, 1988, when there's elevated levels on the 904 Pad. 7 Rockwell immediately says, coming from the pondcrete itself, 8 and that's what everyone assumes because there's a direct 9 connection between those things. And there's a lot of 10 documents on that where they pass the information up the 11 chain, they know of that connection. And they knew about it 12 back in '87 as well. 13 And there's one more document about how they knew 14 about that connection in '87 as well, and that's a Blaha 15 document. Again, it's Exhibit 247. 16 August 14, 1987, Blaha writes a memo. Potter is 17 copied on it. And in the last paragraph, he's talking about 18 what to do about a new storage pad which becomes the 904 Pad. 19 And he says, "Although only solids will apparently be stored 20 outside, contaminated runoff may occur from moisture 21 contacting our solids." That's the moisture, that's the 22 water coming in contact with the pondcrete. 23 This problem of moisture contacting solids has been 24 documented at the 750 Storage Pad, Unit 25. It has been 25 documented. He knew it. He knew it in '87. He knew that

5117

1 there was a connection between those two things, and they 2 didn't tell DOE. 3 Your Honor, I can continue, or I can-- 4 THE COURT: I think we'll take a break at this point. 5 MS. VULLO: Okay. 6 THE COURT: Members of the jury, we're going to take our 7 15-minute recess, and, of course, I caution you again to keep 8 open minds, remembering there's another side to the case that 9 you haven't heard. And you haven't heard all of the 10 plaintiffs' side, and you haven't heard my instructions. So 11 please withhold any judgment in this matter and don't discuss 12 it during the recess. You're excused now 15 minutes. 13 (10:35 a.m. - Jury excused.) 14 THE COURT: We'll be in recess. 15 (10:35 a.m. - Recess accordingly.) 16 (At 10:51 a.m. on March 29, 1999, with counsel for the 17 parties present, the following proceedings were had:) 18 THE COURT: Please be seated. 19 (10:53 a.m. - Jury present.) 20 THE COURT: Please continue, Ms. Vullo. 21 MS. VULLO: Thank you. 22 Picking up from what I was talking about right 23 before the break where I was explaining the connection 24 between spills and knowledge that elevated levels are caused 25 by pondcrete. And I showed you Blaha's August, '87, note,

5118

1 internal note, that Potter got a copy of. And now I want to 2 talk to you about Gary Potter's testimony before you on this 3 very subject. 4 Now, you might recall that Gary Potter was a 5 recipient of Wayne Meyers' September 9 note, and that he was 6 the HS&E person who had the meeting on September 14, '87, 7 with his staff to talk about one of the alternate methods 8 that Mr. Meyers was referring to in his note, meaning trying 9 to make it a more solid block. 10 And then on the September 11 Ed Naimon note to Dom 11 Sanchini, he referenced "leaching and HS&E concerns," which 12 means leaching connected with insolidity problems, meaning 13 connecting with spills. 14 Now, Potter testified that he doesn't recall that 15 meeting, but he admitted that he had the note, and he 16 admitted that he had the meeting. 17 And as you also recall, there's all this flurry of 18 correspondence in September and early October on the elevated 19 levels. Remember, Henry had the data before, but all of a 20 sudden all of this correspondence is coming to upper 21 management at Rockwell. Why? Because they know of solidity 22 problems, they know of spills, and the connection with the 23 elevated levels is becoming very clear to them. 24 Now, Potter admitted that he presumed that the 25 pondcrete was supposed to be street hard like a cinder block,

5119

1 and he even recalled that on one occasion he touched it and 2 noted that it was soft. 3 But more importantly, recall the many 4 contradictions in Mr. Potter's testimony before you about 5 when specifically he knew of solidity problems with the 6 pondcrete and when he made that connection. I submit to you 7 he made that connection in September of '87 because he was 8 part of this flurry of correspondence, and he was part of 9 these meetings. And, in fact, that's how he testified 10 originally in 1994, and he changed that testimony in this 11 courtroom. 12 And you recall all the lines of Potter's testimony 13 that were read to him as I questioned him about that change 14 in testimony, and you'll recall that in 1994 when he gave his 15 first deposition, he said something to the effect of, "Well, 16 then when I connected the two things together, I didn't know 17 what the questioner had in mind." 18 Ask yourselves, why does it matter for a witness to 19 be truthful what he thinks the questioner had in mind. What 20 was the question? What was the answer? It should be a 21 truthful answer. 22 And, in fact, you might recall that later on, soon 23 after that first deposition, where he connected the two 24 things directly. He connected solidity problems, elevated 25 levels. Pondcrete is not the way it's supposed to be, and

5120

1 that's what the elevated levels are showing us. He said that 2 in '94, and he said that he knew that before he changed jobs. 3 You recall that he said that he changed jobs on May 9 of 4 1988, and you'll recall even here he admitted, "I had no 5 responsibility for pondcrete after that." Well, then he had 6 to have known this connection before May 9 of 1988, before he 7 changed jobs because he had no responsibility for pondcrete 8 after that. And again, I submit to you, he knew it in 9 September, '87. That's what the documentation shows, and 10 that's how he first testified before you. 11 And I ask you to very carefully consider Mr. 12 Potter's change in testimony on this point. And, in fact, it 13 makes sense that Potter was involved in this issue when he 14 was in HS&E because that's what his job was. That's what 15 Naimon says in the September 11 memo to Dom Sanchini; "HS&E 16 has concerns about leaching." 17 Potter has the meeting. Potter knows about Meyers' 18 note about making it a really solid block. He made the 19 connection then, and that's how he testified initially before 20 he figured out what the questioner had in mind. 21 And recall, also, his testimony that very soon 22 after his first deposition, he did this errata sheet after he 23 had a conversation with Rockwell's counsel, and he made some 24 changes. He testified about the changes he made. The one 25 change he didn't make, however, was on the timing. He didn't

p.5121

1 say he didn't know about it. He just says, "Well, there's a 2 connection here that I'm not sure I was making." But he 3 didn't change the testimony that whenever he knew it, it was 4 certainly before he changed jobs on May 9 of 1988. And 5 again, I submit to you, he knew about it earlier because that 6 was how he first testified, and that was the truthful 7 testimony. 8 Now, with all of this knowledge, in the fall of 9 '87, including Mr. Potter's knowledge at that time of the 10 connection between spills, solidity and elevated levels, what 11 does Rockwell tell DOE about pondcrete? 12 Look again at Ed Naimon's waste management report 13 for September of '87. It's Exhibit 1303. He says here, 14 September, '87, "The clean-out of Solar Pond 207A continues 15 on schedule. Over 12,000 boxes of pondcrete waste are now in 16 storage on the two storage pads." 17 This is a document, by the way, I was mentioning 18 before with respect to Swenson's August, '87, note on his 19 memo where he notes 11,200 boxes in August. And here Naimon 20 says in September it's 12,000. That's another reason why 21 Swenson was correcting his note, as opposed to his testimony, 22 that he knew of solidity problems in August of '87. 23 but here, after all of this knowledge, Ed Naimon, 24 who's involved in these discussions, talking to Potter as 25 well, he doesn't say a thing to DOE about those problems. He

5122

1 says, everything's on schedule, we're doing our job, give us 2 more money. And, in fact, you recall his testimony, that 3 that was a credit to his organization when he said things 4 like this, and that resulted in good award fees for Rockwell. 5 And this period, which I talked about before, is 6 the period through September, 1987, and there was a more than 7 four million dollar award fee given to Rockwell for that 8 period while they were hiding all this stuff from the 9 Department of Energy 10 Now, for October of '87, after this, I already 11 mentioned Mr. Potter's memo and the meeting with Naimon and 12 the connection with the elevated levels and the discussions 13 about the berm. 14 You should also look at, once again, Leif Swenson's 15 inspection logs. He notes on October 5 and 12 and 19 and 26, 16 "leaking from the containers." He notes on November 2, 9, 17 16, 23 and 30, "leaking from the containers." 18 And then we get to December, '87. That's where 19 Teel takes over for the month, and that's where Teel doesn't 20 check off that block for leaking from the containers. That's 21 the end of the month when Nevada comes to inspect the site. 22 Teel doesn't check off leaking. He's takes it over. 23 Why is he taking it over from Swenson in December 24 of '87? Teel was the foreman for a long time before that. 25 Why after October and November, Swenson notes leaking, Teel

p.5123

1 takes over, and all of a sudden there's no leaking noted on 2 those forms? It just happens to be when he learns--remember, 3 December 4, 1987, is when Rockwell learns that Nevada is 4 coming. That's the date of the letter that I showed to Teel. 5 They learned they're coming. 6 December 4th, Teel takes over the inspection, 7 doesn't note leaking. Nevada comes at the end of the month. 8 Teel doesn't tell them of any problems. He knows all this. 9 He knows of the prior inspections. He knows of the prior 10 spills. He knows of the conversations. Every operator said, 11 "I told Teel, I told Hewitt." And they all said, "Open 12 communication up to Naimon as well." 13 Now, there are other witnesses as well that 14 testified about pondcrete solidity problems in 1987 during 15 the time when Teel was the foreman. Again, Tallman takes 16 over in January, '88. 17 I've already mentioned Jolaine Fenner, who talks 18 about her spill. We're not sure exactly when it was. Was it 19 the summer of '87? Was it the fall of '87? Sometime in that 20 time period, under Teel, before Tallman takes over. 21 And then there was Mark Juarez. We questioned him, 22 very short testimony. He explained that he had some 23 responsibility for the tarps on the pad, and he explained 24 that in the course of his duties, looking at the tarps, he 25 saw that there was some boxes of pondcrete on the 750 Pad

5124

1 that were not full hardened, that did not solidify well, and 2 he said he told Teel about this; again, all under Teel, 3 before the end of '87. 4 Likewise, Howard Long testified that when Teel took 5 over--because Long was there even under Fryback--when Teel 6 took over, Long noticed a gradual declining hardness of the 7 waste, and he also testified that the inspection process got 8 more lax, that blocks were passing inspection that would not 9 have passed when Fryback was the foreman. And Long said he 10 stated these concerns to Naimon and Weston, but they 11 continued to pressure the operators to maintain a high level 12 of production. 13 Long also told you that he recalled pondcrete on 14 the 750 Pad that needed to be deconned with Chem-wipes. That 15 sounds like that Stetson note of September of '87, or maybe 16 it's another one. He said that once storage on the 750 Pad 17 began, which was sometime earlier in '87, once a week they 18 would vacuum liquids out of the boxes on the pads. 19 How did Long explain how they did that? He said 20 they went in the box, and they made an incision in the 21 plastic liner to take the water out from inside the liner. 22 They had to make the incision to take the water out. That 23 means the water is not coming from the rain. It's inside the 24 plastic liner that they have to cut through to take the water 25 out.

5125

1 And Long said they took lots of gallons out that 2 way. And he said, what did he do afterwards? He tried to 3 tie it up and put it back. Presumably they didn't have the 4 full incision covered, and that's how the stuff spilled out, 5 and that's how the elevated levels were created because the 6 pondcrete's coming out of these plastic liners because 7 they're cutting through them to vacuum liquids out right on 8 the pads. 9 Now, witnesses also testified before you about 10 moving of boxes from the pad to the 788 building. And you 11 heard Chuck Wickland. Again, he was the manager before 12 Naimon took over. He said that was not proper. You're not 13 supposed to move stuff from the permitted area, the 750 Pad, 14 to the 90-day accumulation area, which was the Building 788, 15 without getting Colorado Department of Health approval. They 16 were doing it. Mike Sattler confirmed that he wanted to know 17 about those things because when you do that, there is a risk 18 of the stuff falling out as you're bringing it back to the 19 788 Building. And that's not what storage pursuant to a 20 permit is supposed to be, pursuant to a permit that is 21 obtained because you're making representations that the stuff 22 is solid. 23 Now, Leif Swenson also testified about a spill that 24 he recalled before May 23, '88. So even with all of his 25 testimony that he was trying to change that memo, he

5126

1 testified very clearly about a spill before May 23, '88 that 2 he was involved with on the pad. He was involved in cleaning 3 it up, and he said it was sent back to 788 building. He also 4 said he report that to Teel. Why was that? 1987. He didn't 5 say it was reported to Tallman, but even if it was, he said 6 it was before May 23, 1988, and that was before the 7 government knew about these problems. 8 Now, through '87, Rockwell continues with its false 9 statements about the nature of this waste form. And going 10 back to Chuck Wickland, who while he had been sent off to I 11 think he said WINN site, he was sent off there, but he was 12 still dealing with Nevada on some of the disposal issues with 13 Nevada, and he was also dealing with some DOE order issues. 14 And you might recall his testimony that there was a proposed 15 DOE order regarding packaging for the waste forms, and that 16 he made some comments about that DOE order. 17 First, Exhibit 2580, this is a November 23, 1987 18 letter from Chuck Wickland to Earl Whiteman, he copies it to 19 Bill Weston and he copies it to Ed Naimon, who know what's 20 going on out there, and he responds to a proposed DOE order 21 that would not have allowed tri-wall containers for certain 22 wastes, and this is what Chuck Wickland says, he recommends 23 not packaging into plywood, he talks about the expense that 24 it would cost to go from tri-wall to plywood, the additional 25 expense, that is. And in the last sentence, he says we don't

5127

1 have to do that. Why? This seems unwarranted considering 2 the non-compressible--he earlier said nearly incompressible-- 3 now he says non-compressible, stable nature of these waste 4 forms. 5 In November, '87, were they stable? Were they non- 6 compressible? No. Did Wickland know it? Probably not. But 7 Weston knew it, and Naimon knew it. They got copies of this 8 letter. And as Wickland said, they never came to him as he 9 was sending this correspondence and said, Chuck, you've got 10 it wrong. They never said that. They just let that 11 correspondence flow to DOE. And they had opportunity to do 12 that, because from November, '87 to January, '88, Wickland 13 writes it again, and they had the first one and they had the 14 second one, they never changed it before he wrote the second 15 one. And the second one is Exhibit 2648, same exact 16 statement, this seems unwarranted. Again, don't go to 17 plywood. We don't need to spend that extra money. It's not 18 warranted, because tri-wall is good. Why? Because the waste 19 form inside is solid enough so that you can put it in these 20 cardboard boxes and keep them on the pads. That's what he's 21 saying. Same thing. No one corrects him. More false 22 statements by Rockwell. 23 Now we come to--that's January, '88, and now 24 Tallman takes over as foreman from Teel, and the pondcrete 25 problems not only continue, they get worse. And here are

p.5128

1 some examples. You might recall first of all Candy Jierree's 2 testimony that after she learned of the May 23, 1988 spill, 3 she had a conversation with Bill Weston. I told you about 4 one conversation. She talked about another. She said that 5 Weston told her that they tried to maximize waste and 6 minimize cement in order to save money on the cement. What 7 they were doing was they were putting less cement gradually, 8 and the least amount of cement was being done under Tallman 9 because they were trying to exceed their goals. They were 10 trying to get more money from the government. They were 11 trying to get their contract renewed. And Naimon's own 12 documents confirmed the point, you might recall I questioned 13 Naimon about this, and he agreed, the cement was reduced some 14 from 600 to 200. It was reduced throughout the time and 15 continued to be reduced under Tallman's reign as well. 16 In fact, even Frank Blaha testified that four days 17 after the May 23, '88 spill, he had a meeting with some of 18 these operators. It was reported to him that less cement was 19 being used. Nobody was talked about the weather or 20 freeze/thaw. They were saying less cement was being used; 21 that's why this thing happened. 22 In fact, the discoveries after the May 23 spill 23 confirm that there was less cement and, therefore, even less 24 solid pondcrete after Tallman took over as foreman. Because 25 after the spill, you heard the testimony there were more

p.5129

1 newly made boxes had the greater solidity problems, and there 2 were less problems with the older boxes. And this refutes 3 certainly Rockwell's argument that weather was the problem. 4 In fact, you might recall the photograph, a May 24, 5 1988 photograph. If I find my records, I'll pull it up for 6 you. 255. This is an agreed May 24, 1988 photograph of a 7 pondcrete box that clearly doesn't meet the requirements, as 8 all of the witnesses have said. 9 There's liquid oozing out on the side, and you see 10 the number 80518865, I think it says, and you might recall 11 Howard Long's testimony about that, all you have to do is 12 look back at the log, the inventory log where they talk-- 13 where it lists when pondcrete boxes were manufactured, and 14 that log is 1784. He had the original in his hands when he 15 gave his testimony, and it showed that that box passed 16 inspection on May 14, 1988, just ten days before the 17 photograph was taken, and it looked like that, and stuff was 18 spilling out. 19 Was that from sitting outside ten days in the 20 weather caused that, or was that because it wasn't solid when 21 it was put out there on the pad, just like it was doing 22 before, and just like it was doing throughout Teel's reign, 23 and even worse under Tallman? 24 Now, February of '88, Rockwell continues 25 nonetheless with its false statements, and it's Exhibit 385,

5130

1 and this is another one of those implementation plans that we 2 had in July, '87 and August, '87, similar statements. No 3 confirmed leaching of hazardous constituents. They also talk 4 about the problems with condensation and leaks through the 5 tarps over the pondcrete are recognize and efforts are made 6 to minimize the problems by careful placement of tarps and 7 weekly inspections of the area. Runoff water from the area 8 is sampled when produced in order to verify the water is not 9 leaching out hazardous constituents. To date, no confirmed 10 leaching of hazardous constituents out of the pondcrete has 11 been identified. 12 They're just saying everything is going okay. We 13 may have some problems with condensation coming out of the 14 boxes, but we're very careful about the placement of the 15 tarps and about our weekly inspections, those weekly 16 inspections showing leaking. They don't say that to DOE when 17 they give this plan. And they say no confirmed leaching? 18 Again, the same statement that Henry said was false in July 19 of '87. It's still false now. 20 Now, there's even further evidence of spills in 21 March of '88, and for that, I ask you to look at Exhibit 850. 22 Exhibit 850 is a memo that Blaha--I'm sorry--that Ralph 23 Hawes, who is now deceased, wrote to Frank Blaha, and it was 24 copied to George Setlock and others. And in this memo, he 25 references that water samples of runoff from the 904 pad

5131

1 taken on March 2, 1988 showed high nitrates of 3,370 2 milligrams per liter. Ladies and gentlemen, that's a huge 3 amount of nitrates, and nitrates dissolve very quickly with 4 water. Why do have that high reading on March 2, '88? 5 Because there's a spill on the 904 pad around that date, and 6 that's why you've got these high nitrate readings in March of 7 '88. 8 And during the same month of March, Rockwell 9 continues with its misrepresentations, or at least misleading 10 statements to DOE about the nature of this waste form, going 11 back to this de-regulation, de-listing project. Another 12 document, March of '88, Exhibit 242--248, I'm sorry. 248, 13 third page of the exhibit, which is Page 2 of the actual 14 text, Rockwell again says, "The inability of constituents to 15 migrate from the stable concrete matrix." It wasn't a stable 16 concrete matrix, and the constituents were migrating onto the 17 pads. How do you get 3,370 levels of nitrates unless that's 18 happening? 19 So Rockwell continues with its misrepresentations 20 to the Department of Energy about what this waste form is. 21 You heard a concrete expert called by the defense, talking 22 about how concrete is. We're not saying it looks like a 23 sidewalk. But Rockwell told us repeatedly this was a stable 24 concrete matrix. Why did it say that? Because it was trying 25 to say the stuff inside ain't going to migrate out. So

5132

1 whether or not it was as hard as a concrete sidewalk, that's 2 what Rockwell was saying. 3 But more importantly they were saying it was 4 stable, and that things were not going to migrate out of it. 5 It was not supposed to be insolid, even under that firm putty 6 standard, which was only an inspection standard, the thing 7 was not supposed to be leaking, it was not supposed to be 8 mushy, it was not supposed to be gooey. And we hard all in 9 '87, that Rockwell people knew it was all of those things. 10 Now, further proof of what they knew is a very 11 important day, May 19, 1988. Four days before the reported 12 spill on the 904 pad, Rockwell discovers a spill inside 13 Building 788, not caused by the weather, not caused by that 14 rainstorm that supposedly happened a couple of days before, 15 or the day before, or the day of the May 23 spill. They find 16 a spill right in the 788 building before it even goes out on 17 the pads, and what do they do? They have an internal 18 investigation about it. Internal investigation. That's 19 Exhibit 347. 20 Here's there internal investigation report, never 21 shared with DOE. You recall Ms. Jierree's testimony about 22 that. She said she remembered it quite clearly. She learned 23 about it 2.4 years ago. She remembered that 2.4 years ago, 24 and she also said, "I didn't know about this at the time. I 25 should have known about it." While she was fighting with

p.5133

1 Naimon and Weston about doing a UOR for the May 23 spill, 2 they don't tell her about this ongoing internal 3 investigation, of which they know, because look at the last 4 page on this, there's a handwritten note from Ed to Bill, Ed 5 Naimon to Bill Weston--Bill Weston to Ed Naimon, handwritten 6 note about this internal investigation report. 7 Now, what do they say in this internal 8 investigation about some spill of pondcrete in the 788 9 building that no one from DOE knew about? They say that on 10 Page 3 of the document, 788, the paragraph above that. 11 Here's how they describe this incident in the 12 building. "The bottom box of the fallen stack apparently 13 failed due to the softness of the pondcrete mixture which it 14 contained." Is that freeze/thaw, is that weather, or is that 15 insolid blocks inside? "The exact causes of the softness of 16 the pondcrete are unknown, but could be due to a lack of 17 cement in the pondcrete mixture for this particular box. 18 This is not an isolated incident, but one that is 19 evidenced on the 904 pad. A major effort is ongoing to 20 remedy the curing problem." No mention in this internal 21 investigation of weather problems or freeze/thaw, or anything 22 like that, and the soft pondcrete, as I said, is found inside 23 the building before it even gets out and is subject to 24 weather conditions. 25 In fact, you might recall Dan Tallman's testimony,

5134

1 because he was foreman at the time. He said this box had not 2 been outside at all. And he also said, I think quite 3 clearly, that the rain had nothing to do with the collapse of 4 this box. It was lack of cement. 5 Now, when this incident occurred, Garvin Hewitt, 6 there's a May 23, '88 internal memo where Garvin Hewitt is 7 told do an internal investigation. And then when the May 23 8 incident occurs, Hewitt is told broaden the internal 9 investigation, we now know of something else, and include 10 that in your internal investigation. And that document is 11 Exhibit 276. 12 Internal Rockwell document, Hewitt is told to 13 broaden the investigation, and what does it say? "Since that 14 time--meaning since the May 19 investigation begins--since 15 that time, it has come to our attention that related 16 incidents are occurring at 750 storage and 904 storage." 17 Now, DOE knows of 904. What's the 750 storage that the 18 writer knows, the internal memo knows? Those are things that 19 were not reported by McKinley, drafted by Blaha, in the 20 September 15th letter. He only says 904 pad. DOE never is 21 told 750 pad storage problems. 22 And then Hewitt is told, "We are now requesting 23 this IIR--that's internal investigation report--address all 24 of the associated problem issues." Who's copied on this? 25 Naimon and Weston, among others. And the internal memo, as I

p.5135

1 said, refers to 750 pad problems, 904 pad problems--we admit 2 we knew that on May 23--as well as the incident in the 788 3 building. 4 Look at the UOR for the May 23, 1988 event, the UOR 5 that Candy Jierree forced Naimon and Weston to do. It says 6 nothing about spills in the 788 building. It says nothing 7 about spills in the 750 pad. They knew about it in September 8 of '87, in May of '87, they knew about all those things, but 9 look right here in the internal documentation, they certainly 10 know about it as they're doing their internal investigation 11 that they're not telling DOE about. 12 And look at how they describe in here, the same 13 document, in the internal investigation report, after the 14 section on the 750--I'm sorry--after the--I'm sorry, 347. I 15 read to you before the description of 788 building. Under 16 there, they say 904 and 750 pads, internal investigation 17 report says, among other things, "Several of these collapsed 18 under their own weight due to the combination of lack of 19 package integrity and softness of the waste. Preliminary 20 data indicate that not enough cement had been added to the 21 mixture, and efforts are underway to confirm and remedy this 22 situation." 23 Yes, they talk about package integrity, and we 24 don't contend that the rain didn't do anything to those 25 packages. But their own internal investigation report, never

5136

1 shared with DOE, shows they knew that the waste forms were 2 soft on the 904 pad, on the 750 pad, and in the building 3 before they even hit the rain. Certainly DOE didn't know 4 about that, and certainly mother nature is not responsible 5 for the boxes, the soft boxes inside the building. 6 So now we have--I talked to you specifically about 7 two award fee periods. I talked to you about October 1, '86 8 through March 31, '87, and that's principally spray 9 irrigation, and as to that, a $4 million number. And 10 actually, let me just put this up. 11 This comes from a document that you'll have, and 12 all it is is a listing of the various award fee periods. On 13 the verdict form, you're going to have these different award 14 fee periods. You're going to say or no. I say you say yes, 15 that there were false statements that resulted in false 16 claims for money for each of these award fee periods. The 17 first award fee period, October 1, '86 through March 31, '87, 18 again is principally spray irrigation. But I also talked to 19 you about Swenson's logs in February, '87 showing leakers, 20 and Henry's note of nitrates and leaching on March 17, '87. 21 There's a $4 million plus award fee there. 22 The second period, critical period, April 1, '87 23 through September 30, '87. All of those May, '87 events, the 24 leaking, the restacking, and in September, '87, the elevated 25 levels, the spills, the Jolaine Fenner spill, all of those

5137

1 are another award fee, $4,359,000 and change. 2 Then we have the next period, again, all this is 3 continuing. Rockwell is not telling DOE even in the later 4 period, so when you get to the later periods, you have 5 ongoing fraud, ongoing false statements. I identified 6 numerous false statements for you about stable concrete 7 matrix, and the others. 8 Additionally, October 1, '87 through March 31, '88, 9 you've got all of that testimony, all of that evidence about 10 reduction of cement, additional spills, moving boxes back and 11 forth to and from the building and the pads. 12 And then you've got April 1, '88 through September 13 30, 1988, another 4.8-some million dollars. May 19, '88, 14 that internal investigation report, and all the information 15 they knew, they didn't tell DOE that, and they should have to 16 pay for that. And the others are after the spill, they 17 continued to lie to the government, they continued to say 18 first time I knew about this was May 23. They tell DOE that. 19 20 They also continue in the September 15, '88 letter 21 from McKinley to Whiteman about there's only a 904 pad spill. 22 Remember, Blaha said that was false. So he admitted that was 23 false for that period. And in '89, they continue with their 24 false statements. 25 Now, so the total is $22.5 million for award fees

5138

1 alone. I'm going to get to all of the costs that resulted 2 from, as Mr. Naimon admitted, that resulted from the solidity 3 problems that were created and learned by DOE on May 23. But 4 before I get there, I want to talk about one additional, very 5 powerful piece of evidence that supports the claim that 6 Rockwell knowingly made false statements about its pondcrete 7 operations. And that is the missing pondcrete foreman's log 8 for the critical period from when Teel took over through 9 after the May 23, '88 spill. 10 And I would submit to you that the evidence is 11 uncontroverted that the log was kept, that information about 12 pondcrete spills, leaks and other problems would have been 13 recorded in it, that the log was missing back in June of 1988 14 when the UOR investigation was being done. And you remember 15 Ted Tegeler, who was the union guy, not a fan of Rockwell, 16 remember his testimony? He was the union guy that was in 17 charge of the UOR investigation, and he said that in June of 18 '88 when he was doing the investigation, he went to look for 19 the log and couldn't find it, that they didn't give it to 20 him, and he wanted it. 21 Now, what do the foremen themselves say about this 22 log and what do the operators say about the log? Tallman 23 testified that he inherited a log from Ron Teel that he kept 24 when he was foreman. He explained that in the log, he 25 recorded everything that happened with the pondcrete

5139

1 operations, including problems. I think he used the word 2 "everything," everything that happened, including problems 3 and leaking boxes, and he said that Teel recorded the same 4 type of information in the log when Teel was foreman. And 5 Tallman said that in May of 1988, he was still using the same 6 foreman's log that he inherited from Teel, and that it was 7 kept in Building 788 where they were making the pondcrete. 8 Now, a number of other witnesses testified that it 9 was the regular practice of Rockwell to keep these logs. 10 Weston even said it. Fryback, who was a foreman, said he 11 kept the log. And you might recall Norm Cypher, who was more 12 involved in saltcrete, but he was another foreman, he kept 13 logs, too, which included notations of possibly spills. And 14 Tallman testified also that the operators, which would have 15 included Leif Swenson or Howard Long or the others, may have 16 written in his log as well, and Swenson agreed with that, and 17 he even talked about another log potentially in the ambulance 18 that he had at one point that he would record things on, and 19 he doesn't know where that one is either. 20 Now, the evidence shows that the log--that there 21 was a log kept through November of '86, because Ron Teel 22 identified his handwriting in that log, the last witness, he 23 identified his handwriting, November of '86. And Tallman 24 identified the log that began on September 19, 1988. Where 25 is the log for that period in between? And I submit to you

5140

1 that the evidence is overwhelming that that log, or logs if 2 there were more than one, last disappeared while in 3 Rockwell's possession. 4 And again on this point, remember Ted Tegeler, June 5 of '88 doing the UOR, Rockwell is operating the plant at that 6 time. They're the ones doing the UOR for the May 23 spill, 7 and he said he looked for it, in fact he even gave a specific 8 date because there was a document referencing a checklist of 9 the items that he was looking for, logs were on there, June 10 22, 1988, couldn't find it. 11 Then there's Harold Bodley, Rockwell's investigator 12 for the criminal investigation. He said he looked for the 13 logs as part of the work that he was doing for Rockwell 14 duriing the criminal case. He said he didn't find the log 15 book for that time either. 16 And then you might recall Bill Smith, he was the 17 lead Environmental Protection Agency investigator for the 18 criminal investigation. He told you that he was at the Rocky 19 Flats plant when the search warrant began, and when it 20 continued, and he said he in fact was the EPA guy in charge 21 of the pondcrete part of the investigation, and you might 22 recall he said he saw the pads, and then he went in the 23 building, and he went in Building 788, where Tallman said he 24 kept the log, and he looked for it, didn't find it. He 25 couldn't remember who, but he said someone there told him

5141

1 look in Building 374, and he said that he saw some other 2 logs, he saw some logs that were non-descriptive that were 3 inventory type logs, such as the inventory type log that 4 shows that that box that I showed you was made only ten days 5 before we took that picture. 6 Now, while in the building, EPA Agent Smith found 7 some other log books, didn't find the log book that would 8 report descriptively any problems for the critical period. 9 And Mr. Smith also told you that he was involved in the 10 preparation of Grand Jury subpoenas that were served upon 11 Rockwell. At least one of them was before Rockwell left the 12 plant in 1989. Didn't get those logs, didn't get them 13 throughout the criminal investigation. And finally, Tallman 14 told you that during the criminal investigation, he was asked 15 about the logs, he didn't provide them either. 16 Why is this important? Well, you've seen lots of 17 documents, and some of the documents you've seen are 18 notebooks. We showed you Fryback's notebook. Blaha made a 19 lot of notes. There are some logs that you've seen. We've 20 got logs for the earlier period, got logs for the later 21 period, and there are references in all these documents which 22 I've tried to piece together for you as to problems with the 23 pondcrete and saltcrete operations. I've gone through a 24 number of those references with you; talks about often had 25 spills, talks about deconning with Chem-wipes, things like

p.5142

1 that that would be in the log that is now missing. 2 And I submit to you that if you had that log book, 3 you would even see further information, further information 4 that there were leaks, spills and solidity problems with the 5 pondcrete operations, that Jolaine Fenner's spill would 6 probably be in that log, but you've got her testimony anyway. 7 You have Mark Juarez's testimony that he saw insolid blocks. 8 You've got the other operators' testimony. You have Long's 9 testimony about the 12 to 15 spills that he knew about before 10 May 23, '88. Those things were probably, and maybe more, in 11 the logs, baseed upon the amount of years that have gone by 12 and some failing recollections. 13 Now, Rockwell might contend that the log book is 14 missing not by its fault, and it may say that when the FBI 15 came it lost control over the plant, and it might have been 16 missing then. But the FBI wasn't there in June of 1988 when 17 Ted Tegeler was looking for these logs and didn't get them. 18 And the FBI certainly had no motive to lose the log books, 19 but I submit to you that Rockwell did. 20 Now, saltcrete, a few additional points. I pointed 21 out to you the plea agreement where there's admissions of 22 problems with saltcrete beginning in June of '87. There was 23 also a notebook--a note in Fryback's notebook in May of 1987 24 of a leaking saltcrete container. And you recall Norm 25 Cypher's testimony of the problems with the saltcrete

5143

1 expanding when he was foreman, that he told Garvin Hewitt 2 about those problems, and the first time that DOE knew of 3 saltcrete problems was November of '88, after the spill, 4 because Rockwell didn't tell them that the same problems were 5 existing with saltcrete until many months later. 6 Now, let me turn to the May 23, 1988 spill, because 7 I think the evidence on that demonstrates even further that 8 Rockwell was trying to hide something. First, why was Dan 9 Tallman on the 904 pad at 5:10 a.m. in the morning? That was 10 not the beginning of his shift. Naimon had no explanation 11 for it. And despite all the documents that say it, there's 12 handwritten notes of people and there's a UOR that says the 13 foreman was there. Tallman says I wasn't there. 14 Why would he want to hide the fact that he was 15 there? And the UOR says 5:10 a.m. Weston testified that 16 when he drove into the plant early, some 6:00 a.m., I think 17 he said, he saw workers on the pad and he immediately went 18 down and he saw the problems. 19 I submit to you that Tallman was there because they 20 knew that there were problems. They were trying to clean it 21 up before DOE found out, and that's why he was there at 5:10 22 a.m. in the morning. He knew about the May 19 problem. He 23 knew about the other problems. They were there early to fix 24 it up before anybody else saw it. But Weston, they didn't 25 have any problems telling, because as Weston told you, he had

5144

1 a great relationship with the operators, always went down 2 there and talked to them all the time, even in cold weather, 3 and the operators appreciated that. 4 The other thing about the May 23, '88 spill, you 5 should consider what Rockwell said at the time about the 6 cause of the spill. Look at the UOR, it said lack of cement, 7 it said lack of process controls. It didn't say freeze/thaw 8 and it didn't say that package deterioration had any impact 9 on the waste form itself. And, in fact, Tallman's own 10 testimony, the foreman at the time, was that the reason for 11 that de-stabilization--and that's what it's called, a de- 12 stabilization occurrence, after they said there's a stable 13 concrete waste form, the de-stabilization occurrence, Tallman 14 testified the reason for that was insufficient cement. He 15 doesn't say weather or freeze/thaw. 16 Now, recall also Ed Naimon's testimony about all of 17 these presentations and meetings that they had right after 18 the spill, and in all of those presentations, they discussed 19 the lack of cement problem. They discussed the thousands of 20 boxes that would need reprocessing as a result. And that 21 reprocessing was because the waste was not solid. That's not 22 putting it into new boxes because of the package; it's the 23 waste was not solid. It needed to be fixed. 24 Now, Howard Long also testified about this May 23 25 spill, because he was there as well, when he explained that

5145

1 they were taking the boxes back to the 788 building, when one 2 of them spilled. He explained his 12 to 15, those were the 3 numbers he used, 12 to 15 prior spills, and he said 4 ultimately that some of them should have been reported, and 5 he said that he had taken boxes back to 788 building on many 6 occasions before the May 23 event. And then he also said 7 that when he started to clean this one up, he said something 8 like I wasn't going to cover this one up. 9 Then on the causes of the spill, recall also Howard 10 Long, this is Exhibit 699, Howard Long wrote a note, this is 11 after the May 23, '88 spill, I think it's in July of '88, he 12 writes a note on his RCRA inspections, and he notes here from 13 November, '87 through April, '88, boxes that were made had a 14 lack of cement in them for that time period. That's what he 15 noted afterwards when he was looking at the boxes that they 16 were left with afterwards, or that DOE was left with 17 afterwards, and I'll get to all the costs of that as a result 18 of this activity. 19 And I already explained to you that photograph on 20 May 24, '88, which is a different box from the spill, that 21 that photograph, and when you look at the number on it, that 22 box was made just ten days before that. That's not weather. 23 Now, let's look at the UOR, and you recall Candy 24 Jierree's testimony about how she had to struggle with them 25 to do it, and that she struggled with them to write it

p.5146

1 accurately. And you saw her talking about it, and it's in 2 evidence, her notes on the initial draft of the UOR, and 3 that's Exhibit 36. 4 This is the final UOR, and the immediate evaluation 5 section, you can read it yourself, you can read the whole 6 thing. Here are the causes that they say. They say 7 incorrect cement/sludge ratios, star valve problems, did not 8 thoroughly cure, quality control was inadequate. The first 9 one, incorrect cement/sludge ratios, second one--second item, 10 they talk about fiberboard waste box degradation resulted 11 from weathering and a de-stabilized product. They're saying 12 there that the waste box resulted from weather and the de- 13 stabilized product. They're not saying the de-stabilized 14 product resulted from fiberboard waste box degradation or 15 weather. It's the exact reverse they're saying; the de- 16 stabilized product caused these things to fall. 17 The third, they talk about quality control 18 inspection procedures were inadequate to detect the incorrect 19 cement/sludge ratios, and that it did not thoroughly cure is 20 on the next line. Those are the reasons that they gave, and 21 this is February of '89 after the full UOR investigation for 22 why the pondcrete failed. The reason was insolidity. The 23 reason was not weather. The reason was not freeze/thaw. 24 And as I said, even after the May 23 spill, 25 Rockwell continued with its falsehoods, which gets us into

p.5147

1 even the later award fee periods. First is Exhibit 820. 2 Here's a letter that Dom Sanchini sends to Earl Whiteman, and 3 he also encloses a draft letter for Whiteman of DOE to send 4 to the Colorado Department of Health. And under Finding 4, 5 he says that the problem was discovered on May 23, '88. 6 Doesn't say anything about problems discovered before that, 7 and this is what Mr. Sanchini is asking Earl Whiteman to tell 8 the Colorado Department of Health. 9 And you heard Mr. Whiteman's testimony and you 10 heard Mr. Romatowski's testimony about how that bothered 11 them, having been told not only falsehoods, but that they 12 were supposed to repeat those falsehoods to the regulators. 13 There's another letter that I've referred to 14 before, which is the McKinley September 15, 1988 letter. 15 Again, that letter, they only say that there are 904 pad 16 spills. They say nothing other than that. Continued 17 falsehoods afterwards. And, again, that gets us into 18 additional award fee periods. 19 Now, also recall all of the Department of Energy 20 officials from Mr. Whiteman, who was at the site, to each of 21 the contracting officers, Ray Romatowski and Bruce Twining, 22 their testimony was never rebutted, they did not know of 23 solidity problems with pondcrete prior to May 23, '88. 24 Recall also the testimony of the two DOE employees who were 25 responsible from Waste Management at Rocky Flats, that's

5148

1 again Candy Jierree and Tod Anderson for a different period 2 of time, but certainly before May 23, that they didn't know 3 of the solidity problems. 4 And the same can be said for all of these various 5 inspections and audits and tours that were conducted by 6 Headquarters in Albuquerque and Nevada, and by CDH. All 7 those witnesses from Billups to Kluk to Lund to Gelston to 8 Brich to Sattler, and even to John Krueger testified that 9 they didn't know of any problems on the pads except some 10 problems with wetness coming into contact with the tri-wall 11 containers, not the waste form itself. 12 Now, what does Rockwell say about all this? 13 Because Rockwell told you that it knew before May 23, 1988 14 about solidity problems. The DOE witnesses that we called, 15 all the way up to Admiral Watkins himself, and all those 16 witnesses who had the authority to act for the government in 17 connection with this Rockwell contract, they all testified to 18 what they knew and when they knew it. And, members of the 19 jury, I submit to you that they told you the good, and they 20 told you the bad. They weren't hiding anything. They took 21 responsibility for the DOE culture problems where weapons 22 production was a priority. 23 You heard Admiral Watkins testify. He talked about 24 that openly. He wasn't hiding the places where DOE was at 25 fault, but he did tell you that none of this excused

5149

1 Rockwell's failures to make the stuff right, and to be honest 2 about it. 3 So you decide, Ladies and Gentlemen, whether 4 Rockwell has been likewise forthcoming with you about what 5 they knew and when. You saw the Rockwell witnesses testify. 6 You saw all of the responsible Rockwell managers whom we 7 called in our case, and you saw that the only former Rockwell 8 employee that they called was Brian Herman, who was an 9 inspector, who said the firm putty was an inspection standard 10 before it got fully cured, before it went out on the pads. 11 Now, you've heard a lot of evidence about who knew 12 what and when, and I want to just summarize how it goes all 13 the way up the management chain. You've seen a lot of 14 documents with a lot of high managers on the documents, 15 showing they knew--that they knew about all these problems, 16 and there were specific instances that the Rockwell employees 17 told you about as to who they reported to and who they told 18 about the problems. 19 But you also have the testimony, starting with the 20 operators, they all testified they reported problems to the 21 foreman. That was Teel or Tallman. Swenson also told you of 22 times that he spoke directly with Garvin Hewitt, who was the 23 boss of the foremen, and with Ed Naimon, the manager of Waste 24 Operations. In fact, Tallman testified that he told Naimon 25 about problems in 1988 before the May 23 spill, about how he

p.5150

1 was having problems getting the pondcrete to solidify. And 2 he also told you that there were some 21 waste inspection 3 rejections that he had, and he told Naimon about it, 21 boxes 4 being inspected that were rejected, he told Naimon about it. 5 Now, Hewitt reported directly to Naimon. Hewitt 6 attended Naimon's weekly staff meetings, as did the rest of 7 Naimon's staff, and Naimon told you about that. And Hewitt 8 is on the documents, Hewitt is on the May 1, '87 inspection, 9 and Hewitt is involved in the repacking that Teel does. 10 Fryback wrote his note directly to Hewitt, and Hewitt 11 reported directly to Naimon and had weekly meetings with him. 12 Naimon told you that his direct report was Bill 13 Weston. Naimon also told you that he had direct interaction 14 with Dom Sanchini, and you saw some documents where Naimon 15 wrote directly to Dom Sanchini in September, '87 about the 16 leaching problems. And you have Gary Potter's memo and 17 you've got Wayne Meyers' memo all on that. And Naimon said 18 he didn't withhold important information from Dom Sanchini. 19 Weston told you he had an excellent, open reporting 20 relationship with Naimon, couldn't recall a single instance 21 where Naimon did not report something of importance to him, 22 and Weston had his weekly meetings. Just like Naimon had his 23 weekly meetings with Garvin Hewitt and the others, Weston had 24 his weekly meetings with Naimon, and he also testified, this 25 is Weston, that he kept Dom Sanchini fully informed of

5151

1 important information that came to his attention. 2 Weston testified in fact that when one of the 3 pondcrete workers brought a problem to his attention of 4 importance, he absolutely would bring it to--that's his word- 5 -absolutely would bring it to Sanchini's attention. 6 Weston also described Dom Sanchini as a very hands-on 7 manager. 8 Recall again the conversation that Candy Jierree 9 told you about about the UOR. Naimon first comes in to say 10 we shouldn't do a UOR. She disagrees. Two hours later, 11 Weston shows up and makes the same argument. I submit to you 12 that what Naimon knew, Weston knew. Both essentially 13 admitted as much. Their method of operation shows it. They 14 spoke often. They were buddies. Weston hired Naimon. They 15 had open communication. They both knew about the same 16 problems. 17 And I've already gone through what Naimon knew. 18 Again, recall his testimony about that May 11, '87 note where 19 he tried to say that you take sewer sludge from plywood and 20 put it in tri-wall to put it back in plywood. There were 21 other things he said. He knew about the September 9 Meyers' 22 note. He knew that that reference had to do with the waste 23 form problem and not the packaging, and he also testified 24 that there were discussions in that time period about that 25 that included Weston and Sanchini.

5152

1 And with respect to Fryback's May, '87 entries, 2 Naimon testified he must have been aware of that. He said he 3 didn't recall it when shown to him, but he must have been 4 aware of it. 5 Naimon also testified that Swenson told him about 6 the problems that he discovered in his RCRA inspections, and 7 he said that Ron Teel and Garvin Hewitt and Norm Fryback told 8 him about the information that they learned from their 9 inspections. That's Exhibit 171, the inspection logs that 10 note leaking from the containers. 11 Now, talking a little bit more about Bill Weston 12 who testified, we called him early in this trial, he said he 13 didn't know of leaking, he didn't know of mushy, or insolid 14 pondcrete prior to May 23. Because of that, of course, he 15 said also I didn't tell DOE about those things. But I submit 16 to you, Ladies and Gentlemen, that his testimony early in the 17 trial before all these other witnesses were called and all of 18 the other evidence was shown to you is just not consistent 19 with that evidence or with the reporting relationship that he 20 described, that Naimon described, and that the operators 21 described. 22 Now, under the False Claims Act, as the judge will 23 instruct you, there's aren't affirmative defenses that 24 Rockwell has. If Rockwell submitted false statements, which 25 can be misleading statements, can be inaccurate impressions,

5153

1 can be omissions of important facts, if Rockwell submitted 2 false statements to get money paid, you must find Rockwell 3 liable, and you must decide how much in damages to award. 4 Now, under the False Claims Act, the judge will 5 instruct you that in determining whether Rockwell had 6 knowledge, you may consider any evidence, if you should find 7 there is any evidence, that the Department of Energy knew 8 about certain relevant facts. 9 Now, what did Rockwell introduce to you on this 10 point? Did they introduce a single DOE witness who knew 11 about insolidity problems with pondcrete prior to May 23, 12 '88? No. The witnesses that Rockwell called are more 13 significant for what they didn't say than for what they did 14 say. 15 Recall that Rockwell called Kluherz, Lund and 16 Krueger, and they called a bunch of DOE witnesses who did 17 audits. They were Gelston, Brich and Kluk. Not a single one 18 of these witnesses testified to any problems known to them 19 prior to May 23, '88 relating to the pondcrete waste form. 20 Kluherz testified only to his tours of the entire plant, 21 which he did not--and he did not witness any problems on the 22 pads, he said to you. He also told you that he didn't write 23 a single report about any problems except for one document 24 where he mentioned that there was a tarp blown off, and that 25 document is in evidence. The only document is a tarp blown

5154

1 off of a pondcrete on the pad. 2 And it's also clear from his testimony that it 3 wasn't his job to deal with pondcrete for DOE. He had no 4 authority to act for DOE in connection with the Rockwell 5 contract. He wasn't responsible for Waste Management. He 6 was part of the construction and facilities department, and 7 he wasn't responsible certainly for award fees or paying 8 money to Rockwell. 9 Recall also that Mr. Kluherz testified that he 10 carpooled with Delores Krieg. You might recall Delores Krieg 11 early in the case. She was a traffic manager for Rockwell 12 involved in the shipment of the things to Nevada. Krieg's 13 testimony is the best evidence to refute any claim by 14 Rockwell that Rockwell had the opportunity to observe 15 problems--I'm sorry--that DOE had the opportunity to observe 16 problems. Krieg testified that she didn't know of any 17 insolidity problems prior to May 23, '88, and you recall Ms. 18 Krieg as a witness, as a credible witness, and she testified 19 she didn't know about it, and she carpooled with Mr. Kluherz. 20 Again, she's the best evidence that this opportunity theory 21 that Rockwell has that because DOE came in and took tours, 22 they had the opportunity to see things. She's the best 23 evidence that they didn't have that opportunity. 24 Now, Rockwell also called David Lund, who also 25 didn't say that he knew of any problems with pondcrete on the

5155

1 pads. In fact, he couldn't remember when he learned of any 2 problems at all. At best, Mr. Lund said that he knew of some 3 processing problems before shipments to Nevada occurred early 4 on in the process. That's around the time of Mr. Wickland's 5 '85 letters to Nevada. That's all that Mr. Lund said, and he 6 said something that he knew of waste inspection forms, he 7 knew that there was a form to fill out for waste inspections. 8 No witness said that they saw the forms with the check box. 9 The best that was done was that John Krueger, after being 10 shown the form, he didn't say he saw the form with the check 11 box, he says, well, I wouldn't have expected to have been 12 shown this. But I submit to you that Mr. Whiteman's 13 testimony, Mr. Romatowski's testimony, Ms. Jierree's 14 testimony about what they expected to be told, the persons 15 responsible for Waste Management under DOE's contract is what 16 should control. 17 Now, Rockwell no doubt will argue that in February, 18 '88, there was a remedial action plan that had some 19 photographs attached to it. They showed you the photographs 20 in the opening, and they showed them to you during this 21 trial, and they will no doubt claim that by those 22 photographs, DOE knew of pondcrete insolidity problems. And 23 consider that, consider the following. Read the text of the 24 plan. It deals solely with packaging, the tri-wall 25 containers. It says nothing about the waste form itself.

5156

1 So if Rockwell's position is that it was reporting 2 to DOE, that it was being open and honest with DOE in this 3 remedial action plan, then why didn't it say in that document 4 directly and honestly and openly there's something wrong with 5 the waste form? Are you saying that they attached the 6 photographs in order to give that impression, but not say it 7 in the text? Well, even if you assume the photographs would 8 have given that impression, it's certainly misleading, 9 certainly reckless disregard, certainly trying to hide the 10 truth. Say it in the text if you're going to tell them about 11 the problem. 12 Also, look carefully at those photographs and think 13 how carefully do you have to look at them to find a crack or 14 a water stain. Do we have P023? And in this regard, you 15 might want to remember the testimony about this photograph, 16 P023, the photograph was shown, Mr. Williams showed it to 17 Norm Fryback, he asked Norm Fryback about this very 18 photograph attached to this February, '88 plan that 19 supposedly gave DOE knowledge, and Norm Fryback, who was 20 checking off the boxes of leaking in his inspection log and 21 in his notes, he said he wouldn't call that box a leaker. He 22 would call that a damaged box, which is a separate notation 23 on the inspection logs. That was Fryback's testimony, the 24 person who checked off leaking and talked about leaking 25 boxes, he wouldn't have called it that. And then Swenson was

p.5157

1 shown the same photograph. He said the same thing. I 2 wouldn't call that leaking. 3 Now, when you look at these photographs, recall the 4 photographs of May 24, 1988 and compare them. I showed you 5 before the exhibit, the May 24 exhibit that shows a box that 6 was just ten days old. There are others. Another example is 7 Exhibit 269. That's a photograph taken on May 24, '88. Does 8 that look like a photograph, one of the photographs given to 9 DOE in this remedial action plan that talked in its text 10 about packaging? That's a bulging, leaking, wholly deformed 11 pondcrete box on May 24, '88, and look at the contrast 12 between those photographs. Was Rockwell being open and 13 honest in this February, '88 document when it attached a few 14 photographs that had some water damage lines that you have to 15 look really closely to see if there's a crack on the box? 16 Does that say anything about a problem with the waste form 17 and solidity problems that Rockwell knew about, say anything 18 about leaking, say anything about leaching? None of that 19 stuff. 20 And when considering this and all of the evidence, 21 remember also the testimony and all those documents about the 22 unreported spills, about the moving of boxes. In hindsight, 23 yes, as Mr. Whiteman testified, maybe those photographs might 24 indicate that there was a problem with the waste form. But 25 it was Rockwell that knew in fact about those problems, as

5158

1 depicted in the photos of May 24, and as depicted in all of 2 the evidence and all of the testimony, and again had Rockwell 3 wanted to be open and truthful with DOE, it would have come 4 right out and said it. It would have said there was a 5 problem with the waste form. It did not. It kept saying 6 there was a stable concrete matrix, and all of the other 7 false statements that I've identified. 8 That now brings me to the inspections. Rockwell 9 brought before you a number of DOE witnesses who at one time 10 or another took a tour of the plant, conducted an audit, and 11 the judge will instruct you that if you find that a condition 12 has existed for a substantial period of time, and the 13 government had regular opportunities to observe that 14 condition, you might infer some government knowledge from 15 that. But I submit to you, Ladies and Gentlemen, based upon 16 the overwhelming evidence of Rockwell's knowledge, any such 17 inference cannot possibly meet up with the Rockwell knowledge 18 demonstrated here. 19 Gerald Kluherz's opportunity to see something on 20 the pads which he didn't see, Denise Gelston's note about in 21 Building 774, not even a pondcrete building, there was a 22 reference to salt on top of an open box in the building, 23 there's no knowledge or inference of knowledge like that 24 which Rockwell had. And remember, too, Mr. Sattler from the 25 Colorado Department of Health, he wasn't DOE who supposedly

5159

1 has a motive in this lawsuit to cover things up, Mr. Sattler 2 didn't have knowledge and Rockwell didn't tell him either. 3 And none of this, once again, excuses Rockwell from the 4 obligation to act truthfully with the Department of Energy 5 and with the regulators. 6 Back to Ron Teel's testimony on the same issue, 7 that boxes of pondcrete were repacked. Remember that 8 testimony? I submit to you it was done in May, '87. The 9 evidence demonstrates it before the CDH inspection. Is it a 10 coincidence that before that inspection, Fryback found 11 leaking pondcrete and that Ron Teel then has the note on 12 those exact same boxes, "repack into coffins," is it a 13 coincidence that in December, '87, on the day, the same day 14 that Rockwell learned that Nevada was coming for an audit, 15 Leif Swenson, who had noted leaking on those inspection logs, 16 was replaced by Teel to do the inspections, and Teel didn't 17 note any leaking pondcrete? 18 I'm sure you also recall Mr. Teel's testimony, and 19 he wouldn't deny that he in fact repacked the boxes so the 20 inspectors cannot see them. 21 And, again, back to Candy Jierree and Tod Anderson 22 who talked to you about an August, 1987 audit, and Mr. 23 Anderson's note about packaging issues that he discovered. 24 I'm sure defense counsel will point that out to you. Mr. 25 Anderson wrote a note. Ms. Jierree was involved in looking

p.5160

1 at the boxes on the pad. Tod Anderson, who was part of 2 construction and facilities at the time, not involved in 3 Waste Management, and the note reflects also that they were 4 shown a representative sample of the boxes under the tarps. 5 And Ms. Jierree told you that it was Rockwell in the persons 6 of Garvin Hewitt and Ed Naimon who picked the tarps to show 7 her. Those were people who knew about the leaking and the 8 restacking operations. 9 So, Ladies and Gentlemen, even if you conclude that 10 DOE had an opportunity to see some of the pondcrete waste 11 forms more carefully than they actually did, the fact remains 12 that they didn't see them, and Rockwell knew about the 13 problems, and the fact also remains that DOE could not see 14 problems, nor could CDH, when Rockwell was actively 15 concealing the problems from DOE by repacking them from tri- 16 walls into plywood or metal crates used for sewer sludge. 17 There's another point on this. We're not 18 contending, Ladies and Gentlemen, that prior to May 23, 1988, 19 or even after that, boxes of pondcrete were spilling out all 20 over the pads. As Steve Howard, who was a contractor who was 21 brought in to help after the spill, and others who testified 22 about the 1990s, the process of determining what really was 23 inside these waste forms was a long, time consuming process. 24 It could not readily be determined whether the waste form 25 inside was soft or not. As Mr. Sjoblom, their expert,

5161

1 explained, when persons put cement on top of the box, the top 2 may be hard and the middle may not be, and it takes a while 3 to figure out what the middle is like. And you remember the 4 operators testifying that some of this was done. 5 So there was not a substantial opportunity for DOE 6 to know that the pondcrete inside was actually soft until 7 after May 23, '88, when DOE was informed of a spill. It shut 8 down the operations, it required a UOR, and an investigation, 9 and it did a re-inspecting of every box. 10 You heard Tallman testify, or Swenson testify about 11 the three shifts a day, seven days a week. You heard Steve 12 Howard say about all of the efforts to have to re-inspect 13 every one of these boxes to find out, and you heard Steve 14 Howard's testimony there were basically three categories. 15 The first is ones that looked like they might be solid, let's 16 inspect those first so we can ship them. And then there were 17 other categories. One category was obviously not good, put 18 them in metal containers. Then there was this middle 19 category that they had to check even further. It took a 20 while to figure it out. No tours of the plant are going to 21 figure out what Rockwell knew, which was inside of there, 22 there was insolid pondcrete, because they were making it 23 wrong, they weren't using enough cement, and they were hiding 24 it from the government. 25 And it was Rockwell, recall, that was moving the

5162

1 pondcrete from the building to the pads by the forklifts, and 2 back. It was Rockwell that was doing the weekly RCRA 3 inspections that were noting leaking. It was Rockwell that 4 was keeping log books of its pondcrete operations. It was 5 Rockwell that was having internal meetings about Waste 6 Management issues, and it was Rockwell that had 5,000 7 employees on the plant, some 135, I think Naimon said, just 8 under Waste Management, to DOE's total of 50 people at the 9 plan. 10 So Rockwell not only had the opportunity which DOE 11 did not have, but it also knew about the problems later 12 learned. No amount of opportunity, as testified by some of 13 the witnesses on the audits that Rockwell called, no amount 14 of opportunity, no amount of money, no amount of 15 deterioration of boxes is an excuse for Rockwell not to be 16 truthful with the government about what it did in fact know 17 about those waste forms. 18 Now, you might say why was Rockwell less than 19 truthful? The answer is money. As Weston and Naimon told 20 you, meeting the compliance agreement was very important to 21 Rockwell, and Rockwell was commended for that with money when 22 it met its milestones. And, again, Naimon admitted that he 23 saw that as a credit to his organization, and Weston got 24 those same reports that Naimon was writing. 25 Rockwell also got a new contract in 1989, and

5163

1 perhaps even more important, while Rockwell was making money 2 by not telling DOE the truth, the situation was such that 3 once the problems were discovered by DOE, DOE was left 4 holding the bag and millions of dollars more were needed to 5 correct the problems created by Rockwell. Rockwell, of 6 course, didn't care about those costs because it didn't think 7 it would have to come out of its own pocket. But it did care 8 about the award fees, and it cared about its contract. That 9 is why we are seeking as damages in this case the award fees, 10 as well as the cost to fix the pondcrete and the saltcrete 11 costs that followed as a result that were directly caused by 12 Rockwell's fraud, by the insolidity problems. 13 Just briefly on damages, you recall Pat McGeehin, 14 the accountant that we called in our case, who didn't make 15 any assumptions about things he didn't know about, but simply 16 looked to the accounting records, talked to the accounting 17 people, found out what the actual costs were for pondcrete 18 and saltcrete to the best that he could find out. When he 19 couldn't find documentation, he didn't include it. You 20 recall there was a six month period he didn't include it. He 21 subtracted what Rockwell--what DOE might have had to spend on 22 repackaging otherwise, and he came up with his numbers, no 23 assumptions by an accountant about whether issues or changes 24 in regulations, as the Rockwell expert testified, he just 25 gave you the facts about how much it cost, and they didn't

5164

1 refute that testimony. 2 And the facts were that for pondcrete, it cost some 3 $111 million to fix this problem caused by Rockwell, and he 4 subtracted from that the $8 million that it cost through May 5 23, '88, said we won't charge that to Rockwell, and he also 6 subtracted the costs to repackage, ship and dispose of block 7 that maybe because of the weather needed to be repackaged, 8 and the disposal costs that we would have had to spend 9 anyway. And how did he get that number? It was a $9,400,000 10 number. He got it from Rockwell's own November, 1987 11 document where they estimated those costs. 12 So as a total, Mr. McGeehin, after being 13 conservative in his analysis, had $93,605,000 of the costs to 14 fix the problem. And on saltcrete, doing the same analysis, 15 he came up with $47,869,000. And that's a total, Ladies and 16 Gentlemen, of $141,474,000 to fix this problem that Rockwell 17 left us with. Add that to the award fees, you've got $164 18 million of damages that the government--that the U. S. 19 Treasury is entitled to. 20 And, again, Rockwell called an accountant who did 21 no cost analysis of his own, didn't look at the accounting 22 documents, other than try to reduce Mr. McGeehin's numbers 23 based upon some assumptions about which he had no knowledge 24 relating to weathering and changes in regulations, and I've 25 already talked to you about how weather had nothing to do

p.5165

1 with the insolid waste form. McGeehin took out of his 2 calculation repackaging costs that otherwise would have had 3 to be incurred because of the weather, and had nothing to do 4 with the problems with the waste form. 5 And on changes in regulations, I'll just say a few 6 points about that. You might recall in June of 1988, DOE 7 actually got--Rocky Flats got the approval to ship to Nevada. 8 There was a May 20, 1988 Candy Jierree memo to Ed Naimon and 9 Bill Weston, this is three days before the spill that was 10 reported to the government, and that's where Naimon and 11 Weston know that they're about to get approval to ship to 12 Nevada. It comes in June of '88. 13 So the fact remains on this change of regulations 14 issue, had Rockwell made the stuff right, had the stuff been 15 right on June--sometime in June of '88, we would have been 16 able to ship it off to Nevada. We wouldn't have had the May, 17 1990 land ban problem that we were left with because Rockwell 18 didn't make it right and it lied about it. Had Rockwell told 19 us a year before, we could have started fixing it then. But 20 they didn't. 21 Instead, we had to fix it afterwards, and we didn't 22 have enough time to re-inspect every box. And as the 23 witnesses told you, when Nevada found out about this, we 24 couldn't ship it in June, '88 because we couldn't ship it in 25 the tri-walls. We had to put them all into plywood

5166

1 containers, and we had to put both the pondcrete and the 2 saltcrete into plywood containers. We had to re-inspect 3 every one, and they went from weekly to daily inspections of 4 the pads before we could ship any of this stuff. 5 And you heard a lot of testimony about the efforts 6 that were taken, the three shifts a day, to meet the 7 deadline. DOE did the best it could with the contractors 8 that it hired, and if it wasn't for Rockwell's false 9 statements and Rockwell's fraud, never would have had to have 10 done that, and the May, '90 land ban would not have been a 11 problem. The change in the Nevada regulation to plywood is 12 only because the tri-walls no longer were acceptable because 13 Rockwell had gotten an exemption to use tri-walls years 14 earlier based on a false representation that the stuff was 15 solid. So then we had to put them in plywoods, and we had to 16 inspect all of them. 17 It took a lot of time. A lot of money was spent. 18 As Mr. Sjoblom told you when he was talking about some other 19 DOE facilities that had these drums, didn't have any tri- 20 walls or plywoods that had problems, but he told you that at 21 all those other facilities, DOE had to spend a lot of money 22 for repackaging and reprocessing of that. Rockwell is not 23 contending that all those costs were improper. They 24 certainly weren't improper here, particularly when it was 25 Rockwell that caused the problem in the first place and made

5167

1 false statements about it. 2 Ed Naimon admitted that all of the problems that 3 came after all of the inspections, all of the costs after May 4 23, '88 to inspect, to repackage, to reprocess were all 5 causally linked to the solidification problems. He told you 6 that because of the spill on the 904 pad, Nevada did not 7 allow for the shipment of the pondcrete. He told you about 8 the June 10, '88 approval to ship which was conditioned on a 9 subsequent inspection, and that subsequent inspection caused 10 the approval not in fact to be given, because of the May 23 11 spill. Ed Naimon said that, not a DOE witness. 12 And he testified that they had to go to plywood 13 containers because of what was learned regarding the 14 solidification problems on May 23. And Dee Krieg agreed with 15 this. She said that if a spill had not occurred, the June 16 10, 1988 approval would have allowed for shipment to Nevada. 17 And Naimon again said the repackaging activities were 18 undertaken as a result of the information learned. Waste 19 certification had to come up with new inspections because of 20 that. In Naimon's presentations, he talked about all the 21 boxes needing either reprocessing or repackaging or both, and 22 he said it was all because of the solidification problems, 23 and those were Rockwell's fault. It wasn't DOE's fault. 24 Now, to sum up, members of the jury, by May 23, 25 1988, Rockwell knew a host of problems that DOE did not know

p.5168

1 about. And by Rockwell here, I mean from the operators such 2 as Howard Long and Leif Swenson and Jolaine Fenner and Mark 3 Juarez, to the foremen, Ron Teel and Dan Tallman who were 4 salaried Rockwell employees, they weren't union, to their 5 direct bosses, Garvin Hewitt and Ed Naimon, and from Ed 6 Naimon to Bill Weston to Dom Sanchini. 7 And we've also demonstrated that other members of 8 Rockwell management knew about these problems. Wayne Meyers, 9 Chris Bader direct reports to Dom Sanchini, Gary Potter, 10 George Setlock, Frank Blaha and others in the ES&H group 11 under Gary Potter who made that connection between leaching, 12 because they know that connection in ES&H between leaching 13 and spills and problems with the waste form. And there's 14 also George Campbell to whom Wayne Meyers wrote that note 15 about making it a really solid block, and he was Mr. Potter's 16 boss and a direct report to Dom Sanchini. And there were 17 others. 18 And what did they know, to summarize? They knew 19 about leaking pondcrete on the pads beginning no later than 20 May 1, '87, by Mr. Fryback's notebook and the inspection 21 logs. They knew of spills of pondcrete in the summer and 22 fall of '87 on the forklift, on the 750 pad itself. You've 23 got Blaha's notes. You've got Stenson's notes. You've got 24 Fenner's testimony. You have Long's testimony on 12 to 15 25 spills. You even have Swenson's testimony of one spill

5169

1 before May 23, '88. 2 They knew about moving of boxes because of these 3 curing problems and making them hard on top. They knew about 4 elevated levels in the runoff water on the 750 pad, which at 5 best could have had a number of causes, but including the 6 pondcrete itself. But based upon their knowledge of the 7 leaks and the spills, any reasonable person would have 8 assumed with that data that DOE didn't have, and the 9 information on spills and leaking from the inspection logs 10 and the operators telling it up the chain, that the cause of 11 those elevated levels was pondcrete, and that's precisely why 12 Rockwell management was holding all those internal meetings 13 in September and October of '87 about the elevated levels. 14 There's abundant evidence that Rockwell knew of 15 problems with pondcrete solidifying before May 23. Again, 16 the operators and the foremen testified about it. The 17 internal Rockwell correspondence shows that top management 18 knew. Remember Wayne Meyers' note, remember Ed Naimon's 19 testimony of the referenced meeting to solidity problems. 20 And also recall that he said he discussed it with Weston and 21 Sanchini, and Weston's testimony that he did not mention any 22 solidity problems to DOE prior to May 23, 1988. 23 And of course remember Candy Jierree who attended 24 the RCRA meetings and didn't know it? Remember that she told 25 you some good and some bad about DOE. I submit to you she

p.5170

1 was a credible witness. She said she didn't know about this. 2 She said it emphatically. She was bothered by it. She was 3 bothered by the evidence that Rockwell hid things from her. 4 To top it all off, you have the May 19 internal 5 investigation report which was not given to DOE, which 6 clearly shows the problem was one of lack of cement and, 7 therefore, solidity. It wasn't the weather, it wasn't 8 freeze/thaw. It was known to Rockwell management for a long 9 time, and the document itself shows it, and they kept it from 10 them while they were fighting to do a UOR for the one spill 11 that they did tell DOE about. As Long said, "I'm not 12 covering up this one any more." 13 So, Ladies and Gentlemen, based upon the evidence 14 of false statements and fraud and active concealment by 15 Rockwell that you have heard, we ask that you find for each 16 of the relevant award fee periods on the verdict form, and 17 you'll also see that the VANEAs are identified, those are the 18 yearly ones for the fiscal years of '87, '88 and '89, each of 19 them is a false claim because it was submitted based on false 20 statements by Rockwell as to the pondcrete and saltcrete and 21 spray irrigation, and they made those false statements before 22 submitting these claims for money in order to get money paid 23 under the Rockwell contract, and the damages that directly 24 flow to the government, to the U. S. Treasury from this are 25 not only the award fees for those periods, but also all of

5171

1 the costs that the government was stuck with because Rockwell 2 wasn't open and truthful with the government from the 3 beginning. And had Rockwell been truthful, the costs would 4 have been much less. And McGeehin took that part out. 5 Thus, at the end of the day, we're going to ask 6 that you render a verdict on each of the false claims for 7 $164 million, and there's some change. And now it's time for 8 me, I'm sure you think fortunately, to stop talking. 9 And as I said at the beginning, this was a team 10 effort by us and the Department of Justice to present this 11 case to you. It was a team effort when we began. It's a 12 team effort now. And Mr. Kolar, my colleague, is going to 13 talk to you about the government's breach of contract claim 14 and, again, I want to thank you on behalf of my client and 15 all of us who have worked hard to present this to you for all 16 of your attention during the trial, and the attention you 17 will give in your deliberations. 18 Thank you. 19 THE COURT: Members of the jury, we'll take our noon 20 recess before hearing from Mr. Kolar. And, of course, we 21 also will be--you also, we will be hearing from Mr. Williams 22 for the defendant, and so just as with all other times that 23 I've excused you from the courtroom in the case, please 24 continue to follow the caution, withhold judgment, withhold 25 discussion of it, and we're going to keep the luncheon recess

5172

1 to one hour. And they have, I understand, brought some food 2 in so that you will be fortified, it's not gourmet, but it's 3 substance, and I'm going to ask that you stay in the area of 4 the jury room during this recess instead of going outside. 5 So same cautions. We'll resume at 1:15. You're 6 excused until then. 7 (Jury excused.) 8 THE COURT: All right, recess; 1:15. 9 (12:15 p.m. - Recess accordingly.) 10

5173

1 A F T E R N O O N S E S S I O N 2 (At 1:16 p.m. on March 29, 1999, with counsel for the 3 parties present, the following proceedings were had:) 4 THE COURT: Be seated please. What's your timing as 5 to-- 6 MR. KOLAR: I think it will be a half hour or less, Your 7 Honor. 8 THE COURT: Will you need any setup time before you 9 start, Mr. Williams? 10 MR. WILLIAMS: I can get by without it, I think. I'll 11 move a couple of things, but I don't have a lot. 12 THE COURT: All right. 13 MR. WILLIAMS: This is all I've got. 14 THE COURT: Okay. 15 (1:17 p.m. - Jury present.) 16 THE COURT: All right, Mr. Kolar. 17 MR. KOLAR: Good afternoon, members of the jury. 18 As Ms. Vullo told you, I will now speak to you 19 about the government's claim for breach of contract. Since 20 she covered the evidence in great detail this morning, my 21 remarks will be necessarily shorter than hers were this 22 morning. 23 I mainly want to focus on the fact that with regard 24 to the breach of contract claim, some of the elements differ. 25 Some of the things that you will be instructed by the Court

5174

1 you need to find are different about the breach of contract 2 claim than is true about the False Claims Act claim, and 3 that's what I want to focus on. And then I also will speak 4 briefly about the defenses that the Court will instruct you 5 on that pertain to the breach of contract claim but not to 6 the False Claims Act claim. 7 First of all the government alleges two kinds of 8 breach, that there were two things that Rockwell did that 9 constituted breaking the breach or breaching the contract. 10 The first is that Rockwell failed to uses its best efforts to 11 make, store and hand pondcrete and saltcrete. The second 12 thing we allege is that Rockwell breached the contract by 13 reporting failures, not reporting information to the 14 Department of Energy as was required by its contract. 15 Now even if you find operational failures but not 16 reporting failures, or vice versa, you would find for the 17 government on breach of contract. These are independent of 18 each other. The Court will instruct you that there are three 19 elements that you must find with regard to operational 20 failures. 21 The first is what I mentioned before, t hat 22 Rockwell failed to use its best efforts when it make the 23 pondcrete, produced it, when it handled it and when it stored 24 it. The second is unique to the breach of contract claim. 25 It's not an aspect of the False Claims Act claim, and that is

5175

1 that Rockwell failed to do so as a result of lack of good 2 faith or willful misconduct by Mr. Sanchini or those who 3 reported directly to him; and thirdly that the government 4 suffered damages as a result. 5 Now the third element, damages, applies to both the 6 operational failures, which I'll speak to in a moment, and 7 the reporting failures. And Ms. Vullo addressed that 8 evidence extensively with you this morning, and the 9 government's theory as to causation on the breach of contract 10 is essentially the same as the theory on the False Claims 11 Act. And I'm not going to repeat that discussion for you in 12 order to keep my remarks brief. 13 Now the first element on the operational failures 14 is that Rockwell failed to use best efforts. And I would 15 submit to you that there is abundant evidence that's been 16 presented by the plaintiffs at trial, that was discussed this 17 morning, that Rockwell's efforts to produce, handle and store 18 the pondcrete were anything other than the best efforts that 19 a corporation with the resources and expertise of Rockwell 20 could have provided. 21 The guilty plea which you looked at this morning it 22 itself evidence of a lack of best efforts. Rockwell pleaded 23 guilty to felony violations of RCRA in connection with 24 pondcrete and saltcrete. And it is hard to imagine that a 25 conduct that violates the felony laws of the United States,

5176

1 RCRA specifically, could constitute the company's best 2 efforts. 3 Rockwell also admitted in it's UOR report that the 4 causes of the pondcrete problems were causes that were within 5 Rockwell's control. Rockwell was the one that designed the 6 process. Rockwell purchased the equipment. You'll recall 7 some testimony about that. Rockwell installed the equipment. 8 Rockwell's workers watched the equipment, they made the 9 pondcrete, they inspected the pondcrete; and in the UOR 10 report Rockwell essentially admitted that these were things 11 within its control that were the cause: inadequate 12 cement/sludge ratios, poor inspection procedures. 13 In fact Rockwell never even claimed it used its 14 best efforts in connection with pondcrete and saltcrete until 15 Mr. Stone and the government brought this action to recover 16 the monetary losses stemming from Rockwell's failure to do 17 so. 18 Rockwell may say to you, but pondcrete was not 19 rocket science. You may recall when Mr. Williams examined 20 Mr. Fryback early in the trial he went through a lot of 21 detail about how the process worked. We saw that essentially 22 a man stood on a platform up by the pondcrete equipment and 23 watched the mixture come in and tried to figure out when it 24 was the right mixture. And Rockwell may say to you this is 25 not scientific, this is not exact. It was inevitable that

5177

1 such an inexact procedure would have problems. 2 There are two problems with that argument as it 3 goes to any claim by Rockwell to have used best efforts. The 4 first is what I said before. They installed, designed the 5 process. Their people monitored the process. They said to 6 DOE in March of 1987 pondcreting is a proven technology. 7 The second problem is the contrast between the 8 pondcrete produced when Mr. Fryback was foreman, and which he 9 said never went to the pads unless it was concrete hard, and 10 the pondcrete that was later produced under Mr. Teel first 11 and Mr. Tallman later. Mr. Fryback was able to get concrete 12 hard pondcrete blocks using the same methods that Mr. Teel 13 and Mr. Tallman used with the exception of one thing, and 14 that is the reduction of cement. And the reduction of cement 15 was something that Rockwell had in its control. Rockwell 16 didn't have to reduce cement. 17 You recall some testimony from Ms. Jierree when she 18 said after the spill in May of 1987 Mr. Weston came and said 19 we were trying to minimize waste. You know that's a good 20 thing. Make less pondcrete blocks and that's why we reduced 21 cement. Well I will submit to you that that was not the 22 reason. 23 The reason was that the faster the sludge runs into 24 the boxes, the more sludge that goes in at a faster rate, the 25 faster the sludge comes out the ponds, the faster the ponds

5178

1 are cleaned up, and the more kudos Rockwell gets from the 2 Department of Energy for being ahead of schedule or on time. 3 And remember the testimony from many witnesses, 4 What's to worry? Rockwell says. DOE always pays for these 5 things. You know, if we make a mistake DOE will pay in the 6 end. Why should we be that concerned about using best 7 effort. We'll give it the old college try and, you know, if 8 we're successful we'll get good award fees; if we're not, we 9 don't have a financial risk. 10 There was a document--I'm not going to display it 11 to you, again because I want to move fairly quickly--but 12 there is PX, plaintiff's Exhibit 2282, and this--I introduced 13 this during testimony of Mr. Weston. This was a weekly 14 highlight written shortly after the May 23, 1988 spill by 15 Doug Reinhart. He was in charge of the waste certification 16 program for Rockwell as regards pondcrete, and he said in his 17 weekly highlight--he sent it to Ms. Hilbig, who had non- 18 weapons quality assurance. 19 And he said, you know, Rockwell had developed some 20 process parameters for this effort, this manufacturing 21 process. The trouble is they never made it into the 22 operating manual that we gave to the chemical operators who 23 had to run the process. How can that be best efforts by 24 Rockwell's management when Rockwell doesn't see that the 25 things the engineers develop in the way of parameters don't

5179

1 get into the operating manual? 2 The UOR attributes also the problems to poor 3 inspection methods. Well who inspected the pondcrete? It 4 was Rockwell. We had testimony from Mr. Fryback, the 5 foreman, the first foreman, and Ms. Fenner, and that 6 testimony should have struck you as particularly credible, 7 those witnesses. And they said, you know, at the beginning 8 penetrometers were used. Then we went to the palm test where 9 we just pressed--the inspectors would press on the blocks. 10 Well why abandon the use of a penetrometer and go 11 to a more inexact method if you're concerned about the 12 inexactness in the beginning? I would submit again to you 13 that the faster they inspect blocks and get them out of the 14 curing space in Building 788, the faster they can run the 15 process, the faster they can make blocks. 16 So to the extent that penetrometers might not show 17 that a block was ready to go out, if we use an inexact method 18 we'll get it out the door, and we can bring more blocks into 19 Building 788 on the racks to cure faster; and we know from 20 the evidence that the process was continually accelerating 21 and Rockwell was getting kudos and award fees, recognition in 22 the award fee evaluations by Rockwell for meeting the 23 compliance agreement goals including pondcrete, and sometimes 24 explicitly for being ahead of schedule in the cleanup of the 25 pond.

5180

1 As for best efforts in the storage of pondcrete, it 2 is not best efforts to put a band aid on this block this 3 week; bring it back to 788, fix it, put it back out; put a 4 band aid on another block or two blocks next week, and never 5 fix the root cause of the problem, which is the incorrect 6 cement/sludge ratios and the poor inspection methods. All of 7 this evidence and more I would submit to you supports a 8 finding by you, a conclusion by you that Rockwell failed to 9 use best efforts in this process. 10 The second element is willful misconduct, lack of 11 good faith. And again I will go back to Exhibit, plaintiff's 12 Exhibit 1, which is the plea agreement. It--you know, 13 Rockwell pleaded guilty to a felony violation. It can't be 14 that Rockwell's management acted with complete good faith if 15 the company itself engaged in a violation of RCRA, a knowing 16 violation of RCRA, which is what Rockwell pleaded to. 17 There are two other elements of the proof, or 18 aspects of the proof which support willful misconduct, and 19 they basically break down into two categories. One is the 20 failure to warn about looming disaster, and the second is 21 Rockwell's management's refusal to take steps that would have 22 solved the problem at the time. 23 The first is the failure to warn, and the evidence 24 is abundant, as Ms. Vullo explained to you, that Rockwell not 25 only failed to warn DOE, but actually engaged in false,

5181

1 misleading half-truths in connection with the status of the 2 pads and the pondcrete process. There was a refusal by 3 Rockwell's management to take steps to fix the problem, a 4 problem they knew about. And there's two things in 5 particular that I'm focusing on. 6 The first is the discussion about adding more 7 concrete to really make a solid block. This was in the 8 September 9, '87 memo from Mr. Meyers to Mr. Campbell which 9 Ms. Vullo showed you today. What happened? Here Rockwell's 10 management up to the highest level, Mr. Sanchini, is thinking 11 maybe we ought to make these things more solid, maybe we 12 should mix in more concrete. What happens is the amount of 13 cement added goes down under Mr. Tallman. 14 Then again two days later there's a note from Mr. 15 Naimon to Mr. Sanchini, and they're talking about maybe we 16 put the next 6,000 blocks that we haven't produced yet, the 17 blocks that are going to be produced from September of 1987 18 to the end, in plywood boxes. No, let's not do that. Let's 19 keep on, let's stay the course, let's finish the cleanup of 20 Pond 207A, let's keep using tri-walls, and if in the end we 21 have a problem, remember we don't pay for it. 22 Now he did say in that note, he said well, you 23 know, tri-walls are less expensive than plywood. Well I 24 would submit to you that's penny wise, pound foolish. Let's 25 save some money on containers on now and when the problem

5182

1 gets out of hand at the end we won't have to pay. 2 Later in November of 1987 and January of 1988 you 3 saw the memos from Mr. Wickland to Mr. Whiteman of the DOE, 4 memos that were approved by Mr. Naimon and Mr. Weston. And 5 in an incredible lack of good faith Rockwell again said to 6 DOE tri-walls are fine, don't go to plywood, even though at 7 this time the evidence is clear Rockwell's management knew 8 there were problems with the process and with the blocks. 9 In the end Rockwell's managers thought they were 10 gambling with other people's money, DOE's money. You know, 11 in the opening statement Mr. Williams told you--described the 12 cost reimbursement contract, which this was. By this example 13 or analogy you hire a contractor to paint your house white 14 and you tell him you'll pay the cost of the paint and the 15 labor and you'll pay him a $500 fee. Well Mr. Williams said 16 to you in a cost reimbursement contract, if he paints the 17 house blue you still have to pay the cost of the paint and 18 the labor and the $500 fee. 19 The difference in this case, members of the jury, 20 is that almost from the beginning of the painting job the 21 management of this company knew blue paint was being used, 22 not white paint, knew pondcrete and saltcrete was turning out 23 badly--at least some of the blocks--enough to put them on 24 notice that there were problems with the process that needed 25 to be corrected.

p.5183

1 Under those circumstances, members of the jury, and 2 under the willful misconduct and the lack of good faith 3 standard that the Court will instruct you applied in this 4 contract, the victim of that conduct, the person that hired 5 the contractor, does not pay. 6 We also allege a separate independent breach of the 7 contract, the reporting failures. And again I--on this 8 particular claim it overlaps quite closely with the False 9 Claims Act violation. And Ms. Vullo explained all the 10 evidence on that to you today. 11 It is manifest that full reporting was not given to 12 the Department of Energy about problems, that false 13 statements were made, that that resulted in damage to the 14 government, and that Rockwell's managers up to the level of 15 Mr. Sanchini and his senior directors who reported to him, 16 knew of these problems and failed to report. 17 One of the elements of this reporting failure claim 18 is the requirement that Rockwell made false representations 19 of material fact or failed to disclose material facts that it 20 had an express contractual duty to disclose relating to 21 whether Rockwell was in compliance with its contractual 22 obligations relating to environmental compliance. And clause 23 74 of the contract--and it's plaintiff's Exhibit 96--provided 24 that the contractor shall abide by all applicable laws and 25 regulations of the U.S. and of the State of Colorado. Clause

5184

1 56 provided the contractor shall comply with all applicable 2 ES&H regulations and requirements, including reporting 3 requirements of DOE. 4 You've heard a great deal of testimony during the 5 trial from Mr. Whiteman and the contracting officers about 6 Rockwell's duty to report information to them. Mr. 7 Romatowski, the first contracting officer in the time period 8 in question, said "I always expected the contractor at Rocky 9 Flats to operate consistent with applicable laws and 10 regulations and directives," and he went on to describe the 11 way in which the compliance agreement was negotiated and the 12 way he expressed expectations to Mr. Sanchini that Rockwell 13 was to fulfill those obligations and his expectation that if 14 there were problems they would be reported. 15 You may recall that he talked about his early 16 warning theory or requirement or expectation of reporting. 17 Mr. Romatowski said that all the way from his days at NASA he 18 had a philosophy, and he told contractors that early warning, 19 at the first sign of trouble, information was to be reported; 20 because then a problem can be fixed relatively easy. If it's 21 allowed to fester, if it's allowed to grow, if it's allowed 22 to get out of control, it becomes all the harder to fix it in 23 the end. 24 And that's exactly what Rockwell allowed to happen 25 or caused to happen in connection with pondcrete and

5185

1 saltcrete. And I will also say spray irrigation, which I 2 haven't alluded to before, but there is just as significant a 3 reporting problem and failure as Ms. Vullo explained with 4 regard to the spray irrigation issue as there was with 5 pondcrete and saltcrete. 6 Mr. Twining also had expectations. He had 7 expectations--he said one of the three issues topping the 8 agenda when he became contracting officer in March 1988 was 9 the compliance agreement, and he too was not informed of the 10 problems and he expected to be. 11 Mr. Whiteman said he was on the ground at Rocky 12 Flats. He was the person that Rockwell dealt with day in and 13 day out, to whom they failed to explain the problems or 14 report the problems. He said in his testimony "I expected 15 that if anything happened at Rocky Flats that wasn't planned, 16 or that occurred differently than what was expected, I 17 expected that to be reported." 18 The only evidence to even suggest that there was no 19 duty of reporting was Mr. Krueger's statement that, you know, 20 with leading waste blocks, that's an operational problem. 21 That's not important that the contractor tell DOE because 22 they're supposed to fix it and not necessarily to tell us. 23 And I would submit to you, members of the jury, that the 24 testimony of Mr. Whiteman, the area manager, the contracting 25 officers who are the ones who have authority to act under the

5186

1 contract with DOE, is entitled to more weight and ought to 2 persuade you on this issue than anything said by Mr. Krueger 3 in his testimony. 4 We submit to you that the elements required for 5 both the operational failure breaches and the reporting 6 failure breaches are satisfied in this case by the evidence, 7 by a preponderance of the evidence. The Court will instruct 8 you that there are three defenses that you have to consider 9 here, that again are not defenses to the False Claims Act. 10 These are called impossibility, waiver, and 11 mitigation of damages. There are a couple of important 12 things that I would respectfully ask you to bear in mind in 13 your deliberations about these defenses. Again, they're not 14 defenses to the False Claims Act. The Court will not 15 instruct you on these defenses in connection with the False 16 Claims Act. 17 Secondly, only the first two overcome liability. 18 If you decide that the evidence supports the conclusion 19 there's a breach, only if you find impossibility and/or 20 waiver would that justify you in not putting yes on the 21 verdict form on liability for breach of contract. 22 Mitigation is a defense that relates to damages, 23 and let me explain that first and get it out of the way, and 24 then I'll turn back to the other two defenses. Mitigation is 25 basically based on the theory, as the Court will instruct

5187

1 you, that in a breach of contract situation someone like DOE 2 has to take reasonable measures to limit the loss or the 3 damage that occurs after the breach. And Rockwell is 4 contending in this particular case that DOE did not take 5 reasonable steps. 6 One of the things that may come to mind immediately 7 is the extensive discussion we had in the trial over tents 8 and shelters and things over the pondcrete. And for the 9 reasons explained by Ms. Vullo, it wasn't the weather that 10 caused the problem in the first place. It's not Mother 11 Nature. It was Rockwell's inadequacies and ineptitude and 12 failure to use best efforts when it made the pondcrete in the 13 first place. 14 But even so, there is testimony by Mr. Whiteman 15 that he didn't procure the building, procure the tents for a 16 lot of good reasons. One of the reasons was that he thought 17 the problem, the damage was done when the pondcrete spill 18 occurred in May of 1988. He didn't think the exposure to the 19 weather was going to make more blocks turn to mush, and in 20 fact there's no evidence that exposure to weather causes good 21 blocks--again we go back to what's the root cause. They're 22 not good blocks because there's not enough cement, they 23 weren't inspected. 24 There is no evidence in the record to support the 25 proposition that weather causes good cement blocks to go

p.5188

1 mushy. There was some mention in the evidence of spalling 2 and cracking. Cracking, we know what that is. Spalling is 3 when a piece of a chunk of cement breaks off. That's not 4 what is being contended. What is being contended is that the 5 blocks went from being cement to mush, and there is no 6 evidence that Mother Nature did that. 7 And Mr. Whiteman didn't think that was happening, 8 and Mr. Whiteman was focused on shipping blocks. Let's get 9 them off-site. If we put up a building we're going to spend 10 many, many millions of dollars. From his vantage point 11 looking forward in time, not from where we are now looking 12 backwards in time, let's get the blocks off the site. If we 13 put a building up we're going to have an empty building once 14 we get the blocks off the site, and it's not Mother Nature 15 anyway. 16 So I would suggest to you that mitigation of 17 damages doesn't apply here, but again even if you disagree, 18 and even if in your deliberations you come to the conclusion 19 that anything like this should have been done, the effect is 20 to limit, to lessen the damages you award to the government 21 on this claim. And again it's not the False Claims Act that 22 this applies to. 23 Impossibility is a defense that essentially says 24 that for reasons beyond Rockwell's control such as some kind 25 of legal prohibition, some kind of legal change, or in this

5189

1 case lack of funding, it was impossible for Rockwell to 2 fulfill it's contractual duties. Again the contractual 3 duties in question are to make the pondcrete right best 4 efforts and to report. 5 First of all impossibility cannot apply I submit to 6 reporting. No amount of money is going to make someone more 7 honest and no lack of money is going to make someone not 8 report. There is no issue here in this case, or at least no 9 evidence--let's put it that way--that there was some law that 10 precluded Rockwell from reporting honestly to the Department 11 of Energy. 12 There is no evidence that there was a legal change 13 or a change of regulation that somehow deterred Rockwell from 14 reporting honestly. So I would respectfully say to you that 15 impossibility, if reporting failures is the breach you find, 16 that impossibility is not really an issue on that particular 17 kind of breach. 18 Now let's look at operational failures. In this 19 case the operational failures we're talking about again are 20 prior to May 23, 1988. No new pondcrete blocks were made 21 after that date. The blocks were made before May 23, 1988, 22 so you have to ask yourselves was there some law that made it 23 impossible for Rockwell to make the blocks right before May 24 23, 1988 or to handle them or store them properly? 25 I would submit to you the answer is no. There is

p.5190

1 no law that forced Rockwell or made it impossible for 2 Rockwell to comply with that obligation to make the blocks 3 right and handle them, store them in accordance with RCRA 4 prior to May 23, 1988. 5 Was there some regulatory change? Well there was 6 some evidence on regulatory changes. Ms. Vullo referred to, 7 you know, the requirement by NTS that plywood be used after 8 the May 23 spill, the May 1990 land ban after the May 23 9 spill. But there is no suggestion in the evidence that some 10 regulatory change occurred in the time Rockwell was making 11 the block--that is through May 23, 1988--that made it 12 impossible for Rockwell to make them right. 13 Finally we get to funding. Again the funding issue 14 didn't make it impossible or impractical for Rockwell to make 15 the blocks right. Mr. Naimon said he had the resources when 16 he testified to make--to do this right. He had the resources 17 to do it right. He said he had the time to do it right. It 18 was incorrect cement/sludge ratios, bad inspection methods, 19 all within Rockwell's control, things Rockwell had enough 20 resources to do right. 21 There is another reason why these defenses don't 22 apply even to the operational failures. Consider the fact 23 that many of the blocks apparently were made right. Many of 24 the blocks didn't leak, many of the block complied with RCRA. 25 Many other blocks did not. If impossibility applied, if it

5191

1 was impossible for Rockwell to comply with its duties under 2 the contract because of a law, a change in regulations or 3 lack of money, why did some of the blocks turn out right? 4 Even under Mr. Teel and Mr. Tallman some blocks were made 5 right. 6 The cause of the problem, members of the jury, is 7 failure to use best efforts, lack of cement, bad inspection, 8 carelessness, failure to use best efforts by Rockwell. 9 Waiver is a defense that the Court will tell you 10 applies under the following conditions. Rockwell must 11 establish that the government knew that Rockwell had failed 12 to perform its contractual obligations, that the government 13 knew that Rockwell's failure to do so gave it a right to 14 withhold contractual payments to Rockwell, that the 15 government intended to give up that right and that the 16 government did so voluntarily. 17 Now in this case Rockwell cannot meet the first 18 requirement, that is a waiver of a contractual right based on 19 full knowledge of information. Again for the reasons Ms. 20 Vullo explained, at no point prior to Rockwell's departure 21 from this site in 1989, the end of 1989, had Rockwell given 22 full information to the Department of Energy. Full 23 information, I said they admitted failure to use best efforts 24 in the UOR, but that was only the tip of the iceberg; that 25 was only part of the story.

5192

1 The rest of the story was Rockwell knew it was 2 using--failing to use best efforts while the process was 3 ongoing. That was not told. Rockwell knew that it put 4 incorrect statements in letters that DOE subsequently sent 5 after the spill to regulators in Congress that this was a 6 discovery, May 23. No one knew this before, including 7 Rockwell. 8 Rockwell did not tell the Department of Energy that 9 Mr. Sanchini and those reporting directly to him had acted 10 with a lack of good faith in their dealings with the 11 Department of Energy. Indeed you heard from Mr. Whiteman, 12 Mr. Romatowski, Mr. Twining. They thought Rockwell did 13 fairly--dealt with them fairly and squarely even to today, 14 because they had not been sitting in this court room 15 listening to the evidence. 16 I would submit to you that these contracting 17 officers, Mr. Romatowski and Mr. Twining, who were the ones 18 with authority to waive the government's right under the 19 contract, couldn't have knowingly waived a right they did not 20 know they had, because they did not know all the facts. 21 In summary on the breach of contract, the evidence 22 supports all of the elements for you to find by preponderance 23 of the evidence that Rockwell breached the contract both by 24 reporting failures and operational failures. The evidence 25 does not support defenses by Rockwell of impossibility or

5193

1 waiver, and it does not support a substantial--or an argument 2 that Rockwell--that DOE failed to mitigate damages to any 3 degree at all, or certainly not to any substantial degree. 4 When I addressed you in the opening statement, 5 members of the jury, many weeks ago--it seems like it's been 6 a long time--you will recall that I told you this was a case 7 about trust and responsibility and the betrayal of that trust 8 and responsibility by Rockwell in an effort to earn high 9 award fees and to obtain the renewal of its contract. 10 There are some absolutes both in life and business. 11 One of them is you have to tell the truth. The plaintiffs 12 have introduced overwhelming evidence that Rockwell 13 International Corporation knowingly used false statements and 14 engaged in concealments in making claims upon the U. S. 15 Treasury, and in the process breached obligations it had 16 under the contract. 17 This evidence ranges--extensively discussed by Ms. 18 Vullo--ranges from Rockwell's admissions in the guilty plea 19 in the UOR report to the admissions on spray irrigation that 20 were read to you during the trial; to the testimony of 21 Rockwell people, Mr. Weston, Mr. Naimon, Mr. Potter, Mr. 22 Blaha, Mr. Teel, Mr. Tallman and others; to the documentary 23 exhibits including Fryback's May 1987 notes, Swenson's 24 leaking logs that went on from June of 1987 to November of 25 1987 when leaking abruptly stopped apparently when Mr. Teel

p.5194

1 took over the inspections; to Mr. Blaha's note about the 2 9/14/87 spill and other references and testimony to spills; 3 Naimon's note to Mr. Sanchini not to switch to plywood in 4 September 1987; Teel's note about repacking leakers in May-- 5 or leakers found in May into coffins; the implementation 6 plans signed by Rockwell directors on three different 7 occasions--July 1987, August 1987, February 1988--that said 8 there is no leaching from the blocks and everything at the 9 pads is being done in accordance with law--or compliance with 10 law. 11 Rockwell betrayed its trust and responsibility and 12 the plaintiffs respectfully urge you to return a verdict in 13 our favor for liability first of all on both claims, and for 14 such an amount of damages as you decide is fair and proper 15 under the circumstances in accordance with the evidence 16 that's been introduced, and the instructions the Court will 17 give you as to the applicable law. 18 All through this case you've heard--we've all heard 19 Rockwell say well the government always paid everything 20 regardless of if it was Rockwell's fault. You members of the 21 jury have the power to change that in accordance with the 22 evidence and the law in this case. You should do so. 23 Thank you very much for listening and for your 24 attention. 25 THE COURT: All right. Mr. Williams.

5195

1 MR. WILLIAMS: Good afternoon. 2 About 30 years ago when one of my daughters was 3 four years old, she was playing down in the basement with 4 some of her four-year-old friends. And there was a terrible 5 crash down there. My wife headed for the stairs to find out 6 what had happened, and this little girl--I still remember her 7 name--came wandering up, Sara. My wife said "Sara, what in 8 the world happened down there?" And Sara looked at her with 9 her four-year-old eyes and she said "I don't know. I think I 10 was someplace else." 11 And that's just exactly what the DOE is trying to 12 tell you here today. I told you when I started, talked to 13 you at first when you hadn't heard the evidence, that this 14 was not a case about fraud, because as the DOE said when 15 Congress asked them was there any fraud, they said no. And 16 they knew that that question was going to get answered in a 17 forum where Rockwell could speak. 18 But I said this case is about the fact that the DOE 19 controlled Rocky Flats, that they had the responsibilities 20 for what went on out at Rocky Flats, that they ignored 21 Rockwell's recommendations about how to do things right; that 22 they are trying to make a scapegoat of Rockwell. 23 And I pointed out to you that Rockwell has accepted 24 its responsibility for what went on at Rocky Flats. They 25 pled guilty, and the DOE is still trying with this lawsuit to

5196

1 pretend that they have no responsibility. And what this case 2 is about, ladies and gentlemen, is whether the DOE will 3 finally accept its responsibility for what went on out there. 4 I just want to remind you about the degree and ways 5 in which the DOE controlled everything that went on at Rocky 6 Flats. They owned it, down to the clothes that the workmen 7 wore, the machinery, the buildings--everything. They 8 controlled all the money. You couldn't do anything at Rocky 9 Flats that required money unless DOE gave it to you. 10 And they controlled the direction and the 11 priorities. They said this is important and this isn't, and 12 you do this and you don't do that; and you get this much 13 money for this and this much money for that. And they did it 14 with award fees too, as you remember. They said well here, 15 if you want to get extra money this is what you concentrate 16 on, and of course they don't deny that the only thing they 17 really cared about was production of weapons during the time 18 period we're talking about here. 19 They had the right of access, the right of 20 inspection. They could come any--go anywhere they wanted, 21 look at anything, sit in on any meeting, read any documents 22 they wanted. And what, 50 or 60 out there. I grew up in a 23 town of 5,000 people that had a police force of four, and 24 they managed to keep track of what went on. 50 or 60 people 25 with 5,000 aren't going to miss anything that they care

5197

1 about, ladies and gentlemen. 2 And then there was more than that, and I think you 3 heard enough of it to understand what it is I'm talking 4 about, the side by side until the raid. These people thought 5 they were partners and friends and that they were working on 6 a common problem, to get a problem solved; which meant that 7 as Mr. Kluherz said, you know, "If I wanted a copy they'd 8 burn me one." And the Judge is as old as I am even though he 9 doesn't look it, and he reminded us that burn, by that he 10 meant to make a copy because that's what we used to say. 11 And Mr. Krueger said the same thing. What did he say--he 12 said "I even helped them write some of these documents." 13 And then you heard Mr. Krueger about how he was 14 able to be--and what he described as his job, it used to be 15 construction, but his job was to be the eyes and ears of the 16 DOE within the perimeter of security zone. And that's where 17 they made the pondcrete and stored most of it. 18 And then remember what Mr. Weston said about how 19 the DOE described to him what the deal was there? They said 20 "You guys keep your head down and row and we'll do the 21 steering." Doesn't the person who does the steering have 22 some responsibility and shouldn't they admit it? Shouldn't 23 they step up and say "Yes, we have some responsibility here?" 24 And another thing that actually just occurred to me 25 when I was thinking about what I was going to say to you

p.5198

1 tonight--or today--last night I was thinking about it, I was 2 in the military, and it was said to me probably under 10,000 3 times, but I don't know very much more that you can delegate 4 authority but you cannot delegate responsibility. 5 You have the authority to give orders, directions, 6 say where the money gets spent, say what can be done, what 7 has to be done. Then when it goes wrong you don't point to 8 the employee. You don't point to the enlisted man. When 9 they come down on you because it isn't done right, you say I 10 had the responsibility and you don't shuck and jive and point 11 your finger at somebody else when you're the one that had all 12 the power to control. 13 Now you can bet your bottom dollar that when the 14 time for passing out credit came for these weapons production 15 things that the DOE didn't say Oh, well, we just had good 16 contractors. No, they took the credit I'm sure, and you know 17 that because every one of us has either had a boss or known 18 somebody that did who steps right up to the line for credit 19 but doesn't take the responsibility when things go wrong. A 20 good boss, one that should be fair, takes the responsibility 21 when they give you bad deals, bad decisions. 22 And that--what really happened here, ladies and 23 gentlemen, is that when that raid came down and the bad 24 publicity came the DOE tried to make and decided to make 25 Rockwell the scapegoat. And that's still going on here

5199

1 today. It's been going on for several weeks. 2 They had advance warning, the DOE did. They knew 3 that raid was coming. They had their number two man in town, 4 Mr. Henson Moore, the day before the raid. They got Mr. 5 Goldberg to put him in place to be sure that they got 6 Rockwell blamed for this. They managed to get one of their 7 members onto the force that went in there so they could look 8 like they were part of the solution and not part of the 9 problem. 10 They saw to it that subpoenas were only issued to 11 Rockwell even though it was the DOE that owned all the paper 12 and controlled everything out there. And sometime, as we 13 heard Mr. Huffman say, they made an agreement with the 14 Department of Justice that no government employees would be 15 prosecuted for what went on at Rocky Flats. You don't make 16 that kind of an agreement if you don't think you have some 17 responsibility, ladies and gentlemen. 18 It's time for the DOE to admit that they weren't 19 someplace else when these things were going on. It's time 20 for them to accept their responsibility just the way Rockwell 21 has. Now I talked about what led up to these problems, and 22 you heard evidence of it. 23 When the environmental laws were passed the DOE 24 decided it didn't apply to them. Every private facility in 25 the country was gearing up and trying to learn how to deal

5200

1 with these things, but not the DOE. They refused to accept 2 the fact that they applied. And they agreed here. They 3 called it a jurisdictional dispute. What was the 4 jurisdictional dispute, they were darned if the EPA was going 5 to tell them what they could tell everybody else in the 6 country how to protect people from hazardous wastes. 7 And although you've heard it all enough--I revise 8 what I said--radioactive is hazardous, but in the terms and 9 context of what we're talking about here, hazardous waste is 10 something different. That's what leads to the mixed waste 11 and all that. 12 So they fought it and they fought it and they 13 fought it. And finally they lost a lawsuit and they had to 14 comply. Well, you would think so. In 1984 Court said to the 15 DOE, Look, you have to watch out. You're governed by this 16 law about hazardous waste. But did they step in there in 17 good faith and say yeah, you know, maybe we'd better? No, 18 they didn't do that. 19 What they did is they said well we've got a 20 loophole here. If there's any radioactive in it at all, you 21 can't tell us what to do. And they fought and fought and 22 fought on that until finally in 1986 the State of Colorado 23 faced them down. And they said Look, either you tell us 24 about all, including mixed wastes, that you've got out there 25 or we're going to shut you down. That got their attention,

5201

1 because that affected the production of weapons. They got 2 shut down, the entire production of nuclear weapons in this 3 country got shut down because they had a critical part. 4 So faced with that they said all right, let's see 5 if we can't negotiate a compliance agreement, and they wanted 6 some headlines, and they wanted to make it look good. And 7 they did. They said we'll sign this and we'll agree to all 8 these dates, but that was their public position. 9 There's a document in here that shows their private 10 position, and I'm talking about Exhibit C90, which is a 11 letter that's in this file that was written in 1987 after 12 evaluating and reviewing Rockwell and what did the DOE say to 13 Rockwell? They said "It appears that environmental costs are 14 getting out of control and some maximum level needs to be 15 established." That was still their true view. That was 16 their private view. 17 So what else did we hear about this sort of thing? 18 Remember Mr. Hymer? He was the last witness, I think, except 19 for rebuttal. Mr. Hymer said that in the early '80s he was a 20 regular visitor out there, and he happened to be driving by 21 the solar ponds below and he saw that they were looking kind 22 of shabby. I don't remember exactly what he said, but it was 23 something like that. 24 And he went to Rockwell and he said "why aren't you 25 guys fixing that up?" And they said "we've been trying to

p.5202

1 get the money and they're not giving it to us." And as best 2 he could recall it had been two or three years they had been 3 trying to get the money. And of course if this had been 4 started at a reasonable time, if the DOE hadn't been 5 fighting, we wouldn't be dealing with these problems today. 6 But what did it take to get some money? It took 7 Mr. Hymer, who was a fairly high level executive in the 8 Albuquerque office, to go directly to Mr. Romatowski and say 9 "We've got our priorities wrong here." Rockwell asked for a 10 million and a half dollars to start fixing the solar ponds 11 and you won't give it to them, and you give them a million 12 and a half dollars to pay for a parking lot in Detroit. 13 And because of that personal intervention and 14 direct intervention at a level like that, they got enough 15 money that they could do the first pondcrete operation in 16 1985, which was done days, part time, with no pressure to 17 produce. 18 And then the cross-examination suggested well, you 19 know, couldn't Mr. Sanchini go to Mr. Romatowski and get 20 money if he wanted it? I mean basically the attack was 21 shouldn't he go over the head of his boss, shouldn't he 22 ignore Mr. Whiteman, the man he has to work with day in, day 23 out? And I don't think I have to tell you, ladies and 24 gentlemen, what generally happens when people try to go over 25 the head of their boss. It just destroys the relationship

5203

1 and it destroys the job. 2 So anyway, that is a perfect example of the real 3 attitude of the DOE still towards the environment. 4 So they were negotiating this compliance agreement, 5 and we said to them--Rockwell did--it's going to take us 6 three years to clean those ponds up. It's going to take us 7 three years, so don't give that away. And then you remember 8 what Mr. Krueger said about Mr. Whitsett's attitude on 9 contractors who tell you honestly how long a job is going to 10 take and what they need? He just assumed they were lying and 11 cut without any reference to fact. 12 What happened here is just exactly that. The DOE 13 cut for three years and then the regulators of course weren't 14 very happy with the DOE because they had been fighting and 15 fighting and finally they had got them there, and they were 16 in no mood to give them any breaks; and it wound up being 15 17 months, 15 operating months--which means you don't count the 18 times when the pond's frozen and you can't do things--15 19 calendar months to get it out. 20 And then Rockwell said to them, You know, the stuff 21 in this pond is likely to have some hazardous substances in 22 it. We aren't sure yet, but it sure looks like it's got to 23 have them. And if that's so, there's no place to put it 24 because you guys have not bothered to get anything permitted 25 for radioactive and mixed waste. And of course the

5204

1 facilities around the country that the private industry had 2 available to mixed waste couldn't take radioactive. 3 So Rockwell said let's not take it out unless we 4 have some place to put it. They were ignored again. I found 5 it particularly ironic--I wonder if you did too--that 6 sometime in the '90s when they've still got the stuff there 7 and they're trying to figure out, one of the things they 8 considered doing is taking the pondcrete and putting it right 9 back in the pond. Of course the thing that Rockwell 10 suggested, not exactly the same thing, but--to them--let's be 11 careful, let's not make agreements here that--let's not make 12 promises we can't keep. 13 So they were ignored, and then another irony, I 14 thought, was the testimony of Mr. Surovchak and some of the 15 others who were talking about the issue of cleaning out those 16 ponds, the other ponds, in the '90s. And they all said well, 17 it didn't make any sense at all to us to clean it out and 18 make it into a waste form when we didn't know where we were 19 going to ship it--and they still didn't then--and besides, 20 that would just mean we had to handle it more, extra 21 handling, and the regulations might change, and all that. 22 And that made absolutely perfect sense. These are DOE people 23 or DOE contractors out there at the time. Perfect sense to 24 them. 25 And it is perfectly sensible, but Rockwell's

5205

1 getting sued because they had that kind of sense and it was 2 ignored, because the DOE was anxious for some headlines. So 3 now what happened? The tests came up that it's mixed waste, 4 so now the hammer's down and it's clear that there's no place 5 to put it; and what happened? 6 Mr. Potter--and I want to show you Exhibit 6784-- 7 Mr. Potter immediately upon finding out, went to Mr. Whitsett 8 and he said--well here's what his note says: "Briefed on 9 saltcrete and pondcrete, concern because of trace levels, not 10 my call to stop operations." Mr. Potter elaborated on that a 11 little bit. He said "I went to them and said 'hey, we've got 12 to stop making this stuff. There's nowhere to ship it, we 13 can't get rid of it anymore.'" 14 And you remember what he said about his reaction to 15 Mr. Whitsett's response? He says "I was shocked." I 16 couldn't--I was shocked. That was his words, and why? 17 Because he expected this man he'd worked with, who cared 18 about these waste things, would see it the same way. But he 19 got just rudely rejected, and he still did everything he 20 could to do it right. 21 He went immediately to Ms. Krieg and he said, you 22 know, "Don't ship this stuff now. It's mixed waste, we know 23 it's mixed waste," so she wouldn't get herself in trouble. 24 And I think he said that she was a little annoyed with him 25 because of the fact that she didn't come to him first but he

5206

1 got there the same day, and he also went to a man named 2 Reinhart who was a waste certification man, and said "stop 3 it." Now I mean can you be more responsible than that? An 4 act with a concern for the environment and what's right. And 5 they were ignored. 6 So then Rockwell said--let's see Exhibit 403 7 please--let's--if we can't ship it, let's build a building to 8 put it in. Recommendation, authorize a building. We never 9 stored stuff like this outside. The one time they stored 10 stuff outside was under Dow and you remember that was what, 11 the 903 Pad, which--where they had so much trouble they had 12 to pave it over. And the DOE ignored it. 13 Now I was kind--I was thinking about this when Mr. 14 Kolar was standing up here talking about how Mr. Romatowski 15 said all you have to do is identify the problem and give it 16 plenty of money, so then you don't have a problem. And they 17 wouldn't have a problem and we wouldn't be here if they had 18 taken that identification of the problem and given it plenty 19 of money and built a building, because all of the problems 20 that we have, certainly everything Rockwell pleaded guilty 21 to, wouldn't have happened if that pondcrete had been in a 22 building. No rain, no water to transport things, nothing to 23 leach things, and I think--and I'll talk about it a little 24 later--no real evidence--there is clear evidence that other 25 things than the pondcrete process caused the deterioration.

5207

1 So then they said no building, no building, no, we 2 won't do that. So then Rockwell said--and if I could have 3 the next exhibit please, A94--we said again in writing, stop 4 making the stuff. And the DOE said no--they ignored that 5 too. And they're suing us because they ignored the 6 recommendations, the suggestions that they now know--their 7 own witnesses say are completely sensible when they're 8 dealing with their own action where they know they're 9 responsible, and after the raid. 10 So they sent out a task force--you remember that, 11 Mr. Billups--and frankly it was when I was walking back after 12 listening to Mr. Billups that I remembered that story that I 13 started with. But Mr. Billups came out here from Washington 14 with a task force composed of people from Washington and 15 Albuquerque and Nevada, people from here, and he came out 16 with a report already drafted. And I didn't know quite how 17 you did that if you were supposed to go out and find out what 18 the problem was, how you drafted the report before you got t 19 here. But apparently that was all right. 20 But anyway, they took a look at it and they had-- 21 they gave consideration to a couple of options. And one was 22 the option of continue the present schedule for generating 23 pondcrete. And there are the pros and cons, and actually if 24 you think about it, the first pro is absolutely incorrect. 25 It says remove the environmental insult from the site as

p.5208

1 quickly as possible, but they knew that wasn't so because all 2 you were doing was taking it out of a pond and putting it on 3 a pad. It's still out there at Rocky Flats. 4 But they did want to demonstrate the good faith, 5 that is if you get it out of the pond, and that's what you 6 said you'd do, maybe people won't pay attention to the fact 7 you haven't got it off the site. But more importantly they 8 said the cons include the fact that additional handling and 9 processing may be required for permanent disposal. So they 10 identified in that task force one of the problems that 11 they're suing us about. They want the cost for the 12 rehandling and the reprocessing that inevitably resulted from 13 the fact that it wasn't shippable anyplace when it was made. 14 So then they looked at the option, which is the 15 next option here, is postpone generating pondcrete until 16 there is a disposal site. And of course the good thing about 17 that, they say, you only handle material once, and maybe it 18 will generate pressure--although it's obvious that that was a 19 mistake in judgment because with all the pressure I think 20 they still didn't have a place until '88. 21 But what are the cons? State and citizen suits 22 would most likely be filed against the DOE. And there would 23 be adverse publicity. Those were the important 24 considerations for the DOE, not the fact that you take a 25 waste form from a place where it's been for years and

5209

1 transform it into something else, take it and put it on a pad 2 where you aren't going to protect it, and let the elements do 3 what they will to it. 4 So--and by the way, it's one of the--there would be 5 another chart I'll show you in a minute--but they walked 6 around, they got briefings, they went down and they saw the 7 pondcrete being made, they were down at the pond, they saw 8 the pondcrete blocks. They knew what kind of a process they 9 were talking about there, and if Mr. Fryback's testimony is 10 correct--it probably is--they got a pretty good whiff of what 11 they were taking out of the pond too, because you remember 12 Mr. Fryback said they put some sewage sludge in that pond. 13 He couldn't get his men to go in there. And I would think 14 even in Washington you would know that something that smelled 15 like that probably wouldn't make concrete. 16 But anyway, they had this information and they made 17 the decision. So pondcrete production not only went forward, 18 but at an accelerated pace. When that went forward it made-- 19 it went forward after DOE made the following decisions. And 20 if you could put up--they made the decision to delay cleaning 21 up the 207A Pond for a long time. 22 They made the decision to agree to a 15-month 23 deadline for cleaning up the pond. They made the decision to 24 make pondcrete when there was nowhere to put it, and they 25 made the decision to store pondcrete outside in cardboard

5210

1 boxes. And every single one of those decisions overrode the 2 sensible decision from Rockwell or a suggestion to the 3 contrary. But they were the boss, we were the employee. 4 They just said make it and don't bother me with the problems. 5 But when the problems came home to roost they want to blame 6 Rockwell and they want to pretend that they were somewhere 7 else at the time. 8 So what happened? Even--and actually I guess I'll 9 make the point now, and I'll make it again later, that even 10 after the May 23 spill and all of the consequences were 11 overwhelmingly clear, even when their own people were saying 12 "my goodness sakes, put a building over this stuff," they 13 ignored it. And what it took was the embarrassment of the 14 raid. Within two weeks after the raid and bad publicity they 15 had the money that they somehow could never find before. 16 Now does that mean they have some responsibility in 17 this? Should they accept their responsibility? So pondcrete 18 production and storage began. And Rockwell did the best we 19 could with what they gave us. Now they found the money to 20 expand the building, and they found the money for some extra 21 men because what that would do is let you clean the pond out 22 faster, and that's all the DOE cared about. They didn't care 23 about that waste form, they didn't care about protecting it. 24 All they wanted was something out of that pond, because that 25 was one of the compliance deadlines.

5211

1 But there were problems. There were problems with 2 the consistency of the stuff, there were potential leaching 3 problems, there were bad packages, there were all those 4 things, and some of the problems with the waste form did 5 develop. But frankly I think it's not at all clear when you 6 look at all the testimony why. 7 The major point though about this, ladies and 8 gentlemen, for purposes of your consideration of this case, 9 it is not whether it was a flawed process. It was. Just 10 like the process was flawed at Oak Ridge, Savannah River, 11 West Valley, Hanford, Los Alamos. Every one of those, every 12 one of them involved mixing cement, waste that they didn't 13 understand. Every one of those involved unreasonable 14 deadlines, not enough money. Every one of those involved 15 outdoor storage. Every one of those resulted in free liquids 16 and bad waste forms. 17 And there is one common element through all of 18 those with Rocky Flats, and that is that DOE was there. So 19 that's not what it's about, a flawed process. What this is 20 about is what the DOE knows and knew and whether they should 21 accept responsibility for it, as Rockwell has accepted its. 22 And I'm not going to try and paraphrase the Judge's 23 instructions particularly. You'll hear them, but I believe 24 that generally speaking you're going to learn when you hear 25 those instructions that if the DOE knew and accepted what was

5212

1 going on, there is no argument that they didn't use their 2 best efforts, there is no argument that they made false 3 claims because there's nothing false if you say something to 4 somebody and they already know the facts. 5 There is nothing wrong with the effort if they look 6 at it, know what it is and accept it. Waiver I think is what 7 Mr. Kolar called it. But--and it's common sense however you 8 put the language in the language of the law. And you're 9 going to hear it because mostly it is common sense. But if 10 the DOE had a pretty good idea of what was going on and they 11 accepted it, and they didn't care until they got embarrassed, 12 they haven't got a right to recover a penny here. 13 One of the phrases I think is materiality. It has 14 to be something that would have made a difference to them 15 before the raid. I really think you need to think about that 16 because after they got embarrassed they had all kinds of 17 explanations. But did they act ever like it made a single 18 bit of difference to them before they got embarrassed? I 19 think the answer is no. 20 So what's the evidence that they knew what was 21 going on out there, and I think I've got a chart here that I 22 want to use for just a second. And since they seem to think 23 that if it isn't written down on paper it didn't happen, it 24 doesn't exist, these are all the visits and inspections in 25 October of '86 and May of '88 that there's a piece of paper

5213

1 or Document 4. 2 I'm not going to talk about all of them, but the 3 first one is where the task force come out from headquarters. 4 And basically on a lot of this, what they are saying is, you 5 know, we put our head in the sand some place. We were there, 6 but we didn't look. And I think that the law is, if it's 7 there, and it's--you've got plenty of chance to look, it can 8 be assumed that you know. 9 Then in February, Ms. Regan was here. May '87 is 10 the inspection that the CDH did, and I'm going to talk quite 11 a bit about that. Because I think there's some pretty 12 misleading statements made. Mr. Krueger was along on that. 13 And they went through the pads and they went through the 14 records. And didn't find any missing records. I mean they 15 didn't think there were any gaps in those records. And I'll 16 tell you why. 17 Then you've got this one, in August of 1987, which 18 is Tod Anderson's. And Tod Anderson, you'll recall, and Ms. 19 Jierree went out there, and the purpose of that was to decide 20 what to do because you were running out of storage. Space. 21 What are you going to do here? 22 Mr. Anderson said we looked at about three or four, 23 and I think he said, myself, but you're going to have to 24 decide what you heard, that he got to pick. And if he 25 didn't, what kind of a job was he doing? And they took them

5214

1 off, three or four, and he said while that happened--and I 2 remember this pretty clearly, and I hope you do--that they 3 had to have Rocky Flats people out there with forklifts to 4 keep the boxes from tumbling on them. 5 And he also said that there are plenty of these 6 that they didn't take off that they could see that there 7 were--there was only the canvas that was keeping the boxes 8 from falling over. 9 So at that point in time, wouldn't you say that 10 they had some information that would tell them that this 11 isn't all peachy keen, and that this isn't all cement blocks 12 that you--concrete blocks that you can build a highway out 13 of? 14 And then there's a section from his report that I'm 15 going to show you right now, if I may. And that is from-- 16 it's Exhibit I think A144. He says, "Currently, a method of 17 re-boxing these waste boxes has not been developed, but it is 18 known that this will be difficult due to the weight, and 19 instability of the material." 20 So, in August of 1987, it's in writing this time 21 that they knew about the instability of the material that 22 they are trying to suggest to you was a great big surprise in 23 May of 1988. 24 And there are others here. The December one is--oh 25 well here, Ms. Geltson in October of 1987, and I don't really

5215

1 understand what Ms. Vullo was trying to tell you, but it 2 being in some building, because Mr. Krueger said it was out 3 there on the pad. And that note said, "problems with 4 solidity." And you'll find it. I don't remember now the 5 exhibit, but it's at the end of her name. Problems with 6 solidity. She had--remember that. She remembered. Mr. 7 Krueger remember that that's what it was, and it was there on 8 the pad, and that they talked about it. 9 And then you have the Nevada visit here in 10 December. Mr. Rich came along with that team, and it was 11 about packaging of things, and he even went down and looked 12 at the manufacturing operation, and they were out on the pad, 13 and they said, "Send us a report", and "how are you going to 14 deal with this packaging stuff?" And we sent them the 15 report, and the report had a lot of pictures, and he showed 16 you what. I'm just going to show you one because you've seen 17 so much of these and you may want to just take a look at 18 them, but that's the kind of picture they saw. 19 And the thing about that picture that I remember 20 additionally from the evidence, is that when we showed that 21 to Mr. Whiteman, he said, "Well, you know, knowing what I 22 know now, that shows some problems with the waste form." 23 Hindsight. 24 But I think, I think, I heard this morning that 25 this was deceitful because we just sent them a great big

5216

1 colored picture and didn't say something in writing. 2 You saw, this is a list of inspections that we can 3 document. What else is there besides these things? 4 We've got Mr. Lund. Remember? Nice man. Retired. Came 5 over here to testify. And he said, "Look, I saw the stuff 6 being made. I saw that palm test. I saw--I knew there were 7 problems with inconsistency here on this stuff. I looked at 8 records if I needed to. I talked to people. Nobody was 9 hiding anything from me. And I didn't think there was 10 anything that I needed to worry about. Operational problems 11 aren't what I worry about. It's got to be a big problem." 12 And then of course, I've talked about Mr. Anderson 13 and Ms. Jierree. And the one thing I remember about Mr. 14 Anderson's testimony, it was quite different than Ms. 15 Jierree's, as I recall, about that inspection in August, was 16 that Mr. Anderson said he took the tops off four or five 17 boxes. And he picked them. He picked them. How are we 18 hiding things? That you have some obligation when you're the 19 boss, you are inspecting to do it right. I think they did, 20 frankly, because I think there wasn't much else to see. 21 But whatever it was that was there, they knew. 22 Now, let's talk about stuff--well, I'll leave it 23 there, I guess, while I'm talking about some other things. 24 Mr. Kluherz, who is here today actually, had been 25 construction man for DOE for quite a while, so he knew what

5217

1 pondcrete was. And Mr. Kluherz said after the construction 2 pretty well ran out I got a different job. My job was to be 3 the eyes and ears of the DOE within the perimeter security 4 zone. And how was he to carry that out? 5 Well, he described how he carried it out. He went 6 to work in a building right by the 750 pad every day, went 7 through the 750 pad twice a day, or four times a day, I think 8 he said, in the course of his duties, without reference to 9 the other times he went. He crawled the route, I think he 10 said, on his hands and knees, in under those tarps looking at 11 things. 12 He went and watched any operation he wanted. He 13 talked to the workmen out there, the Rocky Flats work force. 14 And he made it clear to them that they could tell him about 15 problems. They could tell him if there was something going 16 on they didn't think was right. And he wouldn't rat them out 17 for that. He would just make sure that the problem got 18 fixed; that somebody paid attention to it. 19 And he was pals with the Rocky Flats work force and 20 the executives. Even had a son who worked and made concrete 21 on weekends for overtime. 22 So whatever was going on out there, he couldn't 23 hide it. You couldn't sneak around. And bear in mind, you 24 know, there's this casual reference to why they took these 25 boxes and this and that.

p.5218

1 And it's not like you pick up a lunch box and go 2 someplace. You have to get a forklift and a couple of 3 people. These things weigh 1200 pounds. It's not something 4 you can do surreptitiously. It's out in the open. And 5 you've got to have help. 6 So he, because he knew what concrete was, and he 7 knew this stuff wasn't concrete, was not seeing any big 8 problems. Whatever was there, he knew as well or better 9 because he had more time to look at everything as anybody 10 from Rockwell. 11 And then, remember Mr. Krueger? And you know, I 12 guess you're going to have to decide whether he's an honest 13 man. I thought he was, but that's probably because I like 14 what he said. 15 But he said, "Look, I talked to Whitsett about 16 this. He knew. We knew there was solidity problems. In 17 fact, Mr. Whitsett's reaction to that was annoyance. Why 18 can't Rockwell get it right? My God, it's a simple process." 19 Irritation at the fact that sometimes they didn't solidify, 20 and irritation at the fact that sometimes--that some were not 21 as solid as others. And obviously irritation at the fact the 22 stuff was tipping and the boxes were a problem on the pad 23 because you couldn't--you could not pretend you couldn't see 24 that. 25 So that's the kind of notice that we had. What the

5219

1 DOE had. And with that kind of information and that kind of 2 notice, don't you think they have some responsibility for 3 what happened? 4 So I'm going to put something up here to show you 5 what it was that the DOE knew before the May spill. 6 They knew the pondcrete boxes were deteriorating. 7 They knew the stacks were leaning dangerously. Nitrates and 8 other elements in pondcrete were being found in the pad 9 samples. 10 And that refers to Mr. Krueger's conversations with 11 Mr. Blaha. 12 And that memo that they are trying to pretend they 13 didn't see. Some pondcrete boxes were leaking because they 14 saw these inspection records. It said, "Leakers." 15 The pondcrete standard was "Very firm putty." 16 That's WC4003. And that outdoor storage would cause 17 pondcrete to deteriorate. That all happened. They knew that 18 before the 23rd. 19 Now comes the spill on May the 23rd. And there's-- 20 I'm not going to comment on all these suggestions there was 21 something sinister going on out there. There were boxes that 22 had to be re-stacked because of the leaners and for the 23 safety of the workers. 24 You heard Ms. Pinter make that point pretty 25 clearly, as well as they made the point that they weren't

5220

1 going to hold still for bad stuff out there because it was 2 dangerous to them, and the workers were not going to be 3 reluctant about complaining. And there weren't any. 4 But the spill happened. And all of a sudden things 5 were different. They--now they can't--they know that there 6 are some problems, and they know that they are probably more 7 than operational. And so they say to Rockwell, "You better 8 tell us about this. What went wrong? What's going on here?" 9 And so Rockwell, I think the words I used when I 10 opened here when I told you about the case before you heard 11 the evidence, was Rockwell purged its soul. Here's all the 12 things we can think of. The process isn't controlled. Of 13 course, everybody could see that. But they said it again. 14 Because what did they mean? They said, "Well, we're just 15 putting sludge and watching the cement and sludge until the 16 color is right, and out it comes." 17 And the inspection process is flawed, because we've 18 been assuming that if you check by pushing on the top and 19 it's solid there to the degree it's supposed to be, firm 20 putty, that then somehow the rest of it is all right. So 21 looks like that wasn't right. And they said, "We've looked 22 at these records and looks like maybe the amount of cement 23 went down." 24 Now I do want to make one comment here. You 25 remember I asked Dr. Basham how much cement there is in a

p.5221

1 1200-pound chunk of super highway. Which has got a 2 compressive strength of about 700,000 pounds. He said under 3 200 pounds. It's not the amount of cement that determines 4 the strength. 5 So while this may have been a fact, it is not the 6 extraordinary problem, I don't think, that people are 7 suggesting. But there it was. I mean it probably was 8 overstated, but there it was. The DOE knew about that. 9 And then what did they see? Mr. Whiteman said about 50 he 10 thought of those pads squashed down boxes. 11 And there were others that had water, and probably 12 weren't putty any more. 13 Now, there was a statement this morning that if 14 there was water inside it could only come from the waste 15 form, and that's simply not correct. The evidence is clear, 16 and there's no other evidence, I don't think, on the point 17 that these were not sealed. 18 Mr. Juarez said that he folded them up, he'd fold 19 them inside, and that Lord only knows how much rain and snow 20 and water there was that could get in there. And you saw 21 some of those picture of those canvasses sitting, or those 22 ponds sitting on top of each one of those boxes. And the 23 canvasses weren't waterproof. 24 So those were some of the problems. 25 And you know, the reaction after the DOE knew about

p.5222

1 the spill, had all of this information was that the DOE gave 2 a party. Remember that? July 15th they had a celebration 3 for meeting milestones. That was how concerned they were 4 about what they then completely understood. 5 But still, no building. We're not going to cover 6 it up even if we know all those things about it. 7 And probably the most eloquent evidence from that 8 time is this silence. If after May the 23rd you were told 9 there was an inadequate process and not enough cement and not 10 a good inspection, and you knew there were mushy boxes, 11 squashed down boxes out there, water and all those problems, 12 and if you believed before that date, as they are trying to 13 suggest they did, because they only think it's real if it's 14 on a piece of paper, that they had concrete blocks they want 15 to imply almost that you could build a highway with, that 16 there was no leaching, that there were no problems of any 17 kind with the process, with the amount of cement, that 18 everything was hunky dorry, without a single thing wrong, 19 don't you think they would have said, "What in the world is 20 this? How could it come to this from what you've been 21 telling us it was?" They didn't say a word. There's none of 22 that. There's not a shred of evidence of surprise, or that 23 this is new and unwelcome information. It's unwelcome all 24 right because they have to deal with the thing now. 25 And you know, that silence, and what they didn't

5223

1 say is probably the clearest evidence that there was no 2 surprise. 3 Sherlock Holmes wrote a story about that once. I 4 think it's called "The Hound of the Baskervilles." And he 5 solved the problem because the dog didn't bark. He figured 6 out if the dog didn't bark, it must have been the owner that 7 did the job. 8 Well, there's a dog that wasn't barking, Folks. 9 And it wasn't barking because the owner knew very well that 10 what they found and knew after May 23rd, they knew very well 11 before that. 12 And they weren't surprised. And you know that 13 because they had the same problems before 1989. Maybe not 14 before 1988 with Oak Ridge, Los Angeles, Los Alamos, Savannah 15 River, Hanford, West Valley. And they paid all of the costs 16 of all of those contractors. All of them. And it's only 17 Rockwell that they are saying didn't do best efforts, and 18 that they were surprised by. 19 The only difference is that Rockwell had the 20 misfortune to be the contractor at the plant that got raided, 21 where they got embarrassed. 22 And then, Folks, their corrective actions after May 23 23rd are fairly eloquent as well about what they knew and 24 understood before that, in spite of what they are saying to 25 you now. And they are trying to make Rockwell the scapegoat.

5224

1 They said, "Wow, we're going to have to have a 2 better waste form here, Folks. And how are we going to get 3 it? Well, we're going to--we're going to make sure it's 4 better by inspecting it. And we're going to inspect it on 5 every side, and we're going to use a penetrometer." 6 And I know there's a little suggestion that 7 penetrometers came into play just before that, just one 8 maybe, Mr. Frieback, and maybe he did for a while, I don't 9 know. But the penetrometers didn't come around till 1988, 10 and remember that when they try and tell you there was an '87 11 spill because Ms. Pinter said there were penetrometers 12 involved at that time. 13 But anyway, we'll use these penetrometers, and 14 we'll check them on every side. And boy, are we going to 15 make them strong. We want a thousand PSF. Pounds per square 16 foot. And Rockwell said why don't we make it 1500? Why 17 don't we just get it a little stronger? 18 And so yes, that's fine, we'll check them all to 19 see if they are 1500 pounds per square foot on every side. 20 And that's one of the reasons I wanted you to hear from Dr. 21 Basham. Because while a penetrometer is only supposed to and 22 only accurately measures compressed soils, it gives you 23 relative readings that are the same. In other words, if a 24 penetrometer on a bar of soap says 3,000 and on pondcrete it 25 says 1500, that means the soap is twice as hard.

5225

1 And 1500 is what they wanted on this pondcrete. 2 And on the soap bar, what was that? 5,000 or 6,000, three 3 times as hard? Dial, Ivory, maybe 3,000, twice as hard? 4 And I went to some trouble to have him create for 5 us some--a mixture. It's clay really, that was actually 6 1500. It's an exhibit, it's in evidence, and you can see 7 what it feels like. 8 You can use a penetrometer on it if you want. 9 Because there's a penetrometer in here too. And just a very 10 quick tutorial on that. 11 To read the penetrometer, what you have to do is 12 you have to push it in so that a quarter of inch, first you 13 get the ring all the way back, push it in so that that is in 14 a quarter of an inch. Then when the force is enough you're 15 getting a quarter of an inch, then you let up and you read 16 the bottom of the red ring. There are instructions in there 17 too, actually. I just checked. And then that reads in tons, 18 and to get pounds per square feet, you multiply by 2,000. So 19 you can check it yourself. It's about this big. 20 Now, the point I'm making with all of this, that I 21 intended to make, was that if that is your improvement, how 22 can you, with a straight face, come in here and suggest that 23 you thought it was hard? That's the improved stuff. 24 Judge, I know you want us to break about every hour 25 and a half, and I think we've gone an hour and a half. This

5226

1 will work. Anything will work. 2 THE COURT: All right, we'll take a 15-minute recess. 3 During this time, Members of the Jury, and we're getting 4 there, but we're not there yet. So like all other recesses, 5 please be careful to keep an open mind so you're not talking 6 about the case until the time comes for you to do so. And 7 I'll tell you when that time is. 8 You're excused now. Fifteen minutes. 9 (2:45 p.m. - Jury excused.) 10 THE COURT: All right, we'll be in recess, fifteen 11 minutes. 12 THE CLERK: All rise. Court is now in recess. 13 (2:45 p.m. - Recess accordingly.) 14 THE COURT: Be seated, please. I'm thinking that I'll 15 wait till the morning to instruct. And not do that at the 16 end of the day. 17 MR. WILLIAMS: I agree, Your Honor. 18 (3:00 p.m. - Jury present.) 19 (At 3:00 p.m. on March 29, 1999, with counsel for the 20 parties present, the following procedures were had:) 21 THE COURT: Please continue. 22 MR. WILLIAMS: Thank you, Your Honor. 23 There's one more thing that I should have said 24 before the break to keep it all sort of organized. 25 We were talking about the DOE's differential

5227

1 interpretation of best efforts and allowable costs, and 2 there's a picture that you saw with Mr. Sjoblom, I think it 3 was, of Oak Ridge. The value of the drums, it cost $140,000 4 to clean that up, and the DOE paid it. They didn't get 5 raided there. 6 Now, I want to talk a little bit about the award 7 fees, Ladies and Gentlemen. 8 After May 23rd, after these horrendous discoveries, 9 as characterized by the plaintiff, and simply the 10 discoveries, as characterized by me, they had an award fee 11 process for Rockwell. Mr. Whiteman talked about it. And 12 there was no category for waste management. That wasn't 13 something that you were incentivized on in those days. 14 But waste management set under general management. 15 And they gave, they wrote up this pondcrete thing, and you 16 can find that award fee and read it. But they gave a 17 deficiency for pondcrete, a deficiency. But the deficiency 18 was under general management, and the general management 19 grade was excellent, and the award fee was almost $5,000,000. 20 And to give you an idea, because language kind of 21 gets pretty cheapened, but the next exhibit shows you the 22 ranks of the adjective grades that were possible to be given. 23 And the only thing better than "excellent" is "outstanding". 24 And "excellent", "exceeds expected performance". So how 25 consistent is that with what they are trying to tell you now?

5228

1 That was what they thought about it before the raid. 2 And now with that endorsement in effect, and that 3 clear acknowledgement, Ladies and Gentlemen, that there was 4 no surprises there, that they knew what was going on, or if 5 they didn't know, they didn't care, they waived it, or 6 whatever legal word you want to use, that they didn't know. 7 That kind of struck them. How are they going to bring this 8 case. Because those award fees continued until the raid. 9 And I'll talk about that in a little while. 10 So they had to find this trust theory, and they had 11 to try and get all of our noses down so close to the pad that 12 we can't see the whole thing, the whole picture, what I've 13 been talking about here. 14 And what do they bring in here to do that with? 15 Ambiguous words. We heard more of it this morning. In- 16 solid. What does that mean? It can mean different things to 17 different people. If you think that this waste form is 18 supposed to be like this, then if it's putty, firm putty, 19 you're going to say, yeah, it's in-solid. They are 20 different. 21 So they managed to get some people to say yeah, in- 22 solid pondcrete went to the pad, but we brought the man who 23 now works for the DOE who was the head inspector at the time. 24 He said no. No, that's not right. We checked it all and it 25 met the test.

5229

1 Leaker. That, they want you to think, means every 2 single time the waste forms, that there's plenty of water 3 from natural sources out there, they leak out of boxes. And 4 they really never got anybody to say specifically that the 5 leaking they were talking about is a waste form. 6 And then this morning, still, 788 building was 7 either three or four boxes that tipped over because the 8 bottom one was soft, not one opened, not one single thing 9 came out. But that was called a spill. They are using 10 apparently universal. I think I did too, confusion between 11 cement and concrete. And using that word. 12 Even Mr. Huffman, who has a Masters in chemistry, 13 said you make pondcrete by mixing concrete with sludge. I 14 mean--so that word got used, yes. 15 But as I pointed out to you, nobody thought that 16 that's what they were getting, because they wouldn't have 17 acted the way they did when it became absolutely clear to 18 everybody that wasn't what they had. 19 And they are suggesting that documents that showed 20 the problem before the 23rd of May were somehow secret to the 21 DOE if you didn't have written on there, stamped the DOE 22 documents. And the poster child for that one, Ladies and 23 Gentlemen, is Mr. Blaha's memo. 24 And bear in mind that these people had gone two 25 different times to see Mr. Krueger and spent time with him,

5230

1 once at the Holiday Inn, I think once at his job. And bear 2 in mind that Mr. Krueger was a DOE employee at Rocky Flats, 3 and he now works at another DOE facility. His money comes 4 from the DOE. And they knew that he had that memo and he'd 5 seen it. And they spent how many days in this court bringing 6 up witnesses to try to pretend that the DOE didn't know about 7 it? Where would we be if we hadn't gone and found Mr. 8 Krueger? 9 And then you also have Mr. Kluherz making a point. 10 But give me a copy. We've got copies. He got the weekly 11 highlights. These people--I've said it before, Mr. Krueger 12 said, "Yeah, I helped write some of these documents." These 13 people worked together hand and glove. They were all in the 14 same headquarters. And there were no secrets, Ladies and 15 Gentlemen. 16 But the pretense here is, if you haven't got a 17 piece of paper with the DOE stamp on it, we couldn't possibly 18 have known about it. And sometimes they knew they knew about 19 it and they still tried to pretend, and put on evidence and 20 beat up witnesses, that they didn't know it. 21 Then, this is one of my favorites. Remember when 22 Mr. Hernon was up there? And they were asking him 23 questions. "Well, what happened when you rejected 24 something?" 25 He said, "Well, you rejected it."

5231

1 And one of those lawyers got up, and he pulled out 2 just this document here. And says, "Look, we rejected it." 3 "Does it say any place on there that you've 4 inspected that?" 5 "No." And he sat down and he wanted you to believe 6 that that meant that the thing got out to the pad. 7 And Ms. DuWaldt got up with the second copy of that 8 thing, which was right in the same exhibit, and said, "Wait, 9 what does it say right here? Re-packed. And you signed off 10 on it." 11 It's a three-part form. They showed you the first 12 one and tried to imply that that was all the evidence there 13 was on that point. 14 These are just some examples of what's been going 15 on around here. 16 Then you remember, they've been saying, did DOE 17 know, did the DOE know, did the DOE know? When Mr. Krueger 18 said, and I've mentioned this before, but it needs to be 19 mentioned again, that he knew, and everybody knew about these 20 problems of insolidity, and inconsistency, and that the 21 reaction was annoyance. What in the world is the matter with 22 Rockwell, they can't get that straight? And they knew that, 23 Ladies and Gentlemen, from those two visits, and yet they 24 spent all kinds of time here trying to pretend that they 25 didn't until Mr. Krueger got here.

5232

1 This morning we heard a suggestion that plywood 2 boxes were only for sludge. Remember that Mr. Kolar tried to 3 get Ms. Pinter to say that the plywood boxes in the picture 4 were for pondcrete? She laughed. She says, "No, you can 5 tell the difference. Some are pondcrete, some are sludge. 6 The sludge have a plastic top, the pondcrete ones are nailed 7 down." Yet, this morning, they stood right here and told you 8 that they only put sludge in plywood boxes. 9 And the RCRA inspection logs. They are arguing 10 that because some people said leaches and some people didn't, 11 somebody is falsifying those logs. That's I think the 12 premise. 13 For that premise to be true, those people have to 14 be looking at the same boxes. There are what, 7,000-8,000 15 boxes on a pad. 16 But Exhibit C193 is the Part B application 17 submitted by the DOE to the Colorado Department of Health. 18 And they can't claim they didn't have this, because they are 19 the ones that had to send it in. 20 And what does it say? It says, ".25 percent of the 21 boxes are inspected each week rotating through the 22 inventory." So much for the premise that these people are 23 looking at the same boxes. They had this document when they 24 tried to persuade you those things. 25 And then while we're on this document, they were

5233

1 apparently trying to criminalize Mr. Teel. Because it looks 2 like he over-packed a couple leaky boxes. What does it say 3 right there? It's going to happen, the leaky boxes. What 4 did the DOE tell the Colorado Department of Health? Sounded 5 like something awful when you look at this, doesn't it? What 6 are you supposed to do with them? 7 Also, Ladies and Gentlemen, they are suggesting 8 that these were concealed. That some were missing. 9 But look at the next exhibit. That's Exhibit 1095. 10 This is the CDH report. And it says very clearly in there 11 that they saw the records and they looked at them. 12 Now, do you remember what Mr. Sattler said? He 13 said, "You know, one of the things the team looked for 14 records, and if there were gaps, if there were problems, it 15 would have been in the report." Nothing here about that. 16 They saw the records. 17 But even more importantly, I want to show you the 18 end of this exhibit. Four people signed that exhibit. Mr. 19 Sattler is one of them. Mr. Sattler told you that two of 20 those people had the job of looking at records, and two had 21 different jobs. Mr. Sattler said, "I didn't check records. 22 Wasn't my job." 23 Knowing that, these people said, "Did you see those 24 records?" He said, "No." And they tried to persuade you 25 that's proof that they weren't there. They didn't call the

5234

1 two people who inspected the records. It came out only on 2 cross-examination. 3 And while I'm on the subject of cross-examination, 4 Ladies and Gentlemen, just remember, this is the first time 5 that this kind of information from the DOE and the DOJ has 6 been exposed to cross-examination, and a skeptical eye. And 7 an audience that hasn't got its mind made up. 8 And they talk about impeaching with Grand Jury 9 testimony. Remember what the Judge told you about a Grand 10 Jury? There's only one lawyer in there. No judge. That 11 lawyer is the Department of Justice, the same Department of 12 Justice as is sitting here, and it's the same Department of 13 Justice when they were in that Grand Jury that had made a 14 deal not to prosecute government employees from Rocky Flats. 15 So ask yourself, ask yourself, how hard they tired to be fair 16 to Rockwell. And you can see what happens when you've only 17 got one side. 18 And they talked about Mr. Swenson. And I think 19 Mr. Swenson was as eloquent about what it's like as can be. 20 You've seen what it's like in here to be pounded, pounded, 21 pounded, by somebody who won't let up, won't let you answer 22 questions, explain answers. But Mr. Swenson sat for days 23 9:00 to 5:00 till I was at my wit's end, sticking words in 24 his mouth. If he makes a mistake, he's confronted with it. 25 Can't correct it. And out of that stack of depositions this

5235

1 big, they got about six or seven phrases that they put in 2 their script, and they marched them right back to him every 3 time. But there's a man that works--used to work with his 4 hands. He's not a word merchant. 5 And in the end his frustration was the most 6 eloquent thing I've seen in a long time. He says, "You want 7 to know the truth?" And he looked right over there when he 8 talked about the hassle, and he said, "I probably said it 9 because I was"--and he didn't say angry, but that's what he 10 meant. "I said it in the deposition. I don't think I said 11 it when it happened." Although they are marketing that 12 particular phrase. 13 And then I really thought that anybody would be 14 embarrassed to try and market Howard Swenson's memo to you as 15 factual. I'm surprised it came up, but I did get ready just 16 in case. 17 Mr. Swenson sat on that stand and said, "You know, 18 I wasn't writing this thing to be accurate. I was just 19 trying to tell my boss something. And I was wrong. 20 And it's--it's wrong, Ladies and Gentlemen. You 21 can show with the pictures that although he says in there the 22 904 pad had storage on it because the 750 was exhausted, on 23 December 21st, that still hadn't happened. December some 24 time. He said pondcrete manufacturing stopped on May 23rd, 25 when every person knows that it didn't. Not on May 23rd, but

p.5236

1 in August of '87, and it only stopped on May 23rd. He said 2 the boxes were stacked three high. We stacked down to two 3 high before 1988. The pictures showed it. 4 And you know one of my personal favorites, maybe I 5 shouldn't have so many. On this stacking business, they got 6 Mr. Juarez up here. And they said to Mr. Juarez, "Now, those 7 boxes were re-stacked down to two before May 1988, weren't 8 they?" And he said, "Yeah, I guess so." And they were. 9 That's my recollection. 10 And I got up and I showed him the pictures taken 11 after May 23rd. They are still stacked three high. And I 12 said, "Well, take a look. Do you think maybe you're 13 mistaken." He looked at it and says, "Yeah, I am mistaken. 14 I am mistaken." 15 And in the face of those pictures, Ms. Vullo still 16 got up and accusingly said to him, "You said 2." Because the 17 the deposition, which is sworn testimony, can't possibly be 18 wrong, in the face of I guess the evidence of your own eyes. 19 And again, Ladies and Gentlemen, when we start 20 talking about this conspiracy here, not conspiracy, I don't 21 mean that. But whatever you want to call this effort that 22 they postulate by Rockwell that's--and treed in steel, 23 silence again is the most eloquent. Why? 24 Remember that it's a Rocky Flats work force, ten or 25 fifteen people come and go when the contractor changes. The

5237

1 Rocky Flats work force knows full well that they get their 2 paychecks from a DOE account, and it's DOE money. And that 3 the only thing that changes is the name on the check because 4 there's a different contractor. Their loyalty--the talk is 5 that these are all Rockwell employees. They are all 6 technically Rockwell employees, but they are Rocky Flats 7 employees, and I think that's pretty clear from Mr. Kluherz, 8 who sure made the point clear, as did others. And these 9 people stay past contractor after contractor after 10 contractor. They don't have any motivation at all to 11 participate in a cover-up. Why? In fact, their motivation 12 is exactly the opposite. 13 Remember Dee Krieg getting a midnight phone call? 14 Remember, she came up and testified about that. Somebody was 15 using a truck lift at night or something. Something that 16 small. She got a midnight phone call. 17 These things had been going on. They sure weren't 18 going on, I mean, you know, the executives weren't down there 19 operating forklifts. 20 And also, remember this: Remember I did ask Mr. 21 Long, or Mr. Swenson, Leif Swenson, what would be involved in 22 taking a nasty box out of the middle of this pod here? He 23 says about a half a day. We've got to get people out there, 24 and forklifts and things. You can't--and it's right out 25 where everybody can see it.

5238

1 Remember, Ms. Pinter, whenever she had that spill, 2 somebody jumped out of their car, driving down the highway, 3 because they could see it. I mean these things happen out 4 right where you can see them. And you've got to have people, 5 men and women who work out there, to help you do these 6 things. Not a word. No midnight calls. 7 And while I'm on the subject of Dee Krieg, I didn't 8 mention and I should have, that she and Mr. Kluherz car- 9 pooled together, so he had full access to her views about 10 things. I think you will agree with me that she was 11 dedicated to her job and determined to do it right. And she 12 was going to be very, very sure that nothing got shipped that 13 wasn't all right, and she was regularly gone on those pads to 14 check. And she doesn't say that she saw anything bad and 15 ugly. She did show, I think Mr. Kluherz said she showed me 16 one box that was squashed down by about a third. So he knew 17 it. He was DOE. Was that an operational problem? How bad 18 was it? 19 And also, while I am talking about Dee Krieg, and 20 just because it's a memory thing. The only evidence of 21 misconduct in this case is misconduct by the DOE. Remember 22 what Ms. Krieg said? "They tried to force me to make a 23 shipment that was against the law. I told them no, and they 24 tried to get me fired." Remember that? She figured out a 25 way to get it done.

5239

1 And then of course you remember what Ms. Jierree 2 said on that stand. When they wanted her to sign off on a 3 letter she knew was untrue because it said that the plant was 4 in compliance with RCRA, and she knew it wasn't. She said, 5 "Pat Currier physically threatened me and threatened my job 6 if I didn't sign it." So she signed. 7 And she also told you that Pat Currier gave her 8 instructions to destroy drafts. 9 That's the only real evidence of misconduct by 10 anybody in this case. 11 So let's talk about Mr. Tegeler. And the first 12 thing I want to say to you is I believe that his testimony 13 was mischaracterized this morning, but by narrowly using 14 words. Mr. Tegeler said, "I went down and I looked for logs, 15 and I got logs. I looked at them. They were the turnover 16 logs." The title wasn't foreman's logs. That's true. But 17 the logs were there and the information was there. But the 18 statement to you this morning was they weren't foreman's 19 logs. 20 Mr. Tegeler does not have a motive to be a friend 21 to Rockwell. He was clear on that. He's a union chief, the 22 relationship and negotiating relationship was a testy one. 23 They were not on friendly terms. If there was anybody that 24 was primed and spring-loaded to embarrass Rockwell, it was 25 Mr. Tegeler.

5240

1 Mr. Tegeler was on the UOR committee. And he 2 investigated. And his investigation consisted of going down 3 and looking at the logs that were there that had the 4 information about what went on, and talking to the men. And 5 this wasn't a deposition. This was the union chief going 6 down and talking to the members of the union. 7 Do you think there's any chance that if any of 8 those people thought there was hanky-panky going on out 9 there, sneaking, hiding, cheating, stealing, whatever you 10 want to call it, they would have been reluctant to tell him? 11 I mean even if they would tell Mr. Kluherz, which I think 12 they would, they would surely tell him. 13 And do you think that if he had one sniff of 14 something like that that could embarrass Rockwell, that 15 wouldn't have showed up in the UOR that this is a long- 16 standing problem, that people have been hiding it, whatever? 17 That's another hound that didn't bark. 18 And those are, you know, the absence of protest 19 from the DOE, the complete approval with award fees, the 20 party, and everything else, all these things are gold-plated 21 evidence of what they thought and what they knew. Not an 22 isolated piece of paper here and there, a letter here and 23 there, words here and there. 24 So what really happened? I guess we'll really 25 never know for sure. But it's clear that there was

5241

1 inconsistent sludge. There were inconsistent chemicals, 2 varying layers. Dr. Basham made clear that they are so 3 concerned about anything but pure that they don't use 4 anything but pure because they don't know exactly what to do 5 with it. 6 And what Rockwell did was the best they could with 7 the limits that got put on them by the DOE. You know, "Make 8 it as fast as you can. You've got to get it out of that 9 pond. That's really all we agreed to, and we don't care very 10 much if it's some place else. We hope we'll ship." 11 And they worked with materials that you couldn't do 12 a very good job with. nd it's clear you couldn't because 13 they couldn't do a good job at seven other places with the 14 same problem. And they did the best they could. 15 And it went out on the pad, and the weather worked 16 its magic. And they can say all they want that the weather 17 didn't have anything to do with it. 18 But their own Mr. Surovchek, and that's Exhibit 19 648, 646, and he worked for the DOE when he reported on it. 20 But he said is it 12 freeze-thaw cycles will begin the 21 degradation process. What's a freeze-thaw cycle? It's any 22 time the temperature goes above, say, what, say about 34 and 23 below 30. Could happen in two weeks in Colorado. So that 24 happened. 25 And the workers did the best they could. They're

5242

1 stacked the stuff. Probably they put some stuff in plywood 2 boxes, and that's not a sin. That's trying to do the best 3 you can with the job. 4 Sometimes they probably did bring some back and re- 5 process it. What's wrong with that? I mean that sounds like 6 a sin the way these people say it. But I mean what do you do 7 when the boss gives you a raw deal and says you've got to do 8 the job and do the best you can, and that's all you got to 9 work with. You do the best you can. Some of it turned out 10 to be bad, and as I said, it's not clear why. It really 11 isn't. 12 Remember what Mr. Huffman said? He said, "Well, I 13 was checking." I checked with, I forgot their name, but a 14 concrete contractor, and they said, well, you know, you see 15 problems like that, we look for sulphates. So he went 16 looking for sulphates. And the first time he found them, but 17 they weren't high enough concentration, so he said, "Well, 18 maybe not." And then he went back and found out that when 19 you get deeper in the pond you get it. I think it was 200 20 parts per million was what you had to get. And he said, and 21 he's a chemist, that he understand that to reverse the 22 process of cementation. 23 You have the wind, the snow, the rain. You had 24 nitrates. And it's not entirely clear. But we know that 25 after May 23rd when everybody was looking at anything, Mr.

5243

1 Whiteman saw about 50 bad ones. Really bad. That you could 2 call mushy. I say mushy, everybody says "mooshy". Maybe I'm 3 out of step, pondcrete. 4 Out of the 16,000 boxes out there, 12,000 passed 5 the new tests. Only 8,000 of them got shipped, but that was 6 a time matter, not getting started soon enough. But the 7 testimony was there were 4,000 more that had passed the test, 8 could have been shipped if they'd have had time. 9 So you're down to 4,000 that you can argue about. 10 And when you hear about what went wrong at Oak Ridge, Las 11 Alamos, Savannah River, Hanford, West Valley, it kind of 12 looks like Rockwell did a better job than anybody else with 13 the cemented waste forms. And yet Rockwell is the only one 14 whose costs were getting sued for. 15 Of the remaining 4,000, you remember all this talk 16 about free liquid? Mr. Lawton and Mr. Huffman both said, you 17 know, we drilled and drilled and drilled and never found any 18 liquid, and finally we quit drilling these blocks. There's 19 not the horrendous mess out there that they are trying to 20 suggest there was. There are some that aren't okay, and I'm 21 not arguing for a minute, and so they took them and what was 22 there, what they didn't ship, and some of them that didn't 23 pass the new tests, and frankly-- 24 Let me see the next exhibit, it's P44. These are 25 pictures of some of the blocks that were remaining out there.

p.5244

1 And you can see that those boxes are free-standing monoliths, 2 they've got plastic around them, but that not keeping their 3 shape. That's in a building there. 4 The next picture is one that shows more or less the 5 same thing, rows and rows of them. So that I think you can 6 conclude that most of the blocks out there met the tests. 7 They were in place when they were made. Remember, there's 8 more risks, more problems that you run into when you make it 9 and can't store it. 10 It is not only reinspection or reprocessing, 11 repackaging, but you have the problem of standards changing. 12 And as I pointed out to you, the DOE had that pretty straight 13 in their mind when they went and pulled it out of the other 14 ponds. Oh, we can't do that. And what rules might change. 15 Rules change. Rules change. And they changed. 16 Well, let's talk for just a second about 17 impossibility here. Rockwell made that stuff and it was 18 supposed to be shipped. And it was going to be shipped any 19 minute. And they didn't make it. Nobody tried to make it 20 designed to stand outdoors for two or three years. And if 21 you decide that it was not reasonable to say that when you 22 made this stuff, you were supposed to make something that 23 would sit outside for two or three years, it's impossible to 24 perform. I don't think you need to do that. I think it's 25 pretty clear that the DOE accepted what was going on, they

5245

1 waived any claims they had by endorsing what happened. 2 So, what happened here in this case? As part of 3 those facts which are pretty clear, they dumped in every 4 single cost they could find and they said that's all damages 5 that Rockwell caused. Now, that's not even a good faith 6 effort to figure out what the real damages are. They made no 7 attempt to deduct what Rockwell did right nor attempt to 8 deduct the problems that were created by themselves nor 9 attempt to deduct for what occurred because of changes in the 10 rules and the regulations. They just threw it all in there 11 and hoped that you would say, well, it must be pretty bad. 12 We had to bring in an expert to try and bring some order and 13 sense into that. 14 Now, I want to talk about saltcrete for a minute or 15 two. I've got to tell you, I do not understand why it's in 16 this case. To this minute, I don't understand. The first 17 thing to remember--this will be helpful to you. I'm not 18 going to dig it out, but if you want to read about what the 19 history or story of saltcrete is, there's a report from a man 20 named Lukow. You can find, I think, the theory indexed under 21 Lukow. But, as I can see from the evidence, the saltcrete 22 was all right as long as it was in a building. The building 23 didn't have enough room and they had more saltcrete and so 24 finally they put it out on a pad and that's when it went bad. 25 There's no evidence, I don't think, that the DOE and Rockwell

5246

1 didn't find that out about the same time. The problem was 2 expansion, some crumbling. Then, they changed the formula. 3 They kept on making it. They kept on making it. If this was 4 a defective waste form, who is responsible for continuing to 5 make it and they made it? All the time Rockwell was there 6 through EG&G and I think even through Kaiser-Hill, how come 7 it's okay for them to make it, but it's a defective waste 8 form and they're suing us for it? I don't understand that. 9 I really don't. Maybe--well, I don't know. 10 Well, now, something they did, they found that if 11 they put extra cement, more cement into it, they could stop 12 with that. At that period, another problem; they had the 13 same kind of problem that Mr. Whiteman and Mr. Koenigs 14 discussed. That is if you double the amount of cement, you 15 double the amount of waste. You less the saltcrete, and 16 worse than that, then you've got more boxes full of the stuff 17 and you need more places to put it and they decide that won't 18 work. So, they went backwards and reduced the amount of 19 cement. There's really nothing wrong with that. I'm not 20 saying that's bad, but that's what they're saying was for 21 sure--if Rockwell might possibly have done it. But, they 22 want $42 million, maybe 47, I guess is what they said this 23 morning for Rockwell for saltcrete. When they made it 24 themselves and continue to make it, how can they say there's 25 something wrong with it and it's Rockwell's fault when they

5247

1 keep doing it themselves? I really don't understand that 2 claim. What is the ultimate in being somewhere else? 3 Keep in mind that the claim is not that things ran 4 off. The claim is that it must have happened in January. 5 That it ran off and not that it ran off into Woman Creek, but 6 that it ran off into Woman Creek below the pond. That wasn't 7 made very clear. There was this talk about running off into 8 Woman Creek. Now, you remember that Woman Creek runs down--I 9 guess, I should have had a diagram, but there's a holding 10 pond where that water is caught and there's nothing wrong 11 with it running as long as it gets into that because it's 12 checked before it's released. All right. In March, some did 13 run off below that holding pond, but that was rebutted. I'll 14 talk a little bit about some of that, but that was rebutted. 15 There is no better report, there is not one piece of evidence 16 that it ran off below that pond in January. All they've 17 proved is that water runs down hill, and snowballs, it turns 18 into water, and it must have happened. And, running into 19 Walnut Creek doesn't do it; it has to run off the--and then, 20 they take Mr. Henry who didn't remember much of anything, but 21 they say, well, he saw it and he went down there in March. 22 So, he must have seen it. What he saw was sheet. He didn't 23 say I don't think, but he saw it running in below the pond. 24 But, I'm going to show you a section from his notes that 25 shows that on the 3rd of March, 1987, he was down sampling

p.5248

1 the runoff. That's the runoff he saw. That's the one that 2 was reported. While he didn't remember on the stand--I hate 3 to do it using that position and say when you testified in 4 your deposition that what you saw was March, he said, yeah, 5 that's what I testified to. So, on the very thinnest kind of 6 evidence, you know, you really do have to make a case with 7 something more than speculation. They're trying to get you 8 to find that it happened and nobody saw it, and if somebody 9 saw it, nobody said Rockwell do it. 10 Then, what did Mr. Krueger say? Well, he said 11 conditions change because I ordered them changed. Mr. Ringer 12 said the same thing. Mr. Ringer said I moved the spray 13 heads. One of the big sources of water was spray irrigation. 14 And, the spray heads in January were farther west which means 15 they were farther upstream than that holding pond. They got 16 moved because the concern was that they were putting water 17 over some burial sites of some wastes that had been buried 18 there long before Rockwell got there. And, that concerned 19 Mr. Krueger; properly, I think. So, he said you've got to 20 move them. So, they got moved farther east, closer to the 21 pond, closer to downstream of the pond. Then, that was a 22 very significant source of water and can very easily explain 23 why it could run off in March and get below the holding pond 24 and not in January when you didn't have that extra source of 25 water there. And, do you remember Mr. Krueger said--he said,

p.5249

1 you know, I worried about that. He was moved to the DOE and 2 he still had a real sense of responsibility. He said I worry 3 about the fact that maybe I caused that. Here, I've got this 4 power to make people do things and I made them do something 5 and maybe what I did led them into that problem. Not clear, 6 but here's a person on the site at the time with all of the 7 information in his hands and that was his immediate reaction 8 and correct conclusion. Now, also, materiality is important 9 here. Would it really have made any difference to the DOE 10 and I agree that to have Mr. Whiteman say yes would have made 11 a difference to hear a second one, I think. I think I heard 12 Ms. Vullo say there would have been a zero award fee in spite 13 of the fact that everything you've heard from these DOE 14 people, that never happened ever. 15 And, while I'm on it and while we're talking about 16 trust, remember when Mr. Hymer said--Mr. Kolar said, well, if 17 a contractor concealed and hid things from you that would be 18 terrible and you'd cancel their contract, give them 19 unsatisfactory, do terrible things to them. Mr. Hymer said, 20 no, I don't think so. He says actually that happened. He 21 said Allied Cigna, a contractor in Kansas City was covering 22 up the fact that they weren't making the parts fast enough 23 that we had to have for our weapons. They covered it up and 24 misled us about it until they couldn't because they had to 25 put some parts in our hands and they couldn't. And, we had

5250

1 to move heaven and earth, heaven and earth, to get the 2 problem fixed. They were a real big contractor and we didn't 3 give an unsatisfactory for that. He said if you can't get 4 one for that, I don't know what you can get it for. That is 5 a true reflection of what the DOE's real views are about even 6 tantamount mistakes, as clearly as the fact that pondcrete, 7 when they knew all about it, was a mere deficiency that still 8 left you with an excellent grade. 9 We showed you the ice sculptures, ladies and 10 gentlemen, and you heard Mr. Whiteman testify that spray 11 irrigation, everybody told him and he knew and everybody 12 knew, it didn't work, that it was not a very useful thing to 13 do, but that politically they had to do it because of an 14 earlier incident before Rockwell got there that I think 15 correctly created great political resistance in the cities 16 that use their water supply. But, if they knew it wasn't 17 working and if they knew that it was not an appropriate 18 solution, purely a political one, do you think for a minute 19 they would have really done very much about it if they had 20 known about this other spray runoff if, in fact, it had 21 occurred? It was purely political. 22 Now, I want to talk for just a minute about damages 23 because it's in the case. I'm not going to go into detail 24 about it because I've pointed out to you all they have done 25 here is thrown in all the costs they can think of from

p.5251

1 babysitting pondcrete because they can't find a home for it 2 because of regulatory changes and other reasons, for 3 saltcrete, 47 million for which there is no case, at all, to 4 reprocessing about 50 blocks at a quarter of a million 5 dollars a block with no sense, at all, to you that they have 6 any obligation to make sensible cost decisions, plenty of 7 criticisms about the contractors by the people who are out 8 there now, and plenty of evidence that those contractors 9 thought that the DOE people supervising them--thought they 10 were overcharging, but not when it comes to us. They're 11 going to throw it all in and hope that you will buy it. 12 So, ladies and gentlemen, this is not--this is a 13 case about fairness, really. It's a case about whether 14 Rockwell has been treated unfairly and why because that's 15 really what the evidence here shows. The raid is the reason. 16 Remember that they had advance notice of the raid. The 17 Department of Justice went to the Department of Energy in 18 Washington and said we're going to raid you and we don't want 19 to get shocked. That's what they say was the reason. 20 They're the same government, the same group of people. The 21 thing that I wondered when I first heard about this and I 22 wonder to this day and I would like you to think about it, 23 why do they have to raid? Why do you have to search your own 24 house? Why didn't Admiral Watkins say, well, wait a minute, 25 that's my plant, those are my people supervising that, I've

5252

1 got lots of money, and I mean to fix that stuff. Just let me 2 get out there and get it straight. Ask yourself that 3 question. I've never been able to come up with any answer 4 other than they wanted to set somebody up besides the DOE 5 because if Admiral Watkins had done that with all this zeal 6 he proclaimed from the stand here, he'd have solved the 7 problem, wouldn't he? He knew what the problem was because 8 the Department of Justice told him what that problem was. 9 That's a problem he said he was dying to solve, this DOE 10 culture was so bad. Why do they have to get the FBI and the 11 Department--the FBI is part of the Department of Justice--to 12 go in with this pretense if it isn't to try and set up a 13 contractor so that the DOE doesn't have to take 14 responsibility? Think about that and see if you can think of 15 any other reason. 16 So, they had advance notice. They had their number 17 two man, Henson Moore, in town the day before. They managed 18 to get some people on the raid force. As I said before, so 19 it would look like they were part of the solution and not 20 part of the problem and they didn't warn Rockwell. They went 21 and got Mr. Goldberg and I'll say no more than that because 22 you've seen it and his job was to go out there and sell out 23 Rockwell and he did it. And then, they began building a case 24 against Rockwell. 25 Let's see Exhibit I013, please. That's from Tod

5253

1 Anderson's log book. Do you remember that? The day before 2 the raid, June 5, Henson Moore, Deputy Secretary, FBI, 3 etcetera, at a staff meeting. Fluidized bed incinerator, do 4 you think; tooth fairy, too? But, you know, even if it is 5 fluidized bed incinerator, what's the number two man doing 6 out here when he knows one of the things that's going on is 7 an allegation which proved to be completely false. Figure it 8 out; either one. That's a warning and that's notice. 9 Then, there's another section in his report that 10 makes the next point that I mentioned. The DOE is building a 11 case against Rockwell. Why do they have to build a case 12 against Rockwell? Because they don't want to accept their 13 responsibility. What happened after that raid? The 14 sensational allegations were false; everybody agrees. So, 15 the Department of Justice had on its face a big deal, a small 16 result. They can't admit that. The Government can never 17 admit it's wrong. So, they criminalized pondcrete. You 18 heard Mr. Krueger. These are things that are administrative 19 things if you don't need to cover your tracks or cover your 20 own embarrassment. And, at some point, as I pointed out, as 21 Mr. Hoffman testified, we got a memo that said there's an 22 arrangement between the DOE and the DOJ that DOE will not-- 23 Government employees will not be prosecuted. And, it wasn't 24 --were pretty worried before that. And, if you want clear 25 evidence of a sense of responsibility, that's it. Why were

p.5254

1 they worried? They knew the role they played in what was 2 going on out there. 3 So then, what happened? Mr. Goldberg took an award 4 fee that had been put together by all the people on the 5 plant, by the people in Albuquerque who knew that to be fair 6 you had to evaluate all the contractors together so you could 7 be evaluating the same things, by Mr. Whiteman who ran the 8 plant during the period of the award fee, and he didn't 9 change any of the text. He just changed the adjectives with 10 the clear objective of just cutting it. Now, when he was 11 asked over and over by Mr. Koenigs what new information did 12 you have, he couldn't recall. But, he had some speeches, of 13 course, which he wanted to deliver, but not information. So, 14 they did that. 15 You remember that there was discussion about 16 negotiation of the '89 contract. Mr. Whiteman said, you 17 know, Rockwell said, you know, look, this RCRA stuff, you've 18 paid our fines now, but we're still getting more and more of 19 this stuff. Let's be very, very sure that it's very clear in 20 that contract that you, DOE, pay the fines because you are 21 the ones that are calling the shots out here. So, they did 22 make it clear in that contract and they reneged on that after 23 the raid. Not only has Rockwell paid its fine--and we're not 24 complaining about that right now, folks; we did it, it's 25 past--but they want all the costs that they can find, as

5255

1 well, and they want to suggest that these were not allowable 2 costs well defined. Then, they're also claiming the costs 3 that Rockwell incurred are not allowable costs and 4 fraudulent. I think both Mr. Twining and Mr. Romatowski said 5 that they have administered, I think it was, $4 billion to $5 6 billion a year in the Albuquerque area for 10 years; $45 7 billion of costs and they have never, ever disallowed a cost. 8 Think about that when you think about what Mr. Kolar was 9 saying here. Think about the fact that at Los Alamos, Oak 10 Ridge, the DOE paid all of the collection costs; they're only 11 suing Rockwell. They gave their new contractor $800 million 12 to deal with environmental problems, twice as much as they 13 had given Rockwell. However, Rockwell was trying. They were 14 asking and being ignored, rejected. 15 And so, they began the process, ladies and 16 gentlemen, which continues here today; the process of trying 17 to pretend they were somewhere else and they aren't 18 responsible. And, it's okay to treat Rockwell unfairly if it 19 protects them. That's what's going on here. If you give 20 them anything, that Washington spin machine is going to crank 21 up and it's going to be one more proof that in spite of Oak 22 Ridge and Los Alamos and Savannah River and Hanford and West 23 Valley, it's the contractor who is at fault and the DOE has 24 no responsibility, at all. 25 Rockwell has accepted its responsibility, ladies

5256

1 and gentlemen. Rockwell has been able because we do have 2 more resources than most people to get this stuff out in the 3 open so you can see it all. So, we can have a judge--and I 4 mean you--without an ax to grind except citizens who care 5 about the Government. To see it and tell the DOJ and the DOE 6 that it's time to grow up; they're not four-year-old girls. 7 It's time to accept responsibility and that's what a verdict 8 for the defendant will say and that's the verdict for which 9 we ask you. 10 Thank you very much. 11 THE COURT: Do you have some rejoinder? 12 MS. VULLO: I didn't promise that I would not be back, 13 but this is my last time and I'll take a few moments. I 14 don't want to rehash all of what I talked to you about this 15 morning, but I do want to respond to a couple of comments 16 that Mr. Williams just made to you. 17 First of all, he talked a lot about owning up to 18 responsibility. Has Rockwell through its lawyers said to 19 this day after all this evidence what Rockwell knew and when 20 it knew it about the pondcrete problems? We didn't hear that 21 in the two hours that Mr. Williams spoke. He still has not 22 said what Rockwell knew and when; instead, all these excuses 23 around it. We didn't have enough money. You may have known, 24 too, because there's some assumption because you took these 25 tours. How about what Rockwell knew and when it knew it?

5257

1 How about the documents that I showed you this morning? How 2 about the witnesses' testimony that you heard? Did Mr. 3 Williams ask Mr. Naimon a single question on that subject or 4 on any subject? No, the only witness that they asked on that 5 subject was Mr. Weston who we called and who said, oh, no, I 6 didn't know it. I was amazed on May 23. Mr. Williams said 7 nobody said they were surprised on May 23. Mr. Weston said 8 he was amazed on May 23 when he heard about this. I submit 9 to you that was incredible testimony. They asked him 10 questions. What about the operators? What about Swenson and 11 Long and the foremen? Did they ask a single question of 12 those witnesses? Hey, when did you know about this? No, 13 instead they sort of scurried around and asked questions 14 about how do you use the pug mill, what about this 15 photograph, would you call that a leaker? What about the 16 question, sir, what did you know? Did you know about 17 leaking? Did you know about insolidity problems? None of 18 that. Rockwell still has not said what it knew and when it 19 knew it. 20 Now, there were some statements made about it 21 couldn't be done surreptitiously with the forklifts. I think 22 the word "surreptitiously" was used. If it was so open out 23 there on the pads, then why are they denying it? If it was 24 so open to the DOE, why are they denying that they didn't 25 know about it? And, why didn't Weston know if it was so

5258

1 open? Why was Tallman there at 5:10 in the morning on May 23 2 before the start of the business day? Why was he there and 3 why did he deny that he was there and why did Ed Naimon say, 4 oh, I don't know. I don't know why he was there. I don't 5 remember. Of course, Weston said, oh, yeah, I saw him there 6 and I didn't think there was anything wrong. Who was the 7 credible witness on that point? 8 Now, FBI raid, there was some talk about it being 9 the same Government. I think we all know about the different 10 agencies of Government. The FBI is part of the Department of 11 Justice. EPA is a separate agency from DOE. If they were 12 intending in some sort of a joint effort here to set up the 13 contractor, why did they raid the plant, at all? They didn't 14 need to do that if they were trying to set up the contractor 15 in some joint effort? Why were the DOE witnesses all worried 16 about their own criminal liability as they testified to if 17 there was some deal to set up the contractor? The FBI 18 doesn't get stopped by the Department of Energy. The FBI 19 from the Department of Justice does its own work and so does 20 the EPA. And, those are the two agencies who raided that 21 plant. 22 All this talk about other facilities and what was 23 and was not done there, there's no mention, there's no 24 evidence here of what the Government did at any of those 25 other facilities. What Mr. Williams said to you is there was

5259

1 one common element throughout all the facilities; DOE. 2 That's right. But, the one uncommon element is that Rockwell 3 didn't tell the truth. I suggest to you that that's the fair 4 inference from that evidence of things happening in other 5 facilities. The one common thread being DOE; the one 6 uncommon element, Rockwell didn't tell the truth to the 7 Government and that's why this lawsuit was brought. 8 On the incinerator allegation, you heard a lot 9 about this FBI raid and that the sensational incinerator 10 allegation is proven to be false. That's true. An 11 allegation was proven to be false, but the one allegation 12 that wasn't proven to be false that is part of this case is 13 the pondcrete and saltcrete allegations. That's what they 14 pled guilty to. That's what they agreed were false. All 15 this argument about, well, in the Grand Jury, there's no 16 lawyer for Rockwell there. Well, they don't deny that 17 Rockwell had a lot of lawyers during the criminal 18 investigation. They also had the investigators. Remember 19 Harold Bodley who interviewed hundreds of witnesses and even 20 represented a number of witnesses in the criminal 21 investigation? And, look at the plea agreement. Rockwell's 22 lawyers signed that plea agreement. After all that 23 investigation, after the hired investigating that they did to 24 talk to all these people, and they admitted beyond a 25 reasonable doubt that the pondcrete and the saltcrete

5260

1 allegations were true. The incinerator allegations are 2 irrelevant to this case. The pondcrete and saltcrete ones 3 are. They admitted it. They committed fraud about it. And, 4 that's what this case is about. 5 Now, on Leif Swenson, there was some talk about--by 6 Mr. Williams about Leif Swenson and I was trying to stick 7 words into his mouth and then Mr. Williams said something 8 about, well, do you remember Leif Swenson, he had all the 9 depositions in front of him and he explained. That wasn't 10 Leif Swenson that did that; that was Howard Long. Howard 11 Long is the one who said I'm not covering up anymore and he's 12 the one that pulled those depositions and I think you 13 remember that. That wasn't Leif Swenson, as Mr. Williams 14 said, that did that; it was Howard Long. And Swenson, who 15 Mr. Williams claimed that words were put into his mouth by 16 me, that's the guy that Rockwell's investigator interviewed 17 during the criminal investigation and he said to that 18 investigator, Mr. Bodley, August '87, I knew of a gooey mess. 19 I knew of that before May 23, 1988. Was Rockwell's 20 investigator putting words in his mouth back in 1991 when he 21 told that not in the Grand Jury room, not with somebody 22 else's lawyers present, not with the prosecutors present; 23 with Rockwell's own investigator and his own lawyer, he said 24 that. 25 Now, Mr. Williams used the word "materiality" a

5261

1 number of times. As the Judge is going to instruct you, 2 that's not an element of liability under the False Claims 3 Act. It might go to damages. It might go to how much in 4 damages you might want to award. But, once you find under 5 the False Claims Act that there were false statements made by 6 Rockwell to get money paid, there is liability under the 7 False Claims Act. The amount of damages, the importance of 8 the award fee periods, the importance of all this evidence of 9 what the Government would have done had it known, goes to the 10 amount of damages. I gave to you the numbers of the award 11 fees for those periods. You decide how much of that you 12 think would have been different. You decide how much the 13 award fees would have been reduced. You decide how much of 14 the costs would not have been incurred had Rockwell told the 15 truth. And, you can reduce the amount as much as you think 16 is fair based upon the evidence. Our accountant told you 17 what the costs were. He told you how he did it. We called 18 Lance Schlag. He told you about the accounting records. 19 They told you what the pondcrete and saltcrete costs were. 20 You decide how much of that is fair and appropriate based 21 upon the evidence and based upon Rockwell's false statements. 22 Now, there was a lot of argument and there's been 23 some testimony about assumptions that DOE could have made. I 24 think Mr. Williams used that when he was talking about 25 Kluherz and Krieg and Hymer and Lund. He said that DOE must

5262

1 have made the assumption--or you should make the assumption 2 that DOE knew, that they assumed all these things, or you 3 should assume they knew these things based upon inspections. 4 How about what Rockwell, in fact, knew? Why are we talking 5 about the assumptions of the Department of Energy? How about 6 what Rockwell, in fact, knew all of those months prior to the 7 May 23, '88 spill? With respect to Mr. Kluherz, you might 8 recall his job was discontinued and they gave him something 9 to do and he was walking around the plant, all over the 10 plant, and I think Mr. Williams even pointed out the 11 testimony that he told the pondcrete--or he told the Rockwell 12 workers in whatever field they could tell him about problems 13 and he would not rat on them. Did they tell him or did they 14 not tell him? His testimony here was they didn't tell him 15 about any problems on the pads. The only thing he had was a 16 tarp coming off of it. That's the only note he wrote. Did 17 they tell him? He testified here they didn't. If they 18 actually did tell him, then he was giving in to his promise 19 to them, I won't rat on you. Well, if he didn't rat on them 20 here, he certainly did rat on them back there and tell Mr. 21 Whiteman or any of the responsible DOE officials about what 22 he might have seen out there. Again, he never said he saw 23 anything on the pads. The carpooling with Dee Krieg, 24 remember, she never said that she saw anything on the pads 25 and she never said that Kluherz told her about anything.

5263

1 And, what did Krueger--you remember his testimony 2 and rely on your own memory. Krueger never said that he saw 3 anything on those pads. And, the dispute and the 4 disagreement and the difference in the evidence between 5 Krueger and Gelston regarding that inspection was whether it 6 was in Building 778 or Building 774. That was the difference 7 between their testimony. You remember that testimony. It 8 wasn't was it on the pads or in the building? It was what 9 building was it in? Gelston said she couldn't recall. The 10 notes indicated some other buildings. Mr. Williamson 11 questioned her about other documentation on 774. Krueger 12 never said he saw anything out on the pads. Nor did Krueger 13 or anybody else from the Department of Energy say that they 14 saw those inspection logs. There was a suggestion in Mr. 15 Williamson's argument that they did. You remember the 16 testimony. Nobody said that they saw the logs. 17 There were two pieces of evidence on that. One, I 18 think, it was Mr. Lund who said I knew that there were 19 inspection forms, forms. He knew that there was a form to be 20 filled out. Krueger was shown some inspections that had 21 check marks and he said I wouldn't have expected to have been 22 shown this. Well, that means he wasn't shown it. That means 23 he didn't see it and he was just surmising as to what he 24 would have expected at the time. That's Mr. Krueger. That's 25 the best that they got out of him and he's the guy who went

5264

1 around his boss's back, John Woodson (phonetic), the dead guy 2 that can't speak, he went around him right directly to Dom 3 Sanchini and said treat this confidentially. That's Krueger. 4 That's the person that supposedly was acting with the 5 authority of the United States Government. 6 Now, Mr. Williamson told you and I think he used an 7 Army analogy and he said something about you can delegate 8 authority, but you cannot delegate responsibility. It's 9 true. An enlisted man or an enlisted woman, for that matter, 10 when that person lies, it is that person's responsibility. 11 You don't delegate responsibility, that is true, but the 12 person to whom it is delegated, just like under this 13 contract, has the responsibility to own up to lies, is not 14 supposed to lie, and that person is responsible to the boss 15 for lying. We all know that from our everyday life. 16 Now, plywood boxes and the sewer sludge and the 17 Teel note, there was a suggestion about plywood boxes for 18 pondcrete. I think all of the witnesses testified that tri- 19 wall boxes were used for the pondcrete. That was what they 20 were supposed to be used for. That was what Mr. Wickland got 21 the exemption for and it wasn't until after the May 23 spill 22 that they got put into plywood. Putting them into plywood 23 boxes before May 23 was hiding it. Putting them in the sewer 24 sludge boxes was hiding it. That was what the evidence was 25 and that was an April 23, 1987 photograph that I showed you

p.5265

1 of the pad that had the boxes, the plywood boxes. That was 2 before May 23, '88 when you weren't supposed to have the 3 pondcrete in the plywood boxes. Or at least if you did and 4 you were doing it because the thing was falling apart, you 5 should have told the Department of Energy about it. And, 6 why? Not because there was one box that had a problem. If 7 they just had a problem with one box, yes, fix it and we'll 8 be on with it. Do you have to tell the Department of Energy? 9 Probably not. But, when you know that there is a systematic 10 problem because you're not putting enough cement because you 11 don't have correct inspection procedures because quality 12 control is lacking, all the things they admitted to in the 13 UOR, when you know about the systematic problem, that's what 14 you should tell the Department of Energy about or fix it 15 which they didn't. 16 Now, there was some reference to the Colorado 17 Department of Health coming from the inspection in May of 18 1987 and Mr. Williams showed you a document where four 19 Colorado Department of Health persons signed the document and 20 he said, well, why didn't they just bring in Mike Sattler, 21 why didn't they bring in the others? Well, I ask you why 22 didn't they? We brought in Mike Sattler who said what he saw 23 and what he didn't see. He was the person--remember the 24 letter, April of 1987, Mr. Sattler was the person who was 25 responsible from April of 1987 forward. That came out with

p.5266

1 Mr. Kolar's questioning of John Krueger. He was the person 2 who was responsible. He was the witness we called. They 3 didn't call any of the other CDH people and they had full 4 opportunity to do that. 5 Mr. Williams also talked about ambiguous words and 6 he said insolid, leakers, spills. Well, ladies and 7 gentlemen, the evidence is unrefuted that leaking boxes, 8 spills, mushy, gooey--when we asked the witnesses those 9 questions, they used those words and they said that wasn't 10 the way it was supposed to be. They were describing what 11 they saw and they said it wasn't what it was supposed to be. 12 Those are ambiguous words when used by those witnesses who 13 were saying this is what I saw and it wasn't right. Mr. 14 Wickland said that and the operators said that. 15 Now, there was also a contention that on May 19 16 that the collapsed boxes in the 788 Building that I described 17 it as a spill--let me read to you again what the exhibit 18 says. It says, "The bottom box of the fallen stack 19 apparently failed due to the softness of the pondcrete 20 mixture which it contained. The exact causes of the softness 21 of the pondcrete are unknown, but could be due to a lack of 22 cement in the pondcrete mixture for this particular box. 23 This is not an isolated incident, but one that is evidenced 24 on the 904 Pad. A major effort is ongoing to remedy the 25 curing problem."

p.5267

1 Softness, all the witnesses said it wasn't supposed 2 to be that. Curing problem, that means it didn't cure up to 3 whatever level you want to call it. It didn't cure properly 4 and it wasn't an isolated incident, one that's evidenced on 5 the 904 Pad. Everybody agrees that the 904 Pad incident was 6 not supposed to happen and that was a spill. The document 7 speaks for itself. 8 Now, freeze-thaw, all of the witnesses asked on 9 this question said that freeze-thaw conditions do not make 10 something that is hard go soft. If the cementation process 11 works, it sticks like this. Freeze-thaw does not make it 12 come apart if it's done right. Their own expert, Mr. Basham, 13 said that. Candy Jierree said that. All of the witnesses 14 asked that question said that. What freeze-thaw does is it 15 makes it crackle or spall, nothing else. It doesn't make it 16 fall apart. It doesn't make it soft. So, if the stuff is 17 soft from the beginning, it's Rockwell's fault and freeze- 18 thaw has nothing to do with it. There was no contradictory 19 evidence because chemistry tells you that. 20 Now, saltcrete, Mr. Williams mentioned Mr. Lukow's 21 testimony about saltcrete. You might recall Mr. Lukow said 22 that after the May 23 event when they were dealing with 23 saltcrete, he called up Savannah River to find out what they 24 were doing. He learned you've got to put more cement in it. 25 That's what they did. So, with respect to the new saltcrete

p.5268

1 that was made by EG&G after May 23, '88, they made it right 2 because they added more cement. As Mr. McGeehin told you, 3 we're not asking for damages with the new saltcrete. We're 4 only asking for damages for the old saltcrete that Rockwell 5 made wrong and that had to be reinspected, repackaged, all of 6 those things because of the solidity problems that were found 7 out by DOE on May 23, 1988. 8 Spray irrigation, Mr. Henry's log book, Mr. 9 Williams referred you to and he made an argument that the 10 runoff referred to is maybe not right into the creek, but in 11 the ponds. Well, Mr. Henry's log book talks about the 12 building of a culvert that would intercept the water and send 13 it into Pond C-2. Why is he referencing the building of a 14 culvert to send it into C-2 if he's not talking about it not 15 going into the pond? He's talking about it going directly 16 into Walnut Creek which is exactly what happened on March 2 17 and what they knew about before. 18 Now, there was a chart that Mr. Williams showed you 19 that was entitled DOE Knew Before May 23, 1988 and that was a 20 counsel prepared chart and I noted the omission and I expect 21 you did that when he went through that list where he claimed 22 that DOE knew before May 23, '88 of leaking and spills and 23 nitrates problems, he didn't mention a document that 24 demonstrated that DOE knew that and he didn't mention a 25 witness who testified to that. It was a chart prepared by

5269

1 counsel that had no evidence referred to in it. And, again, 2 if DOE knew those things, then Rockwell knew, too. So, why 3 don't they just come out here and say it? 4 Money. There are some arguments here about the 5 pre-1986 period talking about DOE not giving Rockwell enough 6 money. There's a simple answer to that. You don't need 7 money to tell the truth and Mr. Williams did not refer to a 8 single one of the documents that I showed you that contained 9 Rockwell's false statements. He didn't say, therefore, any 10 of those statements were actually true. It doesn't take 11 money to tell the truth. And, with regard to the need for 12 money to comply with the compliance agreement which was 13 another claim here, recall Mr. Naimon's testimony that he had 14 enough personnel to meet the compliance agreement. I asked 15 him that question. He said, yeah, I think I had enough 16 personnel to meet the deadlines in the compliance agreement. 17 And, remember, his management reports were exceeding those 18 levels. He had enough personnel to do it. And, in fact, he 19 talked about how he hired more people that DOE gave him the 20 money for to meet those deadlines in the compliance 21 agreement. With respect to the 15 month period, there is no 22 evidence that Rockwell during that entire period came to DOE 23 and said we can't do it. Instead, they said we're doing it 24 and we're doing it really well. Give us more money. That's 25 what they said in all of their waste management and other

5270

1 reports. 2 Now, Mr. Williams also showed you a document 3 referencing--again, I think this is a 1986 document where 4 there's a suggestion for a building for the pondcrete. Now, 5 of course, there's no evidence that there are any problems 6 with the pondcrete at that time and all of the witnesses have 7 testified from the DOE that they thought that storage outside 8 was okay based upon the representations that Rockwell made to 9 them about the nature of the waste form. And, who else said 10 that; Mike Sattler from the Colorado Department of Health. 11 The guy who came here and was concerned about the citizens of 12 this state, he comes and he says that's what I understood and 13 that's why I said okay because CDH has to agree. It's the 14 permit from them and they said it's okay because of the 15 understanding that this was not going to migrate out of that 16 stable concrete matrix that Rockwell represented it to be. 17 You might also recall Chuck Wickland's testimony 18 that in 1987 he recommended a storage facility and Mr. 19 Sanchini was not supportive of the idea and got very upset 20 with him, in fact. You might also recall that Gary Potter-- 21 and I'll show you this exhibit, Exhibit 524. The first 22 paragraph, Gary Potter, October 15, 1987, he writes to his 23 boss, George Campbell and what does he say? "Environmental 24 management supports the storage of pondcrete, saltcrete, and 25 sewer sludge on the new mixed waste storage pad located west

p.5271

1 of 903 Pad." That's the 904 Pad. "Storage in the final 2 packaging configuration with protective tarp over cover 3 should provide adequate environmental protection." Gary 4 Potter is supporting it. He's not saying put it in a 5 building. That's an after the fact litigation defense. It 6 wasn't said at the time and it certainly wasn't pressed at 7 the time. 8 Award fees, there was some argument about award 9 fees. I've already touched on this when you see in the award 10 fee documents there were functional performance areas that 11 dealt with waste management. In some periods, it said waste 12 management; in other periods, it said Environmental Safety 13 and Health and general management was always a large goal and 14 you could always take things out of general management if 15 you're not managing the plant properly and that includes 16 waste management. The Judge will also instruct you that 17 under the terms of the contract, unsatisfactory performance 18 can result in a zero award fee. But, again, ladies and 19 gentlemen, I'm not telling you how much you should award. 20 I'm telling you how much the award fee numbers are. I'm 21 telling you what the pondcrete costs were and you decide 22 what's fair and appropriate with this evidence. 23 Now, Rockwell said to you in their opening and they 24 say now again that we paid our debt to society when we paid 25 an $18 million criminal fine and the Government is

5272

1 persecuting us by asking us to pay more. The only response I 2 have to say is I'm sorry, Rockwell, that's not good enough. 3 Given that the Government has incurred $160 million or more 4 in costs by reason of your misconduct, your lack of good 5 faith, your false statements to the Government, you are 6 different from those other contractors. You are different 7 from the other waste disposal issues that we've been talking 8 about and you pleaded guilty and admitted that in 1992. 9 Now, you've heard a lot of evidence, seen a lot of 10 documents. The documents are going to be in chronological 11 order for you with an index and I want to close by just 12 saying that I don't want you to accept what I have said to 13 you. The Judge will instruct you that what the lawyers say 14 is not evidence; it's argument. I've read the documents. 15 I've read the transcripts. I've sat in here in trial. I've 16 done my best to tell you what I think the evidence showed, 17 but it's your memory that counts and it's your assessment of 18 the evidence that counts. That's all I'm asking you to do. 19 One other thing that I would ask you to do is when 20 you're looking at it, see the pattern. See the pattern of 21 the documents, see the pattern of the evidence, the pattern 22 of the witnesses. Remember the witnesses and how they 23 testified, judge their credibility. The Judge will give you 24 instructions about credibility. Use your common sense based 25 upon everyday interactions of how you believed those

5273

1 witnesses testified before you. You judge who was telling 2 the truth and who was not, and you decide whether Rockwell 3 who still is not saying what it knew and when it knew it, 4 whether they are being honest with you, whether they are 5 being open with you. If you conclude that they were not, 6 isn't that exactly what happened to the Department of Energy 7 during all this time? It's exactly what happened. The 8 Department of Energy is going along and Rockwell is telling 9 it some things and not telling them the others, and it takes 10 a while to figure that out. All of these witnesses who 11 testified when they were asked the question did you know of 12 any concealment, the contractor, no, I didn't know of 13 concealment, and you told Congress in 1990 there was no 14 concealment. Well, the victims of fraud don't know about 15 that. They didn't know at the time. That's our whole point. 16 They didn't know of those things at the time and that's what 17 this trial was all about and that's why we put on some 22 18 days of evidence for you. And, you decide who was defrauded 19 here, who was telling the truth, and that's all we ask of 20 you. 21 And, I thank you very much. 22 THE COURT: Members of the jury, now you've heard the 23 arguments of counsel, but of course, you realize the trial is 24 not yet complete because you haven't heard me give you the 25 instructions on the law. The time remaining here before 5:00

5274

1 o'clock is not sufficient for me to do that. So, we're going 2 to recess now and come back to this tomorrow. And, what will 3 happen tomorrow is that I will read the instructions to you 4 here in Court and then give the case to you for decision. 5 You will also have a written copy of the instructions, each 6 one of you, so that you will have the law before you when you 7 deliberate in the case. 8 Now, I know that you know that you've heard all of 9 the testimony and that you've now heard all of the arguments 10 of counsel. It is difficult, it is almost contrary to human 11 nature for me to say to you, wait a minute, don't think about 12 it, keep open minds. Yet, that's what you're obligated to do 13 under your oath to let this matter rest because while a lot 14 has been given to you, the law has not. The principles of 15 law that apply in this case are, of course, something that 16 you are bound to follow. As I've said many times, you have 17 to decide this case according to the evidence and to follow 18 the laws given to you in the instructions of the Court. 19 I also ask of you now to be very careful about the 20 things that you may read in any newspapers or any other 21 printed publications or hear on the radio or watch and hear 22 on television because there may be things. This is at a 23 stage of the trial now where it's common that there may be 24 some comment in, as we say in these days, the news media or 25 elsewhere about the case. You recognize, of course, you must

p.5275

1 stay away from that so that you can decide according to what 2 is presented to you here in the Court. And, of course, you 3 will not discuss the case or anything about it with others 4 including other members of the jury. 5 Now, I'm going to propose an 8:30 start time again 6 tomorrow. Is that a problem for any of you? If so, speak 7 up, but I think get a fresh start at 8:30 in the morning and 8 we'll give you these instructions and then the case will be 9 yours. 10 So, we'll excuse you now until 8:30 tomorrow 11 morning. You're now excused. 12 (4:28 p.m. - Jury excused.) 13 THE COURT: The exhibits are all ready to go, are they? 14 And, we have an index, a chronological index, that's been 15 agreed? 16 MR. KOLAR: Yes, Your Honor. 17 THE COURT: Good. Okay. All right. The trial will be 18 in recess until 8:30 tomorrow morning. 19 (Whereupon, at 4:30 p.m., the hearing was recessed, to 20 reconvene at 8:30 a.m. on Tuesday, March 30, 1999.) 21

p.5276

1 I certify that the foregoing is a correct transcript 2 from the record of proceedings in the above-entitled matter. 3 4 March 29, 1999 _______________________________ 5 Federal Reporting Service, Inc. 6 17454 E. Asbury Place 7 Aurora, Colorado 80013 8 (303) 751-2777

 

 

 

The Second Trial: Merilyn Cook, et.al., vs. Rockwell International Corp. & The DOW Chemical Company. For lost value of about 15,000 private properties in the vicinity of the RFP. This is Page 10226 (running)

1 IN THE UNITED STATES DISTRICT COURT

1 FOR THE DISTRICT OF COLORADO

2

2 Civil Action No. 90-CV-00181(JLK)

3

3 MERILYN COOK, et al.,

4

4 Plaintiffs,

5

5 vs.

6

6 ROCKWELL INTERNATIONAL CORPORATION and

7 THE DOW CHEMICAL COMPANY,

8

8 Defendants.

9 _______________________________________________________________

9

10 REPORTER'S TRANSCRIPT

10 Trial to Jury

11 VOLUME 84

12 _______________________________________________________________

12

13 Proceedings before the HONORABLE JOHN L. KANE, JR.,

14 Judge, United States District Court for the District of

15 Colorado, commencing at 12:35 p.m., on the 18th day of January,

16 2006, in Courtroom A802, United States Courthouse, Denver,

17 Colorado.

18

19

20

21

22

23

24 Proceeding Recorded by Mechanical Stenography, Transcription

24 Produced via Computer by Janet M. Coppock, 901 19th Street,

25 Room A-257, Denver, Colorado, 80294, (303) 893-2835

10227

1 APPEARANCES

2 MERRILL GENE DAVIDOFF, DAVID F. SORENSEN, ELLEN T.

3 NOTEWARE and PETER NORDBERG, Attorneys at Law, Berger &

4 Montague, P.C., 1622 Locust Street, Philadelphia, Pennsylvania,

5 19103-6365; and LOUISE M. ROSELLE of Waite, Schneider, et al,

6 1513 Fourth and Vine Tower, One West Fourth Street, Cincinnati,

7 Ohio, 45202; GARY BLUM, Attorney at Law, Silver & DeBoskey,

8 1801 York Street, Denver, Colorado 80206, appearing for the

9 Plaintiffs.

10 DAVID M. BERNICK, DOUGLAS KURTENBACH, MARK J.

11 NOMELLINI, STEPHANIE A. BRENNAN and ELLEN T. AHERN, Attorneys

12 at Law, Kirkland & Ellis, L.L.P., 200 East Randolph Drive,

13 Chicago, Illinois, 60601, appearing for the Defendants.

14 * * * * *

15 PROCEEDINGS

16 THE COURT: We don't have much time. I have received

17 defendants' motion to exclude the Sanchini journals.

18 MR. KURTENBACH: There was a little bit of a hold-up

19 downstairs, so if TJ could set up while we are talking, would

20 that be all right?

21 THE COURT: Sure. That would be fine.

22 MR. DAVIDOFF: Your Honor, we would like to respond to

23 that. The only part of the Sanchini journals that I am aware

24 of that were going to be referred to during closing today is

25 there was one page that was already shown to the jury and I am

10228

1 not even sure we are going to have time to show it again where

2 it talks about surface water runoff over Indiana Avenue.

3 THE COURT: Is it redacted?

4 MR. DAVIDOFF: It doesn't have to be redacted because

5 it doesn't talk about any --

6 THE COURT: What's in it? Let me see.

7 MR. KURTENBACH: Page number?

8 MR. DAVIDOFF: We can just omit that, but it was shown

9 to the jury and there was testimony that the journal said

10 surface water runoff over Indiana Avenue. And then we would

11 like an opportunity to respond. Obviously we haven't had an

12 opportunity to respond to that.

13 THE COURT: Time is flying. The evidence has come to

14 a close, and I don't want a whole lot of chatter about this,

15 please. Just show me the exhibit.

16 MR. DAVIDOFF: I am looking for the page now, Your

17 Honor. This is the only page that would be even referred to.

18 I am sorry, Your Honor, I am told the page that I want was

19 already admitted. It was one of the 21 pages we didn't include

20 in this filing, the pages that were already admitted. I will

21 not show the page. I will just refer to a page at most that

22 shows there was surface water runoff over Indiana Avenue.

23 MR. KURTENBACH: That's a false predicate. The

24 documents are not admitted unless they are redacted.

25 MR. DAVIDOFF: That page does not need to be redacted,

10229

1 Your Honor.

2 THE COURT: I have asked to see it. If you got it,

3 show it to me; if not, let's get moving.

4 MR. DAVIDOFF: I will leave it alone. I am sorry,

5 maybe you do have it. This is the admitted one, Your Honor.

6 May I approach?

7 THE COURT: Yeah.

8 MR. DAVIDOFF: Page 77, 10-16-86. That's the only

9 that would be referred to in closing, Your Honor.

10 THE COURT: I am admitting this exhibit. It does not

11 require redaction. The rest of them, if you want to reply, you

12 can give me a reply sometime.

13 MR. DAVIDOFF: Yes. We would like to go through as

14 quickly as we can, Your Honor.

15 One other thing I want to mention, Your Honor knows we

16 got a verdict form about 10:30 last night.

17 THE COURT: I finished it about 10:30 last night.

18 MR. DAVIDOFF: I am not criticizing the Court, Your

19 Honor. I completely understand. Apparently there is some

20 changes. We have the one we got at 10:30 last night loaded.

21 It's a complex verdict form. It's 30 pages long. I may --

22 obviously we are going to try to get done within the time

23 allotted. I may ask Your Honor at 4:45 for a few extra minutes

24 because we needed to add -- we cut a lot, but we needed to add

25 some time to discuss the verdict form.

10230

1 THE COURT: We will see what happens.

2 MR. BERNICK: Can we ask how this was distributed at

3 10:30 last night? We just got a copy this morning on the

4 table.

5 THE COURT: What?

6 MR. BERNICK: The verdict form.

7 THE COURT: I e-mailed it. I e-mailed it to

8 Mr. Kurtenbach's e-mail address. I pressed the button.

9 MR. DAVIDOFF: Apparently, Your Honor, the new form we

10 haven't even had a chance to examine.

11 THE COURT: Well, I am not surprised. We proofread

12 it. I couldn't proofread my own stuff again, and I had

13 somebody else do it, and they found some typographical errors,

14 that's all, and those were corrected. There is no change in

15 substance.

16 MR. DAVIDOFF: I completely understand.

17 THE COURT: These are red line copies that show the

18 changes made. Let's bring them in.

19 (Jury present.)

20 THE COURT: Good afternoon. Ladies and gentlemen, we

21 are going to have the closing arguments. We will hear from the

22 plaintiffs today. Tomorrow we will hear from defendants, and

23 then on Friday we will hear a rebuttal from the plaintiffs, and

24 then I will instruct you. You have been given copies of the

25 jury instructions and the verdict forms. They are yours. Feel

10231

1 free to write on them, if you wish, whatever, if you are taking

2 notes and you think that would help, by all means, do so.

3 The next thing is I advised you and instructed a

4 number of times throughout this trial that the arguments and

5 statements of counsel are not evidence. I will go over that

6 one more time with you when we have the final instructions, but

7 I think it's important to point out a couple of things before

8 we begin this process.

9 If it's not evidence, why do we listen? And the

10 reason is this. First of all, the attorneys have been with

11 this case intensely for many, many years and have put it

12 together, and as they should, as advocates, each for their own

13 side of the case. Part of that instruction says that if you

14 recall the evidence differently than they do, it's your

15 recollection that governs, but I would not think that any

16 lawyer under these circumstances would deliberately try to

17 mislead you about the evidence. They may have a different

18 recollection, and if so, that's just human nature.

19 But the way in which -- when I don't have a jury in a

20 trial that I listen to closing arguments may be of assistance

21 to you in listening to them. And it's this.

22 If I have -- of course I do when I am deciding a case,

23 but to put yourself in the position, if you have an important

24 decision in your own life that you need to make, you will

25 sometimes call on people to talk it out with them and to get

10232

1 their advice knowing full well that you are the one that has to

2 make the decision, so you can accept it or you can reject it,

3 but you take that advice and you evaluate it and you weigh it

4 to help you in reaching the right decision.

5 The same thing applies here. Listen to what they have

6 to say, take it as the advice of a friend knowing full well

7 it's your case, your decision and your responsibility, but you

8 should listen to it. If it helps you, that's the purpose of

9 it. They obviously are advocates and not only are they trying

10 to help you, but convince you, and that's what they should be

11 doing because that's the way our system works. All right.

12 Mr. Davidoff, go ahead, please.

13 CLOSING ARGUMENT

14 MR. DAVIDOFF: Good afternoon, Your Honor.

15 Good afternoon, ladies and gentlemen. I want to thank

16 you first on behalf of our clients, the class representatives,

17 Mrs. Babb, Mr. and Mrs. Bartlett, Ms. Cook, Mr. and

18 Mrs. Schierkolk who have been with this case for 16 years

19 representing the class. I also want to thank you on behalf of

20 the class, the members of the class; some of who are here at

21 closing argument today.

22 We are very thankful for your attentiveness and taking

23 the time out of your lives to listen to plaintiffs' case and to

24 listen to this case, the evidence in this case. We know it's

25 been an inconvenience. You have been a terrific jury. You

10233

1 have paid close attention to the evidence. We appreciate that

2 more than you will ever know.

3 We are going to try to explain and guide you through

4 the evidence today, and I am going to give you a very brief

5 outline of what we are going to -- hope to do as an overview.

6 Ms. Roselle is going to discuss most of the evidence in the

7 case, corporate wrongdoing, Dow and Rockwell's responsibilities

8 as a result of their wrongdoing, corporate responsibility and

9 corporate accountability, how Dow and Rockwell actually behaved

10 after and during their wrongdoing. We are going to talk about

11 secrecy, defense strategies, Dow and Rockwell's most

12 devastating conduct and some admissions that defendants have

13 made.

14 Ms. Roselle will cover most of that. I will cover

15 some of it in the course of, I hope, walking you through the

16 jury instructions which have been undergoing revision as late

17 as this morning, I understand. I am going to be discussing

18 damages, both compensatory and punitive damages, the damages

19 claim that the plaintiffs have made, and I am going to be

20 discussing the verdict form.

21 So without further ado, I would like to turn it over

22 to Ms. Roselle, and she will speak with you for a while.

23 CLOSING ARGUMENT

24 MS. ROSELLE: Good afternoon. This is a good time to

25 take notes. As we go through the evidence, we are going to be

10234

1 pointing out things that we think are important. I have put a

2 list up here of the exhibits that we think are important when

3 you go back to the jury room. You will have an opportunity to

4 look at any of these exhibits, and these are the ones that we

5 think are important.

6 P63 is the 1982 Dow report about the 903 area. P95 is

7 the 1971 Department of Commerce comments on plutonium in the

8 soil. P281 is the 1952 Dow memo on waste. P411 is the 1958

9 Dow letter about not allowing toxic chemicals into the Great

10 Western Reservoir. P412 is the 1960 Dow memo about monitoring.

11 P493 is the 1986 Mary Walker memo. P512 is the 1988 GAO

12 report. P604 is the 1989 Rockwell full-page ad. P736 is the

13 1990 Rockwell full page ad.

14 P606 is the Rockwell contract. P1049 is the Dow

15 contract. P1062 is one of the RAC reports. It's the RAC

16 report on monitoring. I am going to touch on this report, but

17 I am not going to go over it in great detail.

18 Do you need this chart moved or can you all see it?

19 Okay. A little bit? Is that better?

20 P1068 is a RAC report on the 1957 fire. P1081 is the

21 RAC report on surface water -- I am sorry, 1080. We haven't

22 talked about that report much, but if you choose to read it,

23 it's very interesting. It describes how Rocky Flats water ran

24 off the plant site into the creeks and into the Great Western

25 Reservoir and Standley Lake, and you will see in that report in

10235

1 the early years there was no treatment of the water at all

2 before discharge and there was very limited monitoring.

3 P1334 is a RAC report that has the comments of the HAP

4 panel. Again, not a report I am going to be discussing today.

5 P1433 is the Atomic Energy Commission memo about the health

6 effects of radiation exposure. P1435 is an AEC memo about top

7 secret documents. P1557 is the October 2005 Kaiser Hill

8 reports on cleanup.

9 P214 is the credibility gap memo. P10, P559, P653,

10 P1394, P548 and P652, those are all MUF documents. And PV,

11 that's a video, 188 is the Cochran video. During our

12 presentation today, we are not going to have time to discuss

13 any of these documents in depth. We have tried to pull out the

14 most important language from these documents, and we will be

15 showing that to you as we go.

16 I want to talk for a few minutes about corporate

17 wrongdoing. You all know the difference between right and

18 wrong. The facts show that what happened at Rocky Flats was

19 wrong. What happened at Rocky Flats was wrong in so many ways.

20 Ask yourself, was it wrong for Rockwell to commit

21 serious environmental crimes? Was it wrong for Rockwell to lie

22 on environmental filings? Was it wrong for Dow to leave 5,000

23 radioactive barrels on the 903 pad uncovered for 11 years while

24 plutonium blew off the plant site and leaked into the soil?

25 Was it wrong for Rockwell to leave the pondcrete and the

10236

1 saltcrete uncovered and allow radioactive leak from the

2 containers? Was it wrong not to do the proper and reliable

3 environmental monitoring?

4 Was it wrong for Rockwell to run full page ads in the

5 Denver Post and the Rocky Mountain News proclaiming its

6 innocence? They knew they were guilty of environmental crimes.

7 Was it wrong to tell you that the problem is gone when, in

8 fact, the problem will be here essentially forever?

9 This is a case about wrongdoing that has increased

10 both the future risk of cancer and the diagnosed cases of

11 cancer; that has caused contamination of two major water

12 supplies, the Great Western Reservoir and Standley Lake; that

13 has left a legacy of plutonium and hazardous waste

14 contamination of the water in soils both on and off site and

15 has caused permanent damage to the environment.

16 We live in a country of law and order. We have laws

17 to protect people and the environment. No one is above the

18 law. Rockwell committed serious environmental crimes that had

19 a serious economic and environmental impact. Rockwell admitted

20 to environmental crimes and paid $18.5 million in fines.

21 What about Dow? Putting a tarp over the drums in the

22 903 area would not have taken money or research if Dow had

23 cared to do it. It would have been simple and inexpensive.

24 Let's look at this quote from Mr. Putzier. This is Exhibit 63.

25 This is a Dow document, and it's talking about the 903 pad.

10237

1 We in the Health Physics department were fully aware

2 of the potential for materials to blow off plant site. So it

3 was uppermost in our minds at the time that there was some

4 haste we should cover -- that with some haste we should cover

5 up this area to prevent the high winds that would come on as

6 expected in the winter months of 1968 and 1969 from carrying

7 the soils off plant site. The area went through the winter

8 months without any protective cover, and the job was not

9 completed until the following summer and fall.

10 This is what Dow wrote. This isn't what we're saying.

11 When you look at jury instruction 3.15, you will see that Dow

12 and Rockwell were required to use the utmost care.

13 Let's look at Exhibit P281. This is another document

14 that Dow wrote in 1952. And I know you have seen this many

15 times, but I want to show it to you again.

16 The Rocky Flats plant site is wholly unsuitable for

17 such treatment of contaminated waste. In the first place, the

18 plant site is unreasonably small. In the second place, the

19 drainage and direction of the prevailing wind is toward

20 cultivated land on which food is produced for human

21 consumption. This is further compounded by the fact that

22 geological reports indicate that the nature of the overburden

23 is such that water placed there would not soak to any extent

24 into the soil but would join the runoff.

25 Then the document continues. All solid contaminated

10238

1 waste should be placed in suitable containers and sealed with

2 cement.

3 And then further down, it says, An alternative

4 permitting disposal on the Rocky Flats site would appear to me

5 to require protection consisting of storage of sealed

6 containers within a waterproof reinforced concrete structure

7 which would prevent the leaching of the radioactivity from the

8 waste. Such disposal presupposes not only a concrete trough,

9 but also a roofed and curbed structure in order that the trough

10 might not fill with water and overflow. This is what Dow wrote

11 before the plant opened, that plutonium waste should not be

12 stored on the ground, that they should be covered and that

13 there should be drainage or a trough around them.

14 Dow stored, as did Rockwell, plutonium and radioactive

15 wastes on the ground anyways.

16 Let's look at the simple facts. The facts are that

17 the Government hired Dow and Rockwell, competent, experienced

18 corporations to run Rocky Flats. The Government hired Dow and

19 Rockwell just because of their ability to run this complex

20 facility. Dow and Rockwell both signed written contracts that

21 they were obligated to follow.

22 This is the language from Exhibit P1049, which is the

23 Dow contract. The contractor shall take all steps and all

24 precautions to protect health and to minimize danger from all

25 hazards to life and property.

10239

1 And this is the Rockwell contract, which is P606. The

2 contractor shall take all reasonable precautions in the

3 performance of the work under this contract to protect the

4 health and safety of employees and of members of the public and

5 to minimize danger from all hazards to life and property, and

6 shall comply with all health, safety and fire protections,

7 regulations and requirements, including reporting requirements

8 of the Commission.

9 The evidence has been that Dow and Rockwell violated

10 these contracts. Those violations have contaminated the class

11 area with plutonium now and forever. That is wrong.

12 Let's look at some of the people who said the

13 defendants' conduct at Rocky Flats was wrong. John Lipsky,

14 retired FBI agent, told you that he uncovered evidence showing

15 flagrant violations of environmental laws and criminal conduct.

16 Governor Romer's aide, Tim Holeman, told you that the

17 governor's office was concerned that Rockwell was not committed

18 to environmental management problems.

19 Governor Romer's scientific panel member, Dr. Gale

20 Biggs, told you that defendants did not know how much plutonium

21 came out of the stacks or where it was going.

22 Admiral James Watkins, Secretary of Energy, said there

23 were severe problems out there that were documented in the

24 Tiger Team report.

25 Rockwell foreman, Ron Avery, told you that operators

10240

1 punched holes in the filters and bypassed the filter banks, and

2 Rockwell operated the building 771 incinerator in secret and

3 illegally.

4 Dr. Robert Budnitz, plaintiffs' expert with 40 years

5 experience in nuclear engineering, told you that Dow's conduct

6 was egregious and the worst in the weapons complex because it

7 went on so long.

8 Johnny Ray, union safety representative at Rocky Flats

9 under both Dow and Rockwell, told you that the 903 area had a

10 fence to keep the rabbits out, but no fence to keep the

11 plutonium from blowing off site.

12 The Government Accounting Office wrote many reports

13 about Rocky Flats. If you want to look at them, they are all

14 in evidence, but the one that I want to focus on is P512, which

15 is the October 1988 one where they wrote that since June 1986,

16 DOE had performed three technical safety appraisals at the

17 Rocky Flats plant. Collectively, these TSAs, technical safety

18 appraisals, have identified 230 recommendations and/or concerns

19 covering a wide range of safety and health disciplines.

20 Plaintiffs' expert Tom Cochran, who works for the

21 National Resources Defense Council and who is a health

22 physicist, told you that fires shouldn't have been allowed to

23 happen.

24 Michael Norton, the U.S. Attorney, defendants brought

25 Mr. Norton into this courtroom, told you that at the end of the

10241

1 day, the serious environmental crimes that were charged were

2 attributed to the corporation - to Rockwell International.

3 Where is a single person who told you that what Dow

4 and Rockwell did at Rocky Flats was okay? Defendants only have

5 excuses and denials.

6 I want to talk to you a little bit about corporate

7 responsibility, and I want to show you first what defense

8 counsel said in opening statement, and this is on page 669 of

9 this trial. He said, We'll take total responsibility. I know

10 you know this, and you will make sure we do. We will take

11 total responsibility for what we did and what we are

12 responsible for.

13 Is that what defendants did in this trial? Did you

14 hear them take full responsibility for anything? Did anyone,

15 any corporate officer from Dow Chemical Company come before you

16 to accept responsibility for the mess at the 903 area? Did

17 anyone from Dow or Rockwell tell you that they had done

18 anything to help these neighbors? Did Dow or Rockwell tell you

19 that they had done anything to clean up any plutonium that was

20 released off site?

21 Defense counsel didn't say that they had taken

22 responsibility. What he said was they would take

23 responsibility. It's up to you to decide what that

24 responsibility is.

25 Defendants voluntarily undertook the obligation to

10242

1 operate Rocky Flats. The Government paid defendant to operate

2 Rocky Flats. They received multi-million dollar bonuses, and

3 then Rockwell fought for more.

4 Defendants polluted the class area with plutonium.

5 Defendants contact necessitated numerous Government

6 investigations, and ultimately the Federal Government raided

7 its own plant. Defendants' conduct interfered with the

8 neighbors' use and enjoyment of their property. Defendants'

9 conduct permanently damaged the plant site. Even after the

10 supposed cleanup, plutonium remains both on and off plant site.

11 No one is allowed to reside on the plant site. That's in the

12 federal law.

13 Defendants need to be held accountable for the harm

14 that they caused. This should not have happened. It should

15 never happen again. It's time for defendants to take total

16 responsibility for the harm they caused their neighbors. That

17 is why our clients have pursued this case for all these many

18 years.

19 The jury system is an extraordinary thing. It allows

20 ordinary people like the Bartletts and the Babbs and the

21 Schierkolks and Ms. Cook to have their complaints heard and

22 decided by a jury of their peers. You have the power to tell

23 Dow and Rockwell what harm they caused the neighbors for which

24 they must take total responsibility.

25 Dow and Rockwell had an obligation not to interfere

10243

1 with their neighbors' use and enjoyment of their property. The

2 neighbors had a right to be safe in their own homes. The

3 neighbors had a right to enjoy their property free from

4 pollution. When pollution got off site, it doesn't disappear.

5 We all have a duty to respect our neighbors' rights, to be

6 careful.

7 As Dr. Selbin, the chemist who was on the soil action

8 committee, testified, he said, one of the things we all

9 learned, and I consider it one of the Golden rules we learned

10 in kindergarten, is when you make a mess, you clean it up. Dow

11 and Rockwell messed up big time with one of the most dangerous

12 substances on earth. But Dow and Rockwell thought they were

13 special. For years they said the law didn't apply to them.

14 The normal duties that corporate property owners owe to their

15 neighbors didn't apply to them. Well, they are wrong. Dow and

16 Rockwell are not special, and it's your job to tell them so.

17 You might wonder why we are here. Why should these

18 neighbors be compensated for their losses? Maybe you feel that

19 Dow and Rockwell were wrong, but you wonder about the

20 connection between their wrongdoing and these neighbors being

21 compensated for their losses. We will address those issues.

22 First, this is a nuisance and a trespass case. A

23 nuisance is an unreasonable interference with the use and

24 enjoyment of land. If someone threw their bags of garbage on

25 their neighbor's property, it would be offensive, and it would

10244

1 unreasonably interfere with the use and enjoyment of the

2 property.

3 Well, Dow and Rockwell did that. They allowed their

4 garbage, plutonium and other hazardous materials, onto their

5 neighbors' property. You have the opportunity to use this

6 great tool of justice, the jury system, to force Dow and

7 Rockwell to take responsibility, to repay their neighbors'

8 damages.

9 You heard plaintiffs' experts, Hunsperger, Radke,

10 Flynn and Slovic, as well as the class representatives and

11 other members of the class who told you that Rocky Flats

12 affected their property value. Then you heard the defendants'

13 experts, Dorchester, McFadden, Wecker, D'Arge and Wise who told

14 you Rocky Flats had no effect on property value. Common sense

15 tells you that defendants' conduct did affect property value.

16 The damages would have been a lot worse except that the real

17 estate around Rocky Flats is beautiful land, well located,

18 close to the stunning, absolutely stunning vistas of the Front

19 Range.

20 People want to live in that area. Many qualities

21 attract buyers to this area. Even though scenery is

22 breath-takingly beautiful, you know because you have heard the

23 evidence, that there are increased risks of cancer from Rocky

24 Flats, that the underground pollution, piping and slabs of the

25 buildings were not removed, that the neighborhood continues to

10245

1 have plutonium in the soil from Rocky Flats and that for 15

2 years after the June of 1989, people continue to live in the

3 shadow of this dangerous plant which still had all the

4 plutonium and hazardous chemicals that were left there by Dow

5 and Rockwell.

6 It's easy for defendants to say that a little bit of

7 plutonium won't hurt you, but every exposure to radiation

8 increases the risk of cancer, and the unnecessary contamination

9 of an entire neighborhood with plutonium is unforgivable.

10 This is the picture of the ape's lung. You saw this a

11 few times during the trial. You see the plutonium particle

12 that's lodged in the tissue of the lung, and you see the alpha

13 radiation that tracks going out from the particle and then

14 radiating the cell and tissues around the particle.

15 Dr. Cochran, the expert from the Natural Resources

16 Defense Council, told you that plutonium can be dangerous even

17 in extremely small quantities, particularly if it is inhaled as

18 a dust as occurred here.

19 Dr. Goble, the expert from Clark University, he was an

20 expert in risk analysis, he told you that even one atom -- or

21 one particle of plutonium can cause cancer. It doesn't pass

22 the laugh test. The defendants know the exact uncertainties of

23 the doses and the risks to the neighbors when they account for

24 2600 pounds of missing plutonium, let's get real.

25 As you know, this is a class action. One of the

10246

1 reasons for a class action is that no ordinary person could

2 afford the expenses of a case like this one. A class action

3 allows ordinary citizens to gain access to American courtrooms.

4 These courtrooms should not be reserved for corporations that

5 have millions of dollars to litigate.

6 You heard the testimony of defense experts. They have

7 been paid more than $10 million to tell you that there are no

8 risks and no harm from Rocky Flats, yet Dr. McFadden

9 acknowledged that economists are like water spaniels.

10 They are loyal to the person with the dinner dish.

11 And he also said in answer to a question posed by

12 defense counsel, if you ask me, is litigation shaded in favor

13 of large corporations? That is another question, you probably

14 don't want me to go into that.

15 People who live near Rocky Flats on June 6, 1989, were

16 injured by both the nuisance and the trespass caused by Dow and

17 Rockwell. Some people were injured more than others. Clearly

18 Dow and Rockwell caused major damage to Merilyn Cook, who lost

19 everything, and the Bartletts who tried for 11 years to sell

20 their property.

21 You might be wondering if you determine that damages

22 should be awarded, how those damages would be divided. Before

23 any money in this case would be distributed, the Court will set

24 a fair procedure for allocating damages. Plaintiffs do not

25 claim that the land has no value, although for people like

10247

1 Mrs. Cook who could not sell her land at any price and even the

2 bank that held the mortgage did not want it, it certainly

3 seemed that way; rather the plaintiffs are claiming that the

4 value of vacant land was lowered by about 30 percent on

5 average, and that the value of homes were lowered by about

6 10 percent, so average.

7 A house that should have sold for $150,000, plaintiffs

8 are claiming that it sold for $135,000, or that a $100,000 home

9 sold for 90,000.

10 This case took 16 years to get to trial, 16 years ago

11 when the newspapers and television blared stories about Rocky

12 Flats, when the plant was still open, when everyone was moving

13 out of the area. The damages would have seemed much more real

14 than they do today. All class members live with the knowledge

15 they have increased risk of cancer because of Rocky Flats. It

16 doesn't matter if the neighbors moved away in the early 1990s,

17 which most of them did, or stayed in the area. The damages are

18 measured as the difference between what the property was worth

19 and what it would have been worth on the date that the nuisance

20 became complete and comparatively enduring about 1989 or 1990.

21 During this trial there has been much talk of secrecy.

22 Secrecy affected all aspects of operations at Rocky Flats and

23 had an impact on the relationship between the neighbors and the

24 plant.

25 Let me give you an example. When the 1957 fire

10248

1 occurred, the plant told the public that possibly a minimal

2 amount of pollutant had been released. Because of that, when

3 more information became available, the public was suspect of

4 what they were being told. Even today, almost 50 years later,

5 RAC's latest estimates of plutonium released from the 1957 fire

6 have gone up from the earlier estimates.

7 This is a graph, a chart that is in Exhibit P1068,

8 which is a RAC chart, that's a RAC report. And I want to show

9 you that in 1957, according to RAC, the Atomic Energy

10 Commission said the releases from the 1957 fire were

11 insignificant.

12 And then if we go forward, there were a lot of other

13 comments on this chart, but then in 1994, when ChemRisk did

14 their report, they found that the release from the 1957 fire

15 was 1 gram of plutonium and that the range was .03 to 33 grams

16 and that was based on environmental measurements.

17 And then you heard that -- from Dr. Till, that in

18 1999, RAC's report says that the amount released during the

19 1957 fire was 4- to 500 grams, and that was based on the range

20 resulting from uncertainty about the conditions of plutonium

21 oxidation.

22 So over time the estimates of what was released from

23 the 1957 fire have changed dramatically, and each time the

24 group, the scientists, the defendants that gave the estimate

25 assured the public that this estimate was the correct one.

10249

1 The fact that these numbers keep changing only

2 reinforces the public's distrust of the information that they

3 are being told, and home buyers respond to that. Distrust

4 increases anxiety and fear, that feeling of not knowing what to

5 believe, worrying about health effects, wondering if a member

6 of the family will become sick because they grew up around

7 Rocky Flats.

8 Cancer is an ugly disease. No one wants to die from

9 cancer or to see a loved one die from cancer. It is painful in

10 so many ways.

11 Another aspect of secrecy relates to the defendants'

12 wrongdoing. Things that occur in secret with no independent

13 oversight are invitations for trouble, and that is just what

14 happened at Rocky Flats. Would Dow have stored leaking barrels

15 of plutonium on the ground year after year if independent

16 regulatory agencies had authority to prevent it?

17 Another aspect of secrecy relates to what people were

18 told about the health effects of radiation. Look at P1433.

19 This is a 1948 document that Dr. Wing testified about. This is

20 an Atomic Energy Commission document from the declassification

21 branch to the insurance branch. It's talking about a research

22 paper about the health effects of radiation exposure and the

23 existing standards. And it says, The results of the studies

24 indicate that the tolerance levels for chronic exposure to

25 gamma radiation which have been accepted both within the Atomic

10250

1 Energy Commission and elsewhere may be too high.

2 We can see the possibility of a shattering effect on

3 the morale of the employees if they became aware that there was

4 substantial reason to question the standards of safety under

5 which they are working.

6 Look at number document P1345. This document is from

7 1947 and was a meeting of the classification board talking

8 about kinds of information that should be kept secret. Look at

9 page 5, and that's what this is from, examples of information

10 which should be graded confidential, secret. I am going to

11 start with the second bullet point. All programmatic medical

12 research, all records of exposures to classified substances,

13 all documents and correspondence which state, refer to or give

14 intimation of known medical or public health hazards, all

15 documents and correspondence relating to matters of public

16 policy -- I am sorry, public planning and procedures, the given

17 knowledge of which might compromise or cause embarrassment to

18 the Atomic Energy Commission and/or its contractors.

19 There were two important points to remember about

20 scientific research into the health effects from the nuclear

21 weapons facilities. The first is that some research was done

22 in secret. And the second is there was a conflict of interest

23 because the Atomic Energy Commission that was responsible for

24 producing weapons was also responsible for the research into

25 the health effects.

10251

1 Dr. Wing, the epidemiologist from North Carolina, told

2 you that several important commissions have clearly stated that

3 the DOE's work has represented a conflict of interest, that

4 there has been secrecy which is bad for science in this area,

5 and that the conflict of interest has affected first the kind

6 of information we have to study, see health effects of

7 plutonium, as well as the way other information from

8 epidemiology has been used to represent the health effects of

9 ionizing radiation generally.

10 Let's talk for a few minutes about how defendants

11 tried their case. They had two basic themes. The first was

12 that health risk is too small to matter. And they said that

13 with such certainty, as if anyone really knows how much

14 plutonium was released or how serious the health risks really

15 are. And the second theme was that the entire class was not

16 harmed. Day after day, week after week, they kept harping on

17 those same two themes.

18 I am going to discuss the first theme, health risk.

19 Mr. Davidoff will discuss the second theme, damages, so let's

20 turn to health risks.

21 Defendants kept promising that they were bringing

22 scientists to prove that there is no risk. Well, they finally

23 did bring you Dr. John Till, the sole shareholder and employee

24 of RAC. RAC was paid more than $6 million for their work at

25 Rocky Flats. Do you remember the Wizard of Oz, the movie? In

10252

1 the movie, Dorothy is trying to get home to Kansas, and she is

2 searching for the Wizard of Oz because she was told that he

3 could help her go home. Near the end of the movie when Dorothy

4 is in the presence of Oz, the curtain is pulled aside and the

5 great and powerful Oz is revealed to be nothing but a man

6 behind a curtain pulling levers. The wizard was fake.

7 Before Dr. Till testified, defendants portrayed RAC as

8 this big impressive scientific group. Defendants' case was all

9 about science. Science has answered the question. Then the

10 curtain was pulled aside and you saw the face of RAC, John

11 Till's face. What did John Till tell you? Till admitted that

12 just the inhalation doses of plutonium to the lung increased

13 the cancer risks to the neighbors. Till also told you that

14 plutonium was routinely released from Rocky Flats from 1952 up

15 to 1989, and this is his testimony.

16 There were several major events, the 1957 fire, the

17 1969 fire, the 903 pad, but one of the other key releases of

18 plutonium from Rocky Flats is what we call routine. That's

19 just day-to-day operations that went on from the beginning of

20 operation at Rocky Flats in 1952 up to 1989.

21 Then Wecker, the defendants' statistician who has

22 testified 70 times in lawsuits between 2001 and 2005,

23 acknowledged that those risk of cancer that RAC found were

24 real, and this is what he said. Here, this is the testimony of

25 Wecker.

10253

1 Here these tests are all above zero, and the

2 interpretation is these effects, even though small, are not

3 zero, they are real; it is just they are small.

4 Both Till and Wecker acknowledged that the increased

5 cancer risks from just the dose to the lung, from just

6 breathing plutonium, is a real increase in risk. And he also

7 acknowledged on cross-examination all of the pathways and risks

8 that his cancer risk estimates did not address.

9 He said that the RAC's dose reconstruction did not

10 include doses from any pathway except breathing in; that is,

11 they didn't include from eating food. They didn't include from

12 drinking water. He said the dose estimates did not include

13 other radioactive materials, uranium and americium, tritium.

14 He said they had not calculated doses after 1989, that they did

15 not calculate doses from the 903 pad before 1964, that they did

16 not calculate doses from particles that were greater than 15

17 microns for the 903 pad, that they did not calculate doses from

18 particles greater than 30 microns from other areas.

19 He told you that RAC's dose reconstruction did not

20 include MUF doses except for hang-up in pipes and ductwork that

21 were assumed by RAC. He told you that a total risk estimate --

22 that they did not calculate a single risk estimate that covered

23 all the years. They reported their results for individual

24 decades. He told you that they did not calculate doses from

25 any water contamination, and this one is -- I want to discuss

10254

1 for a minute, they did not include risks from any organ other

2 than the lung. So, for example, if you breathed in the

3 plutonium and it stayed in your lung, they calculated a risk,

4 but if the blood carried the plutonium to other organs such as

5 the stomach or the intestine, they did not include those risks

6 in their calculations.

7 You heard other evidence about increased cancer risks.

8 Let's look at some of that evidence. Steve Wing, the

9 epidemiologist, testified that all scientific bodies agreed

10 that any exposure to radiation increases the risk of cancer.

11 And you remember the defendants had this beautiful chart, it's

12 DX1439, in which they had all of the scientific bodies that

13 have looked into the health effects of radiation, and then

14 Dr. Wing said, and this is from the transcript, Question: All

15 of these organizations here on this beautiful chart, have all

16 of these organizations taken the position that ionizing

17 radiation causes lung cancer?

18 Answer: Yes.

19 Have all of these organizations taken the position

20 that ionizing radiation can cause and does cause birth defects?

21 Answer: Yes.

22 Question: I will ask the question in reverse. Have

23 any of these organizations taken the position that plutonium

24 does not cause lung cancer?

25 Answer: No.

10255

1 Have any of these organizations taken the position

2 that plutonium does not cause birth defects or genetic changes?

3 Answer: No, they haven't.

4 You also heard from Dr. Richard Clapp, an

5 epidemiologist from Boston University, who conducted a study at

6 Rocky Flats using the Colorado Cancer Registry, and Dr. Clapp

7 told you that for the period of 1989 to 1992, there was

8 23 percent more lung cancer among men living near Rocky Flats

9 and there was 29 percent more lung cancer among women living

10 near Rocky Flats.

11 And he told you there is an increasing risk of lung

12 cancer in the exposed area as you go over time from 1979 to

13 1992. And he told you that what I take from the latency time

14 span is that the excess of lung cancer, if it were caused by

15 these emissions, would occur 20 to 30 years after the periods

16 of maximum emissions from the plant.

17 That's an important fact because 1989 -- I am sorry,

18 by 1989, it had been 20 to 30 years since the leaking drums in

19 the 903 pad and since the release -- the plutonium that was

20 released from the two major fires.

21 I want to talk for a minute about statistical

22 significance and confidence intervals. How do they relate to

23 this case? You probably heard more about statistical

24 significance than you ever want to. The defendant

25 statistician, Dr. Wecker, told you that the results for the

10256

1 female lung cancer that Dr. Clapp found barely failed the 95th

2 percent confidence significance test in the 1989 to '92 time

3 period. That means there is something just less than a

4 95 percent chance, say, 93, 94 percent chance that that

5 increase in lung cancer did not occur by chance alone.

6 Dr. Wecker admitted that the 95th confidence interval

7 is not a bright line, that no thoughtful statistician would

8 take that position, and that's the testimony that he gave.

9 Then Dr. McFadden told you that a 90 percent confidence level

10 is a less common but still often used standard.

11 So the results that Dr. Clapp found using the Colorado

12 Cancer Registry data was very close to the 95th percentile in

13 the time period from 1989 to 92. There is an increased number

14 of cases of lung cancer diagnosed in the class area compared to

15 the control area, and the number is increasing over time.

16 Notice when a study is presented by plaintiffs, this

17 is an important point about the statistical significance, when

18 we presented a study such as Clapp's study, the defendants told

19 you that unless it's statistically significant at the 95th

20 percent confidence interval you should disregard it. But when

21 they presented a study such as the RAC reports that had a

22 uncertainty bound of 90 percent, then defendants say that they

23 know exactly what the uncertainty is.

24 Dr. Clapp told you his opinion, and he said, Question:

25 In your opinion to a reasonable degree of scientific certainty,

10257

1 are the elevated lung cancer rates depicted in G799, and that's

2 the chart, associated with exposures to hazardous substances

3 from Rocky Flats?

4 And his answer was: Yes.

5 Dr. Clapp also discussed other epidemiologic studies

6 that had been done around Rocky Flats. Both Dr. Johnson and

7 Dr. Chinn, before Dr. Clapp, also found increased cancer rates

8 around Rocky Flats. Interestingly, defendants never brought

9 anyone in this courtroom who did a study of cancer incidents

10 around Rocky Flats. Why do you think that is?

11 Let's talk about some of the other evidence about

12 health risks. Dr. Robert Goble, the risk analysis expert, said

13 even small amounts of inhaled plutonium put people at risk of

14 lung cancer. Dr. Thomas Cochran told you, we don't allow

15 industries to increase our risk of cancer because even though

16 we voluntarily take risks, personal risks, ourselves, for

17 reasons of justice, we don't let other people increase our

18 risks by more than a small fraction.

19 Dr. Cochran also told you that the entire health

20 physics discipline which studies how you model the release of

21 radioactivity is fraught with uncertainties.

22 Now, certainly witnesses talked about future health

23 risks, health risks after 1989. Dr. Robert Goble told you

24 there is still plutonium on the site. There is also plutonium

25 from the site that is off site. This plutonium, some of this

10258

1 plutonium, will still get into the air and will be available

2 for people to inhale. So there will be future risks from

3 plutonium. And because cancer is a disease with a long latency

4 period, some people are still at risk because of their previous

5 exposures.

6 And Dr. Shawn Smallwood with the gophers said it will

7 continue like it's continued in the past. As long as the

8 animals and the plants can get to the plutonium, they will

9 bring it to the surface, expose those loosened particles with

10 the contaminant to the wind at Rocky Flats and it will move, as

11 has happened in the past, according to the investigators who

12 have taken soil samples downwind of Rocky Flats.

13 The evidence shows that defendants' statements that

14 there are no health risks from Rocky Flats are false.

15 Even Dr. Raabe, defendants' witness, who testified

16 there are studies that say radiation lowers the risk of cancer,

17 told you that radiation damages DNA.

18 Does anyone really believe that radiation lowers the

19 risk of cancer? We were all born, but we weren't all born

20 yesterday.

21 Another issue involving health risk is MUF. There are

22 2600 pounds of missing plutonium at Rocky Flats. Common sense

23 tells you that some of that plutonium was lost to the air or

24 the water. If even one pound of plutonium was lost to the air

25 or the water, it doubles the health risks that have been

10259

1 calculated by RAC. You heard a lot of testimony about

2 standards. What is the relevance of standards to this case?

3 There is none. There was never a federal limit on plutonium in

4 soil.

5 With regard to plutonium, there was ALARA, as low as

6 reasonably achievable, which was already in effect at -- I am

7 sorry, in the United States in 1950 before Rocky Flats even

8 opened, and it's continued right up to the present time.

9 One of the reasons that ALARA was in place even before

10 Rocky Flats opened was because of the danger of radiation and

11 how much was unknown about it.

12 This is a quote from the National Bureau of Standards

13 in 1951 that Dr. Frazier acknowledged on cross-examination,

14 that while the values proposed for maximum permissible

15 exposures are such as to involve a risk that is small compared

16 to the other hazards of life, nevertheless in view of the

17 unsatisfactory nature of much of the evidence on which our

18 judgments must be based, coupled with the knowledge that

19 certain radiation effects are irreversible and cumulative, it

20 is strongly recommended that every effort be made to reduce

21 exposures to all types of ionizing radiations to the lowest

22 possible level, 1953.

23 There is another document that was used with

24 Dr. Frazier. Because of the many uncertainties involved, this

25 committee recommends that every effort be made to keep the

10260

1 concentrations of radioisotopes in air and water and in the

2 body to a minimum. The goal should be no radioactive

3 contamination of air and water and of the body if it can be

4 accomplished with reasonable effort and expense. This

5 statement by the National Bureau of Standards was the same year

6 that Rocky Flats opened.

7 So -- and then Dr. -- so ALARA was there from the

8 beginning because radiation is dangerous and because there is

9 so much that we didn't and we don't really know about it.

10 The defendants' position that as long as the releases

11 were below standards, that those were acceptable releases for

12 the neighbors, makes no sense. The standards which defendants

13 maintain provided a safe level went down a thousand times

14 between 1958 and the present.

15 How, then, can those standards represent safety? You

16 need to keep in mind that there were other environmental laws

17 that apply to Rocky Flats that were violated. Those included

18 the Clean Water Act and RCRA. There is no question, none, that

19 those laws were violated. Rockwell pled guilty to violations

20 of both RCRA and the Clean Water Act.

21 During this trial, defendants kept flashing the ATSDR

22 report on the screen, but they never brought a witness to

23 discuss that report. All that ATSDR did was take the RAC and

24 the ChemRisk reports and then write a new report quoting or

25 citing to those reports.

10261

1 The evidence in this case has shown wrongdoing by Dow

2 and Rockwell. The releases of plutonium both on and off site,

3 lying and criminal conduct by Rockwell, how could all that not

4 affect the neighbors? Any exposure to radiation damages DNA,

5 any exposure to radiation increases the risk of cancer.

6 Although this case is not about personal injuries,

7 it's a property case, the medicine in this case is

8 straightforward. Defendants have nothing but excuses.

9 Rockwell says that environmental laws were new in the late

10 1980s, but the evidence was that pollution laws have been in

11 place in the United States since the 1899 Refuse Act, that the

12 Clean Water Act was passed in 1948, that RCRA was passed in

13 1976, that NPDES permits have been required since 1972.

14 The defendants say the laws were too complicated, but

15 the plant manager, Mr. Weston, said that he understood the laws

16 and that he learned about RCRA in his master's degree program

17 in the early 1980s.

18 Defendants told you that DOE told them not to comply

19 with the environmental laws, but according to U.S. Attorney

20 Norton, Rockwell was essentially in charge of Rocky Flats, that

21 Rockwell was the tail that wagged the dog.

22 Defendants said that it was too expensive, that DOE

23 wouldn't give them the money. No one from DOE or Rockwell or

24 Dow identified a single instance where a lack of funding caused

25 the plant to break the law.

10262

1 There are a number of facts in this case that

2 defendants have already admitted, and these were admitted in

3 opening statement, and I want to review some of them now.

4 Defense counsel said, There are problems on site. There is no

5 question about it.

6 Defense counsel said, It was never designed to be a

7 storage facility for waste, and that is correct.

8 Defense counsel said, The facts aren't going to

9 change. The facility -- this facility was not up to snuff.

10 Defense counsel said, Stuff got off the pad and

11 ultimately was blown off site as something that should not have

12 happened.

13 Defense counsel said, It is not a defense to a

14 trespass claim that the plaintiffs knew about something when

15 they moved in.

16 Defense counsel said, People don't want to live near

17 Rocky Flats. You will see evidence of that.

18 Defense counsel said, Is it possible it is true they

19 couldn't sell because of Rocky Flats? That may be true too.

20 Defense counsel said, We don't deny that they, and he

21 was referring to plaintiffs' experts, are honest people. All

22 of those are directly from the opening statement.

23 Defendants refuse to take responsibility, even for the

24 things that they admit, let alone the conduct that they don't

25 admit.

10263

1 I am going to put into perspective some of the events

2 at Rocky Flats that we think are most significant in proving

3 our case.

4 The first important fact is that Dow did not follow

5 its own advice. We have already looked at this 1952 memo,

6 P2 -- 281, so I am not going to re-read it. I want to also

7 show you P411, this is a December 2nd, 1958, Dow memo. In view

8 of our extremely sensitive position with regard to the Great

9 Western Reservoir, the water supply for the city of Broomfield

10 Heights, it is imperative that no noxious or toxic chemicals

11 find their way into this water supply.

12 And then Timothy Holeman testified, he was Governor

13 Romer's aide, that there was plutonium in the Great Western

14 Reservoir. And if you look at the documents, particularly the

15 RAC reports, you will see the evidence of the plutonium in the

16 sediments.

17 The second important fact is the lack of environmental

18 sampling and the inadequacy of the sampling that was done. Dow

19 knew that its sampling was not accurate and was not extensive

20 enough. Dow wrote letters about the air sampling, the document

21 that they knew the sampling was not accurate. For example,

22 this letter from February 1960, P412, they said that although

23 we maintain air samplers in the neighboring populated areas,

24 these are not visited daily because of the cost involved. The

25 samplers are visited fortnightly principally to insure that

10264

1 they are operating and can be used as a defensive measure in

2 case of an incident on the plant site.

3 Consequently, and remember, this is what Dow wrote,

4 dust loading restricts the air flow and gives an

5 unrealistically low computed value for air activity. To

6 transmit these values would raise questions of falsification of

7 data in the minds of lay readers.

8 RAC wrote, When looking at Rocky Flats, and this is in

9 Exhibit 1062, that what can environmental data tell us about

10 past releases from Rocky Flats? Probably more than any other

11 dose reconstruction project with which RAC has been involved,

12 the Rocky Flats historic public exposure studies are limited by

13 a lack of quality environmental data during the time period of

14 highest releases.

15 The ambient air and monitoring data collected during

16 the period of interest pre-1970 are not adequate to estimate

17 population exposures due to inhalation or ingestion of

18 materials released from Rocky Flats. The measurements of

19 radioactivity in air where people lived are limited by

20 nonspecificity, nuclides of interest were not monitored

21 specifically, and poor sensitivity.

22 And then you saw the Mary Walker memo. This was

23 actually a briefing that was given to Mary Walker. Mary Walker

24 was the assistant secretary for environment safety and health.

25 This is Exhibit 493. And in 1986, this memo was written, and

10265

1 it says, Rocky Flats, an NPL candidate, that's the National

2 Priority List, is in poor condition generally in terms of

3 environmental compliance. We have basically no RCRA

4 groundwater monitoring wells. Our permit applications are

5 grossly deficient. Some of the waste facilities there are

6 potentially illegal. We have serious contamination. We have

7 extremely limited environmental and waste characterization data

8 for a site of this complexity.

9 Third important fact to remember is that neither Dow

10 nor Rockwell learned from their past mistakes. Two examples

11 that I want to point out, first is the example of a 903 area

12 and the pondcrete. You already saw P281, which is a letter

13 from May 27, 1952. The 903 area under Dow, they left leaking

14 barrels with no cover, no containment for 10 years. They knew

15 early on that the drums were leaking, and they knew they were

16 corroding from inside out.

17 And the reason -- they said that the storage was

18 temporary even though it continued for 10 years. 20 years

19 later Rockwell, with regard to pondcrete, does the same thing.

20 Beginning in 1986, they stored the waste on the ground.

21 Instead of drums, the wastes were now in leaking cardboard

22 boxes. There was no cover. There was no containment. They

23 said that the pondcrete was only there temporarily and that it

24 was degrading from the inside out. They never learned from

25 their past mistakes.

10266

1 The second example of this, you heard the testimony of

2 Dr. Budnitz and Dr. Cochran. There were all these

3 recommendations that were made after the 1957 fire, and see,

4 those recommendations were not implemented at the time of the

5 1969 fire.

6 Another important fact, when Rockwell replaced Dow,

7 all of the employees remained except the very top level.

8 Johnny Ray told you that when Dow -- when Rockwell replaced

9 Dow, there was really no change at the plant as far as we were

10 concerned, and "we" refers to the union, the hourly workers.

11 Dow and later Rockwell had control of that plant. There were

12 maybe a couple hundred AEC employees on site compared to the

13 thousands of Dow and Rockwell employees.

14 Fifth important fact, there are -- and I don't know

15 the exact number, because you have heard testimony of many,

16 many waste sites, but one number you heard was that there were

17 between 160 and 180 waste sites on the plant site that were

18 there at the time of the FBI raid and that had been put there

19 by both Dow and Rockwell.

20 Defense counsel made the argument that Dow was long

21 gone by the date of the FBI raid, but remember, the mess that

22 they made was still there. Dow made it. Rockwell worsened it.

23 Both failed to clean it up. Dow and Rockwell's negligent and

24 intentional conduct caused the contamination with plutonium and

25 other hazardous materials both on and off the plant site. The

10267

1 plutonium in the soil off site came from both Dow and

2 Rockwell's releases.

3 Let's talk about cleanup. Frank Blaha, a defense

4 witness who worked for Rockwell, testified about cleanup. He

5 told you -- remember, we went through this chart and I went

6 through each one with him, and he explained which areas had

7 Rockwell waste, which areas had Dow waste, which had both

8 waste. And then he explained what plutonium had not been

9 removed as part of the cleanup. And then he confirmed that as

10 of this time no further work is expected to be done for either

11 cleanup at the plant or cleanup off site, that no cleanup is

12 being done at Rocky Flats.

13 Defendants showed you this pretty picture, another

14 pretty picture, and they told you that this is what Rocky Flats

15 looked like today. What they didn't show you is what is still

16 there. We had to bring that out during cross-examination. You

17 want to look at Exhibit 1557. That is the Kaiser Hill cleanup

18 reports. This chart is an overlay with four different pages of

19 that.

20 The first one shows the subsurface features after the

21 cleanup actions. This is figure 2.5 in the Kaiser Hill report.

22 It's the slabs, building, foundations and tunnels. The dotted

23 things are things that have been removed, things that are

24 outlined in green and filled in and crosshatch. These are --

25 things in the red are things that are still there.

10268

1 The next overlay is figure 2.8 in the Kaiser Hill

2 report, and these are the processed waste lines and vaults that

3 are still there.

4 The third chart is figure 2.7 in the Kaiser Hill

5 report, and these are the culverts and drains that are still

6 there.

7 And the last overlay is figure 2.6 of the Kaiser Hill

8 report, and these are the sewer lines and the waterlines that

9 are still there.

10 Now, this chart doesn't show the wastes. This is only

11 the structures, the slabs of buildings, the lines, the tunnels,

12 the lines that are actually still there.

13 To look at the wastes, we had to ask Mr. Blaha

14 questions, and we made these charts of what he testified to

15 were the wastes that are still there, and we went through each

16 area. For example, the 903 pad, he said that there had been

17 some, some remediation, but there is still plutonium in the

18 soil, contaminated groundwater. We went through all of those.

19 Those were all areas that there is still contamination there.

20 Then we went through the burn grounds, the landfills,

21 881 hillside and the buildings. And again, with regard to the

22 landfills, he said the landfills were capped, but all of the

23 waste in the landfill are still there.

24 And then there was this long list that we have of

25 areas that are identified as waste sites where his testimony

10269

1 was that nothing had been done as part of the cleanup other

2 than they characterized the waste site. And these charts we

3 just went through about 30, 35 of the waste sites according to

4 the testimony you have heard, there is anywhere from 160 to 180

5 waste sites at Rocky Flats, and those are the ones that they

6 know about.

7 Dr. Selbin, the chemist who was on the soil action

8 committee, told you that RAC recommended a cleanup level of 35

9 picocuries per gram, but that level was not adopted for the

10 cleanup. There is a cleanup level, as you have heard, of 50

11 picocuries per gram in the first 3 feet, a thousand picocuries

12 per gram in the next 3 feet, and no cleanup below that.

13 As Dr. Smallwood told you, even ants can go down more

14 than 6 feet. The ants he told you, the harvester ants can go

15 down 16 feet. And he also, as you remember, showed you the

16 movie of the gophers.

17 Another important fact is the constant lying that was

18 done by Dow, Rockwell and the AEC. And one example of this is

19 the Dow press release from November 30th, 1971, where they

20 wrote, Edward Martell's statements on the concentration of

21 plutonium in the Denver metropolitan area are not based on any

22 known scientific evidence.

23 This press release was issued after both the Atomic

24 Energy Commission and Dow had confirmed by independent sampling

25 Dr. Martell's results.

10270

1 Another example is this ad in 1989 where Rockwell

2 said, Rockwell's investigation shows the principal allegations

3 in the affidavit are just not true. We have operated the Rocky

4 Flats plant with integrity and high ethical standards.

5 And then in 1990 Rockwell put out another ad and they

6 said, talking about the FBI charges, that these are sensational

7 charges of irresponsible acts that are demonstrably untrue.

8 Another important fact is that the problems at Rocky

9 Flats began to be disclosed in the 1980s, that it didn't happen

10 overnight. In the mid 1980s, the Federal Government began

11 requiring, that is the DOE, Rocky Flats to comply with

12 environmental laws. The EPA and Colorado gained regulatory

13 authority over Rocky Flats, that is that DOE was no longer

14 policing itself. As a result of this process, in 1986, the

15 three party or the triparty agreement was signed which gave

16 Colorado some authority to regulate Rocky Flats.

17 In 1987, Colorado issued a notice of violation that

18 Rockwell was violating the agreement, and between '86 and '88

19 there were numerous GAO investigations that repeatedly

20 documented deficiencies. In 1988, you recall DOE closed

21 building 771 due to safety concerns. And then in 1989, the FBI

22 search warrant after a year of research was provided to the

23 Court, to the magistrate judge in this court, who issued an

24 order that allowed the raid.

25 Throughout this entire period, as bad news kept

10271

1 increasing, the neighbors felt the effect, but it was the FBI

2 raid that was the climax. This class has been narrowly

3 defined. It does not include homeowners who moved away before

4 the FBI raid. It does not include people who moved in after

5 the FBI raid. Drs. Cochran and Budnitz made a video that

6 contains their opinion about the conduct at Rocky Flats. You

7 will have the video. It's P188 to view, if you want to.

8 Because our time is limited, we are only going to show you a

9 few sections of the video, and when you are watching the video,

10 please remember that the video was made about nine years ago

11 before the cleanup at Rocky Flats, and as I said, it is what

12 Drs. Cochran and Budnitz themselves said. It wasn't something

13 that the lawyers prepared.

14 MR. DAVIDOFF: Your Honor, if we could have a short

15 break, maybe we could show that after we resume, if that is

16 amenable to the Court.

17 THE COURT: All right. Let's keep it very, very

18 close, very short, very brief.

19 (Brief recess at 2:15 p.m.)

20 MR. BERNICK: There were some demonstratives that were

21 shown that were not received in evidence. I have not objected

22 on the theory other demonstratives are going to be used not

23 received in evidence, but I want to make sure we are going to

24 have the sauce rule.

25 THE COURT: If they are not and have been shown, we

10272

1 will use the sauce rule. I didn't learn that in law school,

2 but ...

3 (Jury present.)

4 (Videotape was played.)

5 MS. ROSELLE: And as I indicated, this movie was made

6 in the mid 1990s, about 1994, and if you want to see the

7 entire -- 1996? 1996. If you want to see the entire video,

8 you will have it available to you.

9 I am going to sit down now. I want to echo

10 Mr. Davidoff's remarks that we truly appreciate, especially our

11 clients appreciate, your time and your attention. We

12 understand this has been a lengthy trial and has been a great

13 sacrifice for all of you. Thank you.

14 CLOSING ARGUMENT

15 MR. DAVIDOFF: Ladies and gentlemen, I am going to

16 apologize in advance. Much of what I am going to have to talk

17 about today involves a lot of numbers, and they are difficult

18 to follow, but before I get into the numbers that relate to

19 property damages, I want to talk a little bit more about MUF.

20 I think we have a graphic on this.

21 Why is MUF important? There are at least five issues.

22 This is where the MUF went, waste, bookkeeping errors, possibly

23 theft, deducts and pipes and possibly into the environment.

24 And I think we have 1279. Why is the issue of MUF important?

25 No. 1, it relates to health risks which you have heard

10273

1 some discussion of. You will learn later when we talk about

2 the jury instructions that the elevated health risk around

3 Rocky Flats is only one of two ways that you can find nuisance.

4 It's either health risk of or risk of future harm both of which

5 are present in this case.

6 The MUF relates to past, present and future risk of

7 harm. While the plant was up for -- plant buildings were up

8 for 15 years, there was an enormous amount of plutonium there.

9 There still is an -- a large amount of plutonium buried in

10 waste sites. We don't know where. So MUF relates to the past

11 risk of harm, it relates to the present risk of harm, and it

12 relates to the future risk of harm.

13 It relates to the extent of plutonium releases that

14 have already occurred. It relates, I would submit, very

15 strongly to the negligence of Dow and Rockwell. I was going to

16 say later but I will say it now that if Dow and Rockwell were

17 managing their own companies and they lost 2600 pounds of

18 plutonium, which is three times as valuable as gold, that's

19 about $140 million of plutonium, I think the corporate

20 officials would have been down on their heads long before they

21 lost $140 million worth of plutonium to find it and recover it.

22 And finally, I think the MUF relates to the

23 credibility of defendants' excuses. Dow and Rockwell were

24 handling one of the most dangerous industrial materials known

25 to man, plutonium. It's used and useful only for nuclear

10274

1 weapons. They knew from the earliest days before the plant

2 opened that it was extremely dangerous, and as the decades

3 progressed, they learned that it was even more dangerous than

4 they thought it was originally. And yet for 37 years they

5 handled it so haphazardly that more than 2600 pounds is missing

6 and unaccounted for.

7 Where did it go? The true answer is nobody knows.

8 There is speculation. You will see some reports that are in

9 evidence. Nobody, including the defendants themselves, know

10 for sure where this MUF went.

11 Now, some of it clearly went into the waste sites.

12 Some of it, those are -- that's the graphic that you have seen

13 many times before. We don't know how much of it is buried in

14 the waste sites. We don't know how much of it has leaked into

15 the waste sites. We don't know how much of it has been dumped

16 into the waste sites. But those waste sites for the most part

17 are still there, and nothing has been done to remove most of

18 the waste sites. So some of that MUF is still there. That's

19 waste buried in 160 to 180 sites.

20 I would like to just -- you saw the video of

21 Drs. Cochran and Budnitz of the 903 pad. And you saw there

22 were at least 3500 of those corroding drums that were leaking

23 plutonium. Do we have a -- do we have that MUF chart that

24 shows the MUF going up?

25 May I approach, Your Honor?

10275

1 THE COURT: Yes.

2 MR. DAVIDOFF: You will see in the years that the 903

3 pad was being built, that's 1958 to 1968, you will see that the

4 MUF was going up extremely steeply. It grew by somewhere in

5 the neighborhoods of 800 to a thousand kilograms, 1500 or more

6 pounds.

7 Now, what did they say? When they reconstruct the

8 releases from the 903 pad, their estimate that they made back

9 in the early '60s was that there were 25 grams per drum,

10 25 grams. Well, what if some of this MUF got into those

11 barrels? Those estimates are worthless. There could have been

12 40 grams, 50 grams, 80 grams of plutonium in each of these

13 barrels, not the 25 grams that they estimated. But even if it

14 was elevated slightly, that would raise the estimates of the

15 releases from the 903 pads.

16 Every official investigative agency, this includes

17 RAC, this includes ChemRisk, this includes ATSDR, it certainly

18 includes DOE, with the exception of the MUF they have found in

19 the pipes and the ducts, what they found, they have not

20 factored a single gram, a single gram of MUF into their

21 estimates, so there is clearly a health risk, and there is

22 clearly a risk of future harm.

23 Today I don't have time to talk at length on MUF, but

24 today, even today the documents that would shed light on where

25 the MUF went, help us reconstruct it have not yet been

10276

1 declassified. Only the total amount which is shown there,

2 2600, a little over 2600 pounds, and a relatively few other

3 scattered documents have been partially declassified.

4 Now, some of the documents on MUF are very

5 interesting. I am only going to have time, I think, to look at

6 a couple of them here, but I would like to write the numbers

7 down for you, you might want to look at when you are in the

8 jury room.

9 P10, which we have looked at before. We are going to

10 discuss later P559, P653. You will see these are scattered

11 through the decades. P1394 and P548 and P5652, sorry, 652.

12 These are from 1977, and they are the same document, two

13 versions declassified, some differently. So it's probably a

14 good idea to look at both of them because you get some out of

15 one; you get some out of the other. And why don't we show P10.

16 I think we are going to have time to look at two of these.

17 This is the study that was done of the 1957 fire that

18 was not declassified until 30 years later, partially

19 declassified. Let's look at the first paragraph, 1.0, if we

20 could just hone in on that.

21 The plutonium losses experienced during the entire

22 history of the Rocky Flats plant have been significant. These

23 losses have never been explained or properly justified, and

24 this study was conducted to determine their source and extent.

25 From available data, several possible causes were determined.

10277

1 Then let's go to page 7, and I just want to focus on

2 that number. Most of this has been kept classified, but you

3 can see that at this time there is 663 kilograms of MUF in

4 1964. That's about half the level that it eventually grew to.

5 And then finally, if you can look on the next page,

6 page 8, and I urge you to look at other parts of the document.

7 You see there at the top, the estimate of the fire loss from

8 the 1957 fire. And you saw in Ms. Roselle's presentation that

9 ChemRisk had estimated 1 gram from that fire, 1 gram. RAC

10 raised that estimate to 300 grams. But you can see that as

11 early as 1964, and this is with some generous allowances for

12 MUF that's still on the plant site in ducts and pipes and waste

13 sites, they themselves are estimating 6,000 grams fire loss,

14 6,000.

15 So even RAC's latest estimate is only 5 percent,

16 5 percent of what they conceded, and I think with a lowball

17 estimate, to be their fire loss actually escaped into the

18 environment. And you will see there is some very generous

19 estimates for where MUF may still be on the plant ground which

20 I don't have time to go into now for -- which are on page 11 of

21 that document. You will see all the allowances. They purport

22 to explain -- let's just show that one word, 579 kilograms.

23 When you look down at the bottom there at the word explained,

24 and you notice they have got that in quotation marks.

25 Now, I gave you some other numbers. Let me show you a

10278

1 document that was prepared again by Rockwell, apparently with

2 some help from Dow, and this is -- will show you the P548

3 version. Let's just look at this paragraph here. This is a

4 1970 -- this is P548, a 1977 study, middle paragraph, 1977

5 study, a letter from JA Griffin to Roser transmitted to Rocky

6 Flats on August 4th requesting a comprehensive study be

7 conducted on the implications concerning the possible

8 declassification of MUF at this weapons facility. They go on

9 to say that 25 knowledgeable long-term individuals

10 participated.

11 And then if we could go to page 3, you will see

12 toward -- about halfway down, Rockwell management and certain

13 Dow Chemical officials, Dow at this point is out for at least

14 two years, but Rockwell management is still talking to Dow

15 Chemical, feel that the declassification and release of MUF,

16 including explanations for special nuclear material at Rocky

17 Flats could reveal certain things that are still secret.

18 And then if we can go to paragraph 10, they were

19 giving 10 reasons why MUF should not be declassified, and in

20 paragraph 10, at the present time, that's -- I will use the

21 Elmo, At the present time --

22 MR. BERNICK: Is this the admitted version with the

23 redaction?

24 MR. DAVIDOFF: Yes, the other one was not.

25 At the present time, litigation action is being

10279

1 carried out against the Department of Energy, Rockwell

2 International and the Dow Chemical Company. I will point out

3 this was a different litigation than this litigation.

4 Declassification of MUF and subsequent release could have an

5 adverse effect on the final court decision or settlement.

6 And just another little taste of why Dow and Rockwell,

7 at least, wanted this kept secret. Anti-nuclear

8 environmentalists and pacifist groups consider Rocky Flats as

9 the nuclear crossroads of the nation. The declassification and

10 possible release of MUF in this unfriendly environment, whether

11 due to misunderstanding, lack of knowledge or

12 misinterpretation, could seriously damage the posture of the

13 Department of Energy, Rockwell International and former

14 contractor, the Dow Chemical Company.

15 And I have written there some other numbers of some

16 other documents, ladies and gentlemen, that I think you will

17 find very interesting. This has been a recurrent problem

18 throughout the history of the plant, and it continues to be a

19 recurrent problem today.

20 MR. BERNICK: If we could ask for the same instruction

21 to be issued by the Court with respect to that last document,

22 which is it does not relate to this case.

23 MR. DAVIDOFF: I stated that, Your Honor. I stated

24 the multi-million dollar -- I am sorry, the litigation that was

25 being conducted against the Department of Energy, Rockwell and

10280

1 Dow was not this particular piece of litigation.

2 THE COURT: All right, go ahead.

3 MR. DAVIDOFF: I believe I stated that.

4 Ladies and gentlemen, I have got to move to a drier

5 subject now which is damages. And I will say as a preface that

6 unfortunately, even a jury, even a judge cannot undo every

7 wrong, every wrong that was inflicted on this community, and

8 particularly on northwest Denver, by the contractors who

9 operated Rocky Flats. The only wrong that you can undo in this

10 case is to award damages to the neighbors who were most

11 directly affected by the wrongdoing.

12 Unless you believe defendants --

13 MR. BERNICK: I would object. I believe that was an

14 improper argument. It suggests that the jury should make up

15 for what can't happen elsewhere and other damages they believe

16 are appropriate for this case.

17 THE COURT: The objection is sustained. Go ahead,

18 please.

19 MR. DAVIDOFF: Sorry, Your Honor.

20 Unless you believe the defendants and their experts

21 claim there was no effect, absolutely no effect of all this

22 wrongdoing on the class properties, plaintiffs are entitled to

23 an award of compensatory damages. There are two types of

24 damages. You have got to go back one more. There is

25 compensatory damages and punitive damages. Two types of

10281

1 damages that I am going to discuss today, compensatory damages

2 and punitive damages, and you can go to that slide now.

3 What we are claiming in this case is compensatory

4 damages as follows, and I am going to come to commercial

5 property in just a moment, but you saw most of the testimony in

6 this trial dealt with residential properties and dealt with

7 vacant land. And this is in 2005 dollars.

8 You will see some of the estimates that are in 1995

9 dollars when these studies were conducted. You will see some

10 of the estimates that -- using the Consumer Price Index have

11 been brought down to 2005 dollars, and the adjustment is a

12 27 percent, roughly, adjustment from 1995 dollars to 2005

13 dollars. Plaintiffs are claiming $216 million for residential

14 properties in today's dollars and $27 million for vacant land.

15 That is a lot of money.

16 However, when you average that out on a per residence

17 basis in the class area, it doesn't look like such a great

18 amount of money. There is slightly over 12,000 residences in

19 the class area. And when you average it out, it is

20 approximately -- I think we want to go back one more, just one

21 more where you were, when you average it out, it is about

22 $18,000 per home in today's dollars. When the study was first

23 done by Mr. Hunsperger, the comprehensive study, it averaged

24 out to $14,000 per home in damages.

25 Similarly for vacant land. In today's dollars --

10282

1 there is about 4800 acres. In today's dollars, today's dollars

2 the claim is $5,600 per acre. That is not a lot of money per

3 acre considering the impact, particularly on vacant land in the

4 class area, and this is for both improved lots and unimproved

5 lots.

6 Now, if you aggregate -- if you award aggregate or

7 total damages in this case, and I think Louise Roselle

8 mentioned this, Judge Kane and this Court decide how will these

9 damages be fairly distributed.

10 I have another graphic I would like to show you. This

11 is G1304. Let's leave that up for a minute. This is the

12 number of residential properties that Dr. Radke's geographic

13 lab was able to isolate, about 12,000 properties, 9,000 single

14 family and 3,000 multi-family, and the 4800 vacant parcels of

15 land.

16 If we could go to G1304. I don't know if you can all

17 see that, this is the damage claim as it is today, and I am

18 going to come to the last 5 million that you haven't heard as

19 much about for commercial properties in a moment, but you heard

20 extensive testimony on the various methods that were used, why

21 plaintiffs are claiming $216 million in compensatory damages,

22 and as you will see from the instructions and later on, the

23 amount of punitive damages is limited by the amount that you

24 can collect in compensatory damages. You cannot collect any

25 more in punitive damages in Colorado than you can collect in

10283

1 compensatory damages.

2 There is a -- for vacant land $27 million and for

3 commercial properties $5 million.

4 Now, I am going to discuss a little bit about the very

5 comprehensive studies that were done with respect to the first

6 two, but let me just mention where the 5 million for commercial

7 properties comes from. This is based on the Radke, Dr. Radke's

8 Phase I and Phase III studies. And it is at the 90.1 percent,

9 90.1 percent confidence level. Also, it is not adjusted for

10 inflation as much as the others. The figure was 4.4 million in

11 the early 1990, and we have estimated 5 million which is less

12 than the CPI adjusted.

13 I would like to show Dr. Radke's Phase II chart, Phase

14 I chart, that's PG580, I think is the first one I want to show.

15 This is the -- you will see the 90.1 percent confidence level

16 there for commercial properties, and then I think you want to

17 use G581B; is that right? The reason I wanted to compare this,

18 ladies and gentlemen, is I wanted to show you that in Phase II

19 the commercial properties in Phase I are only to the 90 percent

20 confidence level, but the residential properties in Phase II

21 that Dr. Radke studied, and you heard a lot about confidence

22 levels, look at the confidence levels in that study for each

23 year. They are always over 99 percent. In a couple cases,

24 they obtain 100 percent for the seven, eight years of data that

25 Dr. Radke estimated damages for the class area based on a

10284

1 multiple regression.

2 And one thing that is widely acknowledged about a

3 multiple regression is a multiple regression can never pick up

4 all of the impact on property. It might, if it's done right,

5 pick up most of the impact on property, but it can never pick

6 up all of the impact on property. Let's look at G1303A.

7 So for commercial property, unlike the residential

8 regression where we are in the 99 or 100 percent confidence

9 level, that was the loss that was estimated by Dr. Radke alone.

10 Because -- this is the only figure in the case where we only

11 have one expert as opposed to several who were supporting the

12 losses, and that's the commercial damage.

13 I want to return to residential damages for the

14 rest -- and vacant land for the rest of the time. In the late

15 1980s, there was increasing publicity about GAO reports and the

16 like which criticized environmental conditions at the plant,

17 shutdowns, environmental violations, citations of Rockwell,

18 headlines like GAO, this is P704A, I think, GAO says, Flats

19 can't be cleaned up and the like. I wanted to point that one

20 out because that one was about five months before the FBI raid.

21 The news about Rocky Flats was already turning pretty, pretty

22 sour in 1988 and 1989, and we were starting to see articles

23 like this even before the FBI's investigation resulted in the

24 raid of the plant.

25 Now, defendants will also point to publicity. We are

10285

1 going to look at a little more. But defendants will also point

2 to publicity in the early 1970s. Their own video they made,

3 their own graphics with the thousands of little yellow dots

4 showed that that didn't have any impact on development in the

5 class area. By contrast in the 1990s, the class area

6 stagnated. The defendants' expert said there was never any

7 discount or depression in the value of properties in the class

8 area. In 1975, Rockwell replaced Dow, the Lamm/Wirth report,

9 which you heard of during the trial, was issued. That was

10 supposed to bring better management to the plant and avoid and

11 clean up any problems of the past.

12 But then Denver started to get shocked in 1988 and

13 1989 and especially after the 1989 raid, and they learned the

14 following things. This is G1288. This is what the neighbors

15 learned in 1988 and especially after 1989. First they learned

16 that Rocky Flats would not be cleaned up for decades. They

17 learned first that there were 108 waste sites. Then they

18 learned that there were up to 178 or more waste sites.

19 They learned that Rockwell was one of the worst

20 environmental criminals in U.S. history. I think you heard

21 defendants' own witness, Mr. Norton, the former prosecutor who

22 said that next to the Exxon Valdez case, the fine that Rockwell

23 paid was the second largest fine in the history of criminal

24 prosecution of environmental criminals.

25 They learned that there was 14 tons of plutonium on

10286

1 site. That remained there until the last year or two. They

2 learned that there was a huge amount of MUF, and they learned

3 that there were undetermined health risks. I think we have a

4 slide, a graphic, that shows some of these headlines. We will

5 come to it later. There we go. This is what the neighbors

6 were being told in the late 1980s and the early 1990s which is

7 where these admitted documents are from.

8 Flats' spill site tainted to infinity. Flats won't

9 come clean for years. Task likely to continue well into the

10 next century. That's from early 1990, that particular

11 headline. And the point is, if we could look at G104, these

12 kind of headlines, as Dr. Slovic explained, are transmitted

13 through the media, and those perceptions create stigma.

14 And you heard a lot of testimony about stigma from

15 Mr. Hunsperger as well as Dr. Slovic, as well as others of our

16 witnesses, people who didn't want to live near Rocky Flats,

17 investors and buyers stayed away, mortgage companies wouldn't

18 lend for mortgages, banks and mortgage companies wouldn't lend

19 for development. Local governments wouldn't approve

20 development. And since this slide was made, we have learned

21 that some developers were going bankrupt at this time.

22 Dr. Flynn and Slovic are nationally-recognized survey

23 experts. They did a survey in this case unlike any of the

24 defendants' work in this case. Their survey was published in a

25 peer-review journal, a peer-review journal. In fact, a number

10287

1 of the experts in this case that did work for the plaintiffs

2 that - have had their work published in peer-review journals,

3 that's Dr. Slovic, Dr. Flynn, Dr. Smallwood and Mr. Hunsperger

4 have had a number of articles growing out of their work in this

5 case about property damage and stigma published in peer-review

6 journals.

7 The defendants' experts have not had anything

8 published anywhere from this case, peer reviewed or otherwise,

9 other than on The Brattle Group website trying to attract new

10 clients to The Brattle Group.

11 The survey, I want to go through some slides from the

12 survey because the survey was pretty intensively criticized,

13 but I think when you look at the slides, you will see some of

14 the answers are consistent with each other. This is GO74A.

15 This -- now, remember, ladies and gentlemen, this survey was

16 conducted in 1995, so it was conducted the fall of 1995, it was

17 conducted more than four years after the FBI raid. It was a

18 survey of over 600 area residents, roughly a third from

19 Arvada/Westminster and two-thirds from the Denver metropolitan

20 area.

21 Here is one figure, perceptions of safety at Rocky

22 Flats, 61 percent of the people in Arvada/Westminster,

23 77 percent of the respondents in the Denver metropolitan area

24 said that the perception of safety -- had a negative perception

25 of safety, probably unsafe or probably unsafe.

10288

1 Has Rocky Flats reduced or increased property values?

2 This is among those, the majorities in both Arvada and the

3 Denver metropolitan area, that answered that yes, it had an

4 effect on property values. 92 percent of the Arvada and

5 Westminster residents six years later believing it had an

6 effect answered that it reduced property values, and 97 percent

7 of the Denver metropolitan area respondents said that it

8 reduced property values.

9 We can go to G939. 38 first, I guess. 38 and 39. Is

10 this 38? Again, this is another way of looking at it. Has

11 Rocky Flats affected property values? This is for

12 Arvada/Westminster. 70 percent of the Arvada/Westminster

13 residents say yes. Of those more than 92 percent said it

14 reduced property values.

15 Let's go to 939. Is Rocky Flats a health risk? This

16 is again in 1995. 70 -- actually more of the

17 Arvada/Westminster residents replied that it was a health risk

18 than of the Denver metropolitan area residents. 70 percent to

19 63 percent.

20 943. By the way, all of these slides should be

21 available in the plaintiffs' exhibits. We are only looking at

22 some of them. Perceptions of current safety, that's as of

23 1995. You add these unsafe and probably unsafe, 60 percent of

24 the Arvada/Westminster respondents and 77 percent of the Denver

25 respondents are responding in the mid 1990s that the plant is

10289

1 either unsafe or probably unsafe.

2 And then I think we have G793 and 792. Let's look at

3 792. This is an interesting question because you have heard a

4 lot about how small supposedly the plutonium contamination is.

5 We dispute that. But even on a question what are the health

6 risks of very small levels of contaminants in a residential

7 area, more than 60 percent of the Arvada/Westminster residents

8 said moderate risk or high risk.

9 And then we have the same sample on the next slide for

10 the Denver metropolitan area. A little higher there, it's

11 about 66 percent moderate or high risk, health risks of very

12 small levels of contaminants in a residential area.

13 And then G789, which is out of order. I apologize,

14 ladies and gentlemen. This was the Denver metropolitan area

15 sample effect on property values. Of course, in Arvada and

16 Westminster, they want to sell to people from outside Arvada

17 and Westminster as well as in Arvada and Westminster.

18 81 percent say it affected property values, and of those,

19 97 percent said it decreased property values.

20 And the last slide from the Flynn/Slovic survey is

21 G074B. What we do here is we just put next to each other, this

22 is the Arvada/Westminster sample on the left, and there is the

23 Denver metropolitan area sample on the right, which shows the

24 overwhelming, over 90 percent, over 90 percent of the

25 respondents who felt it had an effect which was around

10290

1 70 percent of the respondents said it had a negative effect.

2 And I will ask you the same thing here that Ms. Roselle did,

3 use your common sense. Use your common sense.

4 There is even a jury instruction on common sense that

5 we will come to. I think it's jury instruction 1.7. I may

6 have the number wrong, but it says, you should use your common

7 sense. These are overwhelming, overwhelming results.

8 Now, Dr. Wecker, the defendants' expert, the

9 statistician who has testified in 70 cases, got up on the stand

10 and he criticized one of them, that 46 percent would not buy at

11 all, and he said he did it based on notes and work papers.

12 However, the result that he criticized is completely

13 consistent, completely consistent with all the other results of

14 this survey.

15 And as I mentioned, Dr. Flynn and Slovic are

16 nationally recognized survey experts. They work for a

17 nonprofit institute. Their work has been published in a

18 peer-review journal.

19 Now, why was the survey so negative six years after

20 the FBI raid? For the reasons that we have pointed out, the

21 plant was still up; the Rocky Flats cleanup agreement had not

22 even been signed yet, let alone implemented, it hadn't been

23 signed; there was still tons of plutonium there, there was

24 still more than a ton of plutonium missing; and there was still

25 vast uncertainty.

10291

1 Now, this brings me to a third point. Not only the

2 class area, the area that had been proven for years to have

3 been contaminated that was stigmatized, the stigma was less,

4 but the communities of Arvada and Westminster even outside of

5 the class area suffered from the stigma. And the perception

6 was the closer to Rocky Flats, the greater the danger, hence

7 the greater the stigma.

8 Can we put the class contour up for just a moment,

9 please? You have seen this class contour many times, and I

10 will try to use the pointer so I don't have to walk over there.

11 You know, there was no mysticism to this line. The

12 stigma didn't stop at the green line. This area that's south

13 and west of the Rocky Flats plant, you heard testimony from

14 Mr. -- you heard testimony from Mr. Osborn and others, this is

15 the Beaumont development which overlaps the class area that is

16 over here. It's owned by Perry McKay. That's been idle and

17 unbuilt for over 20 years. And you have land over here that's

18 stigmatized. It's not part of the class area, but it's

19 stigmatized. But this area is both stigmatized and

20 contaminated. Nobody knew where the contamination stopped.

21 People had read that Rocky Flats contamination had been found

22 many miles away from Rocky Flats, even further than the class

23 area, and this is very relevant to defendants' attacks on

24 plaintiffs' damage estimates.

25 You will notice they did not do like Mr. Hunsperger or

10292

1 Dr. Flynn or Dr. Slovic, their own survey. They didn't do a

2 survey. They just brought in an expert and said he was a

3 survey expert to criticize our survey.

4 In addition to the surveys, Mr. Hunsperger followed a

5 multiple approach to estimating damages. Let's put that slide

6 up, that's G803. He combined five methods: Multiple

7 regression analysis, that was done by Dr. Radke as part of the

8 study. Public opinion surveys, that was done by Drs. Flynn and

9 Slovic and the University of Maryland as part of the Hunsperger

10 method. Now, they are not experts on value, they said that the

11 survey was not designed in their mind to gauge value.

12 Hunsperger is the expert on property value, and he used -- he

13 was the one that implemented the survey.

14 Analogous case studies, this is studies of what

15 happened in 20 other communities there have been similar events

16 involving contamination and in some cases not as serious as the

17 events around Rocky Flats, in many cases. And he looked at

18 both the plaintiffs' and the defendants' studies, looked at

19 both of them, and he concluded that lessons could be drawn as

20 other professionals in the field have concluded that lessons

21 could be drawn from what has happened at other contaminated

22 sites that could be applied to Rocky Flats.

23 Now, coming back for one moment to multiple regression

24 before we leave that finally, you heard the defendants launch

25 an unmerciful attack on Dr. Radke, but the defendants' experts

10293

1 were able to duplicate Dr. Radke's work. What the defendants'

2 experts also admitted is very interesting, that's Dr. Wise from

3 The Brattle Group, that they admitted that any time you change

4 your regression, run a regression, if you change it a little

5 bit, it changes the results. This is Dr. Wise, the defendants'

6 experts.

7 Anytime you do anything even a little bit different,

8 it changes your regression coefficients. Is that a true

9 statement?

10 I just tried to clarify that. I agree with it.

11 That's one point.

12 Secondly, and I don't have time to go through it, you

13 will hear criticisms and you heard criticisms of Dr. Radke

14 because the backup tapes were -- some of them were no longer

15 available from the University of California where he couldn't

16 retain them. He did the work for the University of California

17 and with the University of California lab, but there were

18 several times when Dr. Wise admitted that The Brattle Group

19 just threw out records of different ways that they tried this.

20 And unlike Dr. Radke's group, Dr. Wise's group, which

21 was paid we now know $1.4 million or more in this case, they

22 didn't have an explanation like the obsolescence of tapes.

23 They just threw the records out.

24 Another distinction is that Dr. Wise's group, The

25 Brattle Group, did not do their own GIS work. I don't know if

10294

1 you ladies and gentlemen remember what GIS is, geographic

2 information system, locating properties on the map in the class

3 area. Dr. Radke's group did its own work. Dr. Wise's group

4 did not do its own work. They just retained or used the GIS

5 expert that had been retained by defendants' counsel.

6 But here is the most important point and this is fatal

7 to Dr. Wise's credibility, and I think is the important point

8 for Dr. Radke's credibility. He picked a control area for his

9 regression which was right near the class area, in some cases

10 closer to Rocky Flats than parts of the class.

11 You will recall, this is Dr. Wise who came in to

12 criticize Dr. Radke, and Dr. Wise, of course, is partners with

13 Dr. McFadden. They are both partners, principals they call

14 them, in The Brattle Group. And Dr. McFadden has written in

15 the past, and we established that in his testimony, if you pick

16 Bs, that's the control group too close to As, and the Bs may

17 not be free of the effect of the injury, so what Dr. Wise did,

18 for whatever reason, either inadvertently or purposefully, he

19 picked a control area that was so close to the class area that

20 you really couldn't distinguish the stigma if there was one in

21 his mind in the class area from the stigma in the control area.

22 And I think it's very notable that Dr. McFadden who

23 criticized Dr. Radke along with Dr. Wise said specifically that

24 he did not endorse Dr. Wise's work. That's transcript 10125.

25 I don't know if you remember the testimony about the

10295

1 Chinese wall, ladies and gentlemen, that they supposedly had

2 erected between themselves that we learned about at the trial.

3 Just so I understand, that means you're not sponsoring

4 Dr. Wise's report here today -- this is from Dr. McFadden's

5 testimony -- you're only sponsoring your own; is that correct?

6 That is correct. I am not sponsoring Dr. Wise's

7 report.

8 And even Dr. McFadden conceded that they had seen some

9 effect up to 4 miles from Rocky Flats. The furthest the class

10 goes is between 5 and 6 miles. And Dr. McFadden, their expert,

11 conceded they saw an effect up to 4 miles.

12 What was done is in one of Dr. Wise's analyses. He

13 divided the class into rings, and the general result of that --

14 we are going -- I will have to characterize that in kind of a

15 broad way without going back and re-reading it specifically,

16 was that to the extent that there was any effect, it

17 disappeared before you got to the outer -- the outer band. So

18 beyond about 4 miles -- I'm not recollecting this without

19 reading it specifically, beyond something more or less like

20 4 miles, there really wasn't any impact at all.

21 Now, why am I showing you all this? I have one more,

22 I am sorry. That's Dr. Wecker. That's Defendants'

23 Exhibit 2256. Dr. Wecker is the professional statistician

24 testifier. We don't know how much he was paid in fees. We

25 know that he earns $575 an hour. And when Dr. Wecker

10296

1 replicated the regression -- can we hone in on those numbers a

2 little closer, the ones that the arrows are pointing to? When

3 Dr. Wecker replicated Dr. Radke's regression, in 1990 which was

4 the year that he found the worst effect using all of his

5 corrections and Radke's data, even Dr. Wecker found nearly a

6 minus 4 percent, minus 3.71 percent, this is defendants'

7 expert, and he used the Radke data that he made all of his

8 corrections to, and that was what they came up with, and he

9 testified if you look at that yellow line touching the zero

10 line, he testified that while that isn't good to the 95

11 competence level, it's good to the 93 or the 94 percent

12 confidence level.

13 So even the defendants' experts are finding an impact.

14 And unlike Dr. Wise, Dr. Radke used comparable areas outside of

15 Denver throughout the Denver metropolitan area, almost an equal

16 number of samples every year.

17 Now, Mr. Hunsperger -- I am going to leave regression

18 finally. Mr. Hunsperger's company did a study of vacant land

19 sales as part of its market research. That was also

20 criticized. But with all the money that the defendants spent

21 on experts, they did not provide any study of their own on how

22 vacant land prices compared. And the criticisms were bogus.

23 Mr. Hunsperger testified in some cases you look at the very

24 same parcels, the very same parcels which often sold for less

25 in the 1989 to 1992 period than they had in the mid 1980s. And

10297

1 three of the comparison areas, two of them were near Rocky

2 Flats and one was near the Rocky Mountain Arsenal, only one was

3 far away from any contaminated site, and he still found that

4 the class area had the lowest vacant land prices of anywhere in

5 the five comparison area.

6 What's the application of those studies here? Once

7 people found out about the fires, the accidents, the leaking

8 barrels, the midnight burning, once they found out that

9 plutonium contamination was not only present, but threatened in

10 the future, you remember all the plutonium that was still on

11 the plant many years later, isn't it logical using your common

12 sense that these facts would have an impact on property prices?

13 Certainly it's been the experience in other states at

14 other contaminated sites, it's logical there would be the

15 experience here.

16 Finally Hunsperger conducted over a hundred

17 interviews. You will probably see some of defendants' graphics

18 attempting to distort that research, but as he testified in his

19 reports, he put the positives and the negatives. It is

20 unlikely that developers and builders would admit that Rocky

21 Flats stigmatized their property. Why not? Because it's

22 against their interests. They are in the business of selling

23 homes. They are in the business of developing property. They

24 are in the business of selling property. Yet even those are --

25 some of those with an interest in higher property prices

10298

1 acknowledge the problems.

2 What were some of the other things that Mr. Hunsperger

3 found in his interviews? Local government restrictions, a

4 radiation map, an evacuation plan. You heard about the

5 Jefferson County enterprise zone. There was also a blight

6 study.

7 Let's look at Mr. Osborn. Mr. Osborn was the

8 developer of the Village of Five Parks which to this day is the

9 largest development since 1989 in the class area. There were

10 many before 1980, not so many after 1989. But if you look at

11 the Five Parks development time line, Mr. Osborn who was

12 brought here by the defendants and, of course, is selling

13 property, what did he tell us? He told us that, first of all,

14 the former developer who got the approvals in 1986 and 1987

15 went bankrupt, that former developer gave the property back to

16 the four former property owners or it was foreclosed upon, and

17 those four former property owners foreclosed on it in 1990 and

18 1991, and they sat on it for eight years more until 1998.

19 In 1998 Village Homes begins acquiring the land for

20 Five Parks and then spends the next four years acquiring that

21 land from 1998 to 2002. Ground is not broken for the first

22 house at Five Parks until the fall of 2001, more than 12 years

23 after the FBI raid, 12 years.

24 And it's still being built today. As he testified, he

25 still has 300 of his 900 homes left to sell, and there is one

10299

1 more little fact that I want to remind you of. Even though he

2 still has a third of those 900 homes left to sell now, 17 years

3 later, he had to get the city of Arvada, do you remember this

4 testimony, to remove that restriction that had been placed in

5 1987 that obliged any builder in the area to tell a buyer of

6 the home that the home was near Rocky Flats. He had to get the

7 city of Arvada to amend that in 2002 in the amendment

8 development plan in 2002 so that legend could be deleted, and

9 as he acknowledged, he does not admonish buyers at Village of

10 Five Parks of proximity to Rocky Flats.

11 Sam Cassidy, ladies and gentlemen remember Sam

12 Cassidy, former lieutenant governor of Colorado. He was a

13 Jefferson Council -- Economic Council president in 1996 and

14 1997. He testified that the land was dirt cheap close to Rocky

15 Flats, a thousand to $3,000 an acre. He practically could not

16 give the land away. Said it was much cheaper near Rocky Flats

17 than in other similar parts of Jefferson County that were

18 further from Rocky Flats, down in the middle part of Jefferson

19 County.

20 Hunsperger's analysis showed the same thing. In the

21 one area of five that was not near a contaminated site, that

22 was down further in Jefferson County, his analysis, and I think

23 that might be P856, his analysis showed that it was $25,000 an

24 acre there versus 10,000 an acre in the class area for

25 developed and undeveloped lots.

10300

1 What did you hear from the defendants' expert --

2 experts? They were paid millions and millions of dollars for

3 no opinions. They would have criticized any approach we took,

4 but they didn't do any significant work of their own.

5 And then finally, let's talk about the people that

6 were here. The Bartletts bought their land in 1978. They sold

7 it finally. They tried selling it for 11 years before they

8 successfully sold it. They had $700,000 in improvements on the

9 land, four buildings including a huge partner. They had

10 invested $700,000. They held the property for 21 years, and

11 they ended up selling it for $700,000.

12 Merilyn Cook went broke, and she moved to Missouri in

13 discouragement. Despite that, she stuck with this case even

14 when she was in Missouri, but she moved to Missouri in

15 discouragement.

16 Gretchen Robb and Karen Whalen, I think we have got a

17 graphic on that. You remember Gretchen Robb and Karen Whalen,

18 Karen Whalen purchased her home, I believe, in 1984, Gretchen

19 Robb in 1986. They barely got out, in one case they didn't get

20 out with what they put in the home, and in Karen Whalen's case,

21 the only reason she did get out with a few hundred dollars,

22 because the builder of her new home, the builder of her new

23 home guaranteed the resell price of her old home.

24 But in this case, we had two class members who came

25 in, they held their property for four and six years. Their

10301

1 property, unlike the rest of this area, went nowhere.

2 Ladies and gentlemen, I was going to tell you about

3 some of the other testimony you have heard. I am running short

4 on time, but let me just point out Mr. Ozaki, who the

5 defendants were very gleeful -- here is the class area. Do we

6 have the Ozaki map? And I am drawing pictures, okay, up there.

7 You will remember when they were cross-examining

8 Mr. Ozaki, they said -- he didn't know he was a class member

9 because he moved before the notice went out, and there is

10 Mr. Ozaki on the edge of the class. And they pointed out how

11 from 1984 to 1997 -- he bought his home for $95,000, and he

12 sold it for $140,000, and he had it for 13 years. And when you

13 do the arithmetic, and we did the arithmetic for you, just

14 about 3.03 percent a year for 13 years that Mr. Ozaki, who is

15 down at the furthest edge of the class area, I think we even

16 had the -- I think that's 12 -- 996 maybe -- and if you could

17 just focus on the numbers.

18 What we did is we took 1984 to 1997, and we

19 multiplied, we figured out the rate, and if we could just come

20 down in the bottom. When you do the multiplication from 95,000

21 to 140,000 before all of his costs, his house is going up just

22 a hair over 3 percent a year. If you look at Dr. Wise's

23 numbers for the same period, he is showing the class area

24 growing at 5 to 6 percent a year.

25 We did a similar thing for the Alkire group. I don't

10302

1 have time to show you that, but I will just tell you, the

2 Alkire group was that group that had a parcel of vacant land

3 for 30 years. We can show the map maybe of the Alkire group,

4 the handwritten map, P1455.

5 Ladies and gentlemen, you will remember that the

6 Alkire group bought this big piece of ground back in 1967, and

7 the defendants tried to portray them as making a lot of money.

8 That's true for the first 15 years. For the first 15 years the

9 Alkire group did very well. They bought the land for $800 an

10 acre. They sold a piece in 1982 and another piece in 1985 of

11 about 35 or 36 acres, one to the Abbotts and one to the

12 Stangers.

13 So from 1967 to 1982 or 1984, this land went up like a

14 rocket and went up about 13 percent a year, but then if you

15 take the period from 1984 to 1996 -- take the period from 1984

16 to 1986, land that had gone up eightfold from in the first 15

17 years only went up another third, and the rate of return, if we

18 can focus on those numbers, is a little over 2 percent a year.

19 That's the 63- to 6400 they were selling it for in the early

20 '80s, and they ended up getting $8,200 an acre 12 years later.

21 The rate of return fell from 13 percent a year in the first 15

22 years to 2 percent a year in the last 12 years. That was a

23 very large parcel of land.

24 Ladies and gentlemen, I want to turn to the jury

25 instructions, and I am going to -- I may have to beg your

10303

1 indulgence just a little bit here because -- and this happens

2 in every trial. The jury instructions, I guess, are new.

3 Again, this morning, there have been some changes, and if I

4 miss a typo -- do you have your jury instructions and your

5 verdict form with you?

6 Let's start at the beginning which is the first few

7 jury instructions, and 1.2 and 1.3 say something you are going

8 to hear from the defendants too, which we agree with, and that

9 is the status of persons before the law. Dow and Rockwell and

10 the 12,000 class members are equal before the law. The

11 innocent neighbors have rights before this Court that are equal

12 to those of Dow and Rockwell and even the Department of Energy.

13 Even Dr. McFadden who almost always testifies for big

14 corporations conceded that they have a huge advantage in the

15 legal system, and that advantage is leveled --

16 MR. BERNICK: I would object to that. That is an

17 improper argument to the jury contrary to the instruction of

18 the Court.

19 THE COURT: Sustained.

20 MR. DAVIDOFF: Sorry, I was quoting Dr. McFadden.

21 THE COURT: You may, but it is not appropriate.

22 MR. DAVIDOFF: Let's go to jury instruction 1.4,

23 ladies and gentlemen. This is evidence. Again, I am only

24 going to spend a minute on this because -- but if you look down

25 at the bottom of the first page, as you were told by Judge Kane

10304

1 this morning, statements and arguments by lawyers are not

2 evidence. The lawyers are not witnesses. And I will say that

3 about myself too, I am not a witness and neither are any of the

4 other lawyers in this courtroom. What they say in opening

5 statements, closing arguments and at other times is to help you

6 interpret the evidence, but it's not evidence.

7 I want you to keep that in mind, and I want you to

8 keep in mind we had prepared graphics, the defendants have

9 prepared graphics and the graphics are in evidence, but if they

10 are prepared by both sides, I want you to view both sides'

11 graphics with equal skepticism.

12 The jury instruction also tells you if you go to the

13 very end, and that's on page 9 in my version, if you can just

14 focus on that language, please. You are to consider only the

15 evidence in the case. But in your consideration of the

16 evidence, you are not limited solely to what you see and hear

17 as the witnesses testify. You are permitted to draw from facts

18 that you find have been proved such reasonable inferences as

19 seem justified in the light of your experience.

20 What this tells you to do is make decisions on the

21 basis of your own experience, use your reason, use your common

22 sense. When you go back to the jury room, you are going to

23 take your common sense with you. How do we believe that that

24 applies to the evidence in this case?

25 Common sense should have told Dow and Rockwell not to

10305

1 leave for 11 years 5300 rotting barrels sitting outside

2 containing plutonium. Common sense should have told them that

3 spray irrigating winter and summer night and day should have

4 told Rockwell and Dow that that was going to allow

5 contamination to run off the plant site and that would harm

6 land and water. Common sense and morality should have told

7 them to tell the truth. When you don't tell the truth, there

8 is usually a day of reckoning.

9 Common sense tells you what they did was wrong, and

10 common sense tells you that if the land is polluted with

11 plutonium, many people won't want to live there. Common sense

12 tells you that with 2600 pounds of missing plutonium, some of

13 that plutonium went into the environment and into defendants'

14 buried waste sites. Common sense tells you that the defendants

15 cross-examined Agent Lipsky and Dr. Budnitz for so many hours

16 because they knew their testimony was very important.

17 Common sense tells you the FBI and the U.S. Government

18 and the EPA would not have raided a U.S. Government facility

19 unless they had good reason to do so, that these were not mere

20 technical violations, and it isn't only common sense that tells

21 you that, it's Mr. Norton, the former prosecutor who tells you

22 that. Common sense tells you Rockwell didn't plead guilty to

23 10 serious crimes because it was a good environmental steward.

24 Common sense tells you that Dr. Till or anyone else cannot

25 calculate the risks to people with the precision and exactitude

10306

1 that they say they can.

2 Common sense tells you that the crimes, the

3 environmental crimes had a long-lasting impact, that animals,

4 wind and other natural forces will resuspend plutonium for many

5 years. And common sense finally tells you that if the plant

6 manager knew the plant was dead last in safety, Rocky Flats had

7 a problem.

8 We have a short clip that we showed during the trial

9 of Mr. Sanchini, the plant manager.

10 (Videotape was played.)

11 MR. DAVIDOFF: And that is, ladies and gentlemen, an

12 admission from the top man at Rockwell himself, the top man

13 between 1986 and 1989 on their own video.

14 We were just discussing jury instruction 1.4. Jury

15 instruction 1.5 is about circumstantial evidence, and I know

16 you know what that is. You don't see it rain, but you go

17 outside and there is water on the ground and raindrops on the

18 trees, that's circumstantial evidence of the fact that it

19 probably rained. There is a slim chance you could be wrong,

20 but probably not much of a chance that you are going to be

21 wrong.

22 It's the same in this case. You heard about the hot

23 spots at the Great Western Reservoir and Standley Lake and in

24 the sediments. You heard Mr. Ozaki and Mr. Holeman and

25 Dr. Selbin testify about hot spots that Rocky Flats and DOE

10307

1 refused to clean up. From that evidence you may infer that

2 plutonium from Rocky Flats was released off site through

3 surface water and other ways and traveled into the class area,

4 including the two water supplies in the class area.

5 The next one I want to call attention to is

6 instruction 1.7, credibility of witnesses. That's on page 12,

7 instruction 1.7. If you look at the very top there, You may

8 believe everything a witness says, only part of it or none of

9 it.

10 In considering the testimony of any witness, and there

11 is seven factors here, in addition to memory and his ability to

12 hear it and his manner while taking the oath, let's look at

13 No. 4. Motive, bias or prejudice; motive, bias or prejudice.

14 Let me just point out a few examples from this trial.

15 Let's look at The Brattle Group. They have a website

16 where they advertise themselves as being available to

17 corporations to help corporations defend against lawsuits of

18 this type and other types of large lawsuits. They advertise

19 their victories. They advertise, I guess, the victories that

20 they expect to score on that website.

21 And you saw some of that evidence during the trial.

22 You saw Mr. Dorchester was paid $1.6 million to say no. He

23 didn't -- he just criticized. He didn't do any studies of his

24 own, $1.6 million.

25 MR. BERNICK: I think that's improper argument. It

10308

1 suggests that his testimony was simply bought instead of having

2 him pay for services rendered, and I don't think that is an

3 appropriate argument to be making at this point.

4 THE COURT: The objection is overruled. The loss, it

5 relates to credibility, but it certainly is something you can

6 go back with on your argument. Go ahead.

7 MR. DAVIDOFF: We had Mr. Weston, the Rockwell

8 representative, sitting here at counsel table here today, was

9 paid $2,000 a day to sit in court. He signed an agreement that

10 he would help defend the case. Rockwell didn't have any

11 witnesses other than paid witnesses. Dow didn't have any

12 witnesses in this case.

13 Otto Raabe, we have a little graphic about Otto Raabe.

14 I don't know if you can see this or not, but when he makes

15 public statements, let's go -- can we focus on one at a time?

16 Dr. Raabe makes public statements.

17 It says there is a lifetime -- lifespan effective

18 threshold for cancer of about a thousand rem to the target

19 organs, and what does he say when he is at the Nuclear

20 Regulatory Commission? When I say it's a threshold-type

21 response, I don't mean there is some dose here below which the

22 risk is zero. That's directly contrary to what he said when he

23 was here in court.

24 To the left, cancer requires protracted radiation dose

25 greater than 500 rem. Then when he talks to the Nuclear

10309

1 Regulatory Commission, When I give talks on the studies I did

2 with the internal radionuclides, I always point out that if you

3 removed all other causes of death, you would eventually die of

4 radiation-induced cancer.

5 Then if you look at the testimony of the House of

6 Representatives, there are no valid data demonstrating any

7 risks of radiation from low doses such as associated with

8 natural background, may be beneficial. Then when he testifies

9 to the NRC, the Nuclear Regulatory Commission, we can prove

10 there is no zero risk because there are some DNA changes that

11 aren't repaired.

12 Dr. Wecker, and he was the one -- let's look at P1819,

13 if we can for a second, and I may have to do this on the Elmo,

14 but -- you will recall that when Dr. Wise and Dr. --

15 Mr. Dorchester were on the stand before we got this document,

16 this disclosure, Dr. Wise could not remember how much his firm

17 had been paid. He was one of the owners. I said first a half

18 million, and it might be more than a half million.

19 Mr. Dorchester said exactly the same thing, he could not

20 remember exactly how much he had been paid, and he, of course,

21 is the sole owner, Mr. Dorchester. We got this disclosure, The

22 Brattle Group's fees were 1.4 million, that's what some of them

23 uncounted. Then the Dorchester group, the Dorchester group's

24 fees are 1.6 million, estimated fees were 1.6 million. That

25 was the disclosure that we got after they had testified and

10310

1 before Dr. McFadden testified.

2 So these are people who are in the business along with

3 Dr. Wecker who has testified 70 times, they are in the

4 business. They testify for big corporations all the time.

5 They didn't do any independent work of their own. They came in

6 here and they offered criticisms.

7 Now, I want to contrast a few of our witnesses. You

8 remember Dr. Budnitz. He had been an expert for us back in the

9 mid 1990s, thank you. He had been an expert for us, but now he

10 works for a DOE facility, Lawrence Livermore Laboratory, so at

11 first there was discouragement of his testifying, but finally

12 he came here and he testified, and he wasn't paid at all. He

13 had to come back and forth. He was kept on the stand for four

14 days. He wasn't paid a nickel. He used his vacation time to

15 testify.

16 Dr. Selbin spent hundreds of hours on the soil action

17 panel. He testified as a lay witness. He wasn't paid for

18 that, and he wasn't paid to come here and testify. Dr. Biggs

19 spent time on the governor's panel, hundreds of hours. And he

20 came here, and he testified voluntarily, and he wasn't paid a

21 nickel. And in the case of Drs. Wing and Radke, the

22 universities were paid, the University of North Carolina and

23 the University of California. Dr. McFadden was also from the

24 University of California. His fees of $850 an hour went to The

25 Brattle Group.

10311

1 There is a good reason why defendants did not ask our

2 witnesses for the most part how much they were paid.

3 And finally, I would point out that Dr. Wise relied --

4 Dr. Wise relied on a Peter Bowes, remember that company, Bowes

5 and Company, and Peter Bowes was another local property expert

6 who worked for the defendants. He was not called to the stand

7 because a few years ago a court called his testimony

8 incompetent.

9 MR. BERNICK: That is an assertion not borne out in

10 the record. There is no indication what decision counsel

11 made --

12 THE COURT: Objection is sustained.

13 MR. DAVIDOFF: Sorry, Your Honor. I thought that was

14 borne out by the evidence.

15 I will move on to jury instruction -- oh, one other

16 thing before we move off of credibility. Remember

17 Mr. Dorchester again, the one who couldn't remember the fact

18 that his company had been paid $1.6 million, we showed him

19 learned article after learned article after learned article,

20 and with every one of those articles, he said, no, that's not

21 authoritative, no, that's not authoritative, no, that's not

22 authoritative. Then we showed him his own article. He was up

23 on the stand. We showed him his own article that he had

24 written that had been published, and he said, well, I gave that

25 at a talk in Tokyo, and it was edited before it was published.

10312

1 He was the man who could only say no, he couldn't even say yes

2 to his own article.

3 Let's look at jury instruction 1.8. Judge Kane is

4 going to instruct you on this. And I am running short on time.

5 The only point I want to make about jury instruction 1.8 is

6 it's more likely than not. It isn't proof beyond a reasonable

7 doubt. It's more likely than not. If the evidence tips in the

8 plaintiffs' favor, the plaintiffs prevail. If the evidence

9 tips in the defendants' favor, the defendants prevail.

10 Is it more likely than not, I would ask you, that

11 14 tons of plutonium on the site and 2600 pounds of plutonium

12 missing had impacts when they were publicized, had an impact on

13 the property class area? And is it more likely than not that

14 these surveys that show great public revulsion at the

15 revelations about Rocky Flats and great public suspicion, is it

16 more likely than not that they indicate depressed property

17 values in the early 1990?

18 Let's look at jury instruction 1.9, which is

19 classified information. I believe this has been changed. The

20 only point I want to make here, ladies and gentlemen, is the

21 classification of documents by the Department of Energy and the

22 Government is not within the control of the Court, not within

23 the control of the plaintiffs. So to the extent that you ask

24 yourselves where is the missing proof or some missing proof, if

25 you feel proof is missing, you have to ask yourself, that proof

10313

1 is not available to either side, but it does cast in my mind --

2 I am sorry, in our mind, as we believe the evidence shows, it

3 does cast doubt on the release estimates and certainty of the

4 release estimates that have been announced with such certainty

5 by the defendants' experts.

6 MR. BERNICK: It also violates -- it --

7 THE COURT: It does. Objection sustained. A personal

8 belief of counsel is not appropriate for closing argument.

9 MR. DAVIDOFF: I am sorry, Your Honor. I tried to

10 correct myself.

11 THE COURT: All right.

12 MR. DAVIDOFF: 2.2, if you would look at, please,

13 opinion evidence and expert witnesses. The main point here,

14 expert opinion testimony should be judged just like any other

15 testimony. You may accept it or reject it and give it as much

16 weight as you think it deserves, considering the witness'

17 education, experience, the reasons given and all of the other

18 factors that you consider when determining the credibility of

19 other witnesses. Very important. You have the right to

20 disbelieve an expert witness just as you have the right to

21 disbelieve a lay witness.

22 If we could look at 2.2B, it's a new one. And I am

23 sure you will hear this in the instructions, but you have heard

24 a lot of argument about bulldozers and bulldozing, and there

25 are two instructions, two new instructions that you will see.

10314

1 Bulldozers and bulldozing, speculation is out of this case.

2 MR. BERNICK: Your Honor, that again misstates -- the

3 instruction pertains specifically to some very limited

4 testimony that Dr. Till gave.

5 THE COURT: The objection is sustained.

6 MR. DAVIDOFF: Your Honor, I was referring not only to

7 2.2, but to the other instruction that you have given later in

8 the instructions.

9 THE COURT: Please proceed.

10 MR. DAVIDOFF: If you would look at instruction 2.4,

11 evidence regarding the FBI raid and the Grand Jury

12 investigation. This is a very important one. It's a short

13 one, but it's a very important one from our point of view, and

14 I want to point it out.

15 The fact that the FBI and Grand Jury conducted these

16 investigations or investigated certain allegations does not

17 prove that Rockwell committed any particular acts or wrongs at

18 Rocky Flats. You may, however, consider evidence that was

19 collected in the course of these investigations or was

20 presented to the Grand Jury in determining whether, based on

21 all the evidence presented in this action, Rockwell acted or

22 failed to act in a particular manner as relevant to the

23 trespass and/or nuisance claims against it.

24 Then if we could look at 2.5 which is evidence

25 regarding Rockwell's plea agreement. The first paragraph, the

10315

1 plea agreement is evidence that Rockwell admitted guilt for the

2 conduct specifically set forth in the plea agreement. That's

3 in the first paragraph. This means Rockwell admitted it

4 committed the acts to which it pled guilty, and that no further

5 evidence is required to establish that these acts occurred.

6 And then you go on to the second paragraph. You

7 should not consider the plea agreement or its content, however,

8 or the fact that Rockwell did not plead guilty to additional

9 crimes and that the Government did not seek to prosecute

10 Rockwell for any other crimes in determining whether Rockwell

11 committed any particular conduct at Rocky Flats in addition to

12 the misconduct to which it pled guilty. You should make your

13 determination regarding Rockwell's other conduct based solely

14 on the other evidence; in other words, it is not evidence that

15 Rockwell is innocent, that they were or were not prosecuted for

16 a particular crime. If they pled guilty, that is evidence of

17 their guilt.

18 I want to move to the substantive instructions which

19 are in section three of the instructions. The first one is

20 instruction 3.2. There are three elements here to the trespass

21 claim. We have -- those are numbered on page 31 in instruction

22 3.2. We have to show that plutonium from Rocky Flats is

23 present on the class property. That's explained further in

24 instruction 3.

25 3. We have to show that Dow or Rockwell or both of

10316

1 them intentionally undertook an activity or activities that in

2 the usual course of events caused plutonium from Rocky Flats to

3 be present on the class properties. The instruction that it

4 refers to there, we will say that they don't have to intend to

5 deposit the plutonium; they just have to intend to engage in

6 the activity.

7 And three, it appears that this plutonium will

8 continue to be present on the class properties indefinitely.

9 Those are the elements to prove trespass.

10 The first element is in instruction 3.3. The first

11 element of the trespass claim requires the plaintiffs prove

12 that plutonium is present on the class properties. We are not

13 required to show, we are not required to show that plutonium is

14 present on the class properties at any particular level or

15 concentration, or that the presence of plutonium on the class

16 properties damage these properties in some other way.

17 Now, taking instruction 3.2 and 3.3 together,

18 remember, ladies and gentlemen, you heard about the Krey and

19 Hardy studies. They were the AEC scientists. You heard about

20 Dr. Martell's studies. You heard about Dr. Johnson's studies.

21 And those studies establish that even several decades ago

22 plutonium was not only present in the class areas, but much

23 further than the class areas throughout the Denver metropolitan

24 area. Rocky Flats plutonium has a marker because it is

25 distinguishable from background plutonium in soil tests.

10317

1 Now, the defendants brought in a study, it's the Jones

2 and Zhang study from 1994. If you read that study carefully,

3 that study basically says the plutonium is not going anywhere.

4 The measurements are becoming less because the plutonium is

5 going deeper and deeper into the ground, but the plutonium for

6 the most part, other than what blows off, is not going

7 anywhere.

8 You have heard a lot of testimony about the

9 reservoirs. You heard a lot of testimony about the plutonium

10 that has been found over the decades. And you also heard a lot

11 of testimony from Dr. Smallwood who explained how the plutonium

12 on the Rocky Flats plant continues to be resuspended and

13 distributed off the plant site into the class areas.

14 I believe that when you use your common sense, you

15 will conclude that with all the plutonium that was on the plant

16 site, with all the plutonium that was on the class area, that

17 plutonium has continued to be distributed and distributed as

18 time has gone on and continues to be distributed today.

19 The defendants seem to imply that we should have

20 drilled holes throughout the class area in order to prove that

21 there was plutonium on every property. That's not feasible.

22 DOE hasn't done that. Nobody has done that in history. In

23 fact, I think you heard Dr. Selbin testify that we could spend

24 the whole national budget just trying to dig holes looking for

25 hot spots on the plant property, let alone in the vast class

10318

1 area.

2 Dow or Rockwell intentionally undertook an activity.

3 There is nothing in this jury instruction 3.3 or 3.2 that

4 requires us to prove wrongdoing. We only have to prove that

5 they intentionally undertook an activity that caused plutonium

6 to be placed on the class property.

7 We can look at 3.4, continuing trespass. Whether it

8 appears that plutonium will continue to be present on the class

9 properties indefinitely, in deciding the third element, it's

10 not necessary for you to find -- if we can focus on that first

11 sentence -- that the plutonium will be there forever. It is

12 not necessary for you to find that the plutonium will be there

13 forever. Instead, in deciding this element, you should

14 consider whether there is any reason to expect that the

15 plutonium present on the class properties will be removed at

16 any definite time in the future. If you find there is no

17 reason to expect it to be removed by a definite time or it will

18 be removed by a definite time, then you must, then you must

19 find it appears that plutonium will continue to be present on

20 the class properties indefinitely.

21 You will see that you will be asked some of these kind

22 of questions on the verdict form, and that's the reason for the

23 instructions.

24 If we look at 3.5, there are a number of matters in

25 3.5 that are irrelevant to deciding the trespass claim. A

10319

1 trespass may exist even though the conduct has ceased. That's

2 the first sentence, even though the conduct has ceased. The

3 fact that Dow and Rockwell are not there, if the events that

4 they set in motion cause a trespass, a continuing trespass, the

5 trespass can exist.

6 It is irrelevant that Dow and/or Rockwell in 3.5

7 ceased any such activities before plaintiffs brought this suit

8 or that the Rocky Flats itself is now shut down.

9 Another thing that's irrelevant that plaintiffs or

10 class members knew or could have known, plaintiffs or class

11 members knew or could have known that plutonium was present on

12 their properties when they purchased them. That's irrelevant.

13 Third, you have heard argument that -- this is a new

14 instruction. You have heard argument that plutonium has been

15 removed from properties in the class area as a result of

16 bulldozing, soil excavation during real estate development and

17 other construction activities in the class area. You are to

18 disregard such argument, disregard it because I recently ruled,

19 I, as Judge Kane, of course, that it cannot be presented or

20 considered in deciding the trespass claims.

21 For purposes of deciding the trespass claims,

22 therefore, the notion that plutonium has been removed from the

23 class area through development and construction activities is

24 irrelevant. That is right in jury instruction 3.5.

25 So these are the instructions on trespass, and you are

10320

1 going to be deciding a trespass claim, a nuisance claim, and

2 damages.

3 I want to move on to nuisance, which is in jury

4 instruction 3.6. Let me correct myself. You will be deciding,

5 ladies and gentlemen, a trespass claim and a nuisance claim

6 against each of Dow and Rockwell.

7 Jury instruction 3.6. There are four elements to

8 nuisance. We can just look at the jury instruction. This is

9 our claim, and this is what you have. Dow and Rockwell

10 interfered with class members's use and enjoyment of their

11 properties in the class area by either causing class members to

12 be exposed to plutonium and placing them at some increased risk

13 of health problems as a result of this exposure, or causing

14 objective conditions that pose a demonstrable risk of future

15 harm to the class area. I want to stop there because I think

16 that's very important.

17 You have heard a lot about health risk in this case,

18 and one of the ways that you can find a nuisance against Dow

19 and Rockwell in favor of the plaintiffs is if there was some

20 increased risk of health problems. Another way is causing

21 objective conditions that pose a demonstrable risk of future

22 harm to the class area, the future risk of plutonium on site,

23 the future risk of plutonium in waste sites, the future risk of

24 buildings containing plutonium that were up for 15 years, the

25 risk of a brush fire such as the one that occurred last week

10321

1 across the street from Rocky Flats, objective conditions that

2 pose a --

3 MR. BERNICK: Objection, move to strike the remark

4 about what happened last week. It's not before the jury.

5 MR. DAVIDOFF: We can take judicial notice of

6 something like that happened.

7 THE COURT: Overruled. The objection is sustained.

8 It's not evidence.

9 MR. DAVIDOFF: The evidence of health risk has already

10 been described, but the other way is objective conditions that

11 cause -- pose a demonstrable risk of future harm. One of the

12 things that you are going to have to decide in this case is

13 when did the nuisance or trespass become complete and

14 comparatively enduring, which we are going to come to in a

15 moment, and as of that time, what -- and we believe that time

16 is around 1990 -- what did the class members know? They knew

17 there was plutonium on site. They knew there were 2600 pounds

18 of missing plutonium. They knew about the existing

19 contamination.

20 Then we have Johnny Ray's testimony about how hard it

21 is to find the hot spots of plutonium. Remember Johnny Ray,

22 the former union safety representative who testified, To find

23 small hot spots like that, it would be like throwing a BB from

24 a BB gun out of an airplane and then go to try to find it. It

25 will be difficult, unquote.

10322

1 As Dr. Selbin testified, as Johnny Ray testified,

2 nobody knows where those hot spots are. Nobody knows if the

3 next shovel full of dirt is going to turn one up. And as I

4 mentioned, Dr. Selbin said we could spend the whole national

5 budget, and Mr. Ozaki and Mr. Holeman also talked about hot

6 spots.

7 While the buildings were up, there could have been any

8 kind of a catastrophe, and even with the buildings down, the

9 animal and weather activity continued to pose a major risk of

10 off-site releases. Can we go back to that slide for just one

11 second from the jury instruction?

12 Well, the point is, there are two ways you can find

13 risk, two ways you can find interference with use and

14 enjoyment. One is health risk and the other is objective

15 conditions that pose a demonstrable risk of future harm to the

16 class area. Even if you don't find health risk, and I think

17 you will find increased health risk, you can find objective

18 conditions that pose a demonstrable risk of future harm, that

19 satisfies our burden under nuisance.

20 And as you will see later in the instructions, the

21 instructions allow you to find nuisance in one of either way as

22 to the members of the class.

23 If the class members suffered from a nuisance in

24 either of those ways, then they qualify, that's unreasonable

25 interference with use and enjoyment of property.

10323

1 I am going to go to jury instruction 3.7 and 3.8,

2 define substantial and unreasonable interference, and you will

3 find in these jury instructions -- actually let's go to the

4 bottom of page 39 on jury instruction 3.7 because this needs to

5 be pointed out. In order for you to find interference, this is

6 page 39, jury instruction 3.7, based on the threat of future

7 harm, you also need not find that the future harm will occur

8 and affect the whole of the class area. You need only find

9 that conditions exist that present the potential for such

10 class-wide harm to occur.

11 In other words, you don't have to find that the future

12 harm actually occurred. If the potential for class-wide future

13 harm occurred, that suffices to satisfy our burden.

14 And 3.8 and 3.9, you will see that both health risk

15 and future risk are considered together in determining whether

16 or not there is substantial and unreasonable interference for

17 purposes of a nuisance.

18 I am going to turn to 3.9. I think this is a very

19 important instruction, substantial interference defined. An

20 interference with a person's right to use and enjoy their land

21 is substantial if the interference is significant enough that a

22 normal person in the community would find it offensive,

23 annoying or inconvenient. You don't have to find all three.

24 If a normal person in the community finds it offensive,

25 annoying or inconvenient, that's enough for a substantial

10324

1 interference with use and enjoyment of property.

2 In this case that means you must determine whether a

3 reasonable landowner of normal sensibilities would find that

4 proven interference caused by Dow or Rockwell to be offensive,

5 annoying or inconvenient.

6 Then I am going to go down toward the bottom of that

7 page, evidence that the value of class members' properties has

8 diminished because of any interference proven by plaintiffs is

9 evidence that the interference is substantial under the test

10 stated in this instruction.

11 So if property values have declined and you find that

12 is as a result of the stigma of Rocky Flats and the actions

13 that were taken by the Rocky Flats contractors, you will be

14 able to use evidence that the value of class members'

15 properties has diminished because of evidence of interference

16 with use and enjoyment of property.

17 No. 3.10 -- before I go to 3.10, I would point out

18 that annoying, inconvenient or offensive -- I would remind you

19 just of some of the testimony we had. Do you remember Gretchen

20 Robb and Karen Whalen? They were the two women who sold their

21 homes in 1990 in the wake of these disclosures. They didn't

22 make any money on it, and they testified as to the anguish that

23 they suffered that compelled them to sell their homes.

24 Merilyn Cook testified that customers stopped coming

25 in because of fears. And of course, Sally and Dick Bartlett

10325

1 testified as to the anguish they felt raising their family

2 there.

3 We think the evidence is overwhelming that what

4 Rockwell and Dow did and the conditions that they caused were

5 all three things. They were annoying, they were offensive, and

6 they were inconvenient. This isn't merely loud noises or

7 horrible smells or odors or even illegal activities. We have a

8 much bigger nuisance here. We have the placement of deadly

9 plutonium on neighbors' property and the placement of deadly

10 plutonium on their property where it could be redistributed to

11 neighbors' properties for 37 years, and then we have a series

12 of lies about it. I think that that satisfies the requirement

13 of annoying -- satisfies the requirement of annoying, offensive

14 or inconvenient. Certainly in our mind we believe the evidence

15 shows that all class members, virtually all class members would

16 find those things to be all three.

17 Let's look at jury instruction 3.10. This is a

18 balancing test. I am not going to spend any time on it, but we

19 think you will see there are a number of factors here that you

20 have to use as a balancing test for determining whether or not

21 unreasonable interference has been shown. And that is if the

22 gravity of the harm outweighs the utility of the conduct that

23 caused it. There are some more jury instructions on this

24 balancing test, and they are referred to in this instruction.

25 Those are instructions 3.11 and 3.12.

10326

1 If we look at instruction 3.11, these are the factors

2 that you are to consider regarding the gravity of the harm, the

3 extent of the harm, the character, the social value of the type

4 of use or enjoyment of property that has been harmed. Here we

5 had residential properties, places where people were raising

6 their families. The suitability of the particular use or

7 enjoyment of harm to the character of the locality, and the

8 burden on the class members of avoiding the harm. Certainly

9 the class member -- the area, the class area was suitable to

10 residential use, and the class members had no way of avoiding

11 the harm. We believe the evidence shows instruction 3.11 is

12 satisfied.

13 If you look at instruction 3.12, this is a long

14 instruction. I just want to focus on the second page, the

15 impracticability of preventing or avoiding the interference.

16 If it was practicable for Dow or Rockwell to avoid causing any

17 interference with class members' use and enjoyment of property,

18 and they did not take the necessary measures to do so, then the

19 law considers their conduct to have no utility, regardless of

20 its social value -- the law considers their conduct to have no

21 utility regardless of their social value.

22 So ladies and gentlemen, we believe the evidence shows

23 it was more than practicable for Dow and Rockwell to avoid

24 causing interference with the class members' use and enjoyment

25 of property. Any interference caused by Dow and/or Rockwell

10327

1 continuing there was practicably avoidable if by some means the

2 company could have substantially reduced the harm without

3 incurring prohibitive expense or hardship in its operation of

4 Rocky Flats. If you find it was practicable for Dow or

5 Rockwell to avoid any harm they caused under this test, then

6 you must find the gravity of the harm outweighed the utility of

7 Dow's or Rockwell's conduct and that any interference proved by

8 plaintiffs was unreasonable.

9 We submit with all the evidence of the negligence and

10 what they did wrong at Rocky Flats, as Ms. Roselle has

11 described, the lessons they didn't learn from the '50s and the

12 '60s and the mistakes that they repeated again in the '70s,

13 '80s and '90s, we submit that you will find under instruction

14 3.12 under the evidence that Dow and Rockwell could have

15 avoided certainly most of the harm and probably all of the

16 harm.

17 Let's look at G1032A. This is one that may have been

18 shown to you before. I know it was shown to you during the

19 trial. That is the 750 pad and the 904 pad compared to a

20 football field. After the horrible experience with the 903

21 pad, that is where 17,000 leaking cardboard cartons of

22 saltcrete and pondcrete were stored.

23 Let's look at jury instruction 3.12 -- 3.12 we have

24 looked at. We have to look at part four, I am sorry, the

25 financial burden to compensate others for any interference

10328

1 caused by Dow and/or Rockwell's activities.

2 A nuisance action for damages seeks to place the

3 financial burden for interference with the use and enjoyment of

4 property on the actor, here we see the evidence is Rockwell and

5 Dow that caused this harm. The financial burden of this cost

6 is, therefore, a significant factor in determining whether the

7 conduct of causing the harm without paying for it is

8 unreasonable. You may find that Dow or Rockwell's conduct

9 lacks sufficient utility to outweigh any interference it caused

10 if you find it would be unreasonable for class members to bear

11 this cost without compensation.

12 Why is that important? National defense, both sides

13 agree that national defense is very important in this case, but

14 it is not fair for the neighbors in the class area to bear the

15 entire cost of national defense without compensation. That

16 cost should not be inflicted on them.

17 Jury instruction 3.13, the thrust of this is that

18 either intentional or negligent conduct suffices for the

19 nuisance claim. And then jury instruction 3.14 defines

20 intentional conduct, the defendant knew its conduct would

21 interfere.

22 But the one I really want to focus on, ladies and

23 gentlemen, and I think that is extremely important in this case

24 is jury instruction 3.15, if we can put that up. Third

25 element, definition of negligent conduct, remember negligent

10329

1 conduct is enough. I think you will find a lot of evidence of

2 intentional conduct here, but negligent conduct is enough.

3 The generation, use, storage and disposal of plutonium

4 and other hazardous radioactive and nonradioactive substances

5 as part of the operation of a nuclear weapons plant are

6 inherently dangerous activities. As a result, Dow and Rockwell

7 were required to exercise the highest possible degree of skill,

8 care, diligence, and foresight in conducting these activities,

9 according to the best technical, mechanical and scientific

10 knowledge and methods that were practical and available at the

11 time. If either Dow or Rockwell or both of them did not

12 fulfill this duty when they performed any activities that

13 caused or contributed to a substantial and unreasonable

14 interference, their conduct was negligent.

15 I mean, the evidence is overwhelming that they didn't

16 meet that standard, the highest possible degree of skill, care,

17 diligence and foresight? Look at the evidence in this case,

18 punching holes in filters, the two greatest fires in the

19 nuclear complex, the whole national nuclear complex occurring

20 under the watch of the same contractor at the same plant, the

21 huge extent of MUF, 2600 pounds missing. I don't think it can

22 be said respectfully in the face of the evidence with a

23 straight face that Dow and Rockwell met this high standard.

24 We can look at jury instruction 3.17 on the nuisance

25 claim. The fourth element of continuing nuisance, and what we

10330

1 have to show, the plaintiffs, what we have to prove to prevail

2 is that it appears that the unreasonable and substantial

3 interference with the use and enjoyment of property caused by

4 Dow and/or Rockwell's intentional or negligent conduct will

5 continue indefinitely. In deciding this element, it is not

6 necessary for you to find that the interference meeting these

7 requirements will last forever. That's a very important point.

8 If from the perspective of the class members when this became a

9 continuing nuisance, and we will talk about that in a moment,

10 it appeared that the intentional or negligent conduct would

11 continue indefinitely. You don't have to find it will last

12 forever. It just has to appear to continue indefinitely.

13 Instead you should consider whether there is any

14 reason to expect that this interference will end at any

15 definite time in the future. If you find there is no reason to

16 expect this interference to end by a definite time in the

17 future, then you must find it appears the interference will

18 continue indefinitely.

19 Ladies and gentlemen, you remember those headlines we

20 showed a little earlier today, Flats site tainted to infinity,

21 cleanup to continue well into the next century. From the

22 vantage point of these class members, it certainly appeared

23 that the -- it certainly appeared that this would continue,

24 this negligent conduct, and the interference with the use and

25 enjoyment of property would continue indefinitely. And as I

10331

1 submit, the evidence shows that.

2 Now, 3.18, we finally get to the instructions on

3 causation and damages. And the first one I want to focus on, I

4 think we have a graphic. As I have showed before, there are

5 two types of damages, compensatory damages and punitive

6 damages. We are going to focus on some of the elements here,

7 compensatory damages. We look at 3.20, that is an instruction,

8 damages introduction, and it's the last sentence that I want to

9 focus on here.

10 Difficulty or uncertainty in determining the precise

11 amount of damages does not prevent you from deciding them --

12 can you blow that up, last two sentences, the bottom paragraph.

13 Ladies and gentlemen, you have it in front of you.

14 Difficulty or uncertainty in determining the precise amount of

15 damages does not prevent you from deciding an amount. You

16 should use your best judgment based on the evidence. Nobody is

17 expected to prove to a penny what the amount of damage is. We

18 have provided a lot of methodologies by which you can make a

19 fair appraisal, we believe, under the evidence of the damages,

20 but we do not need the precise amount in order to prevail.

21 If we can look at 3.21. You will see that you will

22 get a choice on the jury form between actual damages and

23 nominal damages. Nominal damages are a dollar per class

24 member, I believe, or a dollar per claim. There is

25 overwhelming proof of harm to the class area endured for years

10332

1 and years and years and endures today. Nominal damages are not

2 appropriate in this case.

3 Jury instruction 3.22 I am obliged to spend a great

4 deal of time on. I think it's fair to say, ladies and

5 gentlemen, that this is one the lawyers have fought about, and

6 I apologize in advance, the lawyers have difficulty

7 understanding it. I apologize in advance. It's an intriguing

8 concept, but it's one that you will be asked a great many

9 questions about on the verdict form, and that is the concept of

10 complete and comparatively enduring. The lawyers in this case,

11 the lawyers in this case abbreviate this as CCE, complete and

12 comparatively enduring. You will see an extended discussion of

13 that in jury instruction 3.22. I am going to run through this

14 as quickly as I can.

15 The award of actual damages based on a decrease in the

16 value of properties in the class area, that type of actual

17 damages is sometimes called diminution in property value. The

18 diminution in property value that plaintiffs may recover here

19 is measured -- this is very important, ladies and gentlemen --

20 the diminution in property value that plaintiffs may recover

21 here is measured by the difference between the actual value of

22 the class properties and the value these properties would have

23 had if Dow or Rockwell or both of them had not committed the

24 trespass or nuisance proved by plaintiffs. In other words, you

25 must compare the actual value of the class properties to what

10333

1 their value would have been but for the trespass and nuisance.

2 We are going to come to another jury instruction

3 shortly, and you will see that the measure of damages is not

4 before and after. The measure of damages in a case like this

5 where there is a continuing nuisance or a continuing trespass

6 is but for, what would the value have been but for the trespass

7 and/or nuisance as spelled out in instruction 3.22.

8 Then we get to this concept of CCE in the next

9 paragraph. In a case like this, the law requires that you

10 measure the amount of any such diminution in class property

11 values at a particular point in time. That point in time is

12 the time or time period when the injurious situation became

13 complete and comparatively enduring. The injurious situation

14 is complete when the effects of the trespass or nuisance are

15 known to their full extent. It is comparatively enduring when

16 there is no reason to expect that these effects will end at a

17 definite time in the future. When the injurious situation

18 became complete and comparatively enduring in this case is a

19 question you will decide, as I will describe, in a moment.

20 Then the instruction relates to the fact that we

21 believe, the plaintiffs believe that the evidence shows that

22 the depression or diminution in the value of class property

23 should be measured between June 6, 1989, when the FBI and U.S.

24 Environmental Protection Agency searched Rocky Flats and

25 March 26, 1992, when Rockwell pled guilty to certain crimes.

10334

1 The reason is that this is the right time period in

2 our view that the evidence shows because this is when the

3 injurious effects of defendants alleged trespass and nuisance

4 became complete and comparatively enduring. You will also see

5 that you can decide whether that is even in the larger period

6 of 1988 to 1995.

7 At the very least we believe that it was in the period

8 between the FBI raid and the guilty plea. Now, I think we have

9 a -- that's a little bit easier to read. That point is the

10 time or time period when it became complete and comparatively

11 enduring. The injurious situation is complete when the effects

12 of the trespass or nuisance are known to their full extent. It

13 is comparatively enduring when there is no reason to expect

14 that these effects will end at a definite time in the future.

15 Now, the defendants are going to try to persuade you,

16 ladies and gentlemen, that the evidence shows that the

17 situation became complete and comparatively enduring either

18 never or before 1988, because if they are able to persuade you

19 of that, the plaintiffs lose. The plaintiffs do not carry

20 their burden. The plaintiffs are alleging that it was between

21 1988 and 1995, and we are alleging further that the evidence

22 shows it became complete and comparatively enduring between

23 1989 and 1992.

24 The defendants will point out that Dow left in 1975,

25 but you saw some of the evidence of secrecy of the plant in the

10335

1 1970s. None of this was unwrapped for public view in the 1970s

2 and the 1980s. The defendants themselves put in evidence about

3 the tremendous growth in the class area in the 1970s and 1980s.

4 This is when the class representatives and most of the class

5 members moved in. They bought their property. Even

6 sophisticated people, Mr. Bartlett was the former mayor of

7 Arvada, and Lorren Babb, whose husband is not with us anymore,

8 was the former mayor of Golden. They were deceived, and they

9 bought their properties in the class area. The public did not

10 know about the 170 or so other waste sites buried all around

11 the plant property which posed future hazards to human health.

12 The public did not know how much plutonium was stored

13 in an unstable manner at Rocky Flats. They thought the

14 replacement of Dow by Rockwell had cured those problems. None

15 of those facts were learned until after the FBI raid in 1989.

16 Some of them began to leak out in the 1980s with the Mary

17 Walker memo, but most of the facts were not known until 1989.

18 Let's go back to that graphic that's up on the board

19 there. The injurious situation is complete when the effects of

20 the trespass or nuisance are known to the full extent. The

21 facts were not known to their full extent until after 1989. We

22 believe 1990 is the correct date, January of 1990, but you will

23 have the opportunity to decide when that date is.

24 That's when the facts were known to their full extent

25 or at least to the full extent that they ever will be known

10336

1 about Rocky Flats.

2 Let's look at the comparatively enduring part. Ladies

3 and gentlemen, you remember when we put up that collage of

4 headlines, Flats site tainted to infinity, how long it would

5 take to clean it up, let's look at what actually happened even

6 when they sped it up.

7 May I approach, Your Honor?

8 THE COURT: Yes.

9 MR. DAVIDOFF: This is a photo taken on October 4th,

10 1997. This is from Colorado Aerial. It's Exhibit P1554. You

11 can see that in 1997, which is more than eight years after the

12 raid, when many class members have already moved, they haven't

13 even begun to tear a building down, not one. Put that there.

14 Let's look at 1554 -- I am sorry, 1547. This one was

15 taken exactly a year before the trial started on October 7,

16 2004. The Rocky Flats cleanup agreement, you will recall,

17 required the contractor, the new contractors to clean it up by

18 2006. Late 2006 there was a 10-year time table, and they did

19 it a year early and announced it a year early, but even a year

20 before the trial, which is more than 15 years after the raid,

21 you can see that most of those buildings are still up.

22 Now, from the perspective of the class members, in

23 1990, even the facts as they turned out were comparatively

24 enduring with respect to the buildings that were up, and from

25 their perspective Flats site tainted to infinity and it might

10337

1 take generations to clean it up --

2 MR. BERNICK: I believe this argument is contrary to

3 your instruction.

4 THE COURT: It is, sustained.

5 MR. DAVIDOFF: Let's go to -- well, I want to talk

6 about one aspect of the evidence here. If you listen to the

7 defendants in this case, they will argue that there was no

8 basis for the FBI raid. I think you have been told many times

9 that they were technical violations. But the final step in the

10 nuisance didn't occur until June 6, 1989, and later when the

11 layers of secrecy were peeled back. And I just want to point

12 out that the evidence shows that unlike the usual case where

13 there is some fault on both sides, the plaintiffs here, the

14 class members were innocent victims. They are innocent

15 neighbors. The ones that are still there still live next door

16 to a plant which has plutonium left, together with underground

17 pipes, together with building foundations and groundwater

18 plumes of pollution.

19 We believe that this was complete, that's when the

20 effects became known. We believe it was comparatively

21 enduring. We believe that the evidence shows that it was

22 comparatively enduring, and that the evidence shows that the

23 class members in 1990 had no way of anticipating that this

24 nuisance would end at any definite time.

25 Could you look at instruction 3.24, please? 3.23,

10338

1 ladies and gentlemen, says that you will determine on the

2 verdict form both an aggregate measure of damages and a

3 percentage measure of damages which we will come to, I hope.

4 If we look at 3.24, In determining whether plaintiffs have

5 proved actual damages, you also should remember that plaintiffs

6 are not required to prove that any diminution in value -- this

7 is the second paragraph, Mark, this is a very important

8 paragraph, too.

9 In determining whether plaintiffs actually proved

10 actual damages, you also should remember that plaintiffs are

11 not required to prove any diminution in value caused by Dow or

12 Rockwell's activities at Rocky Flats came into existence before

13 or after the FBI raid or some other specific event. Instead,

14 as stated in instruction 3.22, the measure of damages to be

15 proved by plaintiffs is the value of the class properties would

16 have had but for any trespass or nuisance by Dow and/or

17 Rockwell.

18 Ladies and gentlemen, you have heard a lot of evidence

19 and a lot of argument in this trial about before and after, but

20 under instruction 3.24, the evidence that you should credit is

21 just the evidence of depression in value at a particular point

22 in time when the nuisance became complete and comparatively

23 enduring, and that is a time that you will decide.

24 I am going to go to jury instruction 3.28, and then I

25 am going to come back to jury instruction 3.27. I am sorry,

10339

1 3.26, ladies and gentlemen. I just want to mention one thing

2 here, and we will discuss this, I hope, with the verdict form

3 too.

4 You are going to be asked, and I am sure Judge Kane

5 will instruct you, to assess damages separately with respect to

6 Dow and Rockwell and to make findings separately with respect

7 to Dow and Rockwell. And what this jury instruction says is

8 that multiple recovery is prohibited. That means that if you

9 do as we will ask and make findings and we believe the evidence

10 shows against both Dow and Rockwell, let's suppose

11 hypothetically you award the plaintiffs the $248 million in

12 damages that they are seeking and you make a $248 million award

13 against Dow and you make a $248 million award against Rockwell

14 for compensatory damages, plaintiffs only collect their damages

15 once. They do not collect more than the damages that they

16 claim. And the same with punitives, plaintiffs -- punitive

17 damages are only paid once, and they're not paid beyond the

18 level that is legally permissible. That's what instruction

19 3.26 says.

20 Let's look at the additional question in 3.28. You

21 are going to be asked -- in 3.28 you are going to be asked a

22 couple questions, actually. Did it appear on or before

23 January 30 of 1990, which is the date this case was filed, that

24 the alleged trespass and/or nuisance by Dow or Rockwell or both

25 of them would continue indefinitely? We believe that it

10340

1 appeared at or about that time. And if your answer is no, then

2 you are going to be asked, when did it become apparent that the

3 proven trespass and/or nuisance would continue indefinitely?

4 As I said, we believe the evidence is overwhelming that it was

5 sometime between 1989 when the FBI raided the plant and 1992

6 when the guilty plea was made, and that is when we believe that

7 the evidence shows the effects became completely known and that

8 was when it appeared to class members that it would continue

9 indefinitely.

10 Finally, you are going to be asked a question, and

11 it's on the verdict form, as to whether the intentional or

12 negligent conduct of Dow or Rockwell or both of them at Rocky

13 Flats and/or actual or threatened harms caused by such conduct

14 created a situation that is capable of causing fear, anxiety or

15 mental discomfort and to individual class members. I think you

16 heard people from Mrs. Robb, Mrs. Whalen, the class

17 representatives and others that the situation caused -- the

18 intentional or negligent conduct of Dow or Rockwell was

19 sufficient, capable of causing fear, anxiety or emotional

20 discomfort, emotional, mental discomfort in individual class

21 members. You don't have to find it was actually experienced.

22 You only have to find that the situation was sufficient to

23 cause it.

24 Now, can you turn back to instruction 3.27, please?

25 This is the instruction, ladies and gentlemen, on punitive

10341

1 damages. And I can only list some things here, but I think

2 they are very important. First of all, as the verdict form

3 tells you and the instructions tell you, you can only award

4 punitive damages up to the amount of compensatory damages that

5 you award. You may not award more punitive damages than you

6 award compensatory damages.

7 The burden of proof is different. For all the other

8 claims in this case, we are obliged to show that the evidence

9 tips in favor of the plaintiffs. For punitive damages, we have

10 to prove that the conduct of defendant or defendants that

11 committed the trespass and/or nuisance was willful and wanton,

12 and we have to prove that beyond a reasonable doubt. This is

13 the only portion of our case that we have to prove beyond a

14 reasonable doubt.

15 And you can only consider the defendants' conduct up

16 to August 20th of 1988 in making that determination. We

17 believe the evidence shows that virtually the entire nuisance,

18 at least the events that caused the nuisance to continue, the

19 events that caused the contamination to continue mostly

20 occurred, largely occurred by August 20th, 1988.

21 So these are the instructions. You have to find that

22 they were willful and wanton, and if you look at the third

23 paragraph, means an act or omission purposely committed by the

24 defendant in question, must have realized that the conduct was

25 dangerous and which conduct was done heedlessly and recklessly,

10342

1 either without regard to the consequences, or without regard to

2 the rights and safety of others, particularly the plaintiff

3 class.

4 And the purpose of punitive damages is not

5 compensation; it's to punish the defendants.

6 Now, what is some of the conduct you heard about the

7 misconduct in which we believe the evidence shows Dow and

8 Rockwell purposefully engaged. I just want to go -- if we

9 could have the Elmo, Ms. Bush. There were times when we tried

10 to show this document in those miniclosings, and we never

11 really got to look at it closely. This is the document, the

12 Credibility Gap, commenting on the attached Denver Post article

13 which was about an AEC news release. This is Exhibit P214.

14 It's interesting reading.

15 Regardless, some of the statements -- this memo is

16 exchanged among high Dow officials -- concerned me because they

17 could be the basis for broadening our credibility gap with the

18 general public rather than narrowing it. Then he says, this is

19 very interesting, I understand the AEC release was largely

20 authored by Dow, so my comments are directed at those authors,

21 as well as any Dow official who approved the text of the

22 release.

23 Ladies and gentlemen, I don't know if you remember the

24 testimony of Mr. Norton that in the investigation it emerged

25 that Rockwell was ghost writing the Department of Energy's

10343

1 correspondence. Here you have 20 years earlier Dow ghost

2 writing the DOE's predecessor's correspondence, the AEC. What

3 he is talking about is a press release.

4 I think you folks may remember this example of the

5 railroad trainman who waved the lantern but didn't light it,

6 and he was lucky to get out of court on that day, but here is a

7 part of this memo that I don't think I had a chance to read you

8 in the last miniclosing.

9 In the first sentence of the third paragraph that he

10 is talking about, the press release in the article of the

11 newspaper, we admit releasing trace amounts of plutonium to the

12 environment which is okay. However, in the second sentence we

13 lead the uninitiated to think that this amount of plutonium is

14 so minute that the plutonium radioactivity detected by the

15 off-site samples is no higher than background. How would the

16 public react if they knew we didn't routinely analyze our

17 on-site air samples and off-site air samples for plutonium?

18 Just what is normal background radiation from plutonium in air?

19 It certainly is not a fixed value. Then he has some figures

20 here.

21 He says, On the other hand, if we ran the off-site

22 samples for plutonium, they might from time to time show

23 abnormally high plutonium results. Such times could have

24 occurred after the 1957 fire or during periods of extremely

25 high winds.

10344

1 The last soil sample results I saw indicated the area

2 of concern to be that within about a 5-mile radius of the

3 plant. Dr. Martell is attempting to make the public think this

4 area to have a much larger radius, but this is internal. This

5 is while denials are being made.

6 The third paragraph under the subheading lung hazard

7 is totally inaccurate and I think out of context. Certainly

8 the AEC release did not make such an unqualified statement.

9 This is page 3. The first paragraph under the 1957

10 fire heading leaves many questions unanswered. What is a small

11 amount of vegetation? What is slightly contaminated? What

12 date did the fire occur? Of course, what's not discussed here

13 is the fact that as you heard in Dr. Budnitz's testimony, for

14 eight days they had no monitoring after the fire and on the

15 ninth day the monitor showed infinity.

16 This is a beauty. The second paragraph under 1957

17 fire is really bad. It may be true that we still had some

18 leaking barrels in 1968, this is talking about the 903 pad, I

19 can't remember if they were all worked off before 1968, but it

20 sounds as though 1968 was the only time they leaked. We all

21 know better than that, don't we? Also, as I recall, I may be

22 badly in error, estimates of plutonium in each barrel was

23 25 grams. This is far greater than slightly contaminated.

24 And of course, the title of this document is -- to

25 Mr. Bowman and Mr. Joshel from Mr. Love is called the

10345

1 Credibility Gap written in February of 1970.

2 Now, I think that you can conclude from this and some

3 of the other documents and other evidence that has been shown,

4 much of which has been discussed by Ms. Roselle, that there was

5 intentional willful and wanton misconduct here. There was the

6 press release of 1971 where they trashed Dr. Martell when their

7 own internal documents showed that Dr. Martell was right or at

8 least he was partially right, and he said there was no

9 contamination.

10 In the case of both -- of Rockwell there were knowing

11 violations of federal environmental laws, and there were guilty

12 pleas that were second only to the environmental crimes that --

13 the Exxon Valdez oil spill. There is no question, as

14 Ms. Roselle explained, that Dow and Rockwell were aware of the

15 danger. Remember all those letters from the early 1950s.

16 If you hired a builder to build you a home, that

17 builder violated the building codes, left toxic substances on

18 your land, falsified applications for building permits, you

19 would call that conduct intentional wrongdoing.

20 MR. BERNICK: That's an improper argument. It asks

21 the jury to put themselves in the plaintiffs' shoes --

22 THE COURT: Sustained.

23 MR. DAVIDOFF: The evidence in this case shows that

24 this is no different than a builder who does the things that I

25 described.

10346

1 I would like to talk a little bit, ladies and

2 gentlemen, about the verdict form. I want to make one other

3 point with respect to instruction 3.27. If you go back to

4 instruction 3.15, that's on page 55, you will see that Dow and

5 Rockwell were required to exercise the highest possible degree

6 of skill, care and diligence and foresight in conducting -- the

7 highest possible degree of skill, care, diligence and

8 foresight. Ladies and gentlemen, I think the evidence shows

9 that they did not exercise the highest possible level of skill,

10 care and foresight.

11 I think the evidence shows that there was a lot of

12 intentional misconduct in this case, and that justifies

13 punitive damages.

14 And Your Honor, I want to run very quickly through the

15 verdict form that Your Honor distributed last night and this

16 morning, and I think the one that we have on the computer may

17 not have a couple of the typographical errors, and I will point

18 those out as we go through.

19 THE COURT: All right. That's fine.

20 MR. DAVIDOFF: Ladies and gentlemen, if you look at

21 the jury verdict form, it's a daunting form; it's complex. We

22 know it's complex, but I think it's important to look at -- I

23 think it's logical if you take it apart logically and you

24 attack the questions logically, you will find that the evidence

25 flows with the jury instruction form.

10347

1 Let's look, for example, at page 1, and you will see

2 the first few questions. And the word indefinitely, I think

3 what we have on the screen, the word indefinitely may be left

4 out, but the first few questions, one, two and three, are about

5 trespass against Dow, and then the next three questions, one,

6 two and three on pages 2 and 3, are the trespass claim against

7 Rockwell.

8 And the plaintiffs believe the evidence supports an

9 answer to these questions of yes to all the questions. Do you

10 find that plutonium is present on the class properties? Do you

11 find that Dow intentionally undertook an activity or activities

12 that in the usual course of events caused plutonium from Rocky

13 Flats to be present on the class properties? And do you find

14 it appears that this plutonium will continue to be present on

15 the class property?

16 Again, for Rockwell, one, two and three, we believe

17 the answers are yes. These are trespass questions, trespass

18 liability questions.

19 If you turn to page 4, then you will see that there

20 are a series of questions about nuisance. Question one, do you

21 find Dow interfered with class members' use and enjoyment of

22 their properties in either the way of increased health risk or

23 causing objective conditions that pose a demonstrable risk of

24 future harm to the class area? Judge Kane has done a very good

25 job of cross-referencing the instructions that relate to the

10348

1 specific questions that you are going to be asked to answer.

2 Question two on nuisance, Do you find that this

3 interference with class members' use and enjoyment of their

4 properties was both unreasonable and substantial? I believe

5 that when you read the jury instructions, ladies and gentlemen,

6 you will conclude the evidence amply supports a yes answer to

7 both those questions.

8 Do you find that the activity or activities were

9 either intentional or negligent? That's question three on

10 page 5. And then, Do you find that it appears that the

11 unreasonable and substantial interference with use of enjoyment

12 caused by Dow's intentional or negligent conduct will continue

13 indefinitely? And I think the answers -- this is page -- these

14 are on pages 4 and 5. We believe the answers to questions one

15 to four of the nuisance claim against Dow, that the evidence

16 supports that the answer, a verdict for plaintiffs, the answer

17 would be a yes to each of these questions, and we believe the

18 evidence amply supports a yes answer.

19 Same in section D beginning on page 5 and continuing

20 to page 6. There are four questions, and those relate to

21 Rockwell. We believe the evidence amply demonstrates that

22 Rockwell too committed a nuisance and that the answers to

23 questions one and four on nuisance as to Rockwell, the evidence

24 supports a yes answer.

25 If you look then at page 8, ladies and gentlemen, you

10349

1 will see that there are instructions. And if you have, in

2 fact, answered yes as the plaintiffs believe the evidence

3 supports and as the plaintiffs hope, to all the questions in

4 section A which are trespass by Dow and trespass by Rockwell,

5 then you don't answer these portions that say trespass verdict

6 against Dow only or trespass verdict against Rockwell only.

7 You go to question 11 and you make one determination of --

8 that's on page 13, ladies and gentlemen, and you make one

9 determination of damages and answer some other questions based

10 on the evidence for both Dow and Rockwell.

11 If there is a trespass verdict against both Dow and

12 Rockwell, then you are asked the question, Do you find the

13 injurious situation resulting from the trespass by Dow and

14 Rockwell became complete and comparatively enduring sometime

15 between January 1, 1988, and December 31, 1995? We believe the

16 evidence is overwhelming that that's when it did become

17 complete and comparatively enduring. That's when the effects

18 became completely known or fully known, and that's when it

19 appeared that it would continue indefinitely. And so we

20 believe the evidence supports a yes answer to question No. 11

21 on page 13.

22 And then you are asked question 12 below that, and you

23 are asked, were there damages? Was the actual value to the

24 class properties less than the value these properties would

25 have had but for the trespass, and you are to answer yes or no.

10350

1 Either award nominal damages of a dollar per class member, but

2 we believe the evidence is overwhelming and that there were

3 damages to the property class and so that the answer to this

4 should be yes. And that is the answer that we are suggesting.

5 Then there is question 13, and here you will recall,

6 if you look at question 13, this is what we believe the

7 evidence shows. If you look at question 13, you are asked to

8 determine the percentage undervaluation, and you are asked to

9 determine the aggregate damages per class member. And you will

10 see that there are lines there. There is two lines for

11 residential -- it's up at the top, Mark, two lines for

12 residential, there is two lines for vacant land, and two lines

13 for commercial.

14 We believe the evidence supports a 10 percent finding

15 of depression in property values for residential property, the

16 amount that we suggest and we believe the evidence supports is

17 $216 million.

18 For vacant land we believe the evidence supports

19 30 percent diminution or depression in value and a $27 million

20 award.

21 And for commercial we believe 50 percent and

22 5 million, and the total we believe the evidence supports is

23 $248 million.

24 The next question, ladies and gentlemen, you are asked

25 in question 14 on page 15 the percentage caused by the trespass

10351

1 by Dow, the percentage caused by the trespass by Rockwell, I am

2 sure you are going to have some discussion about that. We

3 believe the evidence shows that both parties, both Dow and

4 Rockwell are equally culpable. Dow caused most of the mess;

5 Rockwell failed to clean it up. Both of them are equally

6 responsible, and Rockwell caused its own mess.

7 Then there is a question about Dow's and Rockwell's

8 affirmative defense which we believe should be answered -- we

9 believe there is no evidence to their affirmative defense, and,

10 therefore, we believe the answer to that question should be no,

11 15 and 16, but we are not going to comment on that now.

12 If you look at page 17, it's a very similar set of

13 questions for nuisance. Can we have page 17, Mark? And I

14 think if you, in fact, have answered yes to all of the

15 questions about nuisance by Dow and all of the questions about

16 nuisance by Rockwell, then the form directs you again you go to

17 question No. 11 and that is on page 23, and you are asked, Do

18 you find the injurious situation resulting from the nuisance by

19 Dow and Rockwell became complete and comparatively enduring

20 sometime between January 1, 1988, and December 31, 1995? We

21 believe the evidence supports a yes answer to that. I think

22 the defendants will try to persuade you that the evidence does

23 not support a yes answer to that because if they persuade you

24 of that, then the plaintiffs do not prevail on one of the

25 elements of their claim.

10352

1 No. 12, As of the time you find the injurious

2 situation became complete and comparatively enduring, do you

3 find the actual value of the class properties was less, the

4 same type of question, what was the depression or the

5 diminution in value, and then you will see the same answers,

6 the same blanks on page 24 in question No. 13. You will be

7 asked again the percentage undervaluation and the aggregate

8 damages for the entire class.

9 Again, we believe the evidence is the same for

10 trespass and nuisance, the percentage diminution of property

11 value and the amount of the property value. It's 10 percent

12 for residential we believe the evidence shows, $216 million;

13 30 percent for vacant land, $27 million; and 50 percent or

14 $5 million for commercial property.

15 Then you are asked again on the next page, page 25

16 under question 14, the percentage to be charged to Dow and the

17 percentage to be charged to Rockwell. Again, we believe the

18 evidence shows that that is 50/50, but we -- this is something

19 that you will be discussing, I am sure, at length.

20 MR. BERNICK: Your Honor, I know that sometimes we are

21 held to nanoseconds and other times to minutes, but I think

22 that under any measure, even including the time of the break,

23 we are now at four hours.

24 MR. DAVIDOFF: Your Honor, because of the verdict form

25 coming so late last night and this morning, I mentioned earlier

10353

1 I might need a few extra minutes. I think I can get that done

2 in 10 minutes or less.

3 THE COURT: You can get it done by 5:00 and it's taken

4 off your time on Friday.

5 MR. DAVIDOFF: Well, I am going to go very quickly,

6 then. If you look at question 15, and if you look at punitive

7 damages again, if you look at G on page 26, we believe the

8 answer on punitive damages is the same as compensatory damages,

9 the maximum. We are suggesting and we believe the evidence

10 supports a finding of $248 million, and that would be -- the

11 questions one through four would be consistent with that.

12 And then if you look at page 28 and page 29, again,

13 When do you find it became apparent the trespass or nuisance by

14 Dow would continue indefinitely? The suggested answer there

15 that we suggest from the evidence, January 31st, 1990, to

16 March 26, 1992. We believe, in any event, it was way before

17 1996 and after 1988 or 1989.

18 You will be asked this question, Do you find it

19 appeared that it would continue indefinitely on or before

20 January 30th? We think that's pretty close, actually, to the

21 date which it appeared that it would continue indefinitely,

22 January 30th 1990. We believe the evidence supports that.

23 I want to thank you, once again, ladies and gentlemen,

24 for your attention. I just want to say two few words. Dow and

25 Rockwell polluted one of the most beautiful parts of the Denver

10354

1 area and one of the most beautiful places to live in the United

2 States for 37 years. The evidence supports that. The

3 plutonium and other waste they left behind in 180 sites

4 continued and continues to pollute this area today.

5 We believe the evidence shows that class members'

6 health has and was threatened by the plutonium they left

7 behind. For 15 years and even now class members and plaintiffs

8 lived under the dark shadow of a new potentially more

9 catastrophic accident. Until very recently, there were tons of

10 plutonium that could have been released in a natural accident

11 or a fire or in some other way. There is plutonium -- no one

12 knows, including DOE in our view under the evidence, exactly

13 how much plutonium is still there buried in pipes, leached

14 under slabs of old buildings, lurking in hot spots. No one,

15 including DOE, knows how much remains in the class area

16 scattered through the soils in hot spots that the evidence

17 shows Dow and Rockwell caused to be placed there.

18 So we respectfully ask you, ladies and gentlemen, on

19 behalf of our clients to award $216 million in residential

20 damages, $27 million in land value damages, $5 million in

21 commercial damages to the class members.

22 We believe that both Rockwell and Dow should be held

23 responsible for the full amount of those damages, and finally,

24 to send a message to the wrongdoers, we ask you to award an

25 equal amount to the compensatory damages and punitive damages

10355

1 against each defendant, $248 million against Dow, $248 million

2 against Rockwell. Plaintiffs -- if you do that, plaintiffs

3 will only collect one award and not two.

4 Finally, I want to thank you on behalf of the

5 Bartletts, Ms. Cook, Ms. Babb, Schierkolks, the class members,

6 other class members that have an interest in this suit over the

7 years. It's been a very long, hard slog. They have stuck with

8 it day in and day out, and I know they appreciate the hard work

9 that you are doing even more than we the lawyers do. Thank you

10 for your attention this afternoon during a very long

11 presentation.

12 THE COURT: Ladies and gentlemen, we will be in recess

13 until 9:00 tomorrow morning. I am very exacting about the time

14 at this point because I have to be fair and allot equal time.

15 So I don't know what the weather is going to be like, but

16 please be ready to go just before 9 o'clock so that we can

17 start at 9:00. We will take a break at 10:15 to 10:30 and then

18 noon, and then we will take that break until 1:30. As I

19 mentioned to you earlier, your meals will be served as of

20 tomorrow to you, your luncheon meal, so be careful out there,

21 and we will see you tomorrow morning.

22 (Jury excused.)

23 MR. BERNICK: Your Honor, I was actually very

24 surprised to see for the first time the modification to the

25 instruction in regard to bulldozing, and apparently we have a

10356

1 communication problem. Our offices did not receive the

2 instructions.

3 THE COURT: I just received word of that. I am sorry.

4 I can tell you that when people who work for me are handling

5 the e-mail it's done correctly. When I do it, there is a

6 larger amount of error.

7 MR. BERNICK: It's okay. I suppose at the end of the

8 day I obviously -- well, there are cases you don't find out

9 what the instructions are until after the summations are done,

10 so at least Your Honor has been good enough to work on them

11 during the course of the case.

12 But the real reason that I was very frankly stunned at

13 the breadth of the instruction is that we had a colloquy in

14 connection with the motion that was made with respect to

15 Dr. Till's testimony, and I think that at least I understood

16 that colloquy to mean one thing and the instruction reads very

17 differently. Let me be much more specific about it.

18 There was a motion with respect to Dr. Till's

19 testimony, and that motion raised a variety of issues but

20 basically said you shouldn't be prepared -- you shouldn't be

21 able to offer opinions regarding the effect of bulldozing, and

22 Your Honor granted that. And when Your Honor granted that, we

23 had the following discussion before the Court. This was

24 yesterday.

25 I asked -- and this is at page 10189.

10357

1 I have a question about it, not to question what I have heard

2 but to question what it extends to. The motion was to strike

3 Dr. Till's testimony.

4 The Court said: Only with regard to the bulldozer

5 theory. The rest of it is in.

6 And obviously I don't believe there was a motion

7 pending before the Court that related to any other testimony on

8 that subject, but I want to be clear that what has been

9 stricken is Dr. Till's testimony on that subject. The record,

10 there is all kinds of evidence in the record with respect to

11 the status of plutonium on the plaintiffs' class properties.

12 Then Your Honor interjected: The status of it is not

13 the issue, Mr. Bernick. The issue is whether there is

14 testimony about removing it, not whether it has moved by

15 natural causes. There is testimony about that. There is

16 testimony in your case presented that no one can determine how

17 much is there upon the basis of the estimates and the studies,

18 et cetera. You are free to argue all that. It's the idea of

19 having a picture of a bulldozer and then saying, well, it's all

20 been removed. We have no idea where.

21 I then further asked Your Honor: There has been

22 extensive testimony about the fact of there being development

23 and the impact of development on the soil.

24 And you say: You can argue that, but you can't use

25 Dr. Till to say, I don't know anything --

10358

1 And I say: That's fine. I understand.

2 And that's the colloquy that we had.

3 Now, one portion of the instructions are tailored to

4 that and strike Dr. Till's testimony.

5 THE COURT: 2.2B.

6 MR. BERNICK: That's correct. It's in 3.35 I think we

7 have an issue because I have some handwritten comments on this

8 that are by way of a proposal that I would make to the Court,

9 but as it presently reads, it said -- says, You have also heard

10 argument that plutonium has been removed from properties in the

11 class area as a result of bulldozing, soil excavation and other

12 disturbance during real estate construction and development

13 activities in the class area. You are to disregard all such

14 argument because I recently ruled that it cannot be presented

15 or considered in deciding the trespass claims. For purposes of

16 deciding the trespass claimed, therefore, the notion that

17 plutonium has been removed from the class area through

18 development and construction activities is irrelevant, which is

19 now confined to Dr. Till.

20 The reason it's very important is that Dr. Till was

21 really the tail of the dog. I know I have used that metaphor

22 in other contexts, but I think it's apt here. All that

23 Dr. Till did essentially was to incorporate the bulldozer video

24 into his testimony, but Dr. Till is not the progenitor of this

25 issue. This issue was actually raised on extensive

10359

1 cross-examination of Dr. Smallwood in connection with the

2 plaintiffs' case. And remember he talked about the

3 bioturbation, and I brought out on cross, while bioturbation is

4 terrific, the point of fact is when an area has been developed

5 you are not going to have very many gophers around, not going

6 to have very much plutonium around.

7 At pages 4076, 4077, 4078, 4079, 4080 -- through 4081,

8 we went through the impact of demonstratives like this, and he

9 was shown DX1223 which plotted where development was in 1969,

10 and Your Honor has seen these come in through Mr. Dorchester

11 and then from '69 to '89, we can see the development has been

12 much more extensive. And also through Mr. Dorchester you saw

13 zeroing in on the class area exactly where the subdivisions

14 have been put in. Jury has seen that.

15 We also asked Dr. Smallwood about this contrast

16 between the buffer zone where the named plaintiffs lived in the

17 eastern class area. We could have argued on the basis of this,

18 these facts that the jury should draw an inference that the

19 plaintiffs' studies with respect to plutonium back in the 1970s

20 are no longer germane because the groundwork, no pun intended,

21 has been fundamentally changed, the same fashion the plaintiffs

22 argue here, because there was MUF, some of it must have gotten

23 off site. It would be a common sense factual inference. That

24 alone would be foreclosed by Your Honor's instruction.

25 There is a further point, though, which is

10360

1 Dr. Smallwood conceded this, in fact. He was an expert in the

2 area. At page 4066 it says, Because although on the plant site

3 there hasn't been much construction, there has been

4 deconstruction, when it comes to the off-site area, you're

5 aware, are you not, that the off-site area, there has been

6 construction, correct?

7 His answer is yes.

8 If you went out there last September, you saw there

9 was a lot of development on the way to Rocky Flats?

10 He says: I did.

11 I then start showing him all these different aerial

12 photos, and there is a whole series of them, 4077, 4078, and he

13 says: We can see, can we not, that the class area has been

14 developed, in this -- generally, has been very substantially

15 developed residentially, correct? This is 4078.

16 Again, continuing on, 4078, 4079, we then get to the

17 basic point which is at line 5 of 4079.

18 We've put the commercial property in as well, and we

19 can now see that there has been, in fact, very intense

20 development within the class area at this point. If this photo

21 is accurate, would you agree with me?

22 Yes.

23 Okay. Now, let's talk about the impact of human

24 activities on plutonium and soil. When you have a subdivision

25 that's developed, is it fair to say that apart from them

10361

1 gophers -- maybe used to be a lot of gophers there, but when

2 you have a residential development, where they come in, and

3 they -- and they come in with bulldozers, et cetera, would it

4 be fair to say that has a very substantial impact on biological

5 activity in the area?

6 The answer is: It can be, yes.

7 And in fact, that is what's called environmental

8 impact, is it not, when you start out with something a little

9 bit more pristine, then you have commercial development, that's

10 why we have environmental impact statements to figure out what

11 the effect is on biological activity, correct?

12 Yes.

13 Here, what if we are talking about plutonium in soil,

14 either surface or within the first top foot or 2 feet, you put

15 in a regional development, would it be fair to say that the

16 status of that plutonium and the status of biological activity

17 changes very significantly?

18 The answer is: It does.

19 When you have residential -- when you have commercial

20 development, you put in a whole shopping malls and parking

21 lots, that also has probably even more dramatic effect,

22 correct?

23 Answer: Yes.

24 You said in your report that the original depth

25 profile of plutonium at the Nevada test site and Trinity site

10362

1 has been obliterated by animal burrowing. Do you recall that?

2 Yes, I do recall that.

3 Question: Would it be fair to say where you had this

4 kind of major development shown in Exhibit 1226, that it has

5 the effect of obliterating the then existing biological

6 mechanisms and the then existing plutonium profile?

7 Answer at line 18: It does a pretty good job of

8 changing the scenario. You still have some animals around,

9 animals that burrow, like ants here, but they are not going to

10 be burrowing as deep. And the gaps between the harvester ant

11 mounds, I've driven around -- I don't know if I've been exactly

12 right here, but I've been driving around the developments

13 around Standley Lake, I noticed there are still prairie dogs in

14 some places, still are gophers in some places but certainly not

15 a complete obliteration but certainly did change the playing

16 field at this point.

17 Question: Pretty dramatically?

18 Answer: Yes.

19 Can we say -- with respect to the area shown in 1226,

20 can we say, as of the time this was done 1989, can we really

21 say to a certainty there is, in fact, plutonium from Rocky

22 Flats still at the soil in these locations? Can we really say

23 that with scientific certainty?

24 Answer: Well, wherever the disturbance has not

25 occurred.

10363

1 Question: Where the disturbance has occurred, can you

2 say with reasonable scientific certainty, yes, I actually know

3 plutonium from Rocky Flats is actually there?

4 His answer: I don't know. It would depend on the

5 nature of the development.

6 All of that is testimony that came before the jury.

7 It's fair cross-examination of their witness who talked about

8 soil disturbance from another mechanism. It went squarely to

9 the issue of the impact on development, which is a matter as to

10 which the jury could have drawn inferences in any event. And

11 all of that really is foreclosed by the instruction as it's

12 presently styled, and it has the effect of directing --

13 essentially directing a verdict that once they presented

14 evidence of their contour, we can pick up their contour and

15 whether it was properly drawn, but the jury then has to -- is

16 instructed contrary to the fact that we all know that the soil

17 is essentially undisturbed and the stuff is still there.

18 That's just not true.

19 Now, there are ways of altering this paragraph that I

20 guess could still salvage it. One way is to say, We do not

21 contend that the plutonium as a whole has been removed from the

22 class area as a whole. We are not saying that. What we are

23 saying is that their data to the extent that it was there and

24 related to undisturbed soil really has no demonstrated

25 application to the properties that the plaintiffs move on to

10364

1 because those were developed properties. Your Honor has heard

2 and the jury has heard these subdivisions were put in. The

3 bulldozers did come in. It's a massive disturbance of the

4 soil. It's a massive disturbance of the biological mechanisms

5 and the plutonium as Dr. Smallwood has acknowledged.

6 And what we are saying is that their evidence, that

7 there still remains plutonium on all of the different plaintiff

8 properties, that that evidence is not good; it's bad evidence.

9 And the jury should be permitted to consider that evidence

10 instead of being instructed, which I believe this instruction

11 does, that they are not to consider that, they are to basically

12 conclude that once it's there, if it's there once, it's always

13 there.

14 So we would ask the Court to reconsider this

15 instruction. I actually crafted some language here, Your

16 Honor, to try to expedite this because I know that we are now

17 in the middle of arguments. You have also heard argument that

18 plutonium has been removed from strike "properties" in the

19 class area because it clearly has been removed from some of the

20 properties, from the class area as a whole as a result of

21 bulldozing, et cetera, et cetera.

22 For purposes of deciding the trespass claims,

23 therefore, the notion that plutonium has been removed from the

24 class area through development and construction activities is

25 irrelevant. But then you have to say, you may consider

10365

1 evidence of development for its relevance to the issue of

2 whether contamination exists on all class properties, which is

3 the essence of the point that we were making; that is, that if

4 you can't determine now that, in fact, it is on all of the

5 class properties.

6 To preserve our record, we would object to the

7 instruction 3.5, that paragraph as it reads now. We believe

8 that paragraph should be removed. We believe the instruction

9 with regard to Dr. Till's testimony which appeared earlier is

10 clear. It's precise and it's tailored.

11 In the alternative, if that request is denied and this

12 instruction is to be given, we would ask that it be amended so

13 that the jury can consider evidence of construction or its

14 relevance as to whether plutonium can still be found on all the

15 different class properties.

16 MR. DAVIDOFF: Your Honor, I promise to be more brief

17 than counsel. We believe and still believe that Your Honor

18 should have enforced the stipulation that was made by counsel

19 at court hearings in 1999 before Judge Matsch and before Your

20 Honor last year where -- and the question was asked by counsel,

21 why are we even trying this issue to a jury at all? We don't

22 even need to try this to a jury. Your Honor refused those

23 exhibits. Your Honor refused, you know, denied our motion for

24 JMOL, but I am not rearguing the instruction. There is a lot

25 of these instructions that we are unhappy about, and we are in

10366

1 closing argument now. I mean, how long can we reargue these

2 instructions?

3 That testimony that they just put up there with

4 Dr. Smallwood is a complete misconstruction of his testimony.

5 He is an expert on animal bioturbation; he's not an expert on

6 plutonium in soil. He is an expert on animal bioturbation. We

7 wouldn't ask him to disturb anything in the soil, plutonium or

8 not, and that was a very able tactic throughout our case in

9 chief, cross-examining our experts on areas of others expertise

10 rather than their own.

11 But the fact that -- I think it's misconstructed. I

12 assume that it was permissible, he can argue it for the jury,

13 but the instruction has been issued. And I relied on the

14 instruction as issued in delivering closing argument. And

15 that's why, frankly, I was surprise by the objection that was

16 made because I think Your Honor has decided this, and I

17 respectfully request that it not be reconsidered.

18 THE COURT: I will let you know in the morning before

19 9 o'clock. We will be in recess.

20 MR. BERNICK: I know you want to think about it. Here

21 is the problem. I have got literally graphics that have to go

22 to the graphics people to be cut by 7 o'clock this evening, and

23 I hate to do this because not only does it put pressure on the

24 Court, the Court has enough pressure, but at 9 o'clock tomorrow

25 morning it's going to be very late for me.

10367

1 THE COURT: All right. I will let you know about

2 7:00. We will be in recess. Court is in recess.

3 (Recess at 5:17 p.m.)

4 INDEX

5 Item Page

6 CLOSING ARGUMENTS

7 By Mr. Davidoff 10232

8 By Ms. Roselle 10233

9 By Mr. Davidoff 10272

10 REPORTER'S CERTIFICATE

11 I certify that the foregoing is a correct transcript from

12 the record of proceedings in the above-entitled matter. Dated

13 at Denver, Colorado, this 18th day of January, 2006.

14

15 ______________________________

15 Janet M. Coppock

&nbps;

Page 10564 (running)

1 IN THE UNITED STATES DISTRICT COURT

1 FOR THE DISTRICT OF COLORADO

2

2 Civil Action No. 90-CV-00181(JLK)

3

3 MERILYN COOK, et al.,

4

4 Plaintiffs,

5

5 vs.

6

6 ROCKWELL INTERNATIONAL CORPORATION and

7 THE DOW CHEMICAL COMPANY,

8

8 Defendants.

9 _______________________________________________________________

9

10 REPORTER'S TRANSCRIPT

10 Trial to Jury

11 VOLUME 87

12 _______________________________________________________________

12

13 Proceedings before the HONORABLE JOHN L. KANE, JR.,

14 Judge, United States District Court for the District of

15 Colorado, commencing at 9:10 a.m., on the 20th day of January,

16 2006, in Courtroom A802, United States Courthouse, Denver,

17 Colorado.

18

19

20

21

22

23

24 Proceeding Recorded by Mechanical Stenography, Transcription

24 Produced via Computer by Janet M. Coppock, 901 19th Street,

25 Room A-257, Denver, Colorado, 80294, (303) 893-2835

10565

1 APPEARANCES

2 MERRILL GENE DAVIDOFF, DAVID F. SORENSEN, ELLEN T.

3 NOTEWARE and PETER NORDBERG, Attorneys at Law, Berger &

4 Montague, P.C., 1622 Locust Street, Philadelphia, Pennsylvania,

5 19103-6365; and LOUISE M. ROSELLE of Waite, Schneider, et al,

6 1513 Fourth and Vine Tower, One West Fourth Street, Cincinnati,

7 Ohio, 45202; GARY BLUM, Attorney at Law, Silver & DeBoskey,

8 1801 York Street, Denver, Colorado 80206, appearing for the

9 Plaintiffs.

10 DAVID M. BERNICK, DOUGLAS KURTENBACH, MARK J.

11 NOMELLINI, STEPHANIE A. BRENNAN and ELLEN T. AHERN, Attorneys

12 at Law, Kirkland & Ellis, L.L.P., 200 East Randolph Drive,

13 Chicago, Illinois, 60601, appearing for the Defendants.

14 * * * * *

15 PROCEEDINGS

16 MR. DAVIDOFF: Apparently Mr. Bernick has an issue,

17 Your Honor.

18 MR. BERNICK: I have two issues, Your Honor. I take

19 issue with apparently where Mr. Davidoff intends to stand with

20 reference to the jury. I faced all kinds of flack about

21 standing behind the lecturn, and I was permitted to venture out

22 a little bit over there.

23 THE COURT: You were clear up here too.

24 MR. BERNICK: Not during the whole part.

25 THE COURT: A good part. I don't want people hanging

10566

1 over the jury.

2 MR. BERNICK: I don't have the privilege of standing

3 there. It's counsel's table. He is fundamentally long --

4 THE COURT: The nicest thing about today is I don't

5 have these school yard spats to play with anymore. Go back

6 there to the lecturn. If you need to come up here, do; if you

7 don't, don't. What's next? I am tired of this. What's next?

8 MR. BERNICK: I have got an important point to raise.

9 THE COURT: I am sure you do. Raise it. I am asking

10 for it. What is it?

11 MR. BERNICK: I will just make the objections, Your

12 Honor. I don't want to try your patience this morning.

13 THE COURT: My patience is already gone, Mr. Bernick.

14 If you have something to raise now --

15 MR. BERNICK: Yes. I would like to have clarification

16 on what the rule is going to be with respect to rebuttal. It's

17 not clear. As I understand rebuttal, and we went through this

18 in connection with the rebuttal case, rebuttal is designed to

19 address issues that I raise for the first time. They are not

20 foreseeable or reasonably foreseeable issues. It's not an

21 opportunity to go back over the whole case.

22 THE COURT: It is not an opportunity to go back over

23 the whole case. Anything raised by you or reasonably inferred

24 from what you have raised in your closing is something that he

25 can do.

10567

1 MR. BERNICK: I would object to that because --

2 THE COURT: Your objection is noted. Bring in the

3 jury.

4 MR. BERNICK: I would ask that the plaintiffs exercise

5 what I understand to be common courtesy in the courtroom which

6 is there are not audible responses during the course of the

7 case.

8 THE COURT: I have already asked them to do that, and

9 I will ask them again.

10 MR. DAVIDOFF: Your Honor, the very first document

11 that I am going to put on the screen has some small print, and

12 I may want to just approach the screen to point it out to the

13 jury, if that's all right.

14 MR. BERNICK: I have no objection to that.

15 THE COURT: Approach the screen if you need to and go

16 back there. If you need to stand here and put up a chart

17 there, you can do it. I haven't put a chain on that lecturn.

18 I am sorry I didn't at the beginning of the case.

19 MR. DAVIDOFF: I am sorry too, Your Honor.

20 THE COURT: Well, that's enough of that.

21 (Jury present.)

22 REBUTTAL ARGUMENT

23 MR. DAVIDOFF: Good morning, ladies and gentlemen.

24 Good morning, Your Honor, again. I guess you know that my team

25 lost in the football season and that Philadelphia and

10568

1 Pittsburgh are ardent rivals, so I have become a Bronco's fan

2 lately and so have the rest of us, because given that rivalry,

3 we, of course, want the Broncos to prevail this weekend.

4 Ladies and gentlemen, yesterday you heard the

5 defendants' spin on the evidence. And I would like to -- they

6 tried to make it into an FBI raid case again. Can we put up

7 P86, please? This is the -- let's just flash to the front.

8 This was shown to you very early in the trial, very

9 early in the trial. And if you will see, May 4, 1989, a little

10 more than a month before the FBI raid, an internal letter at

11 Rockwell. We can go back to page 2.

12 And you will see here, they are reporting the

13 complaint of Mrs. Cook before the FBI raid. She is a friendly

14 landowner, and her complaints result from the public and

15 business community fears and ignorance about the Rocky Flats

16 plant. The recent years' increasing controversies at the plant

17 have affected her ability to obtain land improvement loans from

18 the banks, potential land purchasers cannot get loans, realtors

19 will not represent her and horse owners have recently removed

20 their horses from her boarding care. These are all real and

21 measurable impacts to Ms. Cook caused by the presence of the

22 Rocky Flats plant.

23 Now, one of the things and probably the only thing

24 that you didn't hear in the lengthy tale that defendants spun

25 yesterday was any explanation of why they, the defendants or

10569

1 DOE, never lifted a finger to help the neighbors, never lifted

2 a finger to help the neighbors despite all the money that they

3 spent at Rocky Flats to clean up the mess that Dow and Rockwell

4 left.

5 You saw hundreds of fancy graphics, magical, magnetic

6 boards. You saw a dazzling array of argument and evidence,

7 very, very skillfully delivered, I might add. Most of it was

8 the defendants' demonstrative evidence. What you didn't hear

9 was evidence from their witnesses to undercut or undermine the

10 slovenly and disgraceful way they ran this dangerous plant.

11 I know you have heard the evidence. I know you won't

12 believe something just because it's in a pretty magnetic board

13 or a pretty graphic. Upon examination, their evidence, their

14 story, their witnesses crumble.

15 I want to start by talking about Dr. Till. You heard

16 a lengthy exposition about Dr. Till yesterday. But in order to

17 put that in context, could we put 3.7 up? Actually, let's

18 start with 3.6, jury instruction 3.6. Why is this important?

19 If you will focus in on paragraph 1, A and B there.

20 There are two ways that the plaintiffs can show

21 interference with use and enjoyment, which is a requirement for

22 nuisance. One is by causing class members to be exposed to

23 plutonium and placing them at some increased risk of health

24 problems, and I want to make a point right here. It's not

25 substantial increased risk. It's the interference that has to

10570

1 be substantial. The risk does not have to be substantial.

2 Some increased risk.

3 But that is not the only way. The other way is by

4 causing objective conditions that pose a demonstrable risk of

5 future harm to the class area. And then you are referred to

6 some other instructions. One or the other or both is enough to

7 show substantial interference.

8 If there is a demonstrable risk of future harm to the

9 class area as of the time when you find that the nuisance was

10 complete and comparatively enduring, you don't even have to

11 prove health risk.

12 But I want to talk about health risk because it's

13 important. Dr. Till, the first point, it isn't the added risk

14 that has to be substantial; it's the interference that has to

15 be substantial.

16 The second point, Dr. Till's $6 million DOE funded

17 study says the risk -- it says the risk is increased for all

18 class members. It specifically says that. Dr. Till and

19 Dr. Clapp disagree on the degree of the risk, but there is no

20 disagreement that there is some increased risk for all class

21 members. Dr. Till says that in the RAC reports. He minimizes

22 it. Dr. Clapp disagrees.

23 Third point, all of this money for Dr. Till came from

24 DOE, the $6 million at Rocky Flats, and we don't know how much

25 because there is no record of it, the seven other DOE sites

10571

1 where he did studies, that money all came from DOE.

2 Now, Dr. Till and RAC have a vested interest in

3 showing minimal problems at DOE sites. Do you remember, ladies

4 and gentlemen, Dr. Wing's testimony about what happens when DOE

5 research comes out wrong? He was sent back to Chapel Hill,

6 North Carolina, to get it right. Would DOE fund Dr. Till's

7 studies at seven sites for millions and millions and millions

8 of dollars, ask yourself this question, or who knows how much

9 if he didn't get it right in DOE's eyes.

10 Fourth point about Dr. Till. DOE is not some innocent

11 bystander here. The defendants blame DOE when it's convenient,

12 but they invoke all this DOE-sponsored research to prove that

13 there is no health risk or insubstantial health risk. This is

14 a DOE facility. DOE could have prevented the contractors from

15 doing harm, but they did not. DOE is on the hook for the

16 judgment in this case and any other cases that might be

17 brought. DOE's public image is on the line. DOE wants to

18 convince the public that the plant is cleaned up.

19 Final point on Dr. Till and health risk, there was no

20 monitoring or inadequate monitoring at this plant. In fact, we

21 showed data and charts during their case and ours that showed

22 the absence of monitoring at this facility or the inadequacy of

23 monitoring at this facility. There were admissions that even

24 if they monitored, they didn't register or record or analyze it

25 correctly.

10572

1 That is why studies were needed in the 1990s in the

2 first place. Those studies would not have been needed if they

3 had monitored correctly.

4 Now, RAC relied on the same inadequate data, the same

5 inadequate monitoring, the same inadequate environmental checks

6 that the plant suffered with for 37 years. RAC even

7 acknowledged in the prologue to its report that the data at

8 Rocky Flats was more inadequate than at any other site that RAC

9 had ever studied. So their study was necessarily limited by

10 the data.

11 Let me talk about Dr. Clapp. You heard a tremendous

12 attack yesterday on Dr. Clapp. That attack is completely

13 unwarranted. Let's remember who he is. He is the former

14 director of the Massachusetts Cancer Registry. The results

15 that he found were consistent with the results that were found

16 by Dr. Johnson in the 1970s. Dr. Johnson was one of the early

17 researchers that was trashed.

18 MR. BERNICK: Your Honor, that study never came into

19 evidence at all.

20 MR. DAVIDOFF: Your Honor, this is transcript pages

21 4800 through 4805 where Dr. Clapp testified about the Johnson

22 study and the Chinn study. And Your Honor, I will file a --

23 excuse me, Mr. Bernick. I will file a document that

24 specifically ties everything I say this morning, if necessary,

25 to things that were said in the closing yesterday to avoid

10573

1 interruptions.

2 THE COURT: The objection is overruled. Proceed.

3 MR. DAVIDOFF: Anyway, what I was saying, ladies and

4 gentlemen, was his results, Dr. Clapp's results, as he

5 testified, were completely consistent with those found by

6 Dr. Johnson in the 1970s who had been criticized, of course, by

7 the DOE establishment or the AEC establishment and Dr. Chinn in

8 1987, and he so testified in this trial.

9 Now, what did the defendants attack? I am going to

10 put up the defendants' document, not our document, the

11 defendants' document. That's DX1307A. This is what they

12 did -- here is the document that they showed that they called

13 Clapp's odds ratios. And this is the document that they wanted

14 you to look at and conclude from testimony that it wasn't

15 statistically significant.

16 Now, you heard Dr. McFadden and Dr. Wecker, even, who

17 was the one that prepared this chart and others testify that

18 both the 95 percent confidence level and the 90 percent

19 confidence level are appropriate. You know, in this trial we

20 are not trying a personal injury case. In this trial it's more

21 probably than not. Look at how close --

22 MR. BERNICK: Again, that is an improper argument.

23 THE COURT: Sustained.

24 MR. DAVIDOFF: Look at how close these numbers are to

25 the 95 percent confidence level. All perhaps but the 88s --

10574

1 this is in the '89 to '92 time period after the latency period

2 had a chance to develop, all but the 88s and possibly even the

3 88s are close enough that they should satisfy the 90 percent

4 confidence level.

5 MR. BERNICK: Your Honor, that is completely without

6 foundation in the record. That's the 95 refers to a test since

7 those numbers -- that's not those numbers. There is no

8 evidence whatsoever of that.

9 MR. DAVIDOFF: That's in Dr. Wecker's

10 cross-examination.

11 MR. BERNICK: That's not the point.

12 THE COURT: Go ahead with your argument. I think I

13 have already instructed you enough, you are going to get it

14 again at the final instruction, the arguments of counsel are

15 not evidence. Go ahead.

16 MR. DAVIDOFF: In Dr. Wecker's cross-examination, he

17 admitted that these -- 90s, these were high enough that they

18 probably would satisfy the 90 percent confidence level if they

19 didn't satisfy the 95 percent confidence level. Now, what

20 Dr. Clapp's results show is that there was enough found, enough

21 of an increase and enough of a trend there should have been a

22 further investigation of this by those who have the millions of

23 dollars to do a complete epidemiological study.

24 That was not done. I want to go back to 3.7 again,

25 and I want to go back to the second way in which interference

10575

1 can be found. That's 3.7, jury instruction 3.7. Now, if you

2 could go to page 2, and the second full paragraph and just

3 focus on that.

4 Ladies and gentlemen, the second way, second possible

5 form of interference you must consider in deciding the first

6 element of plaintiff class' nuisance claim is whether one or

7 both of defendants' activities at Rocky Flats interfered with

8 class members' use and enjoyment of their properties by

9 creating objective conditions that pose a demonstrable risk of

10 future harm to the class area. And I am going on.

11 If there was at the time that this became complete a

12 risk through natural forces, cleanup activity, the conduct of

13 others and/or accidents, and harm could be caused through the

14 class area through those kinds of accidents and those kinds of

15 releases, then that is enough without health risk to find

16 interference with use and enjoyment for purposes of nuisance.

17 MR. BERNICK: That's an incorrect reading of the

18 instruction.

19 THE COURT: These are not appropriate objections. The

20 objection is overruled. Proceed.

21 MR. DAVIDOFF: Thank you, Your Honor. The future risk

22 of harm still exists today. It certainly existed from 1990

23 when we believed the nuisance was complete until the present.

24 That photo that we still have down there in front of the jury

25 box up against the wall there, eight years later those

10576

1 buildings with all the plutonium were still up. So it isn't

2 just health risk as counsel argued yesterday that is important,

3 either health risk or future risk of harm.

4 You heard a lot of argument yesterday, ladies and

5 gentlemen, you saw a lot of graphics about other agencies and

6 groups that supposedly signed on to DOE's and RAC's studies and

7 work.

8 CDH, where was the witness that defendants called from

9 CDH to explain how CDH signed off on this? Where was the CDH

10 witness to be cross-examined? Where was the HAP witness? We

11 heard a lot of argument all through the trial and yesterday

12 about how the HAP endorsed this. Did the defendants call a HAP

13 witness? Of course not.

14 The epidemiologist, the only epidemiologist, the name

15 that was called was Dr. Clapp by the plaintiffs. The

16 defendants did not call an epidemiologist.

17 Where was the witness from ATSDR, the federal agency,

18 ATSDR? The defendants did not call any witness from ATSDR to

19 be examined. In fact, ATSDR did no work. They reviewed

20 things.

21 Where was the witness from the Environmental

22 Protection Agency? There was no Environmental Protection

23 Agency witness to be cross-examined about how they approved of

24 RAC's work or DOE's work or the defendants' work. This is all

25 just talk that these agencies and groups were enthusiastic or

10577

1 supporters. There were no witnesses.

2 We brought the only witnesses who testified that there

3 were citizen groups and even official panels who disagreed.

4 Dr. Selbin of the soil action level panel, he testified

5 86 percent of the comments that were in writing disagree.

6 Dr. Biggs of the governor's monitoring panel, he testified that

7 there was disagreement and that Rockwell ignored his

8 disagreement.

9 And I have a final point to make about the agencies

10 even though what you heard about the agencies, the other

11 agencies was all talk. CDH, EPA, ATSDR, these are agencies

12 that have their own butts to cover in a way. They allowed this

13 problem to develop at Rocky Flats for 37 years without

14 successfully stopping it, without even impeding it. They have

15 every interest in not rocking the boat because those agencies

16 would be embarrassed, but yet the defendants themselves brought

17 no witnesses from those agencies to be cross-examined.

18 And speaking of witnesses, ladies and gentlemen, where

19 was the Dow witness to appear and say they did a good job so

20 that he could be cross-examined? Did you hear a Dow witness?

21 Only in our case when we brought Johnny Ray. There is some of

22 them around. Some of them were in this courtroom. Defendants

23 chose not to call a witness from Dow. We brought Johnny Ray.

24 Where were the Rockwell line employees, not the paid

25 former Rockwell managers, the Rockwell line employees to come

10578

1 in here and contradict Ron Avery and say that the incinerator

2 didn't run? The only -- who did they have to contradict that?

3 They had paid witness, Mr. Weston, paid witness, Mr. Weston,

4 the former manager of the plant who testified on

5 cross-examination that his lawyers told him not to investigate

6 the incinerator claim further.

7 Where was their appraiser who actually did either an

8 appraisal or consulting? They criticized our appraiser who is

9 a nationally known appraiser of contaminated sites because the

10 job was part appraisal and part consulting, but their appraiser

11 didn't do appraisal or consulting. He didn't sign any

12 certification.

13 Where was their local Denver real estate appraiser?

14 They had one, Mr. Bowes. You remember the testimony about

15 Mr. Bowes. They didn't bring him in here. Where were these

16 other FBI people who disagreed with Mr. Lipsky? There are

17 none, just Mr. Norton who we will discuss in a minute. He was

18 not an investigator. He was not an FBI man. He was a

19 political appointee, a prosecutor. He didn't do any

20 investigating himself. He was only at the Rocky Flats plant

21 once, once. He didn't know any of the evidence personally.

22 The defendants produced a lot of talk, a lot of paid

23 experts, but few studies, no real witnesses, no unpaid,

24 unbiased witnesses.

25 Now, do you remember jury instructions 1.7 and 2.2?

10579

1 Rather than scramble around for them, Mark, I will just

2 describe them. Jury instruction 1.7 is about credibility,

3 credibility of witnesses. That says you have the right to use

4 a lot of factors that you use to judge the credibility of

5 anybody to judge the credibility of witnesses.

6 And there was a lot of talk yesterday about the

7 credibility of their experts. Let's look at jury instruction

8 2.2. That says that you judge the credibility of their experts

9 the same way that you judge the credibility of any other

10 witness. You judge the credibility of their experts the same

11 way -- I think it's the next paragraph down, Mark. You judge

12 the credibility of their experts the same way that you judge

13 any other testimony. They don't have some special carte

14 blanche to being believed or being credible just because they

15 are experts.

16 Do you really believe $10 million in DOE -- in

17 defendants' payments had no influence on these witnesses? Even

18 Dr. McFadden kept his hands off Dr. Wise's study because it was

19 inconsistent with his own writings. I don't know if you

20 remember the graphic that we had, 1205. Dr. McFadden says he

21 is not sponsoring Dr. Wise's study because he had written that

22 you don't pick Bs too close to As because the Bs may not be

23 free of the effect of the injury.

24 Let's talk about qualifications. Dr. McFadden is a

25 brilliant economist. I will admit that. That's why he gets

10580

1 paid so much money. But this is only his second case on

2 property damages. He is not a property damage expert.

3 You know, the defendants put in a slick graphic with

4 Dr. McFadden's CV or resume. We put in Dr. McFadden's resume,

5 their witness, we put that into evidence. I urge you to look

6 at it. You will see that his expertise is not in property

7 value diminution. He just brings his Nobel Prize credentials,

8 and then he signs off on property diminution. He testified on

9 cross-examination, this is his second case and the first one

10 was that case in Ohio that he worked on with Dr. Wise.

11 So I urge you, look at his CV, witnesses who could not

12 remember what they were paid, these experts, witnesses like The

13 Brattle Group which was Wise and McFadden, who called

14 Rockwell's lawyers to volunteer their help in defending this

15 case. And you were told yesterday that these experts are

16 neutral? How neutral is that. Look at their website. We put

17 that into evidence, too. Look at how they advertise to try to

18 help companies defend big lawsuits, that's neutral?

19 And speaking of witnesses, the man who did most or all

20 of the work for Dr. Wise and Dr. McFadden, that's Dr. Liu,

21 remember, his name came up in the testimony, you didn't see him

22 in this trial. He is the one that crunched the numbers, not

23 Dr. Wise and not Dr. McFadden.

24 Finally, let me talk about economists in one other

25 way. What did you hear from the defendants all through the

10581

1 trial? What did you hear from the defendants in closing

2 argument? You heard about a recession. Remember the

3 recession, the recession that supposedly explained why property

4 prices were going down? Well, they got two credentialed

5 economists. Did you hear a peep out of Dr. Wise or

6 Dr. McFadden about when there was a recession in Denver? No,

7 you did not. You know why? Because there has never been a

8 recession in the history of the United States that lasted for

9 13 years, as these defendants would want you to believe.

10 I need to make a few points about the class, ladies

11 and gentlemen. The class was certified 13 years ago. The

12 class members do not have to be similar. The claims of the

13 class members have to be similar. Here the claims are similar

14 for nuisance, for trespass, for property value diminution or

15 depression. Those claims are similar, if not identical. The

16 class members are not the wrongdoers. Rockwell and Dow are the

17 wrongdoers, and DOE is part of the cover-up. What did the

18 class members who were all affected in a similar way do to

19 invite this problem?

20 You were told -- this is an interesting one. I don't

21 quite know how to handle this, Your Honor, but you were told

22 yesterday that -- that we are not supposed to consider

23 bulldozers because bulldozers are now out of the case. That's

24 2.2AA and 3.5, jury instruction 2.2AA and 3.5. Why were you

25 told that? I don't know because defendants were attempting to

10582

1 persuade you -- that's AA. Let's go to 3.5. It's probably

2 more on point. If you look at 3.5, ladies and gentlemen --

3 that's the old 3.5. Here is the new 3.5.

4 You have also heard argument that plutonium has

5 been -- you have heard argument, not evidence, you have heard

6 argument that plutonium has been removed from properties in the

7 class area as a result of bulldozing, soil excavation and other

8 disturbance during real estate construction and development

9 activities in the class area. You are to disregard all such

10 argument because I recently ruled that it cannot be presented

11 or considered in deciding the trespass claims. For purposes of

12 deciding the trespass claims, therefore, the notion that

13 plutonium has been removed from the class area through

14 development and construction activities is irrelevant. That's

15 the newest jury instruction 3.5.

16 The only reason I mentioned the bulldozers is because

17 it was mentioned during closing argument yesterday. You are

18 not to consider it.

19 How did the contours get drawn in the first place?

20 They were drawn -- could I see the class map, please? They

21 were drawn by Krey and Hardy. You heard their names mentioned

22 in closing argument yesterday, but counsel did not remind you

23 that Krey and Hardy were AEC scientists, Atomic Energy

24 Commission scientists. They drew the contour. The contour

25 that was chosen for the class area is the medium contour, not

10583

1 even the low contour. It's the medium contour.

2 How does the contour get drawn? You can't drill every

3 square inch or every square foot of the class area. It's drawn

4 through sampling. Every contour is drawn through sampling.

5 But I stress, this is the AEC's contour, not the plaintiffs'

6 contour. The AEC agreed with the contour. Martell thought it

7 even went further. Dr. Budnitz agreed with the contour and so

8 testified. And of course, you heard testimony that Rocky Flats

9 plutonium was found as far as 40 miles away.

10 We have a pull-out from another document, P1118. I

11 think this is a useful document, ladies and gentlemen, P1118.

12 We are just going to show you one sentence from it. This is

13 G1312, Mark. They were talking about on-plant soil.

14 It should be noted that while corrective action has

15 historically been to remove the affected soils, it is a

16 physical impossibility to remove it all. Therefore, minor

17 infiltration inevitably remains and relative hot spots are to

18 be expected, even if not detected.

19 This is a Dow document, Exhibit P1118.

20 What did Dr. Smallwood say about that document? And

21 this is at G1317 through 20, Mark. I am going to have to run

22 through this very quickly, ladies and gentlemen. He was asked

23 about that same document.

24 This is at transcript 4121 to -22: Do you know of any

25 reason why that same statement would not apply to plutonium

10584

1 contaminated soil off site?

2 And then G1318: Yeah, it would apply off site.

3 Wherever animals are digging in the soil and plants are rooting

4 and the plutonium is moving around, the depth -- you know, I

5 mean -- what's happening is plutonium being moved to a greater

6 vertical depth distribution and unless you are prepared -- we

7 are prepared as a society to remove all of the soil that could

8 be affected by digging animals or plants, some -- some is going

9 to remain. It's out of the control of us.

10 And then the next, G1319: Do you have an opinion,

11 sir, to a reasonable degree of scientific certainty about

12 whether plutonium has been and will be brought to the surface

13 and then spread off site of Rocky Flats as a result of

14 bioturbation? What is that opinion?

15 And then he goes on, 1320: It will continue like it's

16 continued in the past. As long as the animals and the plants

17 can get to the plutonium, they will bring it to the surface,

18 expose those loosened soil particles with the contaminant to

19 the wind at Rocky Flats, and it will move as has happened in

20 the past, according to investigators who have taken soil

21 samples downwind of Rocky Flats.

22 Now, what's the meaning of all this? First of all,

23 it's only on the trespass claim you have to find plutonium is

24 on every property, but we presented proof, the historical proof

25 and current proof about plutonium being on every property. It

10585

1 was the defendants' obligation to contravene that proof. They

2 did not do it adequately.

3 I would like to focus on stories again, and let's talk

4 about the MUF story. You heard about an hour long presentation

5 yesterday about MUF, nearly an hour, more stories. When they

6 want to explain MUF, they say it was unmeasured and it was

7 shipped off site.

8 First point, when they say that they want to blame the

9 AEC or the DOE for the waste on site, they say they were told

10 that they couldn't ship it off site. When they want to explain

11 the MUF away, they say the MUF was unmeasured and it got into

12 the waste barrels and it was shipped off site. What is it?

13 They told you about the Roberts report that was done by EG&G.

14 EG&G is another defrocked, fired contractor, the one that came

15 after Rockwell.

16 MR. BERNICK: Objection, that is irrelevant.

17 THE COURT: Sustained.

18 MR. DAVIDOFF: The point, ladies and gentlemen, is not

19 whether EG&G was fired. When they wrote this report, when

20 Roberts wrote this report, he was writing the report for the

21 contractor that came after Rocky Flats. He is not a

22 disinterested observer. But did they call Mr. Roberts or

23 anybody else? Where is their witness on MUF to contradict

24 Dr. Cochran and -- who is an expert on it and said that there

25 was a significant probability that some had escaped to the

10586

1 environment, where was their witness to testify about MUF?

2 All you heard about MUF from the defendants were

3 stories, fairy tales. You didn't have a witness.

4 What about the hold-up in the stacks and pipes? What

5 witness came in here and said none of that escaped to the

6 environment? If it's in the stacks, if it's in the pipes, if

7 it's in the ducts, it can get into the environment. What

8 witness came in and said it still isn't buried there? We are

9 the ones that have the evidence on that, Dr. Selbin and the

10 charts that Ms. Roselle showed you yesterday.

11 The MUF is still unexplained. When they finally

12 released the figure in 1994 after fighting about it for years

13 after 1989, it was 2620 pounds. What's the MUF today?

14 2620 pounds.

15 MR. BERNICK: Objection. There is no evidence in the

16 record on MUF today, period.

17 MR. DAVIDOFF: Your Honor, there has been no change in

18 the DOE's --

19 THE COURT: The objection is overruled. It's an

20 extrapolation and an inference may be made. Go ahead.

21 MR. DAVIDOFF: Most of the MUF documents are still

22 secret. Mr. Kaufman, the defendants called Richard Kaufman,

23 the former prosecutor. I am sorry, we called him. That's

24 G1316. Thank you for correcting me. So this is Richard

25 Kaufman. He was the prosecutor who was defending DOE, so he

10587

1 was adverse to the plaintiffs, and we called him as a hostile

2 witness.

3 So that's saying DOE is telling us and the Court that

4 of these MUF documents that DOE has classified, MUF documents

5 that plaintiffs asked for and that the DOE is producing, DOE is

6 whiting out, deleting, approximately 75 percent of the text of

7 each document, correct?

8 Answer: Yes.

9 Yes, there were 1.3 million documents or pages

10 declassified. They were useless. They were mostly whited out.

11 They still are today. And you heard argument about the

12 1.3 million pages today, but you were not reminded of that.

13 And I would also add that when it comes to MUF, you

14 were shown yesterday, and I don't think we have it handy,

15 DX542, do we have that, if we could go to the top of the second

16 page, just right at the top. I think this is the right

17 document. We want to go down a little further.

18 Anyway, you were shown a document about where

19 Mr. Voilleque had MUF declassified in 1994 with respect to the

20 1957 fire. That's actually the same document, P10, that we

21 have shown you about. The only point we made about that in one

22 of the other miniclosings, the Jiminy Cricket point, was that

23 DOE was cooperating with RAC in 1994. RAC was their favorite

24 contractor. They were still fighting with the plaintiffs. You

25 heard testimony that it wasn't until after November 1995 when

10588

1 DOE was held in contempt that DOE finally started producing

2 these whited-out documents.

3 I want to talk about contracts. You won't see a

4 contract defense in the jury instructions. Why? Because there

5 is no contract defense. You can look forever in those

6 instructions. You will not find it. If a person has a

7 contract to deliver packages and is asked to deliver poison, by

8 the way, plutonium, of course, is bad or worse than poison, you

9 don't just go along for the dollars. You object. If

10 necessary, you quit, and you blow the whistle.

11 MR. BERNICK: Your Honor, that usurps the function of

12 the Court, and instructing the jury on the law is a completely

13 different legal situation.

14 THE COURT: Overruled.

15 MR. DAVIDOFF: If necessary, you quit and you blow the

16 whistle if you are asked to do something that's wrong. Dow and

17 Rockwell kept renewing these contracts until they were fired.

18 No one made them renew the contracts. Mr. Norton testified

19 that Rockwell never asked for more dollars to handle problems

20 as was argued yesterday until after the FBI raid. This is

21 G1157, and this is former U.S. Attorney Norton from when he is

22 on the stand. Remember, this is defendants' witness.

23 The investigation asked both DOE and Rockwell budget

24 and program managers to identify any instance from 1987 to 1989

25 in which DOE had denied Rockwell funding in a situation where

10589

1 Rockwell had explained to DOE that lack of funding will cause

2 the plant to break the law. No witness, either from DOE or

3 Rockwell, identified such an instance. The first time Rockwell

4 said it couldn't meet production and comply with the law was

5 after the search, of course, that's the FBI search, in

6 June 1989.

7 You heard more stories yesterday that these were mere

8 permitting violations. That's like the bulldozer story, flatly

9 untrue. The purpose of the laws is to prevent deadly toxins

10 from polluting the environment. That is the purpose of those

11 laws.

12 MR. BERNICK: The bulldozer refers to an instruction

13 that Your Honor gave. Your Honor never said that there was any

14 falsity to the facts, and I think that it's being -- an abuse

15 of the revision that took place in the instructions.

16 MR. DAVIDOFF: What I am saying is false is that these

17 were mere permitting violations.

18 THE COURT: The objection is overruled. Proceed.

19 MR. DAVIDOFF: These are not mere permitting

20 violations. The purpose of those laws is to make sure that

21 deadly toxins do not get out into the environment. DOE signed

22 a three-party agreement. Now, you heard testimony in this case

23 that both Dow and Rockwell ghost wrote the DOE correspondence

24 to the environmental agencies. Let's start with Rockwell. We

25 will go back in time.

10590

1 If you look at G1297, and this is from pages 7993 and

2 -94 of the transcript. It wasn't DOE writing this

3 correspondence; it was Rockwell.

4 Okay. In fact, it was general plant practice for

5 Rockwell to prepare most environmental correspondence and other

6 documents for DOE's letterhead and signature. And then there's

7 footnote 12, quote again, in a great many instances, Rocky

8 Flats documents went to EPA and CDH in their verbatim form DOE

9 received them from Rockwell, but on DOE letterhead and over

10 DOE's signature.

11 Question: Those were among the findings?

12 Answer: That's what the statement says, you're

13 correct.

14 And that was Mr. Norton testifying about his own

15 statement that he filed in this court in connection with the

16 criminal prosecution.

17 Was this a new practice? Let's look back at P214

18 again in the very first paragraph. You saw this document, just

19 the first paragraph, please, bottom of the first paragraph.

20 The only point I want to make from this document, because you

21 have seen it before, it's a very important document, P214, here

22 we are 20 years earlier.

23 I understand the AEC release was largely authored by

24 Dow, so my comments are directed at those authors, as well as

25 any Dow official who approved the text of the release.

10591

1 Well, I mean, you heard argument for almost an hour

2 yesterday, DOE made me do it, but what did Mr. Norton say?

3 Mr. Norton said, and I won't show this again, Mr. Norton said

4 that Rockwell was the tail that wagged the dog. A couple other

5 choice quotes from Mr. Norton directly relevant, G1156. Mere

6 technical violations, that's what you heard yesterday, mere

7 technical permitting violations. The crimes charged bear a

8 substantial similarity to the violations and types of

9 violations alleged in the search warrant.

10 Rockwell has pled guilty to serious -- this is G1155.

11 Rockwell has pled guilty to serious environmental crimes.

12 Rockwell devotes a great deal of its sentencing memorandum to

13 pointing out that the United States' investigation failed to

14 prove certain sensational allegations against the company. The

15 characterization is nothing more than a Rockwell invention to

16 divert attention from the serious crimes to which it pled

17 guilty. Whether or not a particular allegation was sensational

18 was never a measure of whether serious crimes had occurred or

19 were occurring.

20 Technical permitting violations, another story.

21 Now, the reason you didn't see witnesses from the

22 agencies whose permits were violated is that EPA and CDH had

23 repeatedly cited Rockwell again and again and again, and

24 Rockwell had flouted the problems, flouted the citations. It

25 dragged on for years and years. Ultimately were the

10592

1 environmental agencies the heroes? No. Someone from Congress

2 leaked the Mary Walker memo, remember the Mary Walker memo,

3 D493, leaked it to Agent Lipsky.

4 MR. BERNICK: Objection. That is not in the record.

5 MR. DAVIDOFF: That is in evidence, Your Honor, it was

6 so testified.

7 MR. BERNICK: It is entirely irrelevant to this case.

8 THE COURT: The objection is overruled.

9 MR. DAVIDOFF: After the Mary Walker memo was leaked

10 to Agent Lipsky by a congressional staff investigator, Agent

11 Lipsky and Bill Smith of the EPA, they were the two heroes.

12 They were the ones who started the investigation. They were

13 the ones who brought Rockwell down. They were the ones who

14 exposed the mess at Rocky Flats. They were the ones who

15 successfully spawned an FBI investigation. Why do you think

16 they went after Agent Lipsky so hard? Why do you think in

17 cross-examination? Because that's where it was created, not in

18 his direct. He didn't say anything about Mr. Norton

19 misrepresenting in his direct. That was all in the

20 cross-examination. That was a fabricated conflict by defense,

21 by the defense. And why was it fabricated? Because they

22 brought it out so that they could bring Mr. Norton in.

23 The fact is Agent Lipsky went to Congress. He told

24 the truth. He testified. Sometimes what he testified because

25 he knew the facts and he knew the details disagreed with what

10593

1 his boss said.

2 The same thing happened here. Agent Lipsky told the

3 truth to Congress. He told the truth here. Sure, Congress

4 investigated this. There was a huge political controversy.

5 The political controversy is not part of this case. Lipsky was

6 subpoenaed. Norton was subpoenaed. But what is the main point

7 I am making? DOE, EPA, CDH, they allowed this nuclear cesspool

8 to fester for decades until a genuine hero, Agent Lipsky,

9 finally brought them down.

10 Now, Norton, you saw some of his admissions. He was a

11 political appointee. He was not an investigator, and he

12 testified that he made the decision on what to charge and what

13 not to charge.

14 Why is that important? If we could look at jury

15 instruction 2.5. I think you want to go down to the second

16 paragraph.

17 You should not consider the plea agreement or its

18 content, however, or the fact that Rockwell did not plead

19 guilty to additional crimes and that the Government did not

20 seek to prosecute Rockwell for any other crimes, in determining

21 whether Rockwell committed any particular conduct at Rocky

22 Flats in addition to the misconduct to which it pled guilty.

23 You should make your determination regarding Rockwell's other

24 alleged conduct based solely on the evidence presented in this

25 trial.

10594

1 You had the man that led the investigation that was on

2 the ground for years and years that knew every detail. He

3 testified that many additional crimes were committed. He

4 showed you the film. Mr. Norton was not familiar with those

5 details.

6 I want to talk about intent and intentional. The

7 defendants greatly distorted these requirements. I have to do

8 this quickly, ladies and gentlemen. Jury instruction 3.2,

9 subparagraph 2. This is only relevant to trespass. That's

10 down there at the bottom, Mark.

11 Dow or Rockwell or both of them intentionally

12 undertook an activity that in the usual course of events caused

13 plutonium from Rocky Flats to be present on the class

14 properties.

15 It isn't an intention to put the plutonium on the

16 class properties; it is an intention to do something that is so

17 willful and wanton in this case because it's relevant to

18 punitives too like leaving rotting barrels out for 11 years,

19 that in the ordinary course plutonium will be present on the

20 class properties. They certainly intentionally undertook the

21 activities or activities that in the usual course of events

22 caused plutonium to be placed on the class properties.

23 Then let's talk about nuisance. That's trespass.

24 That's what's needed for trespass, not the intent to put the

25 plutonium in the class area, the intent to do the activity that

10595

1 in the usual course causes the plutonium to be there. Let's

2 look at nuisance. That's jury instruction 3.6, page 2.

3 Intent is not even required. Is that page 2, Mark?

4 3.6, elements of the nuisance claim, up at the top, Mark,

5 paragraph 3, The activity or activities causing the

6 unreasonable and substantial interference were either

7 intentional or negligent, either intentional or negligent.

8 Intent is not required for nuisance.

9 Let me focus since I am running short on time on 3.15.

10 You see you're referred to 3.13 to 3.16, but let me focus on

11 3.15, jury instruction 3.15. What do you need for negligence?

12 What you need for negligence, As a result -- because it's an

13 inherently dangerous activity, As a result -- that's the second

14 sentence, the second sentence, Mark -- Dow and Rockwell were

15 required to exercise the highest possible degree of skill,

16 care, diligence, and foresight in conducting their activities.

17 And then if we could go down a little further, If

18 either Dow or Rockwell or both of them did not fulfill this

19 duty when they performed any activities that caused or

20 contributed, that's caused or contributed to a substantial and

21 unreasonable interference, then their conduct was negligent.

22 So you don't have to find intent. You only have to

23 find for negligence and nuisance that they didn't meet this

24 extremely high standard. I think the evidence is overwhelming

25 that they didn't. And you only have to find that they either

10596

1 caused or contributed to causing the nuisance, the unreasonable

2 interference as designed in this instruction. Don't get

3 confused when you do this.

4 Let's just look at G1283. This is from their own

5 internal -- this is Mr. Putzier. It was utmost in our minds at

6 the time that with some haste we should cover up this area to

7 prevent the high winds that would come on in the winter months

8 of '68 and '69, from carrying the soils off plant site. We

9 discussed it with management, and I think pretty much all the

10 pressure that we could bear was brought on them.

11 This is from P63, ladies and gentlemen, this excerpt.

12 Even so, it seemed like the engineering head at the

13 time was not excited enough about it to at least have some

14 gravel brought in and put down.

15 And then the next one, G1314, same gentleman writing

16 his memoirs 30 years as the Dow and then the Rockwell Health

17 Physics head, Mr. Putzier: I have witnessed one presentation

18 of the plant briefing in which the speaker implied we did not

19 have as much concern for the environment in those days. As far

20 as Health Physics is concerned, I would take issue with that,

21 but with respect to our management and the AEC, the reader can

22 draw his own conclusions.

23 Next point, ladies and gentlemen, I called this the

24 Benjamin Franklin point. We are not required to have Benjamin

25 Franklin as every expert. Why is it that Benjamin Franklin --

10597

1 remember, he was a politician. He was a statesman. He was a

2 scientist. He was a presenter. He was a man that could do

3 everything, sort of a man of all trades. Well, that's not the

4 way it works in a courtroom. We are not required to have, for

5 example, Mr. Hunsperger know what Dow did wrong at the 903 pad.

6 That's not his area of expertise. We are not required to have

7 Dr. Budnitz know what happened to property values in the wake

8 of the nuisance and trespass that Dow and Rockwell caused. We

9 have liability experts, that's Drs. Budnitz, Cochran and

10 Smallwood. I might add, Dr. Budnitz and Cochran both did that

11 video unlike the defendants' spoon-fed videos. They did their

12 own video, and they both endorsed it.

13 Then we have damage experts. Now, the defendants did

14 a very, very skillful job yesterday in entangling the expertise

15 of one expert with the expertise of another trying to get

16 admissions from an expert not within the field of his own

17 expertise. That's not the law. The health experts should

18 explain the health risks. The survey experts should explain

19 stigmatization, Drs. Flynn and Slovic. Radke is a GIS expert

20 and a regression expert. He used the University of California

21 standard regression programs. Remember, he is from the same

22 university as Dr. McFadden.

23 Dr. McFadden didn't use those programs. He delegated

24 them to Dr. Liu at The Brattle Group. If he had done the work

25 himself, Dr. McFadden, he would have been using the same

10598

1 programs Dr. Radke did.

2 Unlike the defendants, we had a local Denver property

3 expert. He has expertise in contaminated sites. He did a

4 comprehensive study. He used the work of Flynn, Slovic and

5 Radke to apply to property price depression. No, he didn't do

6 a traditional appraisal because a traditional appraisal is not

7 what you need when you are doing a traditional appraisal, is

8 not what you need when you are doing property value depression,

9 property value diminution. What do you need? What you need is

10 a combination of appraising and consulting skills, and he so

11 testified and he so certified. And unlike the economists, he

12 is governed by a code of ethics which he abided by.

13 What did he conclude? Yes, he used his judgment. He

14 didn't use -- he used all of the methods. He didn't come out

15 at the highest level, and he didn't come out at the lowest

16 level. He came out with 10 percent for residential properties,

17 216 million, lower than what he would have -- his opinion would

18 have been if he had just relied on the surveys, higher than

19 what his opinion would have been if he had just relied on the

20 regression, an average of about $18,000 per home in today's

21 dollars and an average of about $5,600 per acre in today's

22 dollars for vacant land or $27 million.

23 He did a comprehensive study. The defendants promote

24 Mr. Dorchester, but Mr. Dorchester did nothing but criticize

25 Mr. Hunsperger. He didn't sign any certifications,

10599

1 Mr. Dorchester. He didn't certify his work under Colorado

2 standards. You didn't see that. Mr. Hunsperger's studies in

3 this case have been published. Mr. Dorchester -- in fact, none

4 of defendants' experts have been published in peer-review

5 journals.

6 Let's look at 3.22. We are both on the subject of

7 damages and CCE, complete and comparatively enduring. And 3.22

8 is a very important instruction. 3.22 says what has to happen

9 before something becomes complete and comparatively enduring.

10 I will abbreviate it CCE. Look at the top of 3.22 and -- first

11 page, third paragraph.

12 In a case like this, the law requires you measure the

13 amount of any such diminution or depression in class property

14 values at a particular point in time. That point is the time

15 or time period when the injurious situation became complete and

16 comparatively enduring. The injurious situation is complete

17 when the effects of the trespass or nuisance are known to their

18 full extent. That's very important. The injurious situation

19 is complete when the effects or trespass are known to their

20 full extent. And it is comparatively enduring when there is no

21 reason to expect that these effects will end at a definite time

22 in the future.

23 Well, yesterday in closing argument defense counsel

24 quoted Mr. Norton, their witness, that's G1315, from page 10446

25 of yesterday's transcript, quoting their witness Mr. Norton.

10600

1 What we found was that in consideration of our

2 national defense goals, an institutional culture shrouded in

3 secrecy had prevailed over the years at Rocky Flats, shrouded

4 in secrecy, which until changed in 1989 by the Secretary of

5 Energy, that can be debated, but we will pass it over, resulted

6 in nuclear weapons production receiving paramount priority

7 while environmental compliance was far down the list.

8 Let's go back to jury instruction 3.22 at the bottom

9 of the page. Shrouded in secrecy, the effects of the trespass

10 or nuisance have to be known to their full extent. That only

11 happened after 1989, after the FBI raid in 1989 is when the

12 facts about the nuisance that have been operated for 37 years

13 were known to their full extent. That's when it became

14 complete.

15 And when did it become comparatively enduring? You

16 saw the headlines, Flats site tainted to infinity, Flats

17 cleanup will take until well into the next century. It was

18 certainly indefinite. It was comparatively enduring when there

19 is no reason to expect that these effects will end at a

20 definite time in the future. That is why we say that 1989 or

21 1990 is the time to appraise when this became complete and

22 comparatively enduring.

23 Yesterday the defendants tried again to trick you into

24 this before and after, but look at 3.24, jury instruction 3.24.

25 It's very clear in this case, second paragraph: In determining

10601

1 whether plaintiffs have proved actual damages, you also should

2 remember that plaintiffs are not required to prove that any

3 diminution in value caused by Dow or Rockwell's activities at

4 Rocky Flats came into existence before or after the FBI raid or

5 some other specific event. Instead, as stated in instruction

6 No. 3.22, the measure of damages to be proved by plaintiffs is

7 the value the class properties would have had but for any

8 trespass or nuisance by Rockwell.

9 Hunsperger is a real property damage expert. He

10 measured damage for that 8-year period like Dr. Radke from

11 '88 to '95. That is the time window in which the damages

12 should be measured, not before and after. It is the amount by

13 which property values were depressed in that period.

14 Now, finally I want to say -- I am going to take 15

15 seconds on the defendants' affirmative defense. Here is the

16 defendants' affirmative defense which is late in the jury

17 instructions, page 10554: So if there was a diminution in

18 value, let's assume that there is something that happened back

19 in the early '70s that caused the 7 percent to arise. Defense

20 counsel: There is no evidence that is true. There is no

21 evidence that is true. That's bottom of the next to the last

22 paragraph, No evidence that is true. That's the end -- that's

23 a concession by defense counsel, that's the end of their

24 affirmative defense.

25 Ladies and gentlemen, you heard a lot of stories

10602

1 yesterday, and you saw during the trial that they put those

2 pretty pictures of the HAP panel members up, one of whom was

3 Bini Abbott who lives out in that area there and was on the HAP

4 panel.

5 You even heard defense counsel yesterday refer to

6 Mrs. Abbott as if she was on their side. There is her picture.

7 Remember, they flashed her picture during the trial and

8 yesterday. They referred to Mrs. Abbott, and they said she was

9 on their side. Of course they didn't call Mrs. Abbott.

10 Defense counsel mentioned she has been in the courtroom during

11 the trial. Yes, she has been in the courtroom with the class

12 plaintiffs supporting her neighbors and --

13 MR. BERNICK: Objection.

14 THE COURT: Sustained. She hasn't testified. The

15 objection is sustained.

16 MR. DAVIDOFF: Thank you, Your Honor.

17 Your Honor, ladies and gentlemen, I finally have one

18 area where I agree with defense counsel. I agree with him on

19 his last point yesterday. What he said to you was you should

20 write the final chapter. Edgar Allen Poe, I don't know if you

21 remember from school in The Raven, what should the title of

22 that final chapter be? I submit to you it should be Never

23 more, never more in Denver, never more in this country. Your

24 final chapter can express what you think of 50 years of

25 pollution, negligence, misconduct, lying, crimes and cover-up.

10603

1 Our clients have stuck with this for 16 years to see justice

2 finally done in this courtroom.

3 I am asking you to please write that chapter. I am

4 asking you to award the full amount of $248 million in

5 compensatory damages and $248 million in punitive damages that

6 the plaintiffs have requested. I am asking you to tell

7 Rockwell, to tell Dow, corporate America, even DOE, this will

8 not be tolerated anymore in our communities. Stop the

9 wrongdoing. Stop the lying for once in 50 years, give the

10 neighbors some justice.

11 I thank you, once again, from my clients' hearts, my

12 clients' hearts for your hard work, your attention, your

13 patience. Whatever your verdict, we believe it will be the

14 right and just one. Thank you.

15 All right. We will take a recess now for about 15

16 minutes, ladies and gentlemen, then we will come back, and we

17 will do the instructions.

18 THE COURT: I want all the people in the spectator

19 section to understand when we come back I am going to be

20 reading 80 pages of instruction. If you don't want to hear it,

21 stay out, but I don't want people moving around very much to

22 distract from this. It's a very difficult thing to keep those

23 people on the jury focused on the instructions, so if you don't

24 want to be here, that's fine. We will be in recess.

25 (Recess at 10:15 a.m.)

10604

1 (Reconvened at 10:40 a.m.)

2 THE COURT: Thank you for making the correction on the

3 verdict form on page 29, whoever did that, it's appreciated.

4 MR. BERNICK: Your Honor, after the instructions are

5 read, as we look at the 10th Circuit law, we are probably

6 required out of an abundance of caution to renew our

7 objections. I just wanted to alert the Court to that, at least

8 that's how we look at it.

9 THE COURT: After the instructions I will ask counsel

10 for both sides if they have any additional objections to make

11 to the instructions as given. You have already made your

12 record on it. It's not necessary to repeat it, but for the

13 record, if you want to do that, you can.

14 (Jury present.)

15 THE COURT: Ladies and gentlemen of the jury, I am

16 going to go over -- not go over, I am going to go through each

17 one of these instructions. There is 89, 88 pages of them, and

18 I want to say two things about it before we begin, and that is

19 that in reading these, I will emphasize certain words and

20 certain phrases as is contained in the instructions. I mean

21 what I say. There is no hidden message here. I am not trying

22 to emphasize something to have you think one certain way or

23 not. This case is yours, and that's what my obligation is is

24 to get this case to you for your decision, not mine. And the

25 emphasis I give is related solely to trying to put the language

10605

1 off the printed page and into some sort of living -- a live

2 kind of communication because it's difficult enough for people

3 to listen to law and not be bored to death by it.

4 I want to tell you of two experiences I have had, and

5 hopefully this will illustrate it for you.

6 I was fortunate enough to be called for jury service

7 with the city and county and Denver and I sat in two cases.

8 They didn't take this long, I can assure you, but I sat in

9 those cases. And in one case the judge waited until the very

10 end of the case before the instructions were given, and then

11 he, in a monotone, kind of mumbled them. What happened was

12 this. We went into the jury room, and the biggest guy there

13 who drove a beer truck for a living grabbed the instructions

14 and threw them in the corner and said, nobody cared about that.

15 Why should we? And then we had a little bit of discussion to

16 try to get them back, and at the time, I was a little bit more

17 than concerned. But when I reflected upon it and said, how can

18 I apply this experience to my own work, I realized that the

19 importance we give things is taken to a great extent by how

20 important other people take them.

21 Now, I have repeated throughout this trial, and when

22 you were qualified to and selected to serve on this jury, that

23 you are bound by the law, and that you have to apply the law as

24 it's given to the facts that you find from the evidence. If I

25 just mumbled this stuff or gave it in a monotone, I couldn't

10606

1 expect you to place any more importance on it than I do. So

2 what I say, am I excited about these instructions? You bet.

3 Has there been a lot of work that's gone into it by counsel and

4 by me and by my staff? Oh, yeah, a lot.

5 So if I am emphasizing words in what I am telling you,

6 it is not to suggest anything at all about what I think your

7 verdict should be, but it's simply to tell you these are

8 important factors. The whole instructions, they have to be

9 taken in a wholistic fashion. No instruction is more important

10 than any other. But are they all important? Yes, they are.

11 They are important for you. They are important for the

12 parties. They are important for me. And quite frankly, they

13 are important for the idea of the rule of law.

14 If I have made a mistake in these instructions, follow

15 them anyway because the Court of appeals will not review your

16 judgment, but they will review mine if the case is brought to

17 them. If the public looks at this and doesn't like what's

18 happening, then they have a Congress to talk to about the law.

19 But our solemn responsibility is to apply the law as it exists

20 today. The idea is that the same law will apply, equal justice

21 under law, any courtroom in the United States, and that's what

22 we are all trying to do.

23 So don't take anything from the fact that I am

24 emphasizing one thing or another until -- except for what I

25 said, just simply trying to take it from a dull page and make

10607

1 it a little bit more understandable. That's all the emphasis

2 is for.

3 The other thing I want to mention to you before

4 beginning is that there is a 30-page special verdict form, and

5 I told you in the beginning it was a road map for you, and that

6 is that every single question there refers you to the

7 instruction that deals with that particular aspect of the case,

8 and so you can, looking at these questions that have to be

9 answered, refer back to the instructions. You each have a copy

10 of the special verdict form and you have a copy of the

11 instructions. You can mark them up as whatever you wish

12 because we will have a clean copy that is the official one to

13 be filled in by the presiding juror and signed by all of you.

14 What we are going to do is this. I will give these

15 instructions. We will have a court security officer who comes

16 in and is sworn to protect you and keep you separate so that

17 you can make your deliberations. And then when you have

18 reached your verdict, you will notify the Court security

19 officer. He will notify me. We will bring the parties back in

20 to the courtroom, and we will read the verdict in its entirety,

21 and then each one of you will be asked, was this and is this

22 your verdict? Then you will be discharged.

23 I will have something to say at that point about the

24 fact that you can talk to whoever you want to about the case

25 after that, that's entirely up to you, but between now and then

10608

1 you have to be especially on guard of two things. One is even

2 inadvertently somebody talking, just stay away from that. The

3 other is this. If one of you needs to leave the deliberations

4 or one of you isn't yet there in the morning, you have to wait

5 because all 11 of you have to discuss the case, so be patient

6 with one another in that regard as well.

7 Because there are large exhibits that are here, what I

8 am going to do is -- they wouldn't fit in the jury room, so

9 what I am going to do is I am going to lock the door to this

10 jury room, put a sign on it that says the jury is deliberating,

11 stay out of here. And that other door will be locked so that

12 when you are deliberating, if you want to come into this

13 courtroom to look at exhibits that are too big to be brought

14 in, that's -- you can do that. That will be fine. And then go

15 back into the jury room for further deliberation, so this is in

16 a way an annex to the jury room, it will be for you.

17 After I finish with these instructions, the lawyers

18 and their very talented assistants are going to make sure that

19 only the exhibits that were admitted into evidence are here in

20 the courtroom for you, and they will clear out the rest, and

21 that will take a while, but it's going to take you a while too

22 because you are going to have to elect your presiding juror,

23 and then you are going to have to decide how you are going to

24 proceed with this. I have got some suggestions in one of these

25 instructions for you, but they are not binding. You can do

10609

1 this the way that you want.

2 The one request I have in that regard is this, that

3 after you get your presiding juror selected and you have pretty

4 much decided how to proceed, we would greatly appreciate

5 knowing what sort of hours you are going to maintain in your

6 deliberations. I am sure that on Sunday afternoon you want to

7 be here deciding this case, right? So I mean, those are the

8 kind of things. But just let us know when you are going to be

9 here because I have to have -- the lawyers have to be on call.

10 If there is a question from you, and there is an instruction on

11 that, I have to call them in, and we have to have the comments

12 and observations, analysis and arguments of counsel before the

13 question can be answered. And so if that happens, you have

14 such a question, they have to know and get here as quickly as

15 possible.

16 The other thing is that when you do reach a verdict,

17 it's going to take a little bit of time, but again I have to

18 contact the lawyers and have them come into court so that they

19 can be here to receive the verdict.

20 And with that in mind, we will just go ahead with what

21 we have to do now. So please turn to instruction 1.1 that

22 begins on page 2 of the instruction. This is a brief summary

23 of the claims and defenses. It's already been read to you but

24 it's going to be read again.

25 The person or party who brings a lawsuit is called the

10610

1 plaintiff. The named plaintiffs in this case are Merilyn Cook,

2 William and Delores Schierkolk, Richard and Sally Bartlett and

3 Lorren and Gertrude Babb. In actuality there are thousands of

4 plaintiffs in this case. Because it would not be practical to

5 conduct thousands of trials, these individuals filed this as a

6 class action.

7 In a class action a few plaintiffs act as the

8 representatives in court for all the other class members. I

9 will sometimes refer to this group as the plaintiff class or

10 simply the class. The members of the plaintiff class are

11 persons who own property in a specific defined area known as

12 the class area near the Rocky Flats nuclear weapons plant on

13 June 7, 1989. That means only persons who owned property

14 within the class area on June 7, 1989, are considered

15 plaintiffs and only those persons can recover damages if the

16 plaintiffs prevail in this action.

17 The Rocky Flats nuclear weapons plant, Rocky Flats, is

18 a government-owned facility located on about 6500 acres,

19 16 miles northwest of downtown Denver. Before operations at

20 Rocky Flats were halted in 1989, nuclear weapons components

21 were manufactured there. The components were fashioned from

22 materials including plutonium, a man-made radioactive element.

23 Other hazardous substances, both radioactive and

24 nonradioactive, were also used or disposed of at Rocky Flats

25 when the plant was in operation.

10611

1 The defendants in this case are Dow Chemical Company

2 and Rockwell International Corporation. Dow and Rockwell

3 operated the Rocky Flats nuclear weapons plant at different

4 times as contractors for the United States Department of

5 Energy. That means they worked under a contract for the

6 Federal Government to manage and run the plant. Dow operated

7 the plant between 1952 and 1975, and Rockwell operated the

8 plant from 1975 until 1989.

9 The plaintiffs make two claims against Dow and

10 Rockwell on behalf of themselves and the rest of the class.

11 The first claim is for trespass. Trespass is an invasion of a

12 person's property without his permission. Plaintiffs claim Dow

13 and Rockwell caused a trespass because the class area was

14 contaminated with plutonium released from Rocky Flats as a

15 result of various accidents, mishaps and bad environmental

16 practices that occurred during each defendants' period of

17 operation.

18 Plaintiffs' second claim is for nuisance. A nuisance

19 is something that substantially and unreasonably interferes

20 with another person's use and enjoyment of their land.

21 Plaintiffs claim Dow and Rockwell substantially and

22 reasonably interfered with class members' use and enjoyment of

23 their properties because plutonium contamination in the class

24 area has led to increased health risks and because there is a

25 risk of additional future releases of plutonium and other

10612

1 hazardous substances into the class area from the plant site.

2 Plaintiffs claim that Dow and Rockwell's trespass and

3 nuisance have depressed the value of properties in the class

4 area. The plaintiffs seek damages to compensate the plaintiff

5 class for their lost property value. Plaintiffs also seek

6 punitive damages from both Dow and Rockwell.

7 Defendants deny plaintiffs' claims and contend that

8 they each operated Rocky Flats in a safe and responsible

9 manner. Defendants admit that plutonium from Rocky Flats is

10 present in the class area, but dispute that it is located

11 throughout this area or that they are liable for trespass.

12 They also deny that plutonium is present in the class area at

13 levels that pose any significant risk or that there is a threat

14 of future releases of plutonium or other hazardous substances

15 from the Rocky Flats site to the class area.

16 Defendants further deny that any interference with

17 class members' use of enjoyment of property is substantial and

18 unreasonable enough to constitute a nuisance or that they are

19 otherwise liable for nuisance.

20 Finally, defendants deny that the alleged trespass or

21 nuisance to depressed property values in the class area or that

22 plaintiffs and the other class members suffered any loss of

23 property value as a result of defendants' operations at Rocky

24 Flats.

25 All persons are equal before the law regardless of

10613

1 race, national origin, citizenship or even whether the party is

2 a corporation. I tell you that all parties are equal before

3 the law to remind you that you must base any decision in this

4 case on the law and facts, not outside factors such as race,

5 national origin, citizenship or corporate status. All persons

6 are equal before the law. A corporation is considered by the

7 law to be a person. Corporations are entitled to the same fair

8 and conscientious consideration by you as any other physical

9 person. Corporations can act only through their officers and

10 employees. Any act or omission of an officer or employee while

11 acting within the scope of his or her employment or authority

12 is the act or omission of the corporation.

13 It is your duty to decide from the evidence what the

14 facts are. You and you alone are the judges of the facts. You

15 have heard evidence and now it is time for you to decide what

16 the facts are and then apply those facts to the law I give you.

17 That is how you will reach your verdict. In doing so, you must

18 follow the law whether you agree with it or not. At no time

19 during the trial did I suggest what I think your verdict should

20 be nor do I want you to guess or speculate about my views of

21 what verdict you should render.

22 You will decide what the facts are from the evidence

23 that the parties have presented during the trial. That

24 evidence consists of the sworn testimony of witnesses on both

25 direct and cross-examination regardless of who called the

10614

1 witness, documents and other things received into evidence as

2 exhibits, and any facts on which the lawyers agreed or which I

3 may instruct you to accept as true.

4 The following things are not evidence and you must not

5 consider them as evidence in deciding the facts of this case.

6 One, statements and arguments by lawyers are not evidence. The

7 lawyers are not witnesses. What they say in their opening

8 statements, closing arguments and at other times is intended to

9 help you interpret the evidence, but it is not evidence. If

10 the facts as you remember them differ from the way the lawyers

11 have stated them, your memory of the facts controls.

12 Questions and objections by the lawyers are not

13 evidence. Lawyers have a duty to their clients to object when

14 they believe a question is improper under the rules of

15 evidence. You should not be influenced by the objection or by

16 my ruling on it.

17 Three, testimony that has been excluded or stricken or

18 that you have been instructed to disregard is not evidence and

19 must not be considered. In addition, I have allowed some

20 testimony or exhibits only for a limited purpose and you must

21 consider such only for that limited purpose.

22 For example, I have instructed you that newspaper

23 articles and other media reports were admitted for the limited

24 purpose of showing that the information contained in these

25 articles was available to the public, but not for the purpose

10615

1 of proving the facts stated in these articles and reports were

2 true. I will remind you of this and other limiting

3 instructions in a few minutes.

4 Anything you may see or hear when the court is not in

5 session is not evidence, even if what you see or hear is done

6 by or said by one of the parties or by one of the witnesses.

7 You are to decide the case solely on the evidence received in

8 this courtroom during the trial.

9 You are to consider only the evidence in the case, but

10 in your consideration of the evidence, you are not limited

11 solely to what you see and hear as the witnesses testify. You

12 are permitted to draw from facts that you find have been proved

13 such reasonable inferences as seem justified in the light of

14 your experience.

15 Inferences are deductions or conclusions your reason

16 and common sense lead you to draw from the facts established by

17 the evidence in the case.

18 There are two kinds of evidence, direct and

19 circumstantial. Direct evidence is testimony by a witness

20 about what that witness personally saw or heard or did.

21 Circumstantial evidence is indirect evidence; that is, it is

22 proof of one or more facts from which one can find another fact

23 exists or is true. You should consider both kinds of evidence

24 in deciding this case. It is for you to decide how much weight

25 to give to any evidence, direct or circumstantial.

10616

1 There are rules of evidence that control what can be

2 received into evidence. When one lawyers asks a question or

3 offers an exhibit into evidence and another lawyer on the other

4 side thinks that it is not permitted by the rules of evidence,

5 the other lawyer may object. If I overrule the objection, the

6 question may be answered and the exhibit received. If I

7 sustain the objection, the question cannot be answered and the

8 exhibit cannot be received.

9 Whenever I sustain an objection to a question, you

10 must ignore the question and must not guess what the answer

11 might have been. Sometimes I may order that evidence be

12 stricken from the record and that you disregard or ignore such

13 evidence. That means that when you are deciding a case, you

14 must not consider the evidence that I told you to disregard.

15 The fact that a plaintiff files a lawsuit is not

16 evidence that the other party did anything wrong. The fact

17 that a plaintiff complains that he has been damaged is not

18 evidence that he has been damaged or that the other party

19 violated the law. You cannot say, well, there must be

20 something wrong here or the case would not be in court.

21 In deciding the facts of this case, you will have to

22 decide which witnesses to believe and which witnesses not to

23 believe. You may believe everything a witness says, only part

24 of it or none of it.

25 In considering the testimony of any witness, you may

10617

1 consider: One, the witness' opportunity and ability to see or

2 hear or know the things to which the witness testified; two,

3 the quality of the witness' memory; three, the witness' manner

4 while taking the oath and while testifying; four, whether the

5 witness has an interest in the outcome of the case or any

6 motive, bias or prejudice; five, whether the witness' testimony

7 is contradicted by anything the witness said or did at another

8 time by the testimony of other witnesses or by other evidence;

9 six, how reasonable the witness' testimony was in light of all

10 the evidence; and seven, any other facts that bear on

11 believability.

12 The weight of the evidence as to a fact does not

13 necessarily depend on the number of witnesses who testify to

14 that fact. If you believe a witness has willfully lied

15 regarding any material fact, you have the right to disregard

16 all or any part of the witness' testimony.

17 This is a civil case. Therefore, the plaintiffs have

18 the burden of proving their claims by what is called a

19 preponderance of the evidence. That means that no matter who

20 produces the evidence, when you consider the plaintiffs' claim

21 in light of all the facts, you believe their claim is more

22 likely true than not true. To put it differently, if you were

23 to put all of the evidence in favor of the plaintiffs and all

24 of the evidence in favor of Dow or Rockwell on opposite sides

25 of the scales, plaintiffs would have to make the scale tip to

10618

1 their side in order for your verdict to be against Dow or

2 Rockwell. If the plaintiffs fail to meet this burden, your

3 verdict must be for Dow and Rockwell.

4 In defense to plaintiffs' claims, Dow and Rockwell

5 have each asserted an affirmative defense which will be

6 described to you more fully later. An affirmative defense is

7 more than a denial of the claim. You should treat Dow and

8 Rockwell's affirmative defense in the same way you treat the

9 plaintiffs' claims; that is, Dow and Rockwell as the parties

10 asserting the affirmative defense have the burden of proving

11 that defense by the same standard, that is, of proving that the

12 affirmative defense is more likely true than not true.

13 In evaluating whether plaintiffs and defendants have

14 met their respective burdens on their claims and defenses, you

15 need to know that the law does not require parties to call all

16 witnesses -- as witnesses all persons who may have been present

17 at any time or place involved in the case or who may appear to

18 have some knowledge of the matters to be determined by you from

19 the evidence, nor does the law require the parties to produce

20 as exhibits all papers or other things mentioned in the

21 evidence in the case. The law is -- this is a law that is

22 uniformily applied in all civil cases as a matter of practical

23 necessity and common sense. It is simply not possible for the

24 law to require proof to the degree of absolute certainty.

25 In this case, the problem of proof is further

10619

1 complicated because of Government-imposed secrecy concerning

2 activities at the Rocky Flats installation. The U.S.

3 Department of Energy has classified documents concerning these

4 activities, and the resulting classification means that some

5 information is deemed secret and is not available to the

6 public. The authority of the Department of Energy to classify

7 information as secret is firmly established by laws enacted by

8 the Congress of the United States.

9 Neither this Court nor the jury in this case has the

10 authority to decide whether such classification was proper,

11 irrespective of any reasons or allegations made challenging

12 that process.

13 The Department of Energy has made some information

14 concerning Rocky Flats available by a process known as

15 declassification, meaning that some documents, some parts of

16 documents are no longer considered secret. The propriety of

17 these declassification decisions is likewise not a matter to be

18 decided in this action.

19 You will also see some documents that have been made

20 available by the Department of Energy that contain obliterated

21 or marked-out words. This process is called redaction which

22 means that the information removed is not available to us in

23 this trial. For the reasons I have just given, not only are

24 the parties in this case not required to produce as exhibits

25 all papers or other things mentioned in the evidence, they

10620

1 cannot produce some of these documents and things because the

2 Department of Energy has classified that information as secret.

3 You may not speculate or guess about what the

4 unavailable or redacted information might be. Such unavailable

5 or redacted information might have been favorable or

6 unfavorable to one side or the other in this case, but you must

7 confine your evaluation to the evidence presented to you and

8 base your decision solely on the evidence received during

9 trial.

10 Although there are two defendants in this case, it

11 does not follow from that fact alone that if one defendant is

12 liable to the plaintiffs, both defendants are liable. Each

13 defendant is entitled to a fair consideration of the evidence.

14 Neither defendant is to be prejudiced should you find against

15 the other. All instructions I give you govern the case as to

16 each defendant.

17 I will now say a word about your conduct as jurors,

18 and I have done this before, and there is some continuation of

19 it into your deliberations. First, do not talk with one

20 another about this case or about anyone who has anything to do

21 with it until the end of the case when you go to the jury room

22 to decide on your verdict.

23 Second, do not talk with anyone else about this case

24 or about anyone who has anything to do with it until the trial

25 has ended and you have been discharged as jurors. Anyone else

10621

1 includes members of your family and your friends. You may tell

2 them that you're a juror in the case and I have ordered you not

3 to tell them anything else about the case until I have

4 discharged you.

5 Third, do not let anyone talk to you about the case or

6 about anyone who has anything to do with it. If someone tries

7 to talk to you, please report it to me immediately.

8 Fourth, do not read any news stories or articles or

9 listen to any radio or television reports about the case or

10 about anyone who has anything to do with the case.

11 Fifth, do not do any research such as consulting

12 dictionaries or other reference materials and do not make any

13 investigation about the case on your own.

14 Six, do not make up your mind about what the verdict

15 should be until after you have gone to the jury room to decide

16 the case and you and your fellow jurors have discussed the

17 evidence. Keep an open mind until them.

18 Seven, each of you has one or more notebooks

19 containing the names of the witnesses and copies of exhibits.

20 You are free to take notes in order to enhance your memory or

21 assist you in recollecting your deliberations. I caution you,

22 however, not to become a slave to your notes. It is important

23 that you observe witnesses and listen to their testimony. Your

24 note taking should merely assist you.

25 A deposition is testimony taken under oath before the

10622

1 trial and preserved in writing or on videotape. Deposition

2 testimony can be read into evidence or shown by videotape. You

3 are to give the same consideration to deposition testimony as

4 to live testimony presented here in the courtroom. That is,

5 you are to judge the credibility of the witness and determine

6 the weight to be given to the testimony to the best of your

7 ability under the circumstances as if the witness had been

8 before you on the witness stand when he made the statement

9 under oath.

10 You have heard opinion evidence from people I held

11 were qualified to testify as experts. People I found were

12 expert in some field by knowledge, skill, experience, training

13 or education may state their opinions on matters in that field

14 and may also state the reasons for their opinions. Witnesses

15 who I did not identify as expert witnesses are not to be

16 considered experts in any field even if they have specialized

17 training or advanced degrees. Expert opinion testimony should

18 be judged just like any other testimony. You may accept it or

19 reject it and give it as much weight as you think it deserves

20 considering the witness' education and experience, the reasons

21 given for the opinions and all of the other factors that you

22 consider when determining the credibility of the other

23 witnesses.

24 Experts generally rely on some assumptions in

25 developing their opinions. These assumptions are likewise

10623

1 subject to your evaluation and should be considered along with

2 the rest of the evidence. In resolving the conflicts of the

3 testimony of expert witnesses, you should weigh the opinion of

4 one expert against that of another. In doing this, you should

5 consider the qualifications and believability of each witness,

6 the reasons for each opinion and the matters upon which it is

7 based.

8 Some of the expert witnesses from whom you have heard

9 were retained on behalf of Dow and Rockwell, both of whom are

10 corporations, and others were retained on behalf of the class.

11 In judging the testimony of these expert witnesses, you should

12 remember that all persons are equal before the law regardless

13 of race, national origin, citizenship or whether the party is a

14 corporation or an individual. All parties involved in this

15 litigation, whether they are individuals or corporations are

16 entitled to retain and pay experts.

17 In light of his illness, Dr. James Flynn was

18 unavailable to testify any further in this trial. The live

19 testimony offered by Dr. Flynn on his direct examination,

20 therefore, was stricken because the defendants did not have the

21 opportunity to cross-examine Dr. Flynn on that testimony. You

22 are not to consider Dr. Flynn's live testimony for any purpose.

23 Dr. Flynn's report is still in evidence. Also, the parties

24 have each designated testimony from Dr. Flynn's earlier

25 deposition to be read into evidence. I instruct you, however,

10624

1 that the defendants did not have the same opportunity to

2 cross-examine Dr. Flynn at his deposition that they would have

3 had at trial because one of the purposes of a deposition is to

4 help a party prepare for the witness' cross-examination.

5 In judging the evidence you have received from

6 Dr. Flynn and determining how much weight to give it, you

7 should consider that defendants did not have a full opportunity

8 to cross-examine Dr. Flynn.

9 I have stricken from the evidence the testimony of

10 Dr. Till in which he stated or suggested that plutonium in the

11 class area has been removed by bulldozing and other

12 construction and development activities. You are not to

13 consider Dr. Till's testimony on this subject for any purpose.

14 Counsel have shown you a number of charts, summaries

15 and other graphic materials in order to help explain the facts

16 and documents in evidence in the case. Such charts, summaries

17 and graphic materials are not in and of themselves evidence or

18 proof of any facts unless they are admitted into evidence. You

19 have heard me say throughout the trial that many of these

20 charts, summaries and graphic materials are admitted for

21 demonstrative purposes only. This means that these

22 demonstrative exhibits are not necessarily based on the

23 evidence presented at trial and they may relate solely to

24 arguments or statements or interpretations of evidence by

25 counsel.

10625

1 Demonstrative evidence are not -- exhibits are not

2 evidence and -- I will start over. Demonstrative exhibits are

3 not evidence and were presented only to assist you in

4 understanding the argument, statement or interpretation being

5 made. All exhibits admitted for this limited purpose will be

6 marked demonstrative. You should consider demonstrative

7 exhibits only as visual aids to understanding counsel's

8 arguments, statements or interpretations of the evidence. You

9 may disregard demonstrative exhibits if you do not find them

10 helpful and must disregard them if the facts, figures or other

11 information they contain do not directly reflect facts shown by

12 the evidence in the case.

13 It is undisputed that the FBI and the federal Grand

14 Jury investigated allegations of criminal misconduct by

15 Rockwell at Rocky Flats. The fact that the FBI and Grand Jury

16 conducted these investigations or investigated certain

17 allegations does not prove that Rockwell committed any

18 particular acts or wrongs at Rocky Flats.

19 You may, however, consider evidence that was collected

20 in the course of these investigations or was presented to the

21 Grand Jury in determining whether based on all of the evidence

22 presented in this action Rockwell acted or failed to act in a

23 particular matter as relevant to the trespass and/or nuisance

24 claims against it. In other words, it is up to you to decide

25 what the evidence presented to you proves.

10626

1 You have heard evidence about the plea agreement

2 between Rockwell and the United States in which Rockwell pled

3 guilty to certain environmental crimes at Rocky Flats. The

4 plea agreement is evidence that Rockwell admitted guilt for the

5 conduct specifically set forth in the plea agreement. This

6 means Rockwell admitted it committed the acts to which it pled

7 guilty and that no further evidence is required to establish

8 that these acts occurred.

9 You should not consider the plea agreement or its

10 content, however, or the fact that Rockwell did not plead

11 guilty to additional crimes and that the Government did not

12 seek to prosecute Rockwell for any other crimes in determining

13 whether Rockwell committed any particular conduct at Rocky

14 Flats in addition to the misconduct to which it pled guilty.

15 You should make your determination regarding Rockwell's other

16 alleged conduct based solely on the other evidence presented at

17 this trial.

18 You should not consider the fact that either Rockwell

19 or Dow has been involved in other civil lawsuits for the

20 purpose of determining whether Rockwell or Dow engaged in any

21 of the conduct alleged by the class members in this lawsuit.

22 You should make your determinations based solely on the

23 evidence presented at this trial.

24 You have heard evidence of media coverage relating to

25 Dow and Rockwell and their operations at Rocky Flats. Such

10627

1 evidence of media coverage does not establish the accuracy of

2 any statements made by the media. Evidence of media coverage

3 is relevant, however, to public perceptions that may have

4 influenced the market values of properties in the class area.

5 Plaintiffs assert two claims in this action on behalf

6 of themselves and the class members. This means plaintiffs'

7 claims are made and must be proved for the class as a whole as

8 stated in the instructions for each claim that I am about to

9 give you. Individual claims by individual plaintiffs are not

10 to be decided in this trial.

11 Plaintiffs -- first claim is for trespass and the

12 second is for nuisance. Both claims are asserted against both

13 Dow and Rockwell. It is your responsibility to consider and

14 decide each of these claims separately against Dow and

15 Rockwell.

16 I will now instruct you about these claims and what

17 you must consider in deciding each one. In the instruction I

18 am about to give you -- when the instructions I am about to

19 give you apply to more than one claim, I will tell you that.

20 At the end of my instructions on plaintiffs' two claims, I will

21 talk to you about determination of damages which applies to

22 both claims.

23 The tort of trespass protects a landowner's right to

24 exclusive possession and control of his property which includes

25 the right to keep the property free from contamination

10628

1 deposited there by others without the landowner's consent.

2 In this case, plaintiffs and defendants have

3 stipulated that plaintiffs and other class members own property

4 in the class area as of June 7, 1989. I will sometimes refer

5 to these collectively as the class properties. Plaintiffs and

6 defendants have also stipulated that plaintiffs and the other

7 class members do not consent to plutonium being on their

8 properties.

9 Given these stipulations, in order for the plaintiffs

10 and the other class members to recover from either Dow or

11 Rockwell or both of them on their claim of trespass, you must

12 find plaintiffs have proved each of the following elements by a

13 preponderance of the evidence:

14 One, plutonium from Rocky Flats is present on the

15 class properties. You are referred to the next instruction 3.3

16 in that regard.

17 Two, Dow or Rockwell or both of them intentionally

18 undertook an activity or activities that in the usual course of

19 events caused plutonium from Rocky Flats to be present on the

20 class properties. And see further elaboration on instruction

21 3.18.

22 Three, it appears this plutonium will continue to be

23 present on the class properties indefinitely. For further

24 elaboration, see instruction 3.14.

25 You must consider whether the plaintiffs have proved

10629

1 each of these elements against each defendant. If you find an

2 element has not been proved as to a particular defendant, then

3 your verdict on the trespass claim must be for that defendant.

4 On the other hand, if you find that plaintiffs have proved all

5 three elements as to a particular defendant, then your verdict

6 must be for plaintiffs and against that defendant.

7 The first element of the trespass claim requires that

8 plaintiffs prove that plutonium is present on the class

9 properties. To prove this element, plaintiffs are not required

10 to show that plutonium was present on the class properties at

11 any particular level or concentration, that they suffered any

12 bodily harm because of the plutonium or that the presence of

13 plutonium on the class properties damaged these properties in

14 some other way.

15 In deciding the third element of plaintiffs' trespass

16 claim, which is whether it appears that plutonium will continue

17 to be present on class properties indefinitely, it is not

18 necessary for you to find that the plutonium will be there

19 forever. Instead, in deciding this element, you should

20 consider whether there is any reason to expect that the

21 plutonium present on class properties will be removed at any

22 definite time in the future.

23 If you find there is no reason to expect that it will

24 be removed by a definite time, then you must find it appears

25 that plutonium will continue to be on the class properties

10630

1 indefinitely.

2 A trespass may exist even though the conduct that

3 originally caused the invasion of the plaintiffs' land has

4 ceased. Accordingly, considering whether plaintiffs have

5 proved the elements of their trespass claim as stated in

6 instruction No. 3.2, it is irrelevant that Dow and/or Rockwell

7 ceased any such activities before plaintiffs brought this suit

8 or that the Rocky Flats plant itself is now shut down. That

9 plaintiffs or class members knew or could have known that

10 plutonium was present on their properties when they purchased

11 them is also irrelevant to determining whether Dow or Rockwell

12 are liable for trespass as stated in instruction No. 3.2.

13 You have also heard argument that plutonium has been

14 removed from properties in the class area as a result of

15 bulldozing, soil excavation and other disturbance during real

16 estate construction and development activities in the class

17 area. You are to disregard all such argument because I

18 recently ruled that it cannot be presented or considered in

19 deciding the trespass claims.

20 For purposes of deciding the trespass claims,

21 therefore, the notion that plutonium has been removed from the

22 class area through development and construction activities is

23 irrelevant. None of the irrelevant matters described in this

24 instruction should be considered in determining the trespass

25 claim.

10631

1 Plaintiffs claim that defendants, through their

2 operation of the Rocky Flats plant, caused a nuisance. In

3 order for the plaintiff class to recover from either Dow or

4 Rockwell or both of them on their claim or nuisance, you must

5 find plaintiffs have proved each of the following elements by a

6 preponderance of the evidence:

7 One, Dow or Rockwell or both of them interfered with

8 class members' use and enjoyment of their properties in the

9 class area in one or both of these two ways; A, by causing

10 class members to be exposed to plutonium and placing them at

11 some increased risk of health problems as a result of this

12 exposure. See instruction Nos. 3.7 and 3.18; and/or B, by

13 causing objective conditions that pose a demonstrable risk of

14 future harm to the class area. See instructions Nos. 3.7 and

15 3.18.

16 Two, this interference with class members' use and

17 enjoyment of their properties was both unreasonable and

18 substantial. See instruction Nos. 3.8 through 3.12.

19 Three, the activity or activities causing the

20 reasonable and substantial interference were either intentional

21 or negligent. See instruction Nos. 3.13 through 3.16. And,

22 Four, it appears the unreasonable and substantial

23 interference with the use and enjoyment of property caused by

24 Dow and/or Rockwell's intentional or negligent conduct will

25 continue indefinitely. See instruction No. 3.17.

10632

1 You must consider whether the plaintiffs have proved

2 these elements against each defendant. If you find that any

3 one of these elements has not been proved as to a particular

4 defendant, then your verdict on the nuisance claim must be for

5 that defendant. On the other hand, if you find plaintiffs have

6 proved each of these elements as to a particular defendant,

7 then your verdict on the nuisance claim must be for plaintiffs

8 and against that defendant.

9 The first element, interference with use and enjoyment

10 of property, the purpose of a nuisance claim is to protect a

11 landowner's right to use and enjoy his property. Although

12 there are countless ways a person or company can interfere with

13 this right, for purposes of deciding the first element of the

14 plaintiff class' nuisance claim, you may only consider the two

15 possible forms of interference with class members and use and

16 enjoyment of their property that I stated in instruction

17 No. 3.6 and we will describe further here.

18 The first possible form of class-wide interference is

19 whether both one or both of defendants opportunities at Rocky

20 Flats interfered with class members' use and enjoyment of their

21 properties by causing class members to be exposed to plutonium

22 and placing them at some increased risk of health problems as a

23 result of this exposure. To find that plaintiffs proved this

24 form of interference, you need not find all class members were

25 exposed to plutonium at the same time or by the same methods or

10633

1 to the same degree or that they all incurred the same level of

2 health risk as a result of exposure to plutonium.

3 It is enough to find for purposes of this form of

4 interference with use and enjoyment of property that the class

5 members were exposed to plutonium in some way as a result of

6 one or both defendants' activities and incurred some increment

7 of increased health risk as a result.

8 There may be some non-resident class members, that is

9 class members who owned property within the class area, but

10 without living there. If you find that occupancy of their

11 properties would have resulted in exposure to plutonium in some

12 way causing some increment of increased health risk as a result

13 of one or both defendants' activities, then you should find

14 that these class members too suffered an interference with the

15 use and enjoyment of their properties.

16 The second possible form of interference you must

17 consider in deciding this first element of the plaintiffs'

18 class' nuisance claim is whether one or both defendants'

19 activities at Rocky Flats interfered with class members' use

20 and enjoyment of their properties by creating objective

21 conditions that pose a demonstrable risk of future harm to the

22 class area.

23 For example, if plutonium or other hazardous

24 substances present on or in the vicinity of Rocky Flats is a

25 risk of being released -- is at risk of being released to the

10634

1 class area through natural forces, cleanup activity, the

2 conduct of others and/or accidents and could cause harm to the

3 properties in the class area by increasing the health risk to

4 residents or impairing the future use of their land in some

5 way, then this would be an objective condition that poses a

6 demonstrable risk of future harm to the class area.

7 In order for you to find interference based on the

8 threat or risk of future harm, you also need not find that the

9 future harm will occur and affect the whole of the class area.

10 You need only find that conditions exist that present the

11 potential for such class-wide harm to occur.

12 You need not find that all class members were subject

13 to the same form of interference with use and enjoyment of

14 their property. It is enough if you find that class members

15 were all subject to at least one form of interference described

16 in this instruction, even if some class members were subject

17 only to the first form of interference, others only to the

18 second and still others to both.

19 In deciding whether either or both forms of possible

20 class-wide interference exists, you should not consider whether

21 individual plaintiffs or class members are or might be fearful,

22 anxious or otherwise disturbed by any real or perceived risks

23 relating to Rocky Flats and the defendants' activities there or

24 the conditions they left behind.

25 Individual reactions to these matters are not relevant

10635

1 to the question of whether a class-wide interference exists.

2 You should also not consider in deciding this element of the

3 nuisance claim whether defendants' activities caused any

4 decrease in the value of class members' properties. The law

5 does not consider a decrease in property value to be an

6 interference with the use and enjoyment of property.

7 If you find that plaintiffs have proved either Dow or

8 Rockwell or both of them interfered with class members' use and

9 enjoyment of property in one or both of the ways I described in

10 the instruction No. 3.6 and in this instruction, then you must

11 find that plaintiffs have proved the first element of their

12 nuisance claim with respect to the defendant or defendants who

13 caused or contributed to the proven interference.

14 If, however, you find that neither defendant

15 interfered with class members' use and enjoyment of property in

16 at least one of these ways, then you must find plaintiffs have

17 not proved this element of their nuisance claim against either

18 defendant.

19 Practically all human activities interfere to some

20 extent with other people or involve some risk of interference.

21 One such possible interference is with another person's right

22 to use and enjoy his property. The law of nuisance does not

23 attempt to hold an actor liable for all interferences with his

24 property, but rather for only those interferences that are both

25 substantial and unreasonable. That is why this is an element

10636

1 of plaintiffs' nuisance claim.

2 The definitions of these terms are set out in

3 instruction Nos. 3.9 and 3.10. In deciding whether plaintiffs

4 have proven that the interference they claim is substantial and

5 unreasonable, you may only consider any interference with class

6 members' use and enjoyment of property you find based upon

7 instruction Nos. 3.6 and 3.7. Thus, if you find plaintiffs

8 proved that Dow and/or Rockwell interfered with class members'

9 use and enjoyment of property in only one of the ways stated in

10 these instructions, you may only consider this proven form of

11 interference in deciding whether plaintiffs have proved a

12 substantial and unreasonable interference.

13 If, however, you find plaintiffs proved that Dow

14 and/or Rockwell interfered with class members' use and

15 enjoyment of property in both of the ways stated in these

16 instructions, you should consider these two forms of

17 interference together to decide whether the total interference

18 caused by each defendant was substantial and unreasonable.

19 An interference to the person's right to use and enjoy

20 their property is substantial if the interference is

21 significant enough that a normal person in the community would

22 find it offensive, annoying or inconvenient. In this case this

23 means you must determine whether a reasonable landowner of

24 normal sensibilities would find a proven interference caused by

25 Dow or Rockwell to be offensive, annoying or inconvenient.

10637

1 Normal sensibilities for these purposes means a person who is

2 either unusually sensitive nor unusually insensitive to the

3 interference you are considering.

4 In deciding whether any interference proven by

5 plaintiffs is substantial under this test, you must consider

6 only the magnitude or level of interference that is common to

7 the class as a whole and not any more severe level of

8 interference than may have been suffered by some class members,

9 but not by others.

10 Evidence that the value of class members' properties

11 has diminished because of any interference proven by plaintiffs

12 is evidence that the interference is substantial under the

13 tests stated in this instruction. This is so because normal

14 members of the community are a part of the market that

15 determines the value of properties. And if they consider an

16 interference with the use and enjoyment of these properties to

17 be offensive, annoying or inconvenient, they may place a lower

18 value on the property than they would if the interference did

19 not exist.

20 Evidence that class properties have a lower value

21 because of age -- I am sorry. Evidence that class properties

22 have a lower value because of any proven interference is not

23 necessary, however, for you to find that the interference is

24 substantial under the test I just described to you.

25 In an action for damages such as this, an interference

10638

1 with a person's right to use and enjoy their land is

2 unreasonable if the gravity of the harm outweighs the utility

3 of the conduct that caused it. Accordingly, to determine

4 whether a proven interference is unreasonable in this case, you

5 must consider and balance the gravity of the harm to class

6 members against the utility of Dow and Rockwell's conduct at

7 Rocky Flats and determine whether the gravity of this harm

8 outweighs the utility of this conduct.

9 I will tell you more about this balancing test in my

10 next instructions, but I want to caution you now that it does

11 not mean that Dow and Rockwell can interfere with class

12 members' use and enjoyment of their properties as long as their

13 activities at Rocky Flats served an important purpose or these

14 activities are deemed more valuable or profitable than class

15 members' use of their land.

16 Instead, you must consider a number of factors as part

17 of the balancing test to decide whether any interference

18 defendants caused was unreasonable. I will describe those

19 factors to you in a moment. See instruction Nos. 3.11 and

20 3.12.

21 In considering these factors in deciding whether any

22 interference by Dow or Rockwell was unreasonable, you must also

23 use an objective perspective. In other words, the question is

24 not how the plaintiffs' class members or the defendants would

25 consider the gravity of the harm or the utility of defendants'

10639

1 conduct or the judgment they would make about whether any

2 proven interference is unreasonable. Instead, the question is

3 whether reasonable persons generally looking at the whole

4 situation impartially and objectively would consider the

5 interference to be unreasonable.

6 The gravity of the harm refers to the gravity of the

7 proven interference with class members' use and enjoyment of

8 their property. The factors you should consider in assessing

9 the gravity of this harm are:

10 One, the extent of the harm involved. The extent of

11 the harm depends upon both the degree of the harm and its

12 duration. You can consider both harm that has actually been

13 incurred and the risk of future harm.

14 In assessing the extent of the harm, you must also

15 consider only harm that is common to the class as a whole and

16 not any more severe harm than may have been suffered by some

17 class members, but not by others.

18 Two, the character of the harm involved. This factor

19 refers to the kind of harm suffered by the class members.

20 Three, the social value of the type of use or

21 enjoyment of property that has been harmed. This factor

22 considers the social value of the use to which the class

23 members' lands are being put. The social value of a particular

24 type of use depends on the extent to which the use or uses

25 advances or protects the general public good.

10640

1 Four, the suitability of the particular use or

2 enjoyment, harm to the character of the locality. This factor

3 considers whether the particular use or enjoyment that class

4 members make of their land in the class area is suitable to

5 this area.

6 Five, the burden on the class members of avoiding the

7 harm, this factor is considered when it is possible for the

8 landowner to take some action to avoid the harm.

9 The second element, unreasonable interference factors

10 regarding utility of the conduct. There are also certain

11 factors that you must consider in assessing the utility of the

12 conduct that caused the harm, that is any proven interference.

13 Some of these factors focus directly on the conduct causing the

14 harm while other factors focus on any actions Dow or Rockwell

15 may have taken to avoid or compensate others for any

16 interference they caused.

17 The factors focusing on the conduct causing the harm

18 include:

19 One, the social value of the primary purpose of this

20 conduct. It is undisputed that the primary purpose of the

21 conduct that allegedly interfered with class members' right to

22 use and enjoy their properties was to manufacture nuclear

23 weapons components. The social value of this purpose depends

24 on the extent to which it advanced or protected general public

25 good.

10641

1 The parties agree that the manufacture of nuclear

2 weapons at Rocky Flats as a general matter advance the public

3 good by protecting national security.

4 Two, the suitability of the conduct of the character

5 of the locality. This factor considers whether the defendants'

6 conduct is suitable to the area in which it occurred. In

7 evaluating the utility of the conduct causing the harm, you

8 must consider whether and to what extent the actor causing the

9 harm took steps to address the consequences of its conduct.

10 Thus, you must consider the following factors focusing on any

11 actions Dow or Rockwell may have taken to avoid or compensate

12 others for any interference they caused.

13 Three, the impracticability of preventing or avoiding

14 the interference. If it was practicable for Dow or Rockwell to

15 avoid causing any interference with class members' use and

16 enjoyment of property and they did not take the necessary

17 measures to do so, then the law considers their conduct to have

18 no utility regardless of its social value.

19 Any interference caused by Dow and/or Rockwell was

20 practicably avoidable if by some means the company could have

21 substantially reduced the harm without it incurring prohibitive

22 expense or hardship in its operation of Rocky Flats. If you

23 find it was practicable for Dow or Rockwell to avoid any harm

24 they caused under this test, you must find the gravity of the

25 harm outweighed the utility of Dow or Rockwell's conduct and

10642

1 that any interference proved by plaintiffs was unreasonable.

2 Four, the financial burden to compensate others for

3 interference caused by Dow or Rockwell's activities. A

4 nuisance action for damages seeks to place the financial burden

5 for any interference with the use and enjoyment of property on

6 the actor that caused this harm. The financial burden of this

7 cost is, therefore, a significant factor in determining whether

8 the conduct of causing the harm without paying for it is

9 unreasonable.

10 You may find that Dow or Rockwell's conduct lacks

11 sufficient utility to outweigh any interference it caused if

12 you find it would be unreasonable for class members to bear

13 this cost without compensation.

14 As stated in instruction No. 3.6, the third element

15 plaintiffs must prove to prevail on their nuisance claim is

16 that the activity or activities causing the unreasonable and

17 substantial interference were either intentional, see

18 instruction No. 3.14, or negligent, see instruction No. 3.15.

19 Thus, plaintiff must do more than show that the existence of

20 Rocky Flats interfered with class members' use and enjoyment of

21 their properties. They must show that either defendant or both

22 of them engaged in intentional or negligent conduct at Rocky

23 Flats that caused such an interference.

24 You need not -- you do not need to find that all of

25 the conduct that caused any substantial or unreasonable

10643

1 interference was intentional or that all of it was negligent in

2 order to find that plaintiffs have proved this element of their

3 nuisance claim. Proof that a substantial and unreasonable

4 interference resulted from a combination of intentional conduct

5 and negligent conduct is sufficient to prove this element.

6 The third element, definition of intentional conduct.

7 The conduct that results in an interference with

8 another's use and enjoyment of property is considered

9 intentional if it means any of the following three tests:

10 One, the defendant knew that his conduct would

11 interfere with others' use and enjoyment of their property.

12 Or two, the defendant knew it was substantially

13 certain that its conduct would interfere with others' use and

14 enjoyment of their property.

15 Or three, the defendant learned that his conduct was

16 interfering with or was substantially certain to interfere with

17 others' use and enjoyment of their property and yet continued

18 this conduct.

19 The third element, the definition of negligent

20 conduct.

21 The generation, use, storage and disposal of plutonium

22 and other hazardous radioactive and nonradioactive substances

23 as part of the operation of a nuclear weapons plant are

24 inherently dangerous activities. As a result, Dow and Rockwell

25 were required to exercise the highest possible degree of skill,

10644

1 care, diligence and foresight in conducting these activities

2 according to the best technical, mechanical, and scientific

3 knowledge and methods that were practical and available at the

4 time. If either Dow or Rockwell or both of them did not

5 fulfill this duty when they performed any activities that

6 caused or contributed to a substantial and unreasonable

7 interference as defined in these instructions, then their

8 conduct was negligent.

9 The third element, accident not presumptive

10 negligence.

11 The occurrence of an accident does not raise any

12 presumption of negligence on the part of the defendant.

13 Negligence must be established, however, by the facts and

14 circumstances surrounding an accident.

15 The fourth element continuing on nuisance --

16 MR. DAVIDOFF: Your Honor, I think you read "negligent

17 must" rather than "negligent may" in that instruction.

18 THE COURT: I am sorry. I will repeat. Instruction

19 3.16?

20 MR. DAVIDOFF: 3.16, the second sentence.

21 THE COURT: I will repeat the entire instruction. The

22 occurrence of an accident does not raise any presumption of

23 negligence on the part of a defendant. Negligence may be

24 established, however, by the facts and circumstances

25 surrounding an accident.

10645

1 As stated in instruction 3.6, the fourth element

2 plaintiffs must prove to prevail on their nuisance claim is

3 that it appears that the unreasonable and substantial

4 interference with the use and enjoyment of property caused by

5 Dow and/or Rockwell's intentional or negligent conduct will

6 continue indefinitely. In deciding this element, it is not

7 necessary for you to find that the interference meeting these

8 requirements will last forever. Instead, you should consider

9 whether there is any reason to expect that this interference

10 will end at any definite time in the future.

11 If you find there is no reason to expect this

12 interference to end by a definite time, then you must find it

13 appears the interference will continue indefinitely.

14 The word cause as used in these instructions means an

15 act or failure to act that in natural and probable sequence

16 produced the claimed effect. It is a cause without which the

17 claimed effect would not have happened.

18 Separate findings for each defendant. You must make a

19 separate determination of both the trespass and nuisance claims

20 against each defendant. If you find that the evidence

21 establishes a trespass or nuisance by one defendant but not the

22 other, you must render separate verdicts on each claim. If you

23 find both Dow and Rockwell committed a trespass and/or nuisance

24 in this action and that plaintiffs have proved actual damages

25 resulted from both defendants' trespass and/or nuisance under

10646

1 the instructions I will give you in a moment, see instruction

2 Nos. 3.20 and 3.22, then you must also determine to what extent

3 Dow's trespass or nuisance and Rockwell's trespass or nuisance

4 contributed to the class' actual damages.

5 In making this determination, you must express Dow's

6 contribution to the class damages, if any, and Rockwell's

7 contribution to the class' damages, if any, as a percentage of

8 100. If you find only one of the defendants liable for

9 trespass and/or nuisance, then you will only decide the actual

10 damages caused by that defendants' trespass and/or nuisance.

11 The questions on the jury verdict form will guide you

12 through these circumstances.

13 I am now going to instruct you on the measure of

14 damages to be awarded if you find in favor of plaintiffs on

15 either of their claims against Dow and/or Rockwell. You must

16 determine the amount of damages in accordance with these

17 instructions. The fact I will instruct you on the measure of

18 damages does not mean I am instructing you as to which party is

19 entitled to your verdict or that I am instructing you to award

20 or not award damages. The questions of whether or not damages

21 are to be awarded and the amount of such damages are for your

22 consideration alone.

23 If you decide to award damages, you should fix the

24 amount using calm discretion and -- excuse me, if you decide to

25 award damages, you should fix the amount using calm discretion

10647

1 and sound reason, not sympathy, prejudice or speculation.

2 Difficulty or uncertainty in determining the precise amount of

3 damages does not prevent you from deciding an amount. You

4 should use your best judgment based on the evidence.

5 If you find in favor of plaintiffs on either of their

6 claims against Dow and/or Rockwell, then you must award them

7 actual or nominal damages. Actual damages are a monetary award

8 to compensate a plaintiff for the loss caused by the

9 defendants' wrongful conduct. The goal of an award of actual

10 damages is to make the injured person whole or, in other words,

11 to put them in the position they would have been if they had

12 not been harmed by the defendant.

13 To award plaintiffs actual damages, you must find

14 plaintiffs proved by a preponderance of the evidence that:

15 One, the plaintiff class incurred actual damages as a result of

16 the trespass and/or nuisance caused by Dow or Rockwell or both

17 of them as defined in instruction Nos. 3.2 and 3.6; and two,

18 the amount of these actual damages. I will tell you in the

19 next instructions Nos. 3.22 through 3.24 how to decide these

20 questions.

21 If you find in favor of plaintiffs on a particular

22 claim but do not find any actual damages with respect to that

23 claim, you shall nonetheless award plaintiffs nominal damages

24 in the sum of $1 on that claim.

25 The measure of actual damages. Plaintiffs seek an

10648

1 award of actual damages based on the decrease in the value of

2 properties in the class area caused by the trespass and/or

3 nuisance committed by Dow or Rockwell or both of them. This

4 type of actual damages is sometimes called diminution in

5 property value. The diminution in property value that

6 plaintiffs may recover here is measured by the difference

7 between the actual value of the class properties and the value

8 these properties would have had if Dow or Rockwell or both of

9 them had not committed the trespass and/or nuisance proved by

10 plaintiffs.

11 In other words, you must compare the actual value of

12 the class properties to what their value would have been but

13 for the trespass and/or nuisance, and the difference is the

14 diminution in property value that plaintiffs can recover as

15 actual damages in this case.

16 In a case like this, the law requires that you measure

17 the amount of any such diminution in class property values at a

18 particular point in time. That point is the time or time

19 period when the injurious situation became complete and

20 comparatively enduring. The injurious situation is complete

21 when the effects of the trespass or nuisance are known to their

22 full extent. It is comparatively enduring when there is no

23 reason to expect that these effects will end at a definite time

24 in the future.

25 When the injurious situation became complete and

10649

1 comparatively enduring in this case is a question you will

2 decide as I will describe in just a moment. Plaintiffs contend

3 that the diminution in the value of class property should be

4 measured as of the period between June 6, 1989, when the FBI

5 and U.S. Environmental Protection Agency searched Rocky Flats

6 as part of their investigation into alleged wrongdoing by

7 Rockwell and March 6, 1992 when Rockwell --

8 MR. DAVIDOFF: Excuse me, March 26.

9 THE COURT: I am sorry, what?

10 MR. DAVIDOFF: March 26.

11 THE COURT: Didn't I say that? Okay. I will repeat

12 the sentence. I am glad to be corrected.

13 Plaintiffs contend that the diminution in the value of

14 properties should be measured as of the period between June 6,

15 1989, when the FBI and U.S. Environmental Protection Agency

16 searched Rocky Flats as part of their investigation into

17 alleged wrongdoing by Rockwell and March 26, 1992, when

18 Rockwell pled guilty to certain environmental crimes at Rocky

19 Flats.

20 Plaintiffs allege this is the right time period to

21 measure their actual damages because this is when the injurious

22 effects of defendants' alleged trespass and nuisance became

23 complete and comparatively enduring.

24 Plaintiffs have also presented evidence, however, of

25 the injurious effects of the trespass and nuisance in the

10650

1 larger period of 1988 through 1995. If you find these effects

2 became complete and comparatively enduring at any time during

3 this period, therefore, you may award actual damages to

4 plaintiffs measured as of the time you find the effects became

5 complete and comparatively enduring.

6 If you do not find the injurious effects of the

7 alleged trespass and/or nuisance became complete and

8 comparatively enduring sometime during the 1988 through 1995

9 period, then you should not award actual damages to plaintiffs.

10 Accordingly to decide whether plaintiffs are entitled

11 to the actual damages they seek in this case, you must

12 determine whether plaintiffs have proved by a preponderance of

13 the evidence that: One, the injurious situation became

14 complete and comparatively enduring as defined in this

15 instruction sometime between January 1, 1988, and December 31,

16 1995; and two, as of the time you find the injurious situation

17 became complete and comparatively enduring, the actual value of

18 the class properties was less than the value these properties

19 would have had but for the trespass and/or nuisance committed

20 by Dow or Rockwell or both of them; and, three, as of the time

21 you find the injurious situation became complete and

22 comparatively enduring, the amount of the difference between

23 the actual value of the class properties and what their value

24 would have been but for the trespass and/or nuisance. See

25 instruction 3.23.

10651

1 In instruction No. 3.23, aggregate damages and

2 percentage diminution. If you find plaintiffs have proved

3 actual damages as is described in instruction No. 3.22, you

4 will be asked to report your findings regarding the amount of

5 their actual damages in several ways.

6 First, you will be asked to decide both the total

7 amount of damages suffered by the entire class as a whole

8 called aggregate class damages and the percentage diminution in

9 property values in the class area as a whole. Additionally,

10 you will be asked to decide the amount of actual damages and

11 percentage diminution in class property values for three

12 different types of property in the class: Vacant land,

13 commercial property and residential property.

14 You will not be asked to determine the amount of

15 actual damages suffered by any individual class member.

16 Individual class member's share of any damages you award will

17 be determined in later proceedings. Therefore, you must only

18 concern yourselves with the total class-wide measures of actual

19 damages I just described.

20 Instruction 3.24 regarding both matters not relevant

21 to determining actual damages.

22 In determining any actual damages to be awarded in

23 this case, you should not consider or award any diminution in

24 value caused solely by the proximity of the class area to Rocky

25 Flats. Instead, you must follow my directions in instruction

10652

1 3.22 to award damages for diminution in value you find was

2 caused by any trespass or nuisance you find Dow or Rockwell or

3 both of them committed. In determining whether plaintiffs have

4 proved actual damages, you also should remember that plaintiffs

5 are not required to prove that any diminution in value caused

6 by Dow or Rockwell's activities at Rocky Flats came into

7 existence before or after the FBI raid or some other specific

8 event. Instead, as stated in instruction 3.22, the measure of

9 damages to be proved by plaintiffs is the value the class

10 properties would have had but for any trespass or nuisance by

11 Dow and/or Rockwell.

12 Instruction 3.25 as to both claims, the affirmative

13 defense of setoff.

14 If you find that the plaintiff class has proved actual

15 damages, then you must consider whether Dow and Rockwell proved

16 their affirmative defense of setoff.

17 This defense is based on the rule that if the

18 defendants' wrongful conduct has caused harm to the plaintiff

19 but also has conferred a direct benefit on the plaintiff, then

20 the value of the benefit conferred mitigates, that is reduces

21 the actual damages that may be recovered for the defendants'

22 wrongful conduct.

23 In this case, Dow and Rockwell argue any trespass or

24 nuisance you find harm the plaintiffs' class by diminishing the

25 value of their properties also conferred a benefit on the class

10653

1 because all or some class members purchases their properties at

2 a diminished price as a result of the same trespass or

3 nuisance.

4 In order to prevail on this affirmative defense of

5 setoff, Dow and Rockwell must prove by a preponderance of the

6 evidence: One, that the trespass and/or nuisance that damaged

7 the plaintiff class by diminishing the value of property in the

8 class area also caused a diminution in value of class

9 properties in one or more specific time periods between June 7,

10 1989; and, two, the amount of any such preexisting diminution

11 in the value of class properties expressed as the percentage

12 decrease in value for each specific time period or periods for

13 which defendants prove a pre-June 7, 1989, diminution in class

14 property values caused by either trespass and/or nuisance.

15 If you find Dow or Rockwell did not prove both of the

16 elements for setoff by a preponderance of the evidence, then

17 you must find Dow and/or Rockwell failed to prove this

18 affirmative defense. On the other hand, if you find that Dow

19 and/or Rockwell proved both elements of this defense by a

20 preponderance of the evidence, then you must find they proved

21 this affirmative defense as to the time period or periods you

22 report on the jury verdict form.

23 If you make this finding, then your findings regarding

24 the preexisting percentage diminution in value for a specific

25 time period or periods will be used in a later proceeding to

10654

1 calculate the amount by which the plaintiffs' actual damages

2 will be reduced on account of this defense of setoff.

3 If you find Dow and/or Rockwell has proved this

4 affirmative defense, then you must use calm discretion and

5 sound reason, not sympathy, prejudice or speculation, in fixing

6 the amount of any preexisting diminution in class property

7 values.

8 Difficulty or uncertainty in determining the price

9 amount of any -- the precise amount of any setoff does not

10 prevent you from deciding an amount. You should use your best

11 judgment based on the evidence.

12 Instruction 3.26 with regard to both claims, multiple

13 recovery prohibited.

14 A plaintiff in a civil action may recover only once

15 for the same injury even though the claimant seeks an award for

16 that injury under several claims for relief or against multiple

17 defendants. For example, a plaintiff who lost $100 as a result

18 of the conduct of multiple defendants may recover only $100

19 even if the plaintiff sought $100 in damages from each

20 defendant in one claim and $100 in damages for each defendant

21 on a different claim.

22 In this case plaintiffs are seeking to recover from

23 Dow and Rockwell on their claims of trespass and nuisance on

24 behalf of the class. Under the rule prohibiting multiple

25 recovery, the plaintiffs may recover actual damages only once

10655

1 even if you return verdicts in their favor on more than one

2 claim for relief or against more than one defendant.

3 I am instructing you on the rule prohibiting multiple

4 recovery so you will be aware of the law and the issue. It is

5 I, rather than you, however, who will apply the rule. You are

6 specifically instructed to consider the plaintiffs' nuisance

7 and trespass claims against each defendant independently; that

8 is, you are to consider each of those claims as though it were

9 the only claim in the case.

10 If you find for plaintiffs on either of these claims

11 against either Dow or Rockwell, you are to write an award of

12 damages on that claim without regard to your finding for or

13 against Dow or Rockwell on any other claim.

14 I will apply the rule prohibiting multiple recovery

15 when I issue my judgment on your verdicts, whatever they may

16 be. Perhaps it bears repeating that nothing in this or any

17 other instruction is meant to suggest what your finding on any

18 or all claims should be. My instructions on damages are only

19 to be applied in the event you find for plaintiffs on one or

20 more of their claims.

21 Punitive damages. If you find for plaintiffs and

22 award them actual damages on their claims of trespass and/or

23 nuisance against either Dow or Rockwell or both of them, then

24 you must consider whether you should award punitive damages

25 against the same defendant or defendants that you found liable

10656

1 for trespass and/or nuisance.

2 For plaintiffs to recover punitive damages, they must

3 prove by a reasonable doubt -- I am sorry, I will repeat that.

4 For plaintiffs to recover punitive damages, they must prove

5 beyond a reasonable doubt that the conduct of the defendant

6 that committed the trespass and/or nuisance was willful and

7 wanton. In deciding this question with respect to any conduct

8 relating to plutonium or other radioactive materials, you can

9 only consider the defendants' conduct up to August 20, 1988,

10 including conduct occurring before this date that resulted in

11 harm on or after that date.

12 Willful and wanton conduct means an act or omission

13 purposefully committed by the defendant in question who must

14 have realized that the conduct was dangerous and which conduct

15 was done heedlessly and recklessly either with regard to the

16 consequences or without regard to the rights and safety of

17 others, particularly the plaintiff class.

18 Reasonable doubt means an uncertainty of mind in which

19 your judgment is not at rest, and you can explain this

20 uncertainty based on a fair and thoughtful consideration of all

21 the evidence or lack of evidence in the case.

22 The purpose of punitive damages is not to compensate

23 the plaintiffs, but rather to punish the defendant and to deter

24 that defendant and others from committing such acts in the

25 future. If you find beyond a reasonable doubt that one or both

10657

1 of the defendants acted in a willful or wanton manner, then you

2 may award a reasonable sum as punitive damages against the

3 defendant or defendants you found active in this manner.

4 The sum you award may or may not be more -- I am

5 sorry, excuse me again. The sum you award may not be more than

6 the amount you award as actual damages against the defendant or

7 defendants.

8 In addition to deciding the issues of trespass,

9 nuisance and damages in this action, I will ask you at the end

10 of the trial to answer several additional questions that will

11 help me and the parties in future proceedings in this case.

12 The first two questions are related. They are: One, did it

13 appear on or before January 30, 1990, which is the date this

14 case was filed, that the alleged trespass and/or nuisance by

15 Dow or Rockwell or both of them would continue indefinitely?

16 In answering this question, continuing indefinitely means there

17 was no reason to expect that the trespass and/or nuisance would

18 end at any definite time in the future.

19 Two, if your answer to question No. 1 is no, then when

20 did it become apparent that the proven trespass and/or nuisance

21 would continue indefinitely?

22 The third additional question concerns a form of

23 interference with the use and enjoyment of property.

24 Plaintiffs assert that one of the ways Dow and Rockwell

25 interfered with class members' use and enjoyment of their land

10658

1 was by causing individual class members to suffer fear, anxiety

2 or mental discomfort because of concerns about risks created by

3 defendants' activities at Rocky Flats.

4 Because this is a trial of claims by the whole class,

5 I earlier instructed you not to consider whether individual

6 claimant's or class members suffered this form of interference

7 in deciding whether plaintiffs had proved their class-wide

8 nuisance claim. See instruction No. 3.7.

9 Nonetheless, to assist me and the parties in deciding

10 how to proceed later in this case, you will be asked to answer

11 the following question: Have plaintiffs proved by a

12 preponderance of the evidence that the intentional or negligent

13 conduct of Dow or Rockwell or both of them at Rocky Flats

14 and/or actual or threatened harms caused by such conduct

15 created a situation that is capable of causing fear, anxiety or

16 mental discomfort in individual class members? In answering

17 this question, you should know plaintiffs do not need to show

18 that any actual or threat of future contamination from Rocky

19 Flats poses an actual or verifiable health risk. An individual

20 class member's fear, anxiety or mental discomfort can be based

21 on concerns that may be without scientific foundation or other

22 support of fact.

23 Final instructions concern the process that you will

24 be using.

25 Each of you has a copy of the instructions to consult

10659

1 if you find it necessary. You may keep -- you have kept them

2 throughout the trial, and you may keep them in your

3 deliberations. It is your duty to find the facts from all the

4 evidence in the case. To those facts you must apply and follow

5 the law as I give it to you whether you agree with it or not.

6 You must base your verdict upon the evidence. You

7 must not be influenced by any personal likes or dislikes,

8 opinions, prejudices or sympathy. That means you must decide

9 the case solely on the evidence before you and according to the

10 law as I give it to you. You have taken an oath promising to

11 do just so.

12 In following my instructions, you must follow all of

13 them and not single out some and ignore others. They are all

14 equally important. You must not read into these instructions

15 or into anything I may say or do or any suggestions as to what

16 verdict you should return. Your verdict is a matter entirely

17 for you to decide.

18 When you go to the jury room to begin your

19 deliberations, you must elect one member of the jury as your

20 presiding juror. He or she will preside over your

21 deliberations and speak for you here in court. You will then

22 discuss the case with your fellow jurors to reach agreements if

23 you can do so.

24 In order to answer any question on the verdict form,

25 nine jurors must agree upon the answer. It is not necessary

10660

1 that the jurors who agree on the answer be the same jurors who

2 agreed on the answer to any other question so long as nine

3 jurors agree to each answer. Each of you must decide the case

4 for yourself, but you should do so only after you have

5 considered all of the evidence, discussed it with your fellow

6 jurors and listened to the views of your fellow jurors. I

7 offer some suggestions on how you might do this in the next

8 jury instruction entitled Jury, the deliberations process.

9 Do not be afraid to change your opinion if the

10 discussion persuades you that you should, but do not come to a

11 decision simply because other jurors think it is right. It is

12 important that you attempt to reach agreement, to answer the

13 questions on the verdict form, but, of course, only if each of

14 you can do so after having made your own conscientious

15 decision. Do not change an honest belief about the weight of

16 the evidence simply to reach an answer.

17 The deliberation process. Once you have elected your

18 presiding juror as directed by the previous instruction, you

19 are free to proceed as you agree is appropriate. Therefore, I

20 am not directing you how to proceed, but I offer the following

21 suggestions that other juries have found helpful so that you

22 can proceed in an orderly fashion allowing full participation

23 by each juror and arrive at a verdict that is satisfactory to

24 each of you.

25 First, it is the responsibility of the presiding juror

10661

1 to encourage good communication and participation by all jurors

2 and to maintain fairness and order. Your presiding juror

3 should be willing and able to facilitate productive discussions

4 even when disagreements and controversy arise.

5 Second, the presiding juror should let each of you

6 speak and be heard before expressing his or her views.

7 Third, the presiding juror should never attempt to

8 promote nor permit anyone else to promote his or her personal

9 opinions by coercion or intimidation or bullying of others.

10 Fourth, the presiding juror should make certain that

11 the deliberations are not rushed to reach a conclusion. If the

12 presiding juror you select does not meet these standards, he or

13 she should voluntarily step down or be replaced by a majority

14 vote.

15 After you select a presiding juror, you should

16 consider electing a secretary, help tally the votes, keep track

17 of who has or has not spoken on the various issues, make sure

18 all of you are present when deliberations are underway and

19 otherwise assist the presiding juror. Some juries are tempted

20 at this point to hold a preliminary vote on the case before

21 them to see where we stand. It is most advisable, however,

22 that no vote be taken before a full discussion is had on the

23 issue to be voted on; otherwise you might lock yourself into a

24 certain view before considering alternative and possibly more

25 reasonable interpretations of the evidence. Experience has

10662

1 shown that such early votes frequently lead to disruptive,

2 unnecessarily lengthy, inefficient debate and ineffective

3 decision-making.

4 Instead I suggest the presiding juror begin your

5 deliberations by directing the discussion to establishing

6 informal ground rules for how you will proceed. These rules

7 should assure that you will focus upon, analyze and evaluate

8 the evidence fairly and efficiently and that the viewpoints of

9 each of you is heard and considered before any decisions are

10 made.

11 No one should be ignored. You may agree to discuss

12 the case in the order of the questions presented in the special

13 verdict form or in chronological order or according to the

14 testimony of each witness. Whatever order you select, however,

15 it is advisable to be consistent and not jump from one topic to

16 another.

17 To move the process of deliberation along in the event

18 you reach a controversial issue, it is wise to pass it

19 temporarily and move on to the less controversial one and then

20 come back to it. You should then continue through each issue

21 in the order you have agreed upon unless a majority of you

22 agrees to change the order.

23 It is very helpful, but certainly not required of you,

24 that all votes be taken by secret ballot. This will help you

25 focus on the issues and not be overly influenced by

10663

1 personality. Each of you should also consider any disagreement

2 you have with another juror or jurors as an opportunity for

3 improving the quality of your decision and, therefore, should

4 treat each other with respect.

5 Any differences in your views should be discussed

6 calmly, and if a break is needed for that purpose, it should be

7 taken. Each of you should listen attentively and openly to one

8 another before making any judgment. This is sometimes called

9 active listening, and it means that you should not listen with

10 only one ear while thinking about a response. Only after you

11 have heard and understood what the other person is saying

12 should you think about a response.

13 Obviously, this means that unlike TV talk shows, you

14 should try very hard not to interrupt. If one of your number

15 is going on and on, it is the presiding juror who should

16 suggest that the point has been made and it's time to hear from

17 someone else.

18 You each have a right to your individual opinion, but

19 you should be open to persuasion. When you focus your

20 attention and best listening skills, others will feel

21 respected, and even though they might disagree, they will

22 respect you. It helps if you are open to the possibility that

23 you might be wrong or at least that you might change your mind

24 about some issues after listening to other views.

25 Misunderstanding can undermine your efforts. Seek

10664

1 clarification if you do not understand or if you think others

2 are not talking about the same thing. From time to time, the

3 presiding juror should set out the items on which you agree and

4 those on which you have not yet reached agreement.

5 In spite of all your efforts, it is indeed possible

6 that serious disagreements may arise. In that event, recognize

7 and accept that getting stuck is often part of the

8 decision-making process. It is easy to fall into the trap of

9 believing there is something wrong with someone who is not

10 ready to move toward what may be an emerging decision. Such a

11 belief is not helpful. It can lead to focusing on

12 personalities rather than the issues.

13 It is best to be patient with one another. At such

14 times slower is usually faster. There is a tendency to set

15 deadlines and seek to force decisions. Providing a break or

16 more time and space, however, often helps to shorten the

17 overall process.

18 You may wish from time to time to express your mutual

19 respect and repeat your resolve to work through any

20 differences. With such a commitment and mutual respect, you

21 will most likely render a verdict that leaves each of you

22 satisfied that you have indeed rendered justice.

23 If it becomes necessary during your deliberations to

24 communicate with me, you may send a folded note through the

25 court security officer signed by one of you. Do not disclose

10665

1 the content of your note to the court security officer. No

2 member of the jury should hereafter attempt to communicate with

3 except by signed writing, and I will communicate with any

4 member of the jury on anything concerning the case only in

5 writing or orally here in open court.

6 You are not to tell anyone, including me, how the jury

7 stands numerically or otherwise until you have reached a

8 verdict or I have discharged you.

9 If you send a note to me containing a question or

10 request for further direction, please bear in mind that

11 responses take considerable time and effort. Before giving an

12 answer or direction, I must first notify counsel and bring them

13 back to the court. I must confer with them, listen to

14 arguments, research the legal authorities, if necessary, and

15 reduce the answer or direction to writing.

16 There may be some question that under the law I am not

17 permitted to answer. If it is improper for me to answer the

18 question, I will tell you that. Please do not speculate about

19 what the answer to your question might be or why I am not able

20 to answer a particular question.

21 In some instances jurors request that certain

22 testimony be read to them. This cannot be done as it is

23 inappropriate for the Court to single out testimony. In those

24 circumstances, you must rely upon your own recollection.

25 You will each have copies of the document called the

10666

1 jury verdict form. You are instructed to answer the questions

2 in each jury verdict form as directed in that form. In order

3 to answer any question on the jury verdict forms, nine jurors

4 must agree upon the answer. It is not necessary that the

5 jurors who agree on the answer be the same jurors who agree on

6 the answer to any other questions so long as nine jurors agree

7 to each answer.

8 Upon arriving at an agreement, your presiding juror

9 will insert each answer on the jury verdict form. After all

10 the questions have been answered as directed by the jury

11 verdict form, your presiding juror will date the jury verdict

12 form, sign it and then ask all the others to sign it. After

13 you have filled out the jury verdict form in this manner, your

14 presiding juror should advise the court security officer

15 stationed outside the jury room that you have reached a

16 verdict.

17 Now, we have an extensive record on the preparation of

18 these instructions and the objections, and my rulings on them

19 are made, and they are preserved, and they are incorporated now

20 into my making this statement now so you need not repeat them

21 at this time, but I will ask, I was corrected and I am grateful

22 for that in reading these instructions, are there any other

23 objections to the instructions as delivered?

24 First, with Mr. Davidoff?

25 MR. DAVIDOFF: Can I just confer with Mr. Nordberg?

10667

1 THE COURT: Sure.

2 MR. DAVIDOFF: No, no further objections other than

3 those were already lodged.

4 MR. BERNICK: If I can be heard briefly at sidebar?

5 (At the bench:)

6 MR. DAVIDOFF: Just a logistical thing after

7 Mr. Bernick, after we discuss this one issue, can we just take

8 a short break, a comfort break at some point?

9 THE COURT: We are going to take a break as soon as we

10 are through.

11 MR. BERNICK: First of all, I think that in light of

12 at least how we read the 10th Circuit, I think that we have to

13 make our objections now, and we would incorporate the

14 objections that we have made before as if they are now, and

15 there may be some additional objections we would submit in

16 writing before the end of the day.

17 THE COURT: That's fine.

18 MR. BERNICK: There is one thing in reading it

19 through, and I don't know if I am missing something here, but I

20 would urge Your Honor to take a look at because I can't figure

21 it out right now, on the additional questions, you have the

22 question about page 75, one, did it appear on or before

23 January 30, which is the date the case was filed, that the

24 alleged trespass and/or nuisance by Dow or Rockwell or both of

25 them would continue indefinitely, the definition of that. If

10668

1 your answer to the first question is no, then when did it

2 become apparent that the proven trespass and/or nuisance

3 continued indefinitely?

4 My understanding of the purpose of the additional

5 question is to ferret out that subclass.

6 THE COURT: Which it is.

7 MR. BERNICK: If that's to be so, what they should

8 really be specifying is when they find that there was CCE.

9 THE COURT: We will handle it this way. I am going to

10 send the jury back. These are advisory questions.

11 Let's take a recess right now, okay. We can do that.

12 (Brief recess.)

13 THE COURT: It's an advisory instruction, advisory

14 request from the jury, and if you want to do something on it,

15 you can write it up this afternoon, and I will give you a

16 chance to respond to it, and then I will come out, and if it's

17 necessary, then I will give that and tell them that.

18 MR. BERNICK: We will do that. The only reason I am

19 really raising it now is at the least they should be told that

20 nothing that's being said here affects the instructions on the

21 CCE. It says appear, and that's different, and it's only one.

22 MR. DAVIDOFF: Can you give us a chance to discuss

23 those over the break?

24 THE COURT: I said yeah, we can, and you can respond.

25 I don't think it's necessary to bring the jury back.

10669

1 MR. DAVIDOFF: And we renew all of our objections

2 previously lodged.

3 THE COURT: That's all done as a matter of record.

4 MR. BERNICK: I think if this is to be revised --

5 THE COURT: You get this to me this afternoon.

6 MR. BERNICK: -- they ought to obviously know about

7 it.

8 THE COURT: They will. Certainly.

9 MR. DAVIDOFF: When should we be back here, Your

10 Honor? 10 minutes, we will come back and swear in the court

11 security officer.

12 MR. BERNICK: It's all right with us if that oath is

13 administered.

14 THE COURT: We will bring him up. We need to take a

15 break anyway. Let's come back in 10 minutes.

16 (Short recess.)

17 THE COURT: I apologize for some of the words I

18 mispronounced. You have the instructions. And as I said

19 before, we do want you to let us know something about your

20 schedule when you have a chance to tell us.

21 One final thing, I did tell you not to discuss the

22 case except when all of you were together and not to let

23 anybody else discuss it with you. That's extremely important,

24 or to go look at dictionaries or things like that, which would

25 be catastrophic, but I do want you to know we have a long

10670

1 established rule in this court, when this case is over, and I

2 am telling you about it now before your decision because nobody

3 will want to sit and listen to me later.

4 But we have a rule that lawyers are not allowed to

5 contact jurors after they have reached their decision unless

6 they have permission in writing, and I believe quite strongly

7 and have not been persuaded otherwise that once you are excused

8 from further jury service, your rights, your First Amendment

9 rights are restored to you, and you can talk to anybody you

10 want. There will be an instruction in writing to the lawyers

11 if one of you wants to talk to them or more of you want to talk

12 to any of the lawyers, you may, and they can answer your

13 questions. They can talk to you. And then if at any time in

14 that conversation you want to stop the conversation, that's all

15 you have to say is it's over and they must stop. They will not

16 be coming up to you afterwards to talk about the case.

17 Okay. Bring the court security officer up, please.

18 (Court security officers were sworn.)

19 THE COURT: The case is in your hands and you are in

20 their hands, so follow the jury. Let the jury go.

21 (Jury out.)

22 THE COURT: I will prepare the written note the local

23 rule requires and get it to you before the jury comes back.

24 This is an unusual district in that regard, but frequently

25 lawyers want to talk to a jury when they are through, and we

10671

1 went through some very nasty experiences in this court that

2 made the judges pass this local rule. And so that's the way

3 that I interpret the rule and authorize it is if they want to

4 talk to you, that's fine.

5 MR. DAVIDOFF: Logistically now --

6 THE COURT: You are going to get the exhibits. You

7 can get something to eat and come back and do that, and the

8 jury will tell us basically how long -- what hours or what days

9 they are going to deliberate. And then once you get through

10 with the exhibits that are going to go in, and then I would

11 clear out this courtroom to have anything that is not an

12 exhibit not here, and then just be available by phone.

13 MR. DAVIDOFF: Thank you, Your Honor.

14 (Recess at 12:32 p.m.)

15 INDEX

16 Item Page

17 CLOSING ARGUMENTS

18 Rebuttal Argument By Mr. Davidoff 10567

19 REPORTER'S CERTIFICATE

20 I certify that the foregoing is a correct transcript from

21 the record of proceedings in the above-entitled matter. Dated

22 at Denver, Colorado, this 20th day of January, 2006.

23

24 ______________________________

24 Janet M. Coppock