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New downwinder trials ordered

Wed., Aug. 15, 2007

Appeals court overrules use of expert’s deposition

Three of six “bellwether” plaintiffs in a massive lawsuit over the health impact of radioactive emissions from Hanford during nuclear weapons production will get new trials and a fourth will have her favorable jury verdict reviewed.

In a major decision Tuesday that sets the stage for the remaining 2,300 plaintiffs in the Hanford case, a three-judge panel of the 9th U.S. Circuit Court of Appeals said U.S. District Court Judge William Fremming Nielsen of Spokane properly instructed the jury on a stricter disease causation standard than plaintiffs’ attorneys wanted. The panel ruled, however, that Nielsen committed “reversible error” in allowing improper defense cross-examinations in the trials of three plaintiffs.

They include Kathryn Goldbloom, Shirley Carlisle and Wanda Buckner, who have hypothyroidism and lost their cases before a federal jury in Spokane in 2005.

The court erred by using a non-testifying expert successfully barred by defense attorneys – the late epidemiologist Dr. James Ruttenber of the University of Colorado Medical School – to impeach another plaintiff’s expert, endocrinologist Dr. Terry Davies, the judges said. Nielsen’s ruling allowed defense lawyers to use Ruttenber’s deposition against Davies while prohibiting Davies from testifying that low radiation doses can cause hypothyroidism.

“This ruling was an abuse of discretion, because it deprived the jury of testimony from Dr. Davies about the extent of his pre-litigation experience regarding causes of thyroid illness,” the 9th Circuit ruling says.

“On balance, this is a significant victory for plaintiffs,” said Richard Eymann, of Spokane, a plaintiff’s lawyer in the 17-year-old case.

Although the defendants lost on several legal points, they prevailed on causation and the court’s other rulings should significantly narrow the remaining case, said Kevin Van Wart, of Chicago, the lead trial lawyer for the defendant Hanford contractors.

“Some things we disagree with. But the real message from the court is that this case should be a lot smaller than it is,” Van Wart said.

Tuesday’s ruling also stays a 2005 jury verdict for Gloria Wise, who was diagnosed with thyroid cancer in April 1993 and was awarded $350,000. The 9th Circuit remanded her case to Nielsen for a decision, saying it lacked full knowledge of whether she’d filed in time under Washington state law.

This ruling is a “potential major loss” that could affect other Hanford plaintiffs, Eymann said.

The appeals court upheld a favorable verdict for Steve Stanton, of Walla Walla, another thyroid cancer patient awarded $260,000 during his trial.

Plaintiffs’ lawyers lost their appeal to rehear the case of Shannon Rhodes, of Coeur d’Alene, who is terminally ill with thyroid cancer. Her case was tried twice in 2005 after the jury deadlocked and Nielsen declared a mistrial. According to a signed statement by one of the jurors at her second trial, an unnamed juror announced during deliberations that Rhodes had been tried twice and lost in the first trial. The court said her first trial had been inadvertently mentioned several times during the second trial and no juror misconduct had occurred.

The court upheld many of Nielsen’s rulings, including a finding that E. I Dupont de Nemours & Co., General Electric Co. and UNC Nuclear Industries, Inc., the companies that manufactured plutonium at Hanford for the government during the years of the heaviest radiation emissions, are strictly liable for any health damages caused to people living downwind.

Attorneys for the defendant companies had appealed Nielsen’s ruling, saying they were operating the plants at the request of the federal government and should be indemnified.

The judges also agreed with Nielsen’s ruling that Hanford’s plutonium operations constituted an “abnormally dangerous activity” under Washington state law – a ruling that imposes strict liability on the companies for the radiation releases, which peaked from 1944 to 1946.

The long-running Hanford case was filed in 1990 in the Eastern District of Washington, after documents obtained under the Freedom of Information Act by The Spokesman-Review and activist groups in Spokane and Washington, D.C., showed Hanford had released massive quantities of radioactive iodine-131 at the end of World War II and during the early Cold War. The public wasn’t informed at the time. A 1990 Hanford study confirmed that the releases had put people at risk for developing thyroid disease – triggering a flood of litigation.

Iodine-131, an unwanted byproduct of plutonium production, was deposited on grass throughout the Inland Northwest and was absorbed into the human thyroid gland when people drank milk. Babies and small children were most at risk for developing thyroid cancer and other diseases, federal studies show. Hanford emissions declined in later decades with longer cooling times and better plant filters to trap the iodine.

The Hanford case has been on appeal twice before. In 2002, the 9th Circuit overruled a decision by its first judge, the late U.S. District Court Judge Alan McDonald, of Yakima, who dismissed thousands of plaintiffs who couldn’t prove they’d received a “doubling dose” of radiation from Hanford.

The court also overruled a petition for medical monitoring, saying the Price-Anderson Act, a 1988 law passed by Congress that sets liability provisions for nuclear accidents, didn’t call for monitoring potential health effects from nuclear accidents.

After the recusal of McDonald for a potential conflict of interest, Nielsen took over the case. Both sides agreed to a “bellwether” trial of a dozen plaintiffs representing a variety of thyroid diseases and exposure estimates. The trial was designed to produce a verdict highlighting the strengths and weaknesses of the parties’ respective cases. Six plaintiffs had their claims dismissed and the remaining six went to trial in April 2005.

U.S. taxpayers have paid over $50 million in legal expenses to defend the Hanford contractors because of an indemnification agreement that dates to the Manhattan Project, The Spokesman-Review learned last year after filing a Freedom of Information Act request on litigation costs.

Each side has 14 days to petition the 9th Circuit for a rehearing before the full bench and 90 days to file a petition with the U.S Supreme Court. If there is no appeal, the case returns to Nielsen’s courtroom. He has signaled during the lengthy case that he favors mediation to resolve the remaining cases.

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