Supreme Court Rejects Hanford Appeal

December 16, 2008

The Spokesman Review, by Karen Dorn Steele
The U.S. Supreme Court has rejected an appeal by Hanford's contractors in the massive downwinders' lawsuit - raising hopes for a legal settlement for up to 2,000 radiation-exposed people after 18 years of court battles and millions of dollars in litigation costs.

The high court's one-line denial of the contractors' appeal was announced today. The contractors, including E.I. Du Pont De Nemours & Co., General Electric Co. and UNC Nuclear Industries Inc., filed their appeal in August, asking the court to review two recent 9th U.S. Circuit Court of Appeals rulings that sided largely with the downwinders.

"This is very exciting for us," said Richard Eymann of Spokane, one of the plaintiffs' lawyers in the long-running case. "With a new administration coming in, we want a serious look at compensation for these people after years of litigation," he said.

The contractors have a long-standing settlement offer that would compensate exposed people based on the amount of radiation they likely received and the illnesses they have, said Kevin Van Wart, lead attorney in Chicago for the Hanford contractors. So far, the plaintiffs have rejected the offer, he said.

"It's back to the races. We'll be back in court (in Spokane) and we'll start addressing the individual cases," Van Wart said.

U.S. taxpayers are paying the legal bills to defend the Hanford contractors in an indemnification agreement that dates back to the Manhattan Project, the secret World War II race for an atomic bomb. The tab for the plaintiffs' lawyers will ultimately come from taxpayers as well, either through jury verdicts or a settlement.

The downwinders were people who lived in Eastern Washington, eastern Oregon and north Idaho at the end of World War II and the early years of the Cold War. They were exposed to releases of radioactive iodine-131 from the Hanford Nuclear Reservation. In lawsuits filed in 1990 and 1991, they claimed the releases caused a variety of health problems, including thyroid cancer.

People didn't know about the radiation releases until U.S. Department of Energy environmental monitoring reports were declassified in 1986. The revelation triggered a major study that concluded people living near Hanford in the mid-1940s and 1950s were put at risk. However, a 2002 U.S. Centers for Disease Control study found no statistical evidence of increased thyroid disease in the exposed population.

In their ruling last spring, the 9th Circuit upheld monetary awards for two "bellwether" plaintiffs with thyroid cancer, rejected the contractors' claim of immunity from lawsuits because they were working for the government, and ruled the deadline for individuals pursuing claims hadn't expired - denying the contractors' statute of limitation claims.

The 9th Circuit ruling upheld an award of $317,251 to Gloria Wise, one of two Hanford plaintiffs with thyroid cancer who got a favorable verdict from a Spokane federal court jury in the 2005 Hanford "bellwether" trial of six plaintiffs with various thyroid diseases linked to the radiation emissions. The contractors argued her claim had been filed too late.

Wise was born in Pasco in 1944, when Hanford's new bomb factories were starting to make plutonium for the Manhattan Project. The plutonium separation plants operated without filters in those early years, spewing iodine 131, an unwanted byproduct, into the air. It settled on fields and was ingested by cows, which passed on the radiation to the small thyroid glands of babies and children when they drank milk. The military pushed for the rapid delivery of plutonium, used in the bomb dropped on Nagasaki on August 9, 1945.

The 9th Circuit also addressed the contractors' claims of legal immunity, ruling that Congress did not adequately define the contractor defense issue when it passed the 1957 Price-Anderson Act. That law limits the liability of nuclear contractors in accidents while ensuring compensation coverage to the general public.

"Because Congress did not enact the Price-Anderson Act against a backdrop of well-established common-law principles that included the government contractor defense, we cannot grant immunity from liability," 9th Circuit Judge Mary M. Schroeder said in her opinion.

The ruling affirmed a ruling on contractor immunity by the Spokane trial judge, U.S. District Court Judge William F. Nielsen, which the contractors had appealed.

The 9th Circuit cleared the way for individual plaintiffs to have their cases heard by a jury. But the 9th Circuit also insisted on a more stringent causation standard than plaintiffs wanted, which will make it harder for them to win future cases, Van Wart said.

There were originally about 2,300 plaintiffs, but some people have died or their cases have been withdrawn, according to Eymann.

The first group of Hanford plaintiffs sued in 1990 under the Price-Anderson Act. Additional cases filed in 1991 were consolidated with the original lawsuits.

The late U.S. District Judge Alan McDonald, of Yakima, who originally presided over the case, had to recuse himself over conflicts of interest involving an orchard he purchased near Hanford. Nielsen took over the case.

In 2005, the parties agreed to a bellwether trial. Its purpose: "to promote settlement and bring long-overdue resolution to this litigation," the 9th Circuit opinion says.

Both parties agreed to try 12 bellwether cases before Nielsen in Spokane. Six claims were dismissed and six went to trial in April 2005. They represented people who suffer from various thyroid diseases linked to iodine 131, including thyroid cancer and hypothyroidism.

After 14 days of trial, the jury found for two thyroid cancer plaintiffs, Steve Stanton and Wise. The jury awarded Stanton $227,508.

Jurors hung on Shannon Rhodes of Coeur d'Alene, who has lung cancer, and rejected the claims of Wanda Buckner, Shirley Carlisle and Kathryn Goldbloom. Nielsen declared a mistrial for Rhodes; her case was retried and the jury rejected her claim.

The 9th Circuit upheld the verdicts for Stanton, Wise and Rhodes and sent the three other bellwether verdicts back for retrial.

Reach Karen Dorn Steele at (509) 459-5462 or at [email protected]