In an unusually harsh order, a federal judge has ousted a Spokane attorney from the massive Hanford downwinders case.
U.S. District Judge Alan McDonald also has ordered federal marshals to seize the files of attorney Nancy Oreskovich’s 1,500 clients “for safekeeping.”
The sensitive documents detail medical problems allegedly suffered by the downwinders after they were exposed to Hanford’s Cold War radiation releases.
“The court must … protect the public from an unqualified or unscrupulous practitioner,” McDonald said in his 38-page order signed Tuesday in Yakima.
McDonald encouraged attorneys to report the attorney’s conduct in the case to the Washington State Bar Association for possible disbarment.
A furious Oreskovich, contacted Wednesday at her South Hill home, said McDonald is violating the constitutional rights of her clients.
“His entire order is unconstitutional. It’s exacted unprecedented and irreparable harm on all plaintiffs in this litigation,” Oreskovich said.
She plans an immediate appeal to the 9th U.S. Circuit Court of Appeals.
Oreskovich has violated rules of conduct for Washington state attorneys, McDonald said in his order. He has given her clients 90 days to find another lawyer. If they don’t, they may be dropped from the case.
Oreskovich ran a substandard solo practice, violated court orders, missed deadlines and overcharged her clients for work on the case, McDonald said.
A federal judge has authority to remove a lawyer as an “extreme sanction” when the attorney’s conduct threatens “the very integrity of the adversarial process,” he said.
But a leading trial attorney says McDonald’s own conduct in ousting Oreskovich is questionable.
“I find no lawful authority for anything he’s done,” said Leonard Schroeter of Seattle, past president of the Washington State Trial Lawyers Association.
“This has been a star chamber proceeding. Sending marshals to pick up the files of clients - what is the statutory basis? What about the constitutional constraints on privacy, on search and seizure? It’s shocking and outrageous,” Schroeter said.
McDonald’s investigation “lacks the constitutional protections that a citizen of the United States should have,” said Oreskovich’s attorney, Larry Carter of Preston, Gates Ellis in Seattle.
McDonald’s investigation was triggered by a complaint in April from Spokane attorney Richard Eymann. He had associated with her last year in the downwinders case, but asked to withdraw, citing “irreconcilable differences” over the management of the case.
Eymann’s allegations “appeared to confirm suspicions this court already had concerning Oreskovich’s abilities and her honesty,” McDonald said.
But what appears to have angered McDonald the most is Oreskovich’s role in leaking a sensitive report McDonald had ordered sealed.
The report by retired professor Thomas Pigford concludes Hanford’s radiation emissions were probably far larger than a $27 million government study estimated in 1994.
“The leaking of the Pigford report is certainly relevant to Oreskovich’s conduct as a whole,” the judge said.
McDonald also said Oreskovich:
Was unprepared to handle complex litigation in her solo practice. She was admitted to the bar in 1989, but has never tried a case.
Failed to keep her clients informed of important developments - including her association with Eymann.
Clashed with him on whether Westinghouse Hanford Co. should be dropped as a defendant. He said her efforts to keep Westinghouse in were a waste of time and money.
Obtained only about a hundred medical records for her 1,500 clients. The records are essential to prove people were harmed from Hanford emissions.
Missed important deadlines to submit reports from scientific experts.
Oreskovich’s clients, also known as the Berg plaintiffs, still have no expert alleging harm from Hanford’s iodine 131 emissions, despite a due date last December, McDonald said.
Oreskovich said she expected to share experts with other plaintiffs’ attorneys.
Her second report, on non-iodine emissions, was so inadequate it prompted the defense contractors to immediately file a motion to drop the Berg clients from the case, McDonald said.
The expert Oreskovich used for that report, Dr. Vietchau Nguyen of Minneapolis, is a convicted felon, McDonald noted.
Nguyen pleaded guilty on Nov. 30, 1990, to two counts of mail fraud and conspiracy to defraud the United States for overcharging on government contracts - including one with the U.S. Department of Energy to work on estimates of Hanford radiation doses.
Some downwinder activists think Nguyen was set up because he, like Pigford, said the dose reconstruction effort underestimated radiation doses to downwinders.
“The hiring of Nguyen once again brings Oreskovich’s competency into question,” McDonald wrote.
Eymann’s firm has agreed to stay on the case - if the Berg clients approve, Eymann said Wednesday.
His firm, Feltman, Gebhardt, Eymann and Jones, decided they’d leave the Berg clients in a “potentially disastrous situation” if they simply exited, he said.
McDonald’s order is a sad development for the downwinders, said Seattle attorney Schroeter.
“Nancy Oreskovich isn’t really the issue in an ultimate sense - it’s the downwinders and their rights. They should have a lawyer of their own choice,” he said.