Downwinder has burden of proof, defense lawyer says

Shannon Rhodes of Coeur d’Alene has a rare form of thyroid cancer that was not caused by radioactive contamination from the Hanford Nuclear Reservation in the 1940s, a lawyer for the defendant Hanford contractors said Tuesday in U.S. District Court in Spokane.

In his opening statement to the jury, attorney Kevin Van Wart said Rhodes’ attorneys will have to prove over the next two weeks that Rhodes’ cancer was “more likely than not” caused by radioactive iodine-131 from Hanford – a burden of proof he says they can’t meet.

Van Wart represents General Electric Corp. and E. I. DuPont de Nemours, the large corporations that ran Hanford during World War II and the early years of the Cold War to produce plutonium for the government’s nuclear weapons program.

The law firms working for GE and DuPont have been paid $49,757,263 from the start of the Hanford litigation in 1991 through this July to defend the case against the claims of more than 2,300 people who say Hanford’s radiation emissions made them sick. The federal government has been closely watching the case because of the precedent it could set for compensating people harmed by nuclear weapons production.

The litigation tab for the Hanford case was provided in July during the U.S. Senate confirmation hearing of David R. Hill as general counsel for the U.S. Department of Energy. Hill provided the updated figure in response to a question by Sen. Maria Cantwell, D-Wash.

U.S. taxpayers are paying that bill because the federal government agreed during World War II to indemnify the private companies who contracted to run Hanford and other weapons plants. Plutonium production was a dangerous and messy business that released huge clouds of invisible iodine-131, a radioactive gas that drifted downwind, tainting pastures and ending up in the milk consumed by small children.

So far, only two Hanford downwinders have received any money in the long-running case. In May, in the first trial of six Hanford “bellwethers” thought to be representative of the other plaintiffs, a Spokane jury awarded just over $500,000 to compensate two downwinders for their thyroid cancers. The jury rejected the claims of three other plaintiffs with autoimmune thyroid disease.

In that first trial, Rhodes’ case ended in limbo after the jury deadlocked 10-2 in favor of the defense. The 64-year old Coeur d’Alene resident was diagnosed recently with terminal cancer.

Also on Tuesday, one of her doctors said Rhodes’ cancer is one of the rarest she’s ever seen.

Dr. Colleen Carey, a Spokane endocrinologist, has been treating Rhodes since her cancer, previously thought to be in remission, returned aggressive. She said Rhodes’ cancer is not a familial disease, although her mother and grandmother had enlarged thyroids.

Carey told the jury that Rhodes’ cancer, which has spread to her lungs, trachea and skull, is growing and eventually will invade her trachea and cut off her breathing. Rhodes’ prognosis is “very poor,” she said. “I’d not expect her to live beyond five years,” Carey added.

On cross-examination, Van Wart challenged Carey, saying she had previously described the new lesion in Rhodes’ skull as only a “possible” metastasis from her thyroid cancer. But Carey said she was speaking as a doctor, not a lawyer.

“I use ‘possibly’ differently than it’s used in court,” Carey replied. “It’s for the process of caring for my patient.”