Ruling backs downwinders

A major ruling Friday by the 9th U.S. Circuit Court of Appeals clears the way for 1,000 to 2,000 Hanford “downwinders” to sue Hanford contractors for radiation damages.

The downwinders were people who lived in Eastern Washington at the end of World War II and the early years of the Cold War who were exposed to releases of radioactive iodine-131 from the Hanford Nuclear Reservation while government contractors made plutonium for nuclear bombs. They claim the releases caused a variety of health problems, including thyroid cancer.

People didn’t know about the radiation releases until U.S. Department of Energy environmental monitoring reports sought by The Spokesman-Review and two environmental groups under the Freedom of Information Act were declassified in 1986.

In an amended opinion Friday that expanded on several rulings last August, a three-judge panel of the 9th Circuit said the statute of limitations for individual plaintiffs pursuing claims hadn’t expired – a ruling which may be appealed by the Hanford contractors to the U.S. Supreme Court.

That ruling restored an award of $317, 251 to Gloria Wise, one of two Hanford plaintiffs with thyroid cancer who got a favorable verdict from a Spokane federal court jury in the 2005 Hanford “bellwether” trial of six Hanford plaintiffs with various thyroid diseases linked to the radiation emissions. Wise was born in Pasco in 1944.

Lawyers for the Hanford contractors had appealed the jury verdict, saying Wise’s claim was filed too late.

The 9th Circuit has also ruled that the Hanford contractors, including E.I. Du Pont de Nemours, General Electric Co. and UNC Nuclear Industries Inc., are not entitled to blanket legal immunity because they were operating Hanford at the request of the government.

Congress did not adequately define the contractor defense issue when it passed the 1957 Price-Anderson Act, which limits the liability of nuclear contractors in accidents while ensuring compensation coverage to the general public, the court said in the ruling written by Judge Mary M. Schroeder.

“Because Congress did not enact the Price Anderson Act against a backdrop of well-established common law principles that included the government contractor defense, we cannot grant immunity from liability,” Schroeder wrote in her opinion.

The ruling affirms an earlier ruling on contractor immunity by the Spokane trial judge, U.S. District Court Judge William F. Nielsen, which the contractors had appealed.

The 9th Circuit ruling on the statute of limitations and other legal issues is a major victory for plaintiffs in the 18-year-old Hanford litigation, said Richard Eymann, a plaintiffs attorney in Spokane.

“All the technical defenses, including contractor liability, are now gone,” Eymann said in an interview from Maui. “It now means that all the plaintiffs, if they can prove causation, can have their cases go to a jury trial.”

There were originally about 2,200 plaintiffs in the long-running litigation, but some people have died or their cases have been withdrawn. An accurate count of pending cases could not be obtained Friday.

The ruling will put additional pressure on the government to settle the long-running litigation, Eymann said. U.S. taxpayers are paying the legal bills to defend the Hanford contractors in an agreement that dates back to the Manhattan Project, the secret government program to develop an atomic bomb during World War II.

Kevin Van Wart, lead attorney in Chicago for the Hanford contractors, said they may appeal the statute of limitations ruling because the 6th U.S. Circuit Court of Appeals has taken a different position.

“We’re still looking at the ruling to see whether we want to appeal,” Van Wart said Friday.

Van Wart also said the three bellwether cases of people with autoimmune thyroid diseases that the court has already remanded for new trials are weak – and that it will cost more to retry them than the plaintiffs could get in damages.

The first group of Hanford plaintiffs sued in 1990 under the Price-Anderson Act. Additional cases filed in 1991 were consolidated with the original lawsuits.

The late U.S. District Judge Alan McDonald, of Yakima, who originally presided over the case, had to recuse himself over conflicts of interest involving an orchard he purchased near Hanford. Nielsen took over the case.

“After almost two decades of litigation, which already has included two appeals to this court, the parties in 2005 agreed to a bellwether trial. … The purpose of the trial was to promote settlement and bring long-overdue resolution to this litigation,” the 9th Circuit opinion says.

The parties agreed to try 12 bellwether cases before a federal jury in Spokane. Six of the claims were dismissed, and the remaining six went to trial in April 2005. They represent people who suffer from various thyroid diseases linked to iodine 131, including thyroid cancer and hypothyroidism.

After 14 days of trial and four days of deliberations, the jury found in favor of two plaintiffs, Steve Stanton and Wise, who have thyroid cancer. The jury awarded Stanton $227,508.

Jurors hung on Shannon Rhodes, who has lung cancer, and rejected the claims of Wanda Buckner, Shirley Carlisle and Kathryn Goldbloom.

Nielsen declared a mistrial for Rhodes. Her case was re-tried and the jury denied her claim.

The Appeals Court upheld the verdicts for Stanton, Wise and Rhodes and sent the three other bellwether verdicts back for retrial.