April 21, 2009 in Region

Settlements being readied for some downwinders

By The Spokesman-Review
 
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Background and the latest updates

For the first time in the protracted Hanford downwinders lawsuit, the lead lawyer for government contractors said Tuesday his companies are ready to offer cash settlements to a few of the thousands of people who believe their illnesses were caused by radiation releases.

U.S. District Judge William F. Nielsen hosted more than a dozen attorneys in Spokane for a status conference on the 18-year-old downwinders lawsuit, which has cost taxpayers more than $57million to defend.

“This case has been caught on dead center for too long,” Nielsen said. “Let’s come up with something so we can proceed.”

No money has gone to the more than 2,000 “downwinders,” who say they’ve suffered cancer and other illnesses as a result of living downwind of releases of radioactive iodine-131 from the Hanford Nuclear Reservation near the Tri-Cities. The releases occurred during the production of plutonium for atomic bombs during World War II and nuclear bombs in the early years of the Cold War.

Residents of Eastern Washington, Oregon and North Idaho didn’t know about the releases of the radiation until U.S. Department of Energy reports were declassified in 1986. The disclosure triggered several studies and prompted thousands of people who lived near Hanford in the mid-1940s and 1950s to join the suit, which was filed in 1990 and 1991.

Kevin Van Wart, of Chicago, represents Hanford contractors E.I. DuPont De Nemours & Co. and General Electric Co. He said his clients are willing to pay to settle some claims of people exposed to the most radiation.

Van Wart noted that Nielsen’s previous ruling – later backed by the 9th U.S. Circuit Court of Appeals – that any exposure to 40 rads or less requires speculation about whether it caused the plaintiffs’ illnesses. The vast majority of those exposed to Hanford radiation claim they were exposed to less than 40 rads.

“We think any exposure to less than 40 rads should be dismissed. If people have a 5 percent chance that exposure caused their condition, we will go to court every time,” Van Wart said. “We do believe that some claims are more meritorious than others and should be settled. We will make individual offers. We will see if the plaintiffs find them appealing.”

Louise Roselle, the lead attorney for the downwinders, welcomed Van Wart’s statement about settlement offers.

“Over the last 20 years, the DOE has hidden behind Mr. Van Wart … and the defendants. As long as they are being paid for all their expenses, why would they settle?” Roselle asked.

The attorneys on both sides argued for hours about how to place the plaintiffs into smaller, more manageable groups. They also argued about how to estimate the doses of radiation received by people who lived downwind of the production facility near the Columbia River.

Van Wart blamed the length of the case on the downwinders’ attorneys refusal to settle on dose estimates.

“Eighteen years into litigation, they don’t want to commit to what their doses are,” he said. “If this court ordered them to provide the best estimate of the doses your clients received, they would comply.”

Roselle said that demand felt like “getting set up like pigs heading to slaughter. We can’t bet talking settlement on one hand” and court challenges to the methods used to determine the exposure to radiation on the other, she said.

She said three attorneys have come up with three models to determine doses. Two methods are close to the model used by Van Wart. But another method, proposed by plaintiff attorney Tom Foulds, found much higher dose values, and several of the plaintiffs’ attorneys argued that they should be able to review those processes.

Nielsen set a court date later this spring to hear arguments Foulds’ method. He also implored the attorneys to work together to start putting similar cases into categories that can be handled at a single time.

“We are trying to work toward a sensible way to resolve all these cases,” Nielsen said. “It’s good for you, your clients and the public to see this thing through.”

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