Partial Dismissal and Opportunity to Amend Complaint – Summary

After Judge Fleissig’s partial dismissal on March 27, 2013, six defendants and one count remain ‘alive’ in the Coldwater Creek lawsuit.  The remaining count is a Federal claim falling under the Price Anderson Act (“PAA”) as amended in 1988.  The Price Anderson Act is a series of amendments to the Atomic Energy Act that were intended to foster private sector participation in the nuclear energy industry.

In Count One of the complaint, Plaintiffs assert a public liability action under the PAA.  A public liability action is a claim of liability related to a ‘nuclear incident’ – the release of nuclear by-products, special nuclear materials, and/or source materials – that causes bodily injury, sickness, disease, death, loss or damage to property, or loss of use of property.   In its decision, the court agrees with the Plaintiff’s definition of a public liability action, and agrees that plaintiffs may bring such a claim in this particular court.  However, the Judge found that claims arising out of a ‘nuclear incident’ may only be brought under the PAA (a federal law), and not under state law claims, such as negligence, emotional distress, and the other state law claims included in Counts Two through Eight.  The judge quotes a decision of the U.S. Court of Appeals for the Fifth Circuit (“5th Circuit”), stating “A plaintiff who asserts any claim arising out of a ‘nuclear incident’ as defined in the PAA . . . can sue under the PAA or not at all.”  Cotroneo v. Shaw Env’t and Infrastructure, Inc. 639, F.3d 186, 194 (5th Cir. 2011).  The judge also looked to the decision of the U.S. District Court for Eastern Tennessee, in which the court dismissed state law counts in a class action for damages under the PAA and state tort law based on radiation releases at a nuclear fuel processing facility in Tennessee between 1957 and 2010, holding that the PAA completely preempted state law causes of action such as strict liability, wrongful death, and negligent infliction of emotional distress.   For these reasons, the judge dismissed each of the state law claims in the lawsuit.

Because Missouri is not part of the Fifth Circuit, the Judge was not required to follow the determination of the court in the Cotroneo case, quoted above.  Similarly, the judge was not required to follow the decision of the Eastern District of Tennessee.  However, she was free to do so, where neither the U.S. District Court for Eastern Missouri or the U.S. Court of Appeals  (of which Missouri is a part) had ruled on this issue.

The next section of the judge’s decision revolves around the ‘duty of care‘ owed to the plaintiffs by defendants.  In other words, how much care and attention were required of the defendants in their handling of radioactive materials – and should the court look to state or federal law in deciding the level of care and attention required?  The court held that the duty of care owed by the defendants is determined by federal safety standards for maximum permissible radiation dose levels.  The court can only rule in favor of the plaintiffs if they can show that the defendants caused the plaintiffs to be exposed to an amount of radiation exceeding the federal safety standards for maximum permissible radiation dose levels, and that such exposure caused plaintiffs’ injuries.

The required duty of care impacts the manner in which the Plaintiffs draft their complaint.  Specifically, the defendants wanted the entire case dismissed because, they claimed, the Plaintiffs’ did not meet the requirements for drafting their pleadings (the complaint).  Defendants claimed – and the judge agreed – that the Plaintiffs did not specifically claim that each plaintiff was injured because s/he had been exposed to radiation in an amount greater than the federal maximum requirement, or that each Defendant was the cause of such exposure.  Plaintiffs claimed that the content of their complaint is sufficient, and that more specificity is not required at the time of pleading.  Rather, Plaintiffs claim, more specifics will become available through the discovery process – especially since some of Defendants’ actions were performed secretly.  The Plaintiffs requested that, if the court agreed with the Defendants, and found that their complaint required more specific allegations, the Plaintifs be given the opportunity to amend the complaints in order to meet the heightened requirements.

Ultimately, the judge found that “an essential element of a public liability action is that each plaintiff’s exposure exceed the federal dose limits (emphasis mine).”  The court said that although the Eighth Circuit Court of Appeals had not decided this issue (in other words, even though the court knew it was not required to), the court was going to follow the decisions of the U.S. Courts of Appeals for the Third, Sixth, Seventh, Ninth, Tenth and Eleventh Circuits, which have concluded that “the maximum permissible radiation dose levels set by federal safety standards establish the duty of care for radiation injuries, and that imposing a non-federal [state] duty would conflict with federal law.”

Instead of dismissing Count One the case, however, the Court did grant Plaintiff’s request to amend the original complaint.  The court ordered that the Plaintiffs shall have up to and including May 10, 2013 to “file amended complaints that sufficiently plead a cause of action under the PAA.”  This means that the amended complaint must contain factual allegations of  when, where, and how each Plaintiff was exposed;  identify the federal permissible dose limit for each Plaintiff’s claim;   and allege the radiation dose each Plaintiff received.

The court also ordered that the decision to deny Defendant’s Motion to Dismiss as it relates to Count One is without prejudice – although the judge did not dismiss Count One (the PAA claim), the Defendants are free to file new Motions to Dismiss after the Plaintiffs file their amended complaint.

The judge found that Missouri’s five-year statute of limitations in personal injury claims applies to claims under the PAA, and that defendants are free to raise their statute of limitations claims in response to the Plaintiffs’ amended complaint.

As far as the decision to dismiss the complaints against AFC and Citigroup, Inc., the Judge found that the two companies are not proper defendants in the lawsuit because the court lacks personal jurisdiction.  In other words, the judge agreed with their arguments that they do not have significant contacts with Missouri, and that even if their subsidiaries have contacts with Missouri, AFC and Citigroup, Inc. cannot be held liable for the acts of those separately incorporated subsidiaries.


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Motions to Dismiss and ‘Lone Pine’ Motion – In General

On March 27, 2013, U.S. District Court (Federal) Judge Audrey G. Fleissig partially dismissed the lawsuits filed on behalf of individuals claiming injury by contaminants of Coldwater Creek.   While many parts of the lawsuit have been dismissed, the suit is still pending in the U.S. District Court for the Eastern District of Missouri.

In order to better understand the judge’s decision to dismiss parts of the case, and to best understand which parts of the lawsuit are still ‘alive,’ it is helpful to understand the steps that led up to the judge’s decision.

First of all, a Motion to Dismiss – a request for the judge to toss out the lawsuit – is filed by the defendant in almost every lawsuit. Plaintiff attorneys know that this will happen, and are prepared to respond to a Motion to Dismiss.

The most common reason for a defendant to ask the judge to dismiss a lawsuit is the claim that the plaintiffs ‘failed to state a claim upon which relief can be granted.’  At its most basic, this could mean that the plaintiff claims that defendant did something that is not, in fact, illegal.  More frequently, the defendant contends that the contents of the plaintiff’s complaint is not specific enough to allow the judge to rule against the defendant.  For example, the defendant may argue that the plaintiff’s complaint doesn’t explain the connection between the defendant’s behavior and the plaintiff’s harm.

A lawsuit may also be dismissed if the plaintiff did not follow specific rules related to how a complaint must be written.  Similarly, a defendant may ask for dismissal of a lawsuit because the events in the complaint happened ‘outside the statue of limitations‘ – in other words, Congress or the Legislature passed a law stating that certain types of lawsuits must be filed within a specific time after an injury occurs.  If the injury occurred outside that time-frame, the complaint must be dismissed.

Sometimes defendants request that a lawsuit be dismissed because, they claim, the court ‘lacks jurisdiction‘ to hear the claim – that it does not matter whether the plaintiff’s complaint is true or not true because the lawsuit should not have been filed with this particular court.  The judicial system includes several different kinds of courts, and certain kinds of cases must be filed in different kinds of courts.   In general (with many exceptions) claims that a Federal law (a law passed by the U.S. Congress) has been broken are filed in Federal court, and claims that a State law (a law passed by the state legislature) has been broken are filed in State court.  In some cases, Congress or the Legislature limit or specify where a lawsuit may or must be filed if a particular law is violated.  Sometimes the residence of the plaintiff or defendant will determine where a case is filed.

In some types of cases, a plaintiff may have several choices of where to file a lawsuit.   This decision can get very complicated when one lawsuit includes both Federal and State laws, where the plaintiffs and defendants are located in different states, and/or where the injury to the plaintiff occurred in one state, but the plaintiff and defendant live in a different state or states.  In some cases, a suit can be filed in Federal court simply because of the amount of money at stake.  Deciding where to file a lawsuit is one of the most important decisions an attorney makes when the case could be filed in more that one court.  A lawsuit may be dismissed if it is filed in the ‘wrong’ court.  Sometimes there may be a strategic advantage to filing the lawsuit in one court over another because of different rules, different judges, or different jury pools.  Some lawsuits are put on hold and/or appealed simply because the sides disagree over where the lawsuit should have been filed.

In the Coldwater Creek case, the defendants also filed a so-called ‘Lone Pine’ Motion for a case management order.  A case management order is an order from the judge that describes, as the name suggests, how a specific case will be managed and may contain additional rules the attorneys must follow.  Such orders are regularly used in large cases with multiple plaintiffs and multiple defendants in order to make the case easier to manage.  In cases such as the Coldwater Creek case, the attorneys and judge rightly assume that the documents in the case will fill many, many boxes, file cabinets, or even a small room.  It often makes sense to try and simplify the case as much as possible in order to limit unnecessary documents, and reduce the amount of time it will take to work through the case.  Judge’s caseloads are notoriously high, especially in Federal court, and Judges are under pressure to get through cases as quickly as possible.  The plaintiffs and defendants rarely agree on which documents are ‘necessary,’ or how much time will be required for a ‘fair’ hearing.  Arguments about these issues must be resolved before the actual complaint can be examined.

In very general terms, a Lone Pine case management order requires the plaintiffs to provide specific facts to support their claims of injury before the discovery period begins.  Discovery is the period of lawsuit during which the plaintiffs and defendants are allowed to request information and documents from one another.  Each party is required to provide the information and documents requested, provided the requests fall within certain rules and guidelines set forth by the Rules of Civil Procedure and the courts.

In the Coldwater Creek lawsuit, plaintiffs named fifteen (15) different defendant companies.  The complaint makes different allegations against each company.  As a result, each company has its own independent interest in the lawsuit, and is free to hire its own lawyers to represent those specific interests.  Some of the companies decided that their interests and defenses to the allegations in the lawsuit were similar enough that their attorneys worked together to create a joint defense.  After the initial complaint was filed, the plaintiffs dismissed the claims against some of the defendants.

As a result, in the Coldwater Creek case, attorneys filed four separate Motions to Dismiss on behalf of eight (8) defendants, in addition to one ‘Lone Pine’ motion filed on behalf of all ten (10) remaining defendants.  While the judge reviewed each motion separately, she drafted one opinion in which she addressed all five motions.

The judge’s opinion will be described in Plain English in the next post.

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Partial Dismissal

The Judge’s decision partially granting the Defendant’s Motion to Dismiss is now available here:

Several different motions to dismiss were submitted on behalf of multiple defendants.  Some defendants have been dismissed from the lawsuit completely.  For the other defendants, the state law claims have been dismissed.  The claim arising under federal law remains.

I’ll post a more detailed ‘Plain English’ version of the decision as soon as I can.

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Portions of Coldwater Creek Lawsuit Dismissed

Today the St. Louis Post Dispatch reported that seven of the eight counts in the Coldwater Creek lawsuit have been dismissed by U.S. District Court judge Audrey Fleissig.  According to the article, the claim “under a federal law involving injuries caused by exposure to nuclear materials was not dismissed”.   Based on the complaint, I assume the reporter is referring to Claim 1:  Claims Arising Under the Price-Anderson Act.  A summary of this claim is available in the “Complaint Summarized” post on this blog.

The Post Dispatch Article can be read in its entirety here.

I am currently celebrating the Easter weekend with family, and will provide a more detailed update as soon as possible.

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How to Take Action (Without Filing a Lawsuit)

Initially, the purpose of this blog was simply to explain the legal aspects of the Coldwater Creek Lawsuit in plain English.  Since the report about the creek and lawsuit aired on KSDK last week, many people who lived near the creek and have suffered from a variety of illnesses have left comments here.

In order to answer some of the common questions being posted, I have included new tabs (above) to provide some of the information requested.  The tab entitled “The Attorneys” provides contact information for the attorneys handling this particular lawsuit, as well as information about how to go about finding an attorney of your own to help you determine whether you have a legal claim.   The tab entitled “More Information” includes information about how to contact volunteers, who, unrelated to this law suit, are collecting data from people who grew up or lived near Coldwater Creek and have developed cancer, autoimmune, and other diseases, or have suffered from reproductive problems.  The volunteers are compiling the data in order to present it to the Center for Disease Control in the hope that the government will conduct its own survey, and clean up Coldwater Creek.

If you are willing to share information about your illness with these volunteers, please visit  There, you will be asked to provide information about your street address and zip code, the years you lived there, and the type(s) of illness(es) you have dealt with.  Providing your information here will not automatically include you in any pending litigation, and will not result in your inclusion in this or any other lawsuit.  No legal action will occur on your behalf unless you personally contact an attorney, and sign an agreement authorizing that attorney to represent you.  Your data will only be used to determine whether there is a ‘cluster’ of illnesses in the Coldwater Creek area.  If a ‘cluster’ is proven, the hope is that the government will conduct a complete clean-up of Coldwater Creek so that current and future residents of the area are not exposed to uranium, thorium, and the other contaminants that may be leading to serious illnesses.

You may also wish to contact your elected officials and encourage them to make sure that Coldwater Creek is cleaned up.  Senator Claire McCaskill of Missouri can be contacted at Senator Roy Blunt of Missouri can be reached at  Remember, these officials work for YOU.

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After the Complaint – Now What?

Immediately after the Coldwater Creek lawsuit was filed, it received much attention for obvious reasons.  But now what?

Now, we wait.  And wait.  And wait.  It feels like forever, but the timing of each aspect of a lawsuit is spelled out in the Federal Rules of Civil Procedure.  The Rules are very dense, detailed, and difficult to read.  Like all good sets of rules, they are full of exceptions to the rules.  And then, there are exceptions to the exceptions.  So, I’m not going to even try to spell out the specific timing of a case like the Coldwater Creek case, or guess how long it may take to resolve.  Instead, I’ve tried to explain the very basic next steps in the case:

After the complaint was filed with the court, the plaintiffs (the injured parties) notified the defendants (the companies they claim injured them) of the lawsuit.  At that point, the defendants have a certain number of days to file their response to the complaint.  The general rule is 21 days, but again, there are exceptions to that rule.

When a case has multiple defendants, the defendants usually contact one another in order to decide if they want to pursue a joint defense, or an individual defense.  The defendants in the Coldwater Creek case are quite varied – from publicly traded multinational corporations, to limited liability companies that are possibly owned by an individual or small group of individuals.  Some of the smaller companies are owned by larger corporations.  As a result of these differences, the defendants may have very different ideas about how to defend themselves against the lawsuit, and may choose an individual defense.  Companies who are similar and have a similar defense may pair up in their defense.  In any case, the plaintiffs’ lawyers will likely be dealing with multiple defense lawyers, each with different goals.

After several weeks, or up to a couple of months, the defendants will submit their responses to the case.  Each defendant is required to simply admit or deny each allegation or claim against it.  The response will not contain a legal or factual defense, or any evidence related to the admissions or denials.  The response is filed with the court, and becomes part of the public record.

After the response is filed, the Plaintiffs and Defendants will begin the process of discovery.  Discovery is the process by which both sides of the lawsuit gather information and evidence related to the case.  The Judge will meet with both parties for a scheduling conference to create a schedule for discovery.  However, the discovery schedule usually changes during the course of the case.  (I will explain more about that later.)

Common discovery tools include (but are not limited to):  Interrogatories, in which one side poses a series of questions that the other side is required to answer (again, with certain exceptions);  A request for admissions asks the opposing party to admit certain facts in the case, in order to shorten the trial time by reducing the number of items the parties must prove in court.  A request for documents requires one party to provide documents to the other party, even if those documents contain information that is harmful to the party providing the documents;  Depositions are used to question potential witnesses under oath before trial.

Discovery can take months or years.  There are limits to the number of requests and depositions each side may ask for, but each side may also request permission to exceed the general limits.  Each side may also ask for an extension of time allowed to provide the answers or documents requested.  Sometimes, one party purposely drags out discovery in order in order to delay trial as long as possible.  Disagreements between the parties related to discovery requests, delay and extensions can result in additional conferences with the judge, or motions to the court.  When a party files a motion related to discovery, the party is asking the judge for a formal court hearing to resolve the disagreement.  Each conference and motion takes additional time, and the discovery schedule is often changed – and becomes longer.

Interrogatories, requests for documents, depositions and conferences with the judge are not part of the public record.  In other words, the evidence gathered during discovery and the conversations with the judge remain confidential.  It is up to each side to decide which pieces of evidence it will enter into evidence, or formally submit to the court at the time of trial.  Only items formally entered into evidence will become part of the public record and are generally available to case observers.

Motion documents, on the other hand, are generally public, although some motions and responses to the motions can be ‘sealed’ so they remain confidential, either to only the Judge or to the parties in the case.  (For example, individual medical records may be sealed.)  If a motion results in a court hearing, the court hearing is usually open to the public.  Again, if the motion is related to particularly sensitive information, it may be closed as well.

The discovery process is also subject to the Federal Rules of Civil Procedure, and the lawyers are subject to very strict ethical guidelines. Lawyers can face penalties (fines, reprimands, or even – though rarely – disbarment) if they do not behave in an ethical manner during the discovery process.  (For example, if they knowingly hide documents that they are required to turn over to the other side.)

At any time prior to, during, or after discovery, but before trial, the defendant may ask the judge to dismiss the case for failure to state a claim.  This means that the defendant claims that the plaintiffs’ complaint does not include a legal claim that can be resolved by a court.  If the judge finds that no legal claim has been asserted, the case is dismissed.

Either party may also file a Motion for Summary Judgment – usually after discovery is complete.  In a motion for summary judgement, the moving party (the party filing the motion) claims that there is simply no factual dispute in the case – both sides agree on the facts.  If the parties agree on the facts, the argument goes, then the only remaining aspect of the case is a determination of whether the law favors the plaintiff or the defendant.  The judge may then ‘summarily’ rule in favor of the moving party, thereby ending the case.

(Here’s an example of summary judgment), Jimmy and Bobby both agree that the Jimmy’s ball broke Bobby’s window. They also both agree that Tommy is the person who actually threw the ball.  Bobby believes that under the law, the owner of the ball is responsible for any windows the ball breaks. Jimmy believes that under the law, the person who threw the ball is responsible for any windows the ball breaks.  Jimmy may file a motion for summary judgment.  If the Judge agrees with Jimmy’s analysis of the law – yes, indeed, the thrower is responsible –  the judge may grant ‘summary judgment’ in favor of Jimmy.  Jimmy’s ball broke the window, but Jimmy is not at fault.  Jimmy ‘wins’ and does not have to pay to fix Bobby’s window.)

If the case is not resolved by Motions for Summary Judgment, the case is then ready to go to trial.  Trials can last anywhere from days to weeks, to months, depending on the complexity of the case.  Perhaps you remember the John Travolta movie, “A Civil Action,” based on the book by the same name.  In that case, the initial phase of the trial took five months.  (The case ended with one defendant being found ‘not guilty’ by the jury after the first phase of the trail.  Prior to the second phase of the trail, the other defendant settled for a relatively low $8 million.)

Which brings us to settlement negotiations.  The parties can try to settle the case at any point.  Often, parties discuss settlement at many different points during the litigation.  None of the settlement negotiations are public, or can be introduced at trial by either side.  Settlement may happen any time prior to the end of trial.  Usually, cases that settle do so after discovery, and just prior to – even the night before – trial.

So how long will the case take from start to finish?  There is no way of knowing.  In theory, the case could settle tomorrow.  In reality, it’s time to settle in for months and months of discovery and related disputes.

The “Civil Action” case took nine years from start to finish.  The Three Mile Island case (related to the release of nuclear radiation into the environment) was filed in 1979, and wasn’t resolved until 2002 – and even then several small portions of the case related to businesses who claimed damage were not resolved.  Of course, most lawsuits take much less time to resolve, but when a case consists of multiple plaintiffs and multiple defendants, it is not unusual to measure the time of the case in years, rather than months or  days.

So, it’s time to settle in for the long haul.  How ’bout them Cards?

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Coldwater Creek Lawsuit – Original Complaint

In case you are interested in wading through all 42 pages of the Coldwater Creek complaint, here it is!

Just click below:


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