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Attorneys spar in Hanford hearing

Thu., April 14, 2005

Lawyers for Hanford contractors have committed a “fraud on the court” by hiding documents that show how a major study of Hanford radiation releases was set up to defend the government from lawsuits by minimizing estimated doses to the public, a lawyer for Hanford downwinders said Wednesday in U.S. District Court in Spokane.

That assertion from Seattle attorney Tom Foulds got an angry response from Kevin Van Wart of Kirkland & Ellis, the lead attorney from Chicago defending General Electric Co. and DuPont, private contractors who ran Hanford for the government during World War II and the Cold War.

“Is this a judicial proceeding or for the benefit of the media? These are scurrilous allegations,” Van Wart said during the final hearing before the long-awaited downwinders trial begins April 25 in Judge William Fremming Nielsen’s courtroom.

Van Wart will defend the Hanford contractors against claims that radioactive iodine-131 released from Hanford starting in the mid-1940s caused thyroid cancer and other diseases in exposed people, also called Hanford downwinders. The federal government – that is, American taxpayers – would pay any damages resulting from a jury verdict favorable to the plaintiffs.

The controversy over the Hanford Environmental Dose Reconstruction Project, or HEDR, was the subject of an exclusive Spokesman-Review story Feb. 13.

The study was set up in 1988, two years after the public learned that Hanford had released large clouds of radioactive iodine-131 and other dangerous elements starting in the mid-1940s. The public hadn’t been told earlier because most details of plutonium production were kept secret for national security reasons.

The U.S. Department of Energy said the study would give the public a first glimpse of their estimated radiation doses from Hanford. It would be based on “hard, scientific evidence that has been fully and completely reviewed by independent, outside experts,” DOE said at the time.

But documents obtained for the downwinders trial show the study was set up at least in part to defend the government against lawsuits by exposed people.

In a memo for a June 17, 1987, meeting with the study contractor, Battelle Pacific Northwest Laboratories in Richland, the Energy Department’s assistant general counsel, said the U.S. Justice Department wanted input into the study “to support the ongoing and anticipated litigation involving alleged injuries from emissions.”

Now, plaintiffs’ attorneys want the issue of HEDR’s credibility to go before the jury in the upcoming trial of six “bellwether” plaintiffs who claim their thyroid disease and cancers were caused by Hanford’s iodine-131 clouds.

Van Wart objected to that motion Wednesday. “We believe there’s a real potential they’ll turn this into a circus and a sideshow” that would prejudice the defendants, he said. He also said the plaintiffs have no evidence that there were any “secret meetings” where HEDR dose estimates were skewed to favor the defendants.

Foulds, the Seattle attorney, said Van Wart’s firm is continuing to hide important information on communication between the lawyers and the scientists working on the HEDR radiation doses. HEDR experts fed data into a computer code that continually underestimated the Hanford doses, Foulds said.

“Our esteemed counsel asked, ‘Where’s the evidence that the (HEDR) parameters were manipulated?’ It’s still in their offices in Chicago,” Foulds said.

Foulds zeroed in on the role of Walt Haerer, a former Battelle environmental monitoring manager who ran HEDR from 1988 until his retirement in 1990. Haerer continued to work as a consultant to Battelle on the study’s iodine-131 computer code. At the same time, he was a consultant to the Justice Department and Kirkland & Ellis. Haerer admitted his dual role in a recent deposition for the downwinders case.

Foulds said he tried to subpoena Haerer last year because he’d written an expert report on HEDR for the defendants. But Kirkland & Ellis “defrocked” Haerer, changing his status from an expert witness to a consultant and putting him beyond the reach of a subpoena, Foulds said.

“They’ve thrown this veil of secrecy over Haerer,” Foulds said. “This is a fraud on the court. They put a veil over all the information, and they are claiming now that we shouldn’t call this to the attention of the jury,” he said.

Nielsen ruled Wednesday that the HEDR issue could be heard by the jury, probably on cross-examination. “It’s a fair area of cross-examination … . I don’t see how we can say the plaintiffs aren’t justified to make an inquiry into the history of the HEDR study,” he said.

The first radiation damage claims in the Hanford case were filed 15 years ago. Paul Hoefel of Spokane, one of the plaintiffs with thyroid disease who observed Wednesday’s motions, said he’s glad the trial is finally starting this month.

The six bellwethers – down from a dozen initially proposed by both sides – have thyroid conditions that are thought to be representative of more than 2,000 plaintiffs in the larger case.

Nielsen agreed to drop a seventh bellwether, Helen Walker, from the case Wednesday on a motion by the defendants. Walker told her lawyers this week that she’d given them the wrong date – 1955 instead of 1952 – for her thyroid surgery. “We don’t know what triggered this. She’s a woman in her 80s,” said one of her lawyers, Peter Nordberg, of Philadelphia.

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