February 5, 2011 in City

Hanford radiation plaintiff near death

By The Spokesman-Review
 

Deborah Clark as a young girl with her uncle on the shores of the Columbia River.
(Full-size photo)(All photos)

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A woman suing Hanford contractors over her thyroid cancer, whose request for an expedited federal trial was denied last year by a Spokane judge, lies near death in a Longview, Wash., hospice.

Deborah Clark, 61, was transferred from the Oregon Health & Science University hospital in Portland to the hospice on Tuesday, according to her mother, Betty Hiatt, of Vancouver, Wash. Clark’s thyroid cancer had spread to her bones; she cannot walk and needs sedation for extreme pain.

Before Clark was sedated this week, she gave her 79-year-old mother a message. “She told me the Hanford downwinders should keep fighting and never give up,” Hiatt said.

Hiatt lost her other daughter to thyroid cancer in 2000 and encouraged Clark to file suit against the Hanford contractors who released clouds of radiation in the early years of the Cold War.

Clark’s lawyer, Richard Eymann, of Spokane, says her fatal illness is a reminder that Hanford’s victims – unknowingly exposed to radiation as children – are dying while waiting for justice in federal court.

“I get so angry. The government has recently bailed out big banks and corporations, but they could care less about these poor people,” Eymann said Thursday. Citing a life cut short and huge medical bills, Eymann asked the government nearly two years ago for $2 million to settle Clark’s case but received no counteroffer.

Scathing e-mail

On Friday, prompted by the news of Clark’s impending death, Eymann fired off a scathing e-mail to the defense lawyers in the 21-year-old Hanford case, who’d opposed an expedited trial for the sick woman.

“You triumphed, but ran roughshod over justice…. I’m sure that the ‘lifers’ at the Department of Energy will high five that yet another Hanford victim has died without any compensation for the wrongs perpetrated on innocent little kids by their country and again as they sought justice from DOE,” Eymann wrote.

An offer will be made to Clark and more than 200 other thyroid cancer victims later this month, but the offer to Clark is likely to be as low as $10,000, according to Kevin Van Wart, lead defense attorney.

He called the plaintiffs’ request for $2 million for Clark “not realistic.”

“What happened to her is tragic, but she had a low (radiation) dose” of less than 1 rad, making it impossible to prove a link between Hanford and her illness, Van Wart said.

In an interview last year, Clark said she was angry that the government was low-balling her radiation dose. “As far as I’m concerned, they’ve already killed me,” she said.

The government estimates used to establish Clark’s dose were agreed to by both sides and used in several “bellwether” trials for other plaintiffs in 2005, with mixed results. In those trials, two thyroid cancer victims with estimated doses of 27 rads were awarded a total $545,000 after favorable jury verdicts. The 9th U.S. Court of Appeals upheld the awards after the defendants appealed.

The plaintiffs’ lawyers made a “stupid” mistake in stipulating to the government doses and those doses will be challenged in future phases of the trial, Eymann said.

He disputes the government dose estimates for Clark, saying she likely received a radiation dose of 35 rads from living in Eastern Oregon as a child and drinking raw cow’s milk – a dietary detail the government dose estimate doesn’t include.

In a new court filing this week, the defense team reports that they’ve made 26 offers to thyroid cancer victims with radiation doses above 10 rads, and 18 people have accepted the offers. The offers were for $150,000, Van Wart said in an interview from Chicago.

“It’s good news that 18 people have accepted,” Van Wart said.

Including Clark, there are 230 to 240 additional thyroid cancer cases remaining, all with lower estimated doses. “We’ll be making offers to them tied to their dose,” he added.

A question of doses

Questions were raised in 2005 about the scientific accuracy of the dose estimates used by the government after plaintiffs’ lawyers uncovered documents that indicated the $27 million Hanford Environmental Dose Reconstruction Study was launched in 1988 to provide “litigation defense” to fight claims by exposed people.

The documents showed that the U.S. Department of Justice initially opposed a dose study as useless “public relations” after the extent of Hanford’s radiation contamination was made public in 1986 – but changed its mind as soon as the first lawsuit for radiation damages was filed.

In an interview last year, Clark said she was born near Umatilla, Ore., on Dec. 15, 1949, two weeks after a secret military experiment called the “Green Run” dispersed radioactive iodine-131 from the Hanford Nuclear Reservation throughout Eastern Oregon and Washington, including Spokane.

The clandestine 1949 test was among the early Hanford releases that raised thyroid cancer risks to 16,000 infants and small children who drank milk from cows eating contaminated grass, the dose reconstruction study conducted a half-century later would conclude. At highest risk: the children who drank milk from backyard cows.

Clark said she was never breast-fed and drank raw bottled milk from a farm near Irrigon, Ore. She also fished with her family in the Columbia River, which contained radioactive effluent from Hanford’s reactors when she was a young child.

Her sister, Rebecca, was born in 1951. She also developed thyroid cancer and melanoma and died in 2000 at age 48.

The public wasn’t told about the dangerous radiation emissions until 1986, when the U.S. Department of Energy released documents in response to a Freedom of Information Act request from The Spokesman- Review and two environmental groups. The revelations triggered several lawsuits against the private contractors who operated Hanford for the government.

2,000 plaintiffs

Clark, whose thyroid cancer was discovered in 1997, is among 2,000 people who sued, collectively called “downwinders.” They claimed that the radiation that escaped from Hanford’s plutonium factories in the 1940s and ’50s caused their illnesses. About 1,500 plaintiffs remain in the case.

Early last year, Eymann asked U.S. District Court Judge William F. Nielsen to schedule a trial for Clark because of her terminal illness. By then, she’d had serial surgeries and doctors had removed her voice box because of the advancing cancer. Clusters of tumors had invaded her lungs. She could only speak by pressing her hand over a gaping hole in her throat.

Clark’s doctor, Ann Grazma of Oregon Health & Science University, said in a December 2009 report filed with the court that Clark’s thyroid cancer would “hasten her death.”

But the defense lawyers representing contractors DuPont de Nemours and General Electric, who operated Hanford for the government in the 1940s and ’50s, opposed an expedited trial.

Van Wart called Eymann’s request a “stunt” that would upset a court-approved mediation schedule for thyroid cancer claimants and the 2012 trial for a group of downwinders with hypothyroidism.

In motions and at a hearing, they said her doctor couldn’t really predict how long it would take Clark to die and it would be unfair to “cherry-pick” her case for a quick trial.

Clark had a strong case that should have been heard by a jury, Eymann countered.

“She had a good (radiation) dose and significant injuries – that’s why they didn’t want her to go to trial,” Eymann said this week

At the 2010 hearing, Nielsen said he was sympathetic toward Clark, but ruled it was “inappropriate” to take her case out of sequence.

U.S. paying attorneys

The defense attorneys agreed instead to include Clark in a group of 50 plaintiffs with thyroid cancer whose cases were headed to mediation. They are considered the strongest cases for settlement because of the two favorable “bellwether” verdicts.

The federal government has paid $59.2 million to Van Wart’s law firm, Kirkland & Ellis, and several other law firms through the middle of fiscal year 2010 to defend the Hanford companies in the downwinders’ case, according to documents provided by the Department of Energy under the Freedom of Information Act. That total doesn’t include Department of Justice costs or the costs of the Energy Department’s litigation database.

The government, in an agreement dating back to the Manhattan Project, agreed to indemnify the contractors for operating Hanford. U.S. taxpayers will pay if the plaintiffs settle or win at trial.

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