TRI-CITIES, Wash. — More Hanford downwinders could be going to trial to have their claims heard in a 19-year-old case.
Almost 2,000 plaintiffs have pending claims, many of them asserting that past emissions of radioactive material from the Hanford nuclear reservation were carried downwind and caused cancer or other thyroid disease. Some people also believe they developed other cancers from eating contaminated fish.
On Wednesday, Judge William Fremming Nielsen of Eastern Washington District Federal Court in Spokane said that he would select 30 of the claims for hypothyroidism, or underactive thyroids, to proceed to trial as soon as October. In addition, about 32 claims filed for thyroid cancer will be considered for settlement with the help of a mediator.
Nearly a year ago Nielsen indicated that trying cases in individual trials would be too time consuming and costly. Just 10 claims have been resolved through litigation since the case was filed in 1991 and some jury decisions since have been reversed by the 9th U.S. Circuit Court of Appeals.
But Wednesday, Nielsen said that the two sides appeared to be far apart in their settlement talks, with plaintiffs and the defense disagreeing on how much radiation downwinders had been exposed to, according to attorneys at the hearing.
The defense, representing early Hanford contractors, had asked that the judge begin to randomly select cases to go to trial to break a logjam that the defense believes includes many weak claims, according to the defense’s court filings. Although attorneys are representing early Hanford contractors, the U.S. government indemnified them and is responsible for costs and any judgments against the contractors.
The plaintiffs believe most of its claims are solid, contrary to the defense’s portrayal, said plaintiff attorney Richard Eymann of Spokane.
The case includes 636 claims for hypothyroidism that plaintiffs believe was caused by Hanford releases of radioactive iodine, which concentrates in the thyroid.
The defense and plaintiffs disagree on the method for estimating how much radiation was received. The defense relies on the Hanford Environmental Dose Reconstruction, or HEDR, prepared for DOE at Pacific Northwest National Laboratory, and concludes just five of the 636 plaintiffs with hypothyroidism claims received at least 40 rads. There is no reliable evidence of risk for hypothyroidism below 40 rads, the defense maintains.
However, some plaintiff attorneys believe the HEDR study significantly underestimates exposure and have developed a radiation estimation system that takes into account the terrain and winds to produce higher estimates.
Plaintiffs also disagree that an amount at which radiation causes no harm can be set.
The thyroid cancer cases that the judge wants mediated all are for clients for which the plaintiffs and the defense have similar estimates of radiation exposure, said Kevin Van Wart, defense attorney.
The defense has made a settlement offer of $25,000 to plaintiffs with hypothyroidism and HEDR radiation estimates of 40 rads or more. Some downwinders have accepted the offer, Van Wart said.
However, none of the plaintiffs with thyroid cancer has accepted an offer of $150,000 made to those who had HEDR radiation estimates of at least 10 rads. Of the claims that have gone to trial so far, a jury awarded a combined $545,000 to two thyroid cancer patients.