Jury rejects Rhodes’ lawsuit

A federal jury on Wednesday rejected the claims of Shannon Rhodes, a Coeur d’Alene woman who said she was exposed as a child on the Palouse to clouds of radiation from the Hanford Nuclear Reservation that caused her terminal illness.

Rhodes, 64, suffers from an aggressive thyroid cancer that she argued was triggered by emissions of radioactive iodine-131 from Hanford’s plutonium manufacturing plants starting in 1944 when she was 3 years old. But the jury didn’t agree.

Rhodes hung her head and then hugged her attorney, Richard Eymann, as U.S. District Court Judge Frem Nielsen released the jury which voted at least 11-1 in favor of the government.

“I’m heartbroken,” Rhodes said. “These corporations and the government did this to me and half of Washington state, and now they won’t be held accountable.”

The two-week trial in U.S. District Court in Spokane was Rhodes’ second this year after her trial last spring ended in a 10-2 hung jury, one vote short of the majority needed. It was being closely watched by the federal government and its contractors because of potential liability from lawsuits involving thousands of people exposed to radiation from nuclear weapons plants nationwide.

Lawyers from Chicago and Seattle representing E.I. DuPont de Nemours Inc. and General Electric Corp., contractors that ran Hanford for the government during World War II and the Cold War, have been paid more than $49 million through this July to defend against the Hanford downwinders’ case, first filed in 1990. In an agreement that dates to the beginning of the nuclear era, their legal bills are indemnified by taxpayers.

Underscoring the importance of the case for the nuclear contractors, a lawyer from DuPont headquarters in Wilmington, Del., sat through much of the Hanford trials this month and last spring.

Rhodes’ case was originally tried with five other “bellwethers,” people whose claims were thought to be representative of over 2,300 people who sued GE and DuPont, claiming the Hanford iodine-131 releases made them sick. Two plaintiffs with thyroid cancer were awarded over $500,000; the jury rejected the claims of three others with autoimmune thyroid disease.

No trial dates have been scheduled for the rest of the plaintiffs.

“The downwinder issue will probably die, along with a lot of downwinders who will not get to tell their stories,” Rhodes said.

On Monday, Eymann, the lead plaintiffs’ attorney, asked the jury to award Rhodes $20 million to $30 million to compensate for the loss of at least 20 years of her life and the pain and suffering she’s about to endure as she dies from metastasized thyroid cancer.

“The money has to be equal to the harm done. … We are talking about her whole life here. Without this, she would have lived 20 to 25 more years,” Eymann said.

Kevin Van Wart, lead defense attorney for the nuclear contractors, asked the five-woman, seven-man jury to decide the case strictly on causation: whether it was more likely than not that radioactive iodine-131 from Hanford caused Rhodes’ thyroid cancer.

“Nobody wants to do this on Thanksgiving. … It’s OK to feel sympathy and yet still decide the case objectively. Could you say to Mrs. Rhodes … we’ll pray for you but we’re sorry, Hanford more likely than not did not cause your cancer,” Van Wart said.

The trial featured medical specialists, Rhodes’ own doctors, epidemiologists and statistical arguments over whether Hanford’s emissions were sufficient to have caused death and disease downwind.

Plaintiffs’ experts said Rhodes’ estimated 6.9-rad dose from Hanford could have caused her cancer. They also stressed the findings of a biological researcher, Dr. Collin Hill, who said even the smallest radiation dose has the potential to cause harm by mutating cells.

Dr. Inder Chopra, a UCLA physician and medical researcher who evaluated Rhodes’ case, said her dose was within the range of the iodine-131 doses from the Chernobyl nuclear reactor accident, where people downwind got average doses of 4.9 rads and there was an epidemic of childhood thyroid cancer.

The defense hammered on Chopra, saying he was evasive and hadn’t done a thorough analysis of other factors in Rhodes’ family history that could have caused her thyroid cancer.

They also stressed the conclusions of a plaintiffs’ expert, Dr. Owen Hoffman, that there was only a 24 percent chance that Hanford was the cause of Rhodes’ cancer.

“It doesn’t meet the test. It has to be greater than 50 percent,” Van Wart said.

The lawyers clashed at length about the conclusions of the Hanford Thyroid Disease Study (HTDS), a $21 million government study that found no link between Hanford radiation exposures and thyroid disease downwind.

The jury was not told about a major controversy over the Hanford radiation doses provided to the HTDS team. The doses came from the $27 million Hanford Environmental Dose Reconstruction (HEDR) study, which documents obtained for the first downwinders’ trial show was set up in part to defend the government against lawsuits by exposed people.

After the secret Hanford releases were first made public in 1986, the U.S. Department of Justice opposed a dose study as useless “public relations” – but changed its mind as soon as the first lawsuit for radiation damages was filed. The documents show that the Energy and Justice Departments set up the HEDR study in 1988 to provide “litigation defense” to fight claims by exposed people.

Plaintiffs’ lawyers said the Hanford Thyroid Disease Study, which used the HEDR doses, was widely criticized by the National Academy of Sciences for its weak statistical power – its ability to detect a radiation effect.

Defense lawyers said many of the criticisms were addressed, and the study was published in the Journal of the American Medical Association, a peer-reviewed journal.

The study found only 19 thyroid cancers among 3,440 study participants, Van Wart said. “The rates of disease near Hanford weren’t different than in other populations,” he told the jury.

The jury verdict appears to have ended Rhodes’ fight.

“I’ve had two trials. I’m done,” she said.

“It’s been three years out of my short life.”

But her attorney, Eymann, vowed to keep trying.

“We remain hopeful that the truth will prevail, and that justice will be done before this litigation is over,” he said.