Staff Reports
WC Monitor
10/9/2015
The last claims in the Hanford Site downwinder lawsuit filed in 1991 have been settled or withdrawn, according to documents filed this week in U.S. District Court for Eastern Washington. As many as 5,000 people, according to defense attorneys, had joined the case, claiming their health was damaged by radiation releases from Hanford during the Cold War and World War II. One of the plaintiff attorneys, Richard Eymann, put the number of cases through the years at closer to 3,550. The settlement amounts are confidential, said Kevin Van Wart, lead attorney for the Hanford contractors who were named as defendants in the lawsuit. Plaintiffs were represented by at least 14 different law firms, some of which opted for a lump sum settlement for their clients, with arbitration planned to decide how much money each claimant receives. Other firms reached individual settlements for each client. Court documents did not indicate how many plaintiffs received settlements and how many withdrew claims or had them otherwise dismissed.
“The Department of Energy is pleased to see this long-standing matter resolved,” DOE said in a statement. Although contractors were the defendants in the lawsuit, they were indemnified by the federal government, which is paying the legal costs. The former contractors include DuPont, which was the Hanford contractor during World War II, and Cold War contractors General Electric, UNC Nuclear Industries, Atlantic Richfield, and Rockwell International. Most of the claims that advanced through the decades of the lawsuit were for thyroid cancer and other thyroid diseases that claimants believed were linked to iodine-131 released from the stacks of Hanford processing plants to drift downwind. The releases peaked in 1945-47. Iodine concentrates in the thyroid and can be particularly harmful for children, who may develop thyroid disease years later as adults.
Just six of the plaintiffs in the case had their cases heard by a jury. In 2003, Judge William Fremming Nielsen ordered that 12 cases would be picked – half by each side – to go to trial to serve as bellwethers that could help guide settlement agreements for other plaintiffs. The defense accused the plaintiffs of picking their strongest cases to go to trial and the plaintiffs accused the defense of picking weak cases. None of the six cases picked by defendants went to trial. All dropped out of the case or were dismissed by the judge before the trial started in 2005. Of the six cases picked by plaintiffs, three involved thyroid diseases other than cancer, such as hypothyroidism, and the jury awarded them no money. The jury gave awards that totaled $545,000 to two plaintiffs who had thyroid cancer and split on a third cancer case with lower radiation exposure. On retrial, attorneys asked the jury for a verdict of $20 million to $30 million for that plaintiff, but the jury sided with the defense and awarded no money.
After the 9th Circuit Court of Appeals ruled in the case in 2007, work on reaching settlement agreements began to move forward and some plaintiffs began to agree to settlements, Van Wart said. The rulings clarified the requirements for the defense and plaintiffs, he said. The appeals court affirmed that plaintiffs had to prove that if not for Hanford radiation they would not have become sick. Eymann, who represented a large group of plaintiffs, said plaintiffs were forced to settle because the cost of taking cases to trial one by one, including individual expert reports and multiple depositions, was prohibitively expensive. Plaintiff attorneys told the judge in 2008 that by then the defense had spent $57 million, which was covered by the federal government.
Eymann said the total settlements reached were only a fraction of what was spent on defense of the case. In one early settlement agreement that was made public in court, the defense had offered $150,000 for thyroid cancer patients if they had estimated exposures of more than 10 rads and $40,000 for hypothyroidism patients with estimated exposures of more than 40 rads. Some patients with thyroid nodules were offered payments of $25,000. Eymann said he was unhappy with the final settlement amounts and believed the many other plaintiff attorneys in the case would agree with him. “From the very beginning we dealt with a scorched-earth defense,” he said. “These people were never fairly compensated for the extent of their injuries and how they suffered from their injuries over many, many years.” The Centers for Disease Control and Prevention spent more than $20 million on an epidemiological study that concluded in 1999 that there was no evidence to show that children living downwind of Hanford when iodine-131 was released developed thyroid cancer or other thyroid disease at higher rates than children who were not exposed. Plaintiff attorneys argued that study was flawed, along with the Hanford Environmental Dose Reconstruction, which was used to estimate iodine-131 exposure for individuals. The defense next will file a motion for the court to dismiss the final claims, either because they have settled or been dropped by plaintiffs. Then it will propose that the court enter an order to show cause why the case should not be closed.
