Lawyers say Hanford lawsuit is too late

Two thick binders of newspaper articles – many from The Spokesman-Review – were Exhibit A in a high-stakes argument Thursday in U.S. District Court over when the public should have first learned about the health risks of formerly secret radiation emissions from Hanford’s nuclear weapons plants.

The expiration date of a statutory deadline to file suit is a question being raised by the defendants in the Hanford downwinders’ lawsuit scheduled for trial in March 2005.

Lawyers for the corporations that ran Hanford for the government during World War II and the Cold War are pointing to the newspaper publicity in an effort to oust many plaintiffs from the lawsuit filed in 1990 by thousands of people who claim their health was harmed by emissions of radioactive Iodine 131 during plutonium production at Hanford.

They say newspaper reports on Hanford should have started the statute-of-limitations period earlier. But plaintiffs’ attorneys argue that the effects of the radiation were still being debated at the time, and no one should be barred from the lawsuit.

Iodine 131, a byproduct of plutonium separation, lodges in the human thyroid, where in sufficient doses it can cause cancer and other illnesses. It is most damaging to the tiny thyroid glands of infants and small children.

The lawyers for General Electric, DuPont and other nuclear contractors zeroed in on a July 28, 1985, Spokesman-Review story headlined ” ‘Downwinders’ – living with fear.”

The article reported that farmers living 11 miles east of Hanford across the Columbia River were keeping a detailed map of a “Death Mile” near Ringold where all the residents got cancer, and most suspected their nuclear neighbor was the cause. The story was among the first to use formerly classified Hanford documents to report on accidents in the 1960s that released radioactive Iodine 131 and other radioactive elements into the air and the Columbia River.

Randy Squires, a Seattle lawyer defending the Hanford contractors, said a three-year statute of limitations period for the radiation injury case should have been triggered Feb. 27, 1986. That’s when the U.S. Department of Energy, in response to several Freedom of Information Act requests from activist groups and The Spokesman-Review, first released monitoring reports that showed substantial Iodine 131 releases from 1945 through the 1960s.

The documents confirmed that the farmers in the “Death Mile” were some of the most heavily exposed people in the region.

“There was a drumbeat of material from the media … if they had read or glanced at the headline of The Spokesman-Review, they would have known that the substance released, Iodine 131, concentrates in the thyroid. All these people need to have under Washington law is a suspicion they were harmed – they don’t have to have their case ready for trial,” Squires said.

Lawyers for the downwind plaintiffs displayed the same newspaper articles to argue precisely the opposite point.

They said the potential harm from Hanford radiation releases was reported in the mid-1980s, but the risks weren’t clear until July 1990, when the initial results of the $27 million, five-year Hanford Dose Reconstruction Study were released. The study said people exposed to Hanford’s radiation releases are at greater risk for thyroid disease and cancers.

“Less than 30 days later, (Seattle attorney) Tom Foulds filed the first lawsuit … the plaintiffs from Hanford don’t have a statute of limitations problem,” said Louise Roselle, of Cincinnati, lead attorney for the downwinders.

U.S. District Judge William F. Nielsen asked pointed questions and appeared skeptical of Squires’ assertion that the mid-1980s media reports on Hanford gave citizens all the information they needed to file immediate lawsuits against the contractors.

“A lot of heavy hitters,” including Rep. Tom Foley, D-Wash, state health experts and U.S. Department of Energy scientists, “stated causation wasn’t established and studies needed to be conducted. They challenged statements made in the press” about the health risks of the Hanford releases, Nielsen said.

“Drums on both sides of the issue were being beat … Was it sufficient to rush to the courthouse?” Nielsen asked. He said he’d produce a written order on the contractors’ sta-tute of limitations motion.

Thursday’s oral arguments were temporarily delayed while Nielsen read a just-issued decision in a related case from the Sixth U.S. Circuit Court of Appeals.

A three-judge panel tossed out two lawsuits brought by plaintiffs living near the government’s Oak Ridge, Tenn., weapons complex who alleged they were exposed to radiation and other toxic emissions and developed health problems, including thyroid cancer. Some were African Americans who lived in a segregated Oak Ridge community called Scarboro, located in one of the most contaminated areas of the nuclear facility.

In their July 15 decision, the judges said the plaintiffs waited too long to file their lawsuit. They should have filed by 1998 or 1999 at the latest, after widespread publicity from the preliminary results of a 1992 dose reconstruction study said local children drinking milk from a backyard cow or goat in the early 1950s and women carrying fetuses in the 1950s and 1960s who ate fish from nearby streams were at elevated risk from the toxic emissions.

The plaintiffs didn’t sue until the year after the final Oak Ridge Health Agreement Steering Panel report was issued in January 2000. That report upheld the preliminary results.

Tennessee’s one-year statute of limitations is triggered when the plaintiff becomes “aware of facts sufficient to put a reasonable person on notice that he has suffered an injury as a result of wrongful conduct,” the court said.

By this fall, there will be a flurry of motions from both sides over the credibility of expert witnesses, the admissibility of thousands of documents and the value of scientific evidence.

In addition, plaintiffs’ lawyers will argue that plutonium production at Hanford constituted “ultra-hazardous activity.” If the court agrees, the plaintiffs wouldn’t have to prove negligence at trial – only causation and damages – Roselle said.

The next status conference for the Hanford case is Sept. 14.