Stakes are high as downwinder’s trial gets started

Shannon Rhodes of Coeur d’Alene, a farm child from Colfax, Wash., who was exposed to dangerous airborne radiation from the Hanford Nuclear Reservation in the 1940s and later developed thyroid cancer, is getting a second trial starting today in U.S. District Court in Spokane.

On May 19, a 12-member federal jury in the high-profile Hanford downwinders’ case deadlocked 10-2 over Rhodes, one of six “bellwether” plaintiffs thought to be representative of thousands of other exposed and ailing people who, in 1990, sued the private contractors who ran Hanford’s plutonium factories during World War II and the early days of the Cold War.

Rhodes’ cancer, which had been in remission, returned aggressively during the trial this spring, but the jury wasn’t told after objections by defense attorneys.

Two of the six plaintiffs, both thyroid cancer patients, were awarded more than $500,000 after the jury decided their illnesses were “more likely than not” caused by Hanford radiation – the legal yardstick used in the case. But the jury rejected the claims of three others with autoimmune thyroid disease, saying their illnesses likely were not caused by Hanford’s emissions of radioactive iodine-131, a byproduct of plutonium production.

After the jury failed to reach a verdict in Rhodes’ case, U.S. District Judge William F. Nielsen declared a mistrial. Settlement talks, which Nielsen strongly encouraged at the conclusion of the first trial, have failed.

Rhodes’ second trial is expected to last two weeks.

Among the thyroid cancer cases, Rhodes had the lowest estimated Hanford radiation dose – 6.9 rads of iodine-131. That is about one-quarter the amount experienced by the other two thyroid cancer plaintiffs who received favorable rulings from the jury.

The stakes in Rhodes’ case are high, observers say.

If a new jury finds for Rhodes, the potential liability of the federal government for hundreds of other plaintiffs with radiation doses under 10 rads would be greatly increased.

Richard Eymann, lead trial attorney for the plaintiffs, has said the government’s liability could reach $2 billion in the remaining 2,300 cases. Defense attorney Kevin Van Wart has said he expects many of the remaining cases to be rejected.

U.S. taxpayers are paying for any verdicts favorable to plaintiffs because the government agreed to indemnify the corporations who ran Hanford for the U.S. nuclear weapons program.

The federal government has spent $100 million on legal costs for the defense and $40 million on a pair of radiation studies since the first Hanford cases were filed in 1990, Eymann said at the conclusion of the trial in May.

In an interview following the first verdict, Rhodes said her medical bills had exceeded $500,000, largely covered by medical insurance.

On the Colfax farm where she was raised, Rhodes drank milk from the family’s cows during the years of Hanford’s largest iodine-131 emissions in the mid-1940s. Children were most at risk from the radiation, which fell on grass and was absorbed in their thyroid glands when they drank milk.

Rhodes has struggled with thyroid disease for 27 years.

Her left thyroid lobe was removed in January 1978, and she was told it was a benign tumor. But a slow-growing cancer was metastasizing in her body. It wasn’t detected until she and her husband, Ken, retired and moved to Coeur d’Alene from Seattle five years ago. “A mass was found on my right lung,” Rhodes said.

She had three more cancer surgeries: in 2001 on her parathyroid gland, in 2002 for the metastasized lung tumor and in 2003, when her right thyroid lobe was removed. She joined the downwinders’ lawsuit in 2003.

At the conclusion of the first trial, Rhodes said she didn’t feel justice had been served because the jury wasn’t allowed to hear that her cancer had returned during the trial.

Cindy Woody of Spokane, one of the two jurors who held out for Rhodes, called her after the trial to apologize. “She didn’t get a fair shake in the jury room,” Woody told The Spokesman-Review.

But Van Wart said the return of Rhodes’ cancer was irrelevant to the legal issues of causation that the jury was asked to decide.

The defense fought a retrial for Rhodes, angering Eymann, who vowed to retry her case.

The downwinders’ case was filed in 1990 in the sprawling Eastern District of Washington, where the biggest Hanford radiation releases occurred in the 1940s and ‘50s.

People in the region hadn’t known about the releases until U.S. Department of Energy monitoring reports were declassified in 1986 in response to Freedom of Information Act requests by The Spokesman-Review and several Hanford watchdog groups.

At first, the case was assigned to U.S. District Judge Alan McDonald of Yakima.

But McDonald was forced to recuse himself in 2002 in a dispute over an orchard he’d purchased in 1999 in a high-radiation impact zone near Hanford. McDonald had certified to a bank that the land was free of any contamination, including radioactive particles.

The case was reassigned to Nielsen. On May 8, 2003, Nielsen pledged an “expeditious, economical and just” resolution to the long-running legal dispute over the human toll of the nuclear arms race.