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Verdict may help downwinders

Thu., Feb. 16, 2006

The half-billion dollar Valentine’s Day federal jury verdict in the Rocky Flats nuclear contamination case puts more pressure on the government to settle its remaining cases, including the big Hanford downwinders’ lawsuit being litigated in Spokane, according to lawyers representing plaintiffs in both cases.

A federal jury in Denver recommended that two Rocky Flats contractors, the former Rockwell International Corp. and the Dow Chemical Co., pay $553.9 million to thousands of property owners who claimed their land was contaminated with plutonium from the facility, which closed in 1989. Rocky Flats made triggers for nuclear bombs from plutonium made at Hanford during the Cold War.

“These were longtime ranchers who were supportive of nuclear weapons plants. But when Dow and Rockwell refused to be open with them about radiation contamination, they got mad and finally prevailed,” said Steven W. Kelly, one of the plaintiffs attorneys in Denver.

However, because of limits on punitive damages, the actual award will be smaller, probably around $352 million, said Louise Roselle, an attorney in both the Rocky Flats and Hanford downwinders’ cases.

“A verdict of $352 million is very significant. It should have a positive impact on the Hanford case. With every tool at their disposal and with their very best lawyers, they lost,” Roselle said.

“The government has never sat down and discussed settling these nuclear cases. People have been harmed, and that’s what they should do,” she said.

The federal government has already paid more than $100 million to defend the Rocky Flats and Hanford cases, Roselle said. About half of that has gone to pay for lawyers and discovery in the Hanford case, The Spokesman-Review found after filing a Freedom of Information Act request last year.

Under a legal agreement that dates to the early years of the Manhattan Project, the U.S. effort to develop nuclear weapons during World War II, the government agreed to indemnify all the legal costs of the nuclear contractors. Michael Waldron, spokesman for the U.S. Department of Energy in Washington, D.C., did not return phone calls Wednesday seeking comment on whether the department would favor mediation to settle the remaining nuclear contamination cases.

On Tuesday, Dow said in a statement it would appeal the Rocky Flats verdict, arguing that U.S. District Judge John Kane improperly instructed the jury. The verdict calls for punitive damages of $110.8 million against Dow and $89.4 million against Rockwell – plus $352 million in actual damages to the property owners.

David Bernick, of Kirkland & Ellis of Chicago, lead trial attorney for the defendants in the Rocky Flats case, said Tuesday that he expected to file an appeal.

The Rocky Flats and Hanford cases were both filed in 1990, after an FBI raid at Rocky Flats and several Freedom of Information Act requests at Hanford yielded documents that revealed sloppy and dangerous operations.

The Rocky Flats case was certified as a class action, because it involved claims of property damage for thousands of people. The Hanford case is not a class action and has about 2,300 individual plaintiffs seeking compensation for illnesses allegedly caused by radiation emissions.

Last year, a Spokane federal jury awarded two Hanford plaintiffs with thyroid cancer a total of $544,759 in a trial of six “bellwethers” whose diseases and exposures to radioactive iodine-131 were thought to be representative of the case as a whole. About 1,500 of the claims involve thyroid disease linked to iodine-131 emissions. Defense lawyers have called many of the non-thyroid cancer, lower-dose cases “frivolous” claims.

Jurors rejected the claims of the four other bellwethers, including Shannon Rhodes, of Coeur d’Alene. Her case was retried last fall after U.S. District Judge Frem Nielsen declared a mistrial when the jurors deadlocked 10-2. Rhodes is terminally ill with metastasized thyroid cancer. A second jury rejected her claim Nov. 23.

In December, Spokane attorney Richard Eymann filed a motion for a new trial for Rhodes, presenting an affidavit from juror Shirley Powell. In that document, Powell said two unnamed jurors had told the others it was Rhodes’ second trial and she had “lost” the first time.

U.S. District Court Judge Frem Nielsen denied Eymann’s motion Jan. 20, saying the fact that Rhodes had been tried before was alluded to several times during the second trial. Eymann filed a motion for reconsideration Feb. 1, and that motion will be heard March 16.

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