*514 MEMORANDUM OPINION AND ORDER
Plaintiffs are individuals who own land near the Rocky Flats Nuclear Weapons Plant (Rocky Flats) and two banks, Bank Western and Field Savings Corporation (collectively, the Banks), that hold security interests on land near Rocky Flats. Defendants Rockwell International Corporation (Rockwell) and Dow Chemical Company (Dow) are former operators of the plant. Plaintiffs seek to recover: (1) “response costs” under section 107 of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9607; (2) damages under the Price-Anderson Act, 42 U.S.C. §§ 2211-2284; and (3) damаges for Colorado common law torts with jurisdiction based on diversity. The claims under the Price Anderson Act and Colorado common law are identical.
Rockwell moves to dismiss and/or strikе: (1) plaintiffs’ claim for “retrospective and prospective population based health surveys”; (2) plaintiffs’ request for medical monitoring “injunctive relief”; and (3) the Banks’ claims for violations of the Price Anderson Act and Colorado common law. The matter is adequately briefed and oral argument will not materially assist me. For the reasons stated below, I grant the motion to dismiss the Banks’ trespass claims and deny the remainder of the motion.
I. STANDARD
For the purposes of a motion to dismiss, I accept all factual allegations as true and resolve all reasonable inferences in favor of the plaintiff.
Tri-Crown, Inc. v. American Fed. Sav. & Loan, Ass’n,
II. ANALYSIS
A. Population-Based Health Studies
In an earlier preceding in this case, I stated:
Although Colorado has yet to do so, I conclude that the Colorado Supreme Court would probably recognize, in an appropriate case, a tort claim for medical monitoring.
Even assuming that the Colorado Supreme Court would recognize a tort claim for individualized medical monitoring, I do not believe that the Cоlorado Supreme Court would recognize as cognizable plaintiffs’ claim for generalized scientific studies.
A medical monitoring claim compensates a plaintiff for diagnostiс treatment, a tangible and quantifiable item of damage caused by a defendant’s tortious conduct. Such relief is akin to future medical expenses. The claim does not compensate a plaintiff for testing others to determine the odds that a particular person might contract a disease____
Plaintiffs have cited no authority for their common law claims to rеcover the costs of generalized scientific studies. I discern no basis for such a claim. Thus, I hold that the scientific studies requested by plaintiffs here are not recoverable under a mеdical monitoring cause of action. Accordingly, Rockwell’s motion to dismiss the portions of the complaint that seek such studies will be granted.
Cook v. Rockwell Int’l Corp.,
I reaffirm my holding that generalized populаtion based scientific studies are not cognizable in a medical monitoring cause of action. However, plaintiffs, in their brief, profess that “the population-based health surveys sоught in the Amended Complaint are limited to specific individuals for whom medical testing and screening will be furnished.” Plaintiffs’ Memorandum in Opposition at 6 (emphasis in original). What plaintiffs apparently seek are funds to pool the data derived from the medical tests of the exposed plaintiffs.
*515 Assuming, as I must at this juncture, that pooling the results of these diagnostic medical examinations is reasonably necessary to detect the onset of disease, I conclude that this relief is cognizable in a medical monitoring cause of action. Pooling the examination results is a reasonable complement to normal diagnostic testing that furthers the objective behind the tort — to assure the early diagnosis of a latent disease.
B. Injunctive Relief
For relief on their medical monitoring claim, plaintiffs seek a fund to finance medical monitoring services. Second Amended Complaint Prayer for Relief 11 b. “If and to the extent that complete medical surveillance relief is unavailable at law,” plaintiffs seek “medical monitoring and surveillance services in the form of injunctive relief.” Second Amended Complaint Prayer for Relief ¶ c. Rockwell moves to dismiss the claim for “injunctive relief” for two reasons. First, Rockwell argues that this request for relief was not contained in the first amended complaint and leave to amend the complaint in this fashion wаs not granted. I disagree because the first amended complaint, liberally construed, states an equitable claim for medical monitoring relief.
Second, Rockwell argues that dismissal is appropriate because a medical monitoring claim is not cognizable as “injunctive relief.” I conclude that dismissal of this claim is not appropriate.
Plaintiffs’ relief in a mеdical monitoring claim can take two forms. First, plaintiffs can be awarded a lump sum of money. Second, plaintiffs can be awarded a lump sum which is placed into a fund that is administered by the court.
See, e.g., Ayers v. Township of Jackson,
However, while acknowledging that a сourt administered fund involves use of the court’s equitable power, Rockwell argues that a claim for such a fund is not one for “injunctive relief” that can provide the basis for class cеrtification under Federal Rule of Civil Procedure 23(b)(2). That question is not ripe for decision.
C. The Banks’ Tort Claims
The Banks allege the following claims under the Price Anderson Act and Colorado common law: negligence, strict or absolute liability, private nuisance, trespass, and exemplary damages. Rockwell moves to dismiss these claims, arguing that, as mortgagees, the Banks have no claim upon which relief can be granted. I conclude that the Banks’ trespass claims must be dismissed and that the Banks’ remaining tort claims are cognizable.
The Banks’ trespass claims must be dismissed beсause, in Colorado, one must have either title to or possession of property to maintain an action for trespass.
Sullivan v. Clements,
Except for the trespass сlaims, the Banks’ tort claims are cognizable. In Colorado, “a suit may be maintained by a mortgagee, or a beneficiary in a trust deed, for an injury done to his security. He need not have рossession or right to possession of the land. His right of action grows out of the impairment of his security.”
Vaughn,
Rockwell argues that a plaintiff must have either an ownership or possessory interest in the real property to stаte a claim for nuisance. I disagree. Unlike trespass, a nuisance claim does not require ownership or possession of land to state a valid claim. Rather, as long as the plaintiff has a sufficient interest in the land, it may bring an action for nuisance even if it is not the owner or possessor of the land.
See
Restatement (Second) of Torts § 821E(c) (1979). In Colorado, a mortgagee has a sufficient interest in mortgaged property to sue for “an injury done to its security.”
See Vaughn,
Rockwell next argues that the Banks’ tоrt claims are barred by the “economic loss rule.” In Colorado, “th[e] economic loss rule prevents recovery for negligence when the duty breached is a contractuаl duty and the harm incurred is the result of failure of the purpose of the contract.”
Jardel Enters., Inc. v. Triconsultants, Inc.,
Finally, Rockwell argues that dismissal is appropriate because it is vulnerable to double recovery. This argument is without merit because there is no risk of double recovery. Rather, damages will be apportioned according to Colorado law.
See Arnold,
Accordingly, it is ORDERED THAT:
(1) Rockwell’s Motion to Dismiss and/or Strike is GRANTED IN PART AND DENIED IN PART; and
(2) the trespass claims of plaintiffs Bank Western and Field Savings Corporation are dismissed.