Downwinders ask for same settlement

The federal government has recently changed its rules for compensating cancer-stricken nuclear workers, and the new standard of proof should also apply to others exposed to radiation from Hanford starting in the 1940s, attorneys for Hanford downwinders argued Wednesday in Spokane.

The U.S. Department of Energy’s old rule barred sick workers from qualifying for a $150,000 compensation payment unless they could prove that they wouldn’t have gotten cancer “but for” their on-the-job exposure.

Now, the Energy Department and the U.S. Department of Labor, which announced this week that it will take over the workers’ compensation program, use a less stringent compensation standard – that the radiation the workers were exposed to was a “significant factor” in increasing their cancer risk.

“This whole field has evolved. … Any radiation will create some risk to human cells,” attorney Tom Foulds of Seattle told U.S. District Judge William F. Nielsen.

That is the burden of proof that should be used in the upcoming Hanford downwinders’ trial that starts April 11, said Spokane attorney Dick Eymann after the hearing before Nielsen. Eymann will be the lead trial attorney in the case.

“Downwinders are entitled to the same standard. How can you have one standard for workers and a stricter one for the general public? It’s inconsistent for the nuclear contractors to be arguing this because the government is indemnifying them,” Eymann said.

Thousands of people exposed to emissions of radioactive iodine-131 from Hanford have sued the major Hanford contractors. Attorneys representing the contractors argued that a strict burden of proof should still be used to determine who stays in and who is eliminated from the big toxic tort case.

If a lesser standard is used, “we are going to be here for decades sorting through these cases,” said Kevin Van Wart of Kirkland & Ellis of Chicago, lead attorney for the Hanford contractors, including General Electric and DuPont.

Van Wart also called for the burden of proof to focus on epidemiological studies and statistics to determine which plaintiffs “more likely than not” were harmed by Hanford emissions.

“This case turns on epidemiology. A slight increase in risk doesn’t prove Hanford more likely than not caused their problem,” Van Wart said.

It’s absurd to say the burden of proof should be limited to epidemiology, which focuses on population groups and not on individuals, said attorney Peter Nordberg of Philadelphia, arguing for the plaintiffs. “There is no requirement in Washington law that requires the plaintiffs to use statistical or mathematical proof,” Nordberg said. He called that approach “the wave of the past.”

Hanford studies that attempted to reconstruct the iodine-131 doses to exposed people who drank tainted milk were based on spotty data and unreliable memories of milk consumption, and the burden of proof should also include clinical information on individual plaintiffs, Nordberg said. Iodine-131 accumulates in the thyroid gland, where it can cause cancer or nodules.

It will be up to Nielsen to decide which standard of proof applies to the case. It was filed in 1991 by thousands of people who claim they developed thyroid cancer and other diseases after being exposed to radiation from Hanford’s plutonium factories.

Some of the burden of proof issues have already been heard by the 9th U.S. Circuit Court of Appeals, which in 2002 overruled a decision by U.S. District Judge Alan McDonald to disqualify hundreds of plaintiffs who couldn’t prove they’d received a radiation dose that doubled their cancer risk.

McDonald recused himself from the complex case in 2003 after a dispute over an orchard he’d purchased at Ringold in one of the areas most heavily exposed to Hanford’s radiation clouds. Nielsen took over the case last year.

Gwen Klein of Spokane, a plaintiff in the 14-year-old case, spent hours on Wednesday listening to the complex courtroom arguments. She grew up on a wheat farm in Dusty, Wash., and had thyroid disease as a child. Six years ago, the 53-year-old singer said she was diagnosed with thyroid cancer.

“I’ve had a rollercoaster of symptoms, but I’m one of the lucky ones because I survived and I’m getting better. I was so discouraged by this case, but now I’m encouraged because it’s getting a lot of attention again,” Klein said.

She said her cousin Shannon Rhodes, who also grew up on a farm near Dusty, is one of the 11 “bellwether” cases scheduled for trial April 11. That trial is likely to determine the outcome of the case for over 2,000 other plaintiffs.