Plaintiff Angry Lawyer Taken Off Hanford Case

Wanda Berg of Republic, Wash., heads a list of nearly 1,500 Hanford downwinders who find themselves in legal limbo.

They’re known as the Berg plaintiffs in the massive radiation injury case filed in 1990 against Hanford’s Cold War contractors.

Berg, 65, farmed with her husband in Hanford’s infamous “Death Mile,” immediately downwind from the plants that leaked radiation. Members of every family in the Death Mile got cancer.

Berg has suffered from thyroid disease and cancer. One of her four children lived only six weeks. Her adult daughter, Julie Meyer, who’s also in the lawsuit, is terminally ill.

After a six-year quest for a trial date, Berg suddenly finds herself fighting the judge who’s presiding over the Hanford case.

In a Sept. 20 ruling, U.S. District Court Judge Alan McDonald temporarily removed the Berg plaintiffs from the main lawsuit and suspended their attorney, Nancy Oreskovich of Spokane, from representing them.

Their case hasn’t been dismissed, but it’s sidelined pending an Oct. 18 hearing on whether Oreskovich should be barred from the Hanford litigation.

Some of the Berg plaintiffs, including Wanda Berg, support Oreskovich. Others are critical, but don’t know where to turn.

Some court-watchers say McDonald’s action protects the Berg plaintiffs by shielding them from a motion by Hanford contractors to dismiss their claims because they aren’t prepared to proceed.

But Berg says the flap only further delays justice for the downwinders.

“This is not a speedy and fair trial. Several of our people have died since this started,” Berg said.

In his order blocking Oreskovich from contact with her clients, McDonald said her “potential ethical violations” are hindering their case.

If charges against her are upheld, “…there is great doubt whether she should be permitted to practice (law) at all,” McDonald wrote.

That judgment comes before Oreskovich has had a chance to defend herself. Her response to the charges comes Oct. 18 in Yakima, before McDonald.

Berg is furious. She says McDonald is being vindictive and unfair to Oreskovich and jeopardizes the downwinders’ legal rights.

“What’s happened to her is not right. Judge McDonald is representing the government against us,” Berg said.

Dozens of Berg plaintiffs are writing letters to McDonald’s Yakima courtroom. Many defend Oreskovich, while others, including Jill Million Hayes and her daughter, Jeanne Haycraft of Auburn, Calif., want her removed.

Oreskovich “neglected to do anything for us. We want her off so someone else can win this case,” Hayes said.

Attorneys in the Hanford case won’t comment publicly on McDonald’s recent actions. But two other legal observers are critical, and the American Civil Liberties Union is reviewing the case before deciding whether to help the Berg plaintiffs.

“This is unprecedented. It is the single worst case of unconstitutional abuse of power I’ve ever seen,” said Leonard Schroeter of Seattle, former president of the Washington State Trial Lawyers Association.

Schroeter, a Harvard Law School graduate and former law school instructor, is a critic of McDonald’s penchant for secrecy orders sealing some expert opinion in the high-profile Hanford case. He’s spoken to Washington state trial lawyers about it and dissected it in legal articles.

Whether or not Oreskovich acted properly, she’s entitled to due process, Schroeter said.

Spokane attorney Carl Maxey agreed. “There’s a serious question whether due process has been followed,” he said.

Another judge should hear charges against Oreskovich, Maxey said. “In essence, he’s acting as judge, jury and executioner,” he said.

McDonald did not respond to telephone requests made through his clerk in Yakima for comment on the attorneys’ criticism.

McDonald yanked Oreskovich from the case last month when she didn’t explicitly follow his orders to fax to each Berg client a two-page summary of the findings of an Arizona judge he appointed to investigate her handling of the litigation.

The judge acted on a complaint from the Spokane law firm of Feltman, Gebhardt, Eymann and Jones. Last year, Oreskovich asked the firm to help her with the case.

The relationship was short-lived. In April, attorney Richard Eymann petitioned to withdraw from the case, citing “irreconcilable differences” with Oreskovich, court records show.

Eymann, a respected trial attorney, is the current president of the Washington State Trial Lawyers Association.

Responding to McDonald’s request for a detailed explanation of his withdrawal request, Eymann said Oreskovich misused $50,000 his firm advanced for the case and questioned her ability to handle the complex litigation.

On April 23, McDonald appointed Magistrate Judge Nancy Fiora to investigate the allegations.

Fiora’s report was scathing. She concluded Oreskovich may have committed fraud by repeatedly charging the Berg plaintiffs for expenses unrelated to their case - including other legal work, a trip to Southern California and telephone calls to Oreskovich’s daughter at Harvard.

Oreskovich’s conduct represents a “profound disservice to the Berg plaintiffs,” Fiora said in her July 24 report.

She recommended Oreskovich’s removal from the lawsuit, and said the Washington Bar Association should investigate whether she should be disbarred.

Oreskovich’s attorney, Larry Carter of Preston, Gates Ellis in Seattle, recently filed a response to Fiora’s report.

It should be tossed out because Fiora’s investigation allowed no cross-examination of any of Oreskovich’s critics, and also never convened a formal hearing, Carter said.

The investigation “lacks the constitutional protections that a citizen of the United States should have,” Carter said.

Berg also has filed a request to set aside Fiora’ s report, and she’s refusing to accept Eymann as her lawyer.

“This is unheard of. We have a right to choose our own lawyer. We’ve got to stand up for our constitutional rights,” she said.

Oreskovich has misrepresented her involvement in the case to some of the Berg clients, Eymann said Friday. He declined any further comment until after the Oct. 18 hearing.

“She has told some clients that the court forced me on them. It’s absolutely not true. Oreskovich invited me in, and signed a notice of association with me,”Eymann said.

Oreskovich’s problems with Judge McDonald started long before Eymann’s complaint. She angered the judge last year when she leaked a secret report McDonald commissioned that concludes Hanford’s radiation emissions were probably far larger than a $27 million government study estimated in 1994.

The report by retired University of California at Berkeley professor Thomas Pigford, a nationally known nuclear engineer, remains under seal in McDonald’s court.

McDonald punished Oreskovich by ousting her from the group of lead attorneys in the Hanford case. He also hinted at further sanctions, and said in his Sept. 20 order that he has the legal power to discipline errant lawyers.

Schroeter, however, calls McDonald’s investigation “inquisitorial.”

“They sealed the proceedings, and then the judge opined about her ‘criminal’ behavior. It’s unprecedented since maybe the Spanish Inquisition,” Schroeter said.

The judge ordered Fiora’s report widely circulated - while keeping under seal Eymann’s original complaint against Oreskovich.

McDonald’s order also bars Oreskovich from talking or writing to anybody, even lawyers and “any other person” not in the case, about the Berg clients until after her Oct. 18 hearing.

That kind of sweeping order has gotten McDonald in trouble before. In 1987, he forbade defendant Lawrence Richey from criticizing the federal government during a five-year probation for tax fraud.

In 1989, the Ninth Circuit Court of Appeals ruled McDonald’s order was unconstitutional after the ACLU intervened on Richey’s behalf.

The flap over the Berg clients is certain to increase the cost of the Hanford litigation.

Taxpayers have already shelled out more than $43 million for the Hanford case. About $36 million has gone to lawyers defending five corporations who ran Hanford from 1944 to 1986. In addition, the government report on Hanford dose estimates that Pigford criticized cost $27 million.

Berg will attend Oreskovich’s hearing in hopes the judge won’t dismiss her. But with Fiora’s report and McDonald’s pique at the Spokane lawyer, that outcome seems unlikely.

McDonald has suspended Eymann’s April request to withdraw from the Hanford case until 30 days after Oreskovich’s hearing, so he can determine who should represent the Berg plaintiffs.

It will be hard for them to find another attorney, Maxey said. “It’s an excellent case, but nobody would want to take it under these circumstances,” he said.

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