203 F.3d 1190 (10th Cir. 2000)
JOSEPH DODGE, individually and as  personal representative of the Estate of   Thelma Dodge; ROCKY MOUNTAIN  EQUESTRIAN CENTER, INC.; PATRICK SHANE DODGE; CONNIE  DODGE; NATHAN DODGE, LESLIE  DODGE, BRYAN DODGE, and  PATRICK DODGE, minors, by and  through their parents and next friends,  Patrick Shane Dodge and Connie Dodge;  YVONNE PEGARARO; NOAH  WELCH, and JEREMIAH WELCH,  minors, by and through their parent and  next friend Yvonne Pegararo; RHONDA  BUTSON; DANIEL SLANOVICH; GUS  SLANOVICH; CHANDLER CREEK  COMPANIES; DONALD LUNA;  SONJA LUNA;BRETT LUNA; JAMES  BLUE, individually and as personal  representative of the Estate of Virginia  Blue; EDNA BLUE; RUSSELL  JEWETT; BONITA JEWETT; SHIRLEY  BICKETT; JOHN BICKETT; RICHARD  JANITELL; RALPH JANITELL; JOHN  PINELL; EMMA PINELL; JAMES L.  TREAT; ASPEN TRUST; NARD  CLAAR; SARA CLAAR; RUTH QUICK  JOHNSON; MIKE HADLEY;  KATHERINE HADLEY; LINDA  JOHNSON; ALICIA JOHNSON and  BLAINE JOHNSON, minors by and  through their mother and next friend  Linda Johnson; JULIE ANN WRIGHT;  JENNIFER WRIGHT and NICOLE  WRIGHT, minors by and through their  mother Julie Ann Wright, and CANON  FARMS TRUST,  Plaintiffs,DESIREE CHRYSLER; DANIEL  CHRYSLER; AUGUST CHRYSLER,  and CLAYTON CHRYSLER, minors, by  and through their parents and next friends,  Desiree Chrysler and Daniel Chrysler;  NORMAN PLATT, individually and as  personal representative of the Estate of  Dorothy Platt; BRUCE HADLEY;  VIRGINIA HADLEY; JACK HADLEY;  SHAYLEE HADLEY; KIM MYERS;  SID MYERS; CASEY MYERS and  CHAD MYERS, minors by and through  their parents and next friends Kim Myers  and Sid Myers,  Plaintiffs - Appellees and  Cross - Appellants,v.COTTER CORPORATION,  Defendant - Appellant and Cross - Appellee.
Nos. 99-1178, 99-1199
UNITED STATES COURT OF APPEALS TENTH CIRCUIT
February 11, 2000

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO. D.C. No. 91-Z-1861 John L. Watson (Marsha M. Piccone, W. David Byassee, and Mark T. Barnes  with him  on the briefs), Freeborn & Peters, Denver, Colorado, for Defendant-Appellant.
Suzelle M. Smith (Don Howarth with her on the briefs), Howarth & Smith, Los Angeles,  California, for Plaintiffs-Appellees.
Before BALDOCK, PORFILIO, and MURPHY, Circuit Judges.
PORFILIO, Senior Circuit Judge.


1
In 1958, Cotter Corporation, a subsidiary of the Commonwealth Edison Company  of Illinois, began operating a uranium mill near Canon City, Colorado, extracting  uranium from ore by an alkaline leach process.  The two types of waste produced by that  process, tailings, dust-like particles of ore, and raffinate, liquid recovered from the  uranium extraction solutions, eventually contaminated the area, including the semi-rural  community of Lincoln Park, and triggered its designation as a Superfund site on the  EPA's National Priority List.  Subsequently, some five hundred Lincoln Park residents  filed an action under the Comprehensive Environmental Response Compensation and  Liability Act (CERCLA), 42 U.S.C. §§a9601-9675, the Price-Anderson Act,  42 U.S.C.  §a2210(n)(2), and Colorado law alleging Cotter's negligent operation of the mill  caused  damage to their health and property.  After class certification was denied, eight plaintiffs,  selected for the first trial, convinced a jury Cotter was negligent in operating the mill but  failed to establish its negligence caused their exposure to hazardous materials which  required future medical monitoring.


2
Now before us is a second group of fourteen plaintiffs who, armed with the first  jury's finding of negligence, established Cotter's negligence caused their physical  injuries and were awarded monetary damages.  Cotter assails the judgment on numerous  grounds, and plaintiffs cross-appeal.  Of the many issues Cotter raised, one predominates. After careful review of this ponderous record, we conclude the district court incorrectly  applied the doctrine of offensive collateral estoppel, precluding Cotter from litigating the  issue of negligence.  For the single issue remaining in plaintiffs' cross-appeal, whether  the district court properly granted summary judgment dismissal of their fear of cancer  claim, we reject the contention of error.  We, therefore, reverse the judgment and remand  the action for retrial.

I.  Background

3
The Cotter uranium mill (the Mill) occupies a 640-acre site in south central  Colorado, two and a half miles south of Canon City.  Lincoln Park, an unincorporated  area, is a mile and a half north of the Mill.  The Arkansas River borders Lincoln Park's  northern rim while Sand Creek and the DeWeese Dye Ditch angle across its southern  perimeters.  During its years of operation crushing ore into "yellowcake," a concentrated  uranium,1 dry tailings were carried off-site  by winds.  Liquids, recovered from the  uranium extraction solutions and stored in unlined ponds, leached into groundwater  beneath the Mill and flowed north toward Lincoln Park along the Sand Creek channel.


4
As early as 1959, the Atomic Energy Commission (AEC), which then regulated  uranium production operations at the Mill, notified Cotter of violations of the conditions  of its license.  Annual violations of AEC standards of Protection Against Radiation  occurred through 1968 when the state of Colorado (the State) took over responsibility  from the AEC for licensing radioactive materials.  In the meantime, Cotter's production  rose from 50 tons of uranium a day in 1958 to 1200 tons a day in 1979, when the State  relicensed the Mill.


5
In an effort to clean up the site, both the EPA and the Colorado Department of  Public Health and Environment (Department) targeted the Mill's unlined storage ponds  as a primary source of the proliferation of such hazardous substances as uranium,  molybdenum, thorium, radium, selenium, arsenic, and lead.  By 1981, Cotter had closed eight unlined ponds and constructed two new tailings facilities sealed with an eighteen  inch hypalon liner overlaid with six inches of clay.2  Later, Cotter added a clay barrier to  the Sand Creek Dam to prevent water flow from the Mill into Lincoln Park.  Despite  these efforts, state inspections would reveal tears in the ponds' linings or violations of air  emissions standards.  Although Cotter ceased operating the Mill in 1987, the Department  projected the clean-up would not be completed until 2012.3


6
In 1983, after persistent and unabated violations, the State sued Cotter in federal  court for damages to natural resources and clean-up of the contamination.  State of  Colorado v. Cotter Corp., Case. No. 83-C-2389.  In 1988, the parties settled the  matter  by a Consent Decree which provided a Remedial Action Plan (Plan).  The Plan required  the creation of the Human Health Risk Assessment Panel (Panel) which prepared a report  in 1991 on the Lincoln Park Superfund Site evaluating the health risks to the surrounding  populations from the Mill's off-site chemical releases.  The Panel quantified exposures to  Mill-related chemicals in air, surface water, sediment, ground water, soil, and different  types of locally raised food; measured the toxicity of the exposures; and assessed the  possible health risks based on those evaluations.  The Panel concluded "risks to humans  were generally low, especially when judged in comparison to natural 'background' levels  of mill-related metals in the environment."  However, the Panel excepted from that  conclusion a possible health concern in drinking ground water "because of the presence  of molybdenum (and, to a lesser extent, uranium) in the water."

II.  Boughton Trial

7
In 1989, some five hundred residents and property owners living in Lincoln Park,  Brookside, a community east of the Mill, and Canon City (collectively, Lincoln Park)  filed suit in federal court.  In an amended complaint, Lincoln Park plaintiffs requested  statutory relief under CERCLA and sought damages exceeding $350 million for Cotter's  negligence, strict liability, nuisance, willful and wanton conduct, outrageous conduct,  trespass, and absolute liability.  In addition, plaintiffs requested damages and injunctive  relief for medical monitoring.  Although plaintiffs sought class certification, the district  court held the action was not maintainable under Fed. R. Civ. P. 23(a) because individual  issues predominated over common issues of law or fact.  The parties then agreed to the  selection of eight bellwether plaintiffs (Boughton  plaintiffs) for  the first trial.


8
The Boughton plaintiffs did not allege any physical  illnesses or injuries.  Instead,  they claimed they and their property were exposed to hazardous substances from the  Cotter Mill and sought damages for trespass to real estate; damages for nuisance; and  medical monitoring based on negligence.


9
At the close of the evidence after a twenty-three day trial, the court framed the  issues for the jury to decide with the parties' claims and defenses.  It instructed the jury,  in part, "The plaintiffs claim that they and their properties have been exposed to  radioactive and hazardous contamination as a result of Cotter's milling operation.  They  assert that this contamination has significantly increased their risk of health problems,  and that they are therefore entitled to medical monitoring."  Although the Boughton plaintiffs did not claim their exposure to hazardous substances caused physical injuries,  they contended medical monitoring of the possible adverse effects of the exposures was  required.  For Cotter's theory of defense, the court told the jury,


10
Cotter admits that its operations have caused some ground water  contamination by radioactive and molybdenum materials in certain limited  areas, but Cotter states that the contamination has been and is now being  cleaned up pursuant to a government-supervised Remedial Action Plan. Cotter claims that it did not engage in any conduct nor breach any legal  standard for which it would be liable to plaintiffs.


11
The court then instructed the jury on negligence tracking the language of the  Colorado Civil Jury Instructions.  Instruction 25 provided:


12
The plaintiffs claim that Cotter was negligent, and therefore  plaintiffs are entitled to medical monitoring.


13
Negligence means a failure to do an act which a reasonably careful  person or company would do, or the doing of an act which a reasonably  careful person or company would not do, under the same or similar  circumstances to protect others from bodily injury or property damage.


14
Even if statutes, ordinances or regulations govern the actions of a  person or corporation, that person or corporation must use reasonable care  under the particular circumstances and conditions prevailing.


15
Reasonable care is that degree of care which a reasonably careful  person or company would use under the same or similar circumstances.


16
The degree of care that constitutes reasonable care increases in  proportion to the degree of risk associated with the particular activity.


17
Instruction 26 set forth each of the elements the jury had to find for the Boughton plaintiffs to succeed on the claim of negligence for medical monitoring.  It  stated:


18
In order for any particular plaintiff to recover from Cotter on his or  her negligence claims for medical monitoring, you must find that all of the  following have been proved as to that particular plaintiff:


19
1.  that the particular plaintiff was significantly exposed to a proven  hazardous substance;


20
2.  that Cotter was negligent;


21
3.  that Cotter's negligence was a cause of that plaintiff's exposure;


22
4.  that as a result of that exposure, the particular plaintiff suffers a  significantly increased risk of contracting a serious latent disease;


23
5.  that the significantly increased risk makes periodic diagnostic  medical examinations reasonably necessary; and


24
6.  that monitoring and testing procedures exist which make the  early detection and treatment of the disease possible and beneficial.


25
The determination of which of the plaintiffs, if any, are entitled to  medical monitoring must be made independently for each plaintiff.


26
If you find that a particular plaintiff has proved all six of these  propositions by a preponderance of the evidence, then your verdict must be  for that plaintiff on that plaintiff's negligence claim for medical  monitoring.


27
After five days of deliberation, the jury returned separate special verdict forms4 for  each plaintiff making a claim of negligence for medical monitoring, trespass, and  nuisance.   There was no separate verdict form on which the jury found Cotter was  negligent under Instruction 25.  However, on each of the plaintiffs' "Negligence claim  for medical monitoring Special Verdict Form," the jury was asked whether Cotter was  negligent and found Cotter negligent.  For each Boughton plaintiff the jury also found  there was no exposure to hazardous substances making reasonably necessary future  medical monitoring or testing.5  After the  verdicts were read, the jury asked the court,  "[C]ould you explain about the other 500 plaintiffs?  We promise we never considered  them during deliberation."  The court told them because it was impossible to try such a  large case, it was hoped that an initial bellwether trial might provide some "indication  helpful" to resolve the remaining plaintiffs' cases.  The Boughton plaintiffs' appeal of  the denial of class certification and other issues was later rejected.  Boughton v.  Cotter  Corp., 65 F.3d 823, 828 (10th Cir. 1995).  Cotter did not cross appeal.

III.  DodgeTrial

28
In the second trial, fourteen plaintiffs (collectively here, Dodge), members of four  Lincoln Park families, filed an amended complaint which was virtually identical to the  complaint in Boughton I.  Although the years of the alleged  negligence are slightly  different,6 the Dodge complaint alleged verbatim Cotter's negligence rested on  its breach  of the "duty to properly control and contain the radioactive and/or hazardous materials,"  and "to prevent said radioactive and/or hazardous materials and constituents from being  released into the air and allowed to migrate or leak into the groundwater, surface water,  rivers and soils in the vicinity."  Further, the complaints alleged the breach of the duty to  control and contain allowed "radioactive and/or hazardous materials to be released into  the air and allowing said radioactive material and constituents to migrate or leak into the  groundwater, surface water, rivers and soil in the vicinity."  The complaint listed the  same eleven "negligent acts and/or omissions" found in Boughton.7


29
The Dodge plaintiffs moved prior to trial for partial  summary judgment on the  issues of negligence, trespass, and nuisance, contending those issues were settled in Boughton, and Cotter should be collaterally estopped from  litigating them in the second  trial.  The Dodge plaintiffs represented the district court had  "streamlined resolution of  issues common to all Lincoln Park residents by designating eight Bellwhether [sic]  plaintiffs in Boughton."  They urged because the Boughton jury finally adjudicated "the  ultimate issues of negligence, trespass and nuisance . . . [a]pplication of collateral  estoppel to these issues is the logical follow-up to the Court's prior decisions, and  accomplishes avoiding the unnecessary expense of multiple litigation of the same issues,  conserving judicial resources, and encouraging reliance on judicial action."  The Dodge plaintiffs relied on Parklane Hosiery Co. v.  Shore, 439 U.S. 322 (1979), contending  they had satisfied the four conditions for the offensive use of collateral estoppel.


30
Cotter strenuously resisted the motion, arguing that despite the virtually identical  complaints, the first verdict was not clear, fully obscuring which of the eleven asserted  grounds of negligence was found; which standard of care was relied upon over the forty-year  period of operation; and what period of time Cotter acted negligently toward each  plaintiff.   Key to its argument, it contended, was labeling the Boughton I verdict a  "special verdict," when,  in fact, it was a general verdict.


31
At the hearing on the motion,8Dodge plaintiffs argued that because collateral  estoppel is an issue-specific doctrine, its offensive use would insulate only the issue of  negligence, the breach of the duty of care, leaving questions of proximate cause,  damages, and affirmative defenses for the parties to establish.  Cotter countered  instructing the jury that the court had already found it was negligent was overwhelmingly  prejudicial in the face of the Dodge plaintiffs' claims for punitive damages.  Instead,  Cotter urged the district court to instruct the jury that judgment was entered in its favor  against plaintiffs for dismissal of the negligence claim for medical monitoring,  eliminating its need to introduce medical monitoring or physical injury testimony.  Cotter  relied on Pomeroy v. Waitkus, 517 P.2d 396 (Colo. 1973), in  which the Colorado  Supreme Court held the application of collateral estoppel was not appropriate to prevent  the same defendant in a second trial from litigating affirmative defenses not raised in the  first trial.


32
After hearing the arguments, the court ruled the "pure issue of negligence" had  been decided and would not be relitigated, emphasizing the ruling did not affect liability,  proximate cause, the negligence of another party, or willful and wanton conduct, all of  which "certainly is going to be litigated."  At the close of five weeks of trial in Dodge,  the court then instructed the jury,


33
The Court already has determined that defendant was negligent.  The  Court's determination that the defendant was negligent must not influence  you in determining any of the remaining issues in this case.  As you will be  instructed further at the end of this case, a finding of negligence is not a  finding of liability.  You must still determine whether defendant's  negligence caused any of the injuries or damages alleged by plaintiffs,  whether defendant's conduct constituted gross negligence, and other issues  that will affect the liability, if any, of the defendant.


34
The jury returned verdicts in favor of plaintiffs and awarded damages for physical  injuries and diminution of the value of their property on that same day of deliberations.

IV.  Collateral Estoppel

35
Cotter persists in contending the court improperly afforded Dodge plaintiffs the  benefit of a preclusive factual finding which overwhelmingly prejudiced its ability to  defend the second action.  Although Cotter overlays the primal question of its negligence  with the issue of causation and damages9 and  ultimately urges we adopt a per se rule that  application of collateral estoppel is inappropriate in negligence cases, we must agree that  whatever the plaintiffs, trials, and verdict forms were labeled, it is not possible to know  the compass of the Boughton I jury's finding of negligence.  We  therefore hold the  district court erred in giving that particular issue preclusive effect.


36
We review the district court's entry of summary judgment barring claims under  the doctrine of collateral estoppel de novo, construing the record in the light most  favorable to the non-moving party and drawing all inferences in that party's favor.  Gonzales v. Hernandez, 175 F.3d 1202, 1204 (10th Cir. 1999)  (citation omitted); Meredith v. Beech Aircraft Corp., 18 F.3d 890, 894 (10th Cir.  1994).  We also look to  federal law to reach our conclusion.  Orjias v. Stevenson, 31 F.3d  995, 1010 (10th Cir.  1994).  That is, although the issue precluded, negligence, is a matter of state law, the  preclusive effect given in federal court to a prior federal judgment is subject to federal  law.  Murdock v. Ute Indian Tribe of Uintah & Ouray  Reservation, 975 F.2d 683, 687  (10th Cir. 1992).


37
"When an issue of ultimate fact has once been determined by a valid and final  judgment, that issue cannot again be litigated between the same parties in any future  lawsuit."  Ashe v. Swenson, 397 U.S. 436, 443 (1970). Parklane Hosiery sanctioned the  offensive use of collateral estoppel, permitting a plaintiff to "foreclose the defendant  from litigating an issue the defendant has previously litigated unsuccessfully in an action  with another party."  439 U.S. at 326 n.4.  Under Parklane, if the  components of  collateral estoppel are satisfied, its benefits of economizing judicial resources and  lessening the burdens of relitigating identical issues already decided, would be afforded a  non-mutual plaintiff provided defendant had previously had a full and fair opportunity to  litigate the issue.  Importantly, the decision to eliminate the mutuality requirement to  permit the plaintiff such a windfall was placed within the trial court's "broad discretion."  Id. at 331.10


38
In this Circuit, application of collateral estoppel requires:  (1) the issue previously  decided is identical with the one presented in the action in question, (2) the prior action  has been finally adjudicated on the merits, (3) the party against whom the doctrine is  invoked was a party, or in privity with a party, to the prior adjudication, and (4) the party  against whom the doctrine is raised had a full and fair opportunity to litigate the issue in  the prior action.  Murdock, 975 F.2d at 687 (citations omitted). The record copiously  establishes three of the four elements.  However, the Boughton I jury instructions, our  blueprint for determining the parameters of the first jury's verdict, sabotage the existence  of the first element.


39
As we previously noted, the Boughton I complaint  contained eleven specific  allegations of negligence, providing detail to the preceding three paragraphs alleging  Cotter's duty, breach of the duty, and "negligent acts and/or omissions of the Defendants,  including but not limited to" the catalog of specific negligent acts.  Nonetheless, the first  jury was simply instructed, in part, "negligence means a failure to do an act which a  reasonably careful person or company would doa. . . ."  The jury was not instructed on the  specific duty allegedly breached.  Nor did the verdict form specify what negligent act  formed the basis of the general finding of negligence.  Counsel for Dodge plaintiffs  would fill the gap by stating that seven of the eleven specific counts of negligence  "explicitly refer to releases and the other 4 (E, F, I, and J) clearly encompass them."  Thus, she urges the Boughton trial was about the release of  contaminants and adds "on  the special verdict forms, the jury found that Cotter was negligent in answering questions  about medical monitoring."  However, the Boughton trial did not  resolve whether the  same released contaminants in whatever directions or forms or times amounted to  negligent conduct as to each Dodge plaintiff with a clear  indication the parties intended  to be bound for all future proceedings by that finding.


40
Moreover, although seven of the eleven specific allegations may refer in some  respect to releases, another alleges Cotter failed to test incoming ores; a second that  Cotter failed to provide a timely and adequate warning; and a third that Cotter failed to  properly train and supervise its employees.  Nonetheless, our concern is not that the jury  did not find negligence on one or more specific allegations, but that the general finding  under the negligence instruction fails to identify what the jury found sustained by the  evidence.  Thus, we cannot say as a matter of law the issue decided by the first jury is  identical to the issue in controversy in this case.  To attempt to cure that defect by  labeling the first trial a "bellwether,"11 or  citing the pretrial order is to no avail.  The Boughton I jury's verdict does not assure an unassailable finding  that plaintiffs met their  burden of proof that Cotter breached a specific duty.


41
At oral argument, Dodge plaintiffs' counsel represented  the Boughton trial court  clearly indicated it would try the common issues for however many trials were necessary. In response to the panel's request for every citation to the record documenting the trial  court's express intention to try the issue of negligence as if it were an exemplar or class  action forum, Dodge counsel submitted a supplemental appendix  including the Boughton complaint and jury instructions; pretrial orders  indicating the presence of the  issue of negligence; the special verdict forms; and a Dodge jury  instruction.  None of the  citations expressly establishes the parties were on notice the first jury would decide the  issue of negligence as a matter of law for all succeeding trials.  For example, Dodge counsel prefaces inclusion of  Boughton jury instruction 3, in part, to establish  "the 8  Cases Were Bellwether Cases or Sample Cases Because It Would be Impractical to Try  the 500 Boughton cases Separately."  However, the jury  instruction stated, after listing  the names of the parties:


42
In actuality, more than 500 plaintiffs have filed this action.  Because it  would not be practical to conduct more than 500 separate trials, or even one  trial involving more than 500 plaintiffs, the parties and the Court decided to  designate certain plaintiffs as sample plaintiffs, or "bellwether plaintiffs,"  and to limit this trial to their claims . . . .  You should make no inferences  from the Court's selection, and you are not to speculate or consider the  extent to which these plaintiffs' claims may or may not represent those of  the remaining plaintiffs, since those claims are not before you.


43
(italics added).  Thus, there is no indication in the record before us that the parties  understood the first trial would decide specific issues to bind subsequent trials.


44
In contrast, we would note Instruction 14 on trespass in Boughton I, an issue the  district court did not collaterally estop from retrial.  That instruction read:


45
For a plaintiff to recover on a claim of trespass, each of the following  elements must be present:


46
1.  that plaintiff holds title or a possessory interest in the property at the time of the alleged trespass;


47
2.  the defendant sets in motion a force which, in the usual course of events,  will damage that plaintiff's property; and


48
3.  any entry upon, under or above the surface of that plaintiff's real estate  without permission or invitation.


49
If you find that a particular plaintiff has failed to prove any of these  propositions by a preponderance of the evidence, then your verdict must be  for Cotter on that plaintiff's trespass claim.


50
On the other hand, if you find that a particular plaintiff has proved  all three of these propositions by a preponderance of the evidence, then  your verdict must be for that plaintiff on that plaintiff's trespass claim.


51
The instruction told the jury it must find each element on a claim of trespass by a  preponderance of the evidence, a standard of proof explained in Instruction 4.  Despite  the greater specificity of the instruction, the trial court refused to allow those findings to  collaterally estop Cotter from proving trespass in Dodge. Counsel, however, further  argues because the Boughton I jury found "in favor of each  Plaintiff on their claims for  trespass, so clearly the Boughton jury found that Cotter had released contaminants into  the Lincoln Park area."  However, we cannot transpose a general finding that substances  were released under another theory of recovery to bar Cotter from contesting the range of  its conduct and duties as alleged in a second action to determine its liability.


52
To place our concerns in a larger context, we would note In re TMI  Litigation,  193 F.3d 613 (3d Cir. 1999), which involved the personal injury claims of over 2,000  area residents arising out of the 1979 nuclear reactor accident at Three Mile Island.  In  that case, the district court adopted a plan for a "mini-trial" suggested by plaintiffs.  The  plan called for an "initial mini-trial of the claims of twelve 'typical' plaintiffs, half  chosen by plaintiffs and half chosen by defendants."  Id. at 627. The mini-trial would  focus on plaintiffs' "ability to demonstrate that they were exposed to doses of radiation  sufficient to cause their neoplasms."  Id. at 623.  The parties then  clearly agreed to  proceed on an "All Plaintiffs" basis, extending the results of the mini-trial to bind  non-participants.  "A contrary intention or result would obviate all benefits of having  consolidated the many separate actions," the district court stated. Id. at 628.


53
To establish causation, plaintiffs relied on several experts who testified about the  dose of radiation released into the environment and then correlated the dose to plaintiffs'  injuries.  When the district court excluded the dose exposure testimony under Daubert, it  then held its Daubert ruling would bind all of the other non-trial  plaintiffs.  Analyzing  this ruling under Fed. R. Civ. P. 42(b), the basis for consolidating all of the cases, the  Third Circuit found applying the summary judgment ruling from the trial plaintiffs to the  non-trial plaintiffs implicated substantive rights protected by the Seventh Amendment  and improperly extended the doctrine of collateral estoppel/issue preclusion. Id. at 725-26.  Despite the array of arguments for efficiency and streamlining the  trial process in the  face of a single nuclear accident, the Third Circuit reversed the extension of summary  judgment applied to non-trial plaintiffs.


54
TMI must remind us to focus on what was actually  litigated and who should be  bound and benefit from those results.  That concern must override arguments about  inconsistent results and time-consuming relitigation of the same issue.  If the parties  intended to bind subsequent litigation with the results of prior test trials, the record must  clearly memorialize that agreement.  Their failure to do that here leaves important  substantive rights at the mercy of trial tactics.


55
We therefore reverse the district court's grant of partial summary judgment, fully  mindful of the impact of the conclusion on this already protracted and voluminous case. If Boughton I was to have been the test case in plaintiffs' effort to  establish this toxic  tort, greater care to assure the jury was properly instructed and the verdict forms were  clear was essential to establish results impervious to relitigation.12

V.  Fear of Cancer   99-1199

56
The district court granted Cotter's motion for summary judgment on Dodge plaintiffs' claim for damages for emotional distress caused by their increased fear  of  cancer.  In their cross-appeal, Dodge plaintiffs contend the ruling  was error.  Because the  ruling represents a final judgment appropriate for review under 28 U.S.C. §a1291, it,  unlike the other issues mooted by our disposition, remains viable.  We review the district  court's order granting summary judgment de novo, applying the same standard of Fed. R.  Civ. P. 56(c) as did the district court.  Roe v. Cheyenne Mountain Conference  Resort,  Inc., 124 F.3d 1221, 1235 (10th Cir. 1997).  In this process, we draw all  inferences in the  non-movant's favor and analyze Colorado law afresh.  Mares v. ConAgra Poultry  Co.,  971 F.2d 492, 496 (10th Cir. 1992).


57
To survive summary dismissal of this claim, Dodge plaintiffs argued their  exposures to hazardous materials caused a range of physical conditions: bony growths,  cataracts, headaches and irritability, to name a few.  They contended these physical  injuries met a threshold for recovery under Towns v. Anderson, 579 P.2d 1163, 1164-65  (Colo. 1978), which abolished the physical impact requirement in negligence cases for  emotional distress and permitted a plaintiff who is subjected to an unreasonable risk of  bodily harm because of another's negligence to recover upon proof of "the internal  operation of fright or other emotional disturbance."  Id. at 1164,  quoting Restatement  (Second) of Torts §a436(2).  Having met this  requirement with the evidence of an array  of manifestations of physical injuries, Dodge plaintiffs, relying on Boryla v. Pash, 960  P.2d 123 (Colo. 1998), then contended Colorado law recognized their right to recover  damages for their resulting objective fear of developing cancer.


58
The district court rejected the argument, observing Dodge plaintiffs offered no  evidence of an objectively reasonable chronic, continuing physical manifestation to  support their fear of an increased risk of cancer as required by Towns and Boryla.13 Dodge plaintiffs now argue the court misapplied Colorado's  "'physical impact' rule,  which gives inference to the genuineness of Plaintiffs' fears so as to permit the jury to  consider damages."  We disagree.


59
In Boryla, plaintiff sought non-economic damages for  emotional distress  including the fear of an increased risk of the recurrence of her cancer as a consequence of  her physician's failure to promptly diagnose her breast cancer.  960 P.2d at 123.  Reversing the Court of Appeals' granting defendant a new trial, the Colorado Supreme  Court rested its discussion on what it believed was a clear distinction between fear of  cancer cases arising from a medical malpractice setting and those involving toxic torts.14  It stated, "In cases where the plaintiff demonstrates that her cancerous condition  physically worsened as a result of the delayed diagnosis, the plaintiff has demonstrated a  sufficient physical injury to permit the recovery of emotional distress damages." Id. at  128.  In contrast, the court noted a toxic tort case required a different standard because  "the plaintiff has yet to experience the onset of cancer," id., but  believes the particular  exposure makes him vulnerable to that increased risk.15


60
The Colorado Supreme Court concluded, "For these reasons, traditional  negligence principles which focus on proximate cause as well as the reasonableness of  the plaintiff's fear are sufficient to evaluate fear of cancer claims in medical malpractice  claims."  Thus, Boryla was a medical malpractice case, and the  court expressly limited its  analysis and holding to that arena.  Id.


61
Dodge plaintiffs, however, would extend the analysis to  embrace their toxic tort  claim, equating the manifestation of certain acute conditions with a permanent objective  injury leading to an increased risk of cancer.  In the absence of any indication the  Colorado Supreme Court would permit such an expansion, we decline to do so.  Nor is it  necessary here.  At a minimum, Dodge plaintiffs failed to set  forth any evidence that they  suffer from a chronic objective condition caused by their increased risk of developing  cancer to permit their recovery for emotional distress damages.  Although counsel would  sweep every physical manifestation plaintiffs alleged under this mantle to satisfy Boryla,  its efforts are misplaced.  Summary judgment was therefore appropriate on the claim.


62
We therefore REVERSE and REMAND the case  for a new trial.  However, we AFFIRM the order granting summary judgment on the fear of cancer claim.



Notes:


1
 The Mill produced and shipped the  yellowcake to nuclear power plants in  northern Illinois owned by Commonwealth Edison, Cotter's parent company.


2
 These ponds, an integral part of the Mill  operation and site, are vast; one covers  91 acres; the other 44 acres.


3
 Cotter planned to resume operations in 1999.


4
 The special verdict form stated:
1.     Was [plaintiff] significantly exposed to a proven hazardous substance?
(Yes or No)
2.       Was defendant Cotter negligent?  (Yes or No)
3.       Was Cotter's negligence, if any, a cause of [plaintiff's] exposure, if any? (Yes or No)
4.       As a result of his exposure, if any, does [plaintiff] suffer a significantly  increased risk of contracting a serious latent disease?  (Yes or No)
5.       Does this significantly increased risk, if any, make periodic diagnostic  medical examinations reasonably necessary for [plaintiff]?  (Yes or No)
6.       Do monitoring and testing procedures exist which make the early detection  and treatment of the disease possible and beneficial for [plaintiff]?  (Yes or  No)


5
 Three plaintiffs prevailed on nuisance claims;  six succeeded on their claims of  trespass although only four were awarded monetary damages.  No non-economic or  exemplary damages were awarded.


6
 Boughton I alleged 1958-present, and Dodge 1958 -1991. Although the  difference is readily explainable, the first verdict did not indicate the time period or dates  of Cotter's negligence.


7
 Paragraph 50 of both complaints stated:
These releases and contamination of the air, ground water, surface water,  rivers and soil in the vicinity of the facility and property were proximately  caused and their results aggravated by the negligent acts and/or omissions  of the Defendants including, but not limited to, the following:
(A) permitting the emissions, releases and leaks of radioactive  and/or hazardous materials from the facility and property to occur;
(B) failing to determine where and how the emissions, releases and  leaks of radioactive and/or hazardous materials occurred and in failing to  correct the problems to prevent further leakage and emissions;
(C) failing to provide adequate containment of the radioactive  and/or hazardous materials;
(D) failing to provide adequate air, surface water, ground water,  rivers and soil sampling and/or monitoring to detect releases of radioactive  and/or hazardous materials;
(E) failing to take proper measurements of particle sizes and  emissions;
(F) failing to test incoming ores adequately for the presence of  hazardous or toxic materials;
(G) failing to timely and adequately warn or otherwise notify  Plaintiffs of such releases and contamination and the effects thereof;
(H) failing to take timely and adequately remedial actions to contain  and clean up such contamination and to prevent recurring releases;
(I) failing to properly train and supervise their employees to insure  that the necessary safeguards and procedures would be followed in the  event that any emissions, releases or leaks of radioactive and/or hazardous  materials from the facility and property might occur;
(J) failing to comply with applicable Federal and State laws,  regulations, licenses or orders;
(K) being negligent in the construction and implementation of  remedial measures for containing releases from the tailing ponds and  operating facilities.


8
 The hearing addressed only the issue of  negligence, the court having already  denied the motion on the issues of trespass and nuisance.


9
 Cotter also confuses the analysis under Fed.  R. Civ. P. 23 with that for  determining whether the first trial resolved the question of negligence.  The district court  fully recognized collateral estoppel is an issue preclusion doctrine and did not  confound  it with questions of the various types of relief sought which formed the basis of the  denial of class certification.  Further, Cotter's assertion Dodge plaintiffs "could have  opted to be plaintiffs in Boughton" is specious, defying the record of  opposing counsels'  meeting with the United States Magistrate Judge and selecting the plaintiffs for each  case.


10
 Assuredly, we are cognizant of the trial  court's broad discretion and long  involvement in the two cases.  Neither, however, trumps the legal elements of the  doctrine.  Although the court and counsel may know how an issue was resolved, that  understanding cannot be fully superimposed onto the second jury without a clear  indication of what, in fact, the first jury decided.


11
 The dictionary states a bellwether is "one  that takes the lead."  Webster's New  International Dictionary (3d ed. 1993).


12
 Obviously, this conclusion moots the  remaining issues raised in the cross-appeals.  However, because the question of expert testimony  is likely to recur, we would  be remiss not to indicate our concern that the district court vigilantly make detailed  findings to fulfill the gatekeeper role crafted in Daubert v. Merrell Dow  Pharmaceuticals, Inc., 509 U.S. 579 (1993). Given the novelty of the medical causation  theory here linking exposure to molybdenum with osteoarthritis and bony exostoses, it is  essential that by specific findings of record the trial court assures the expert testimony  offered by both sides is relevant and reliable, and the "particular opinion is based on  valid reasoning and reliable methodology."  Kannankeril v. Terminix Int'l,  Inc., 128  F.3d 802, 806 (3d Cir. 1997).  Finally, all outstanding motions are denied as moot.


13
 At the continued hearing on the motion  on July 16, 1998, the court stated, "I  doubt if we're going to have any claims for fear of cancer.  I just don't see that we have  sufficient material or sufficient showing for that."


14
 The court cited the discussion in Potter  v. Firestone Tire & Rubber  Co., 863  P.2d 795 (Cal. 1993), which recognized significant policy concerns about the  "staggering" impact of "an unrestricted plaintiff class" with fears of cancer.   In those  cases, the California court held, the jury may consider whether "it is more likely than not  that the plaintiff will develop the cancer in the future due to the toxic exposure," as a  threshold for recovery.  Id. at 816.


15
 Defendant physician relied on Potter, which set forth a higher standard for  recovery for fear of cancer damages in toxic tort cases, requiring "in the absence of a  present physical injury or illness, damages for fear of cancer may be recovered only if the  plaintiff pleads and proves that (1) as a result of the defendant's negligent breach of a  duty owed to the plaintiff, the plaintiff is exposed to a toxic substance which threatens  cancer; and (2) the plaintiff's fear stems from a knowledge, corroborated by reliable  medical or scientific opinion, that it is more likely than not that the plaintiff will develop  the cancer in the future due to the toxic exposure."  Id. at 816. Defendant sought to  import this "more likely than not" standard into his medical malpractice case.


