The final plaintiffs in the Hanford downwinder lawsuit have reached settlement agreements in the case filed 24 years ago, according to federal court documents.
About 15 years ago there were as many as 5,000 people claiming their health was harmed by past radioactive releases from the Hanford nuclear reservation, according to attorneys for the Hanford contractors who were sued. Downwinder attorney Richard Eymann of Spokane puts the total at closer to 3,550 cases.
All have either reached settlement agreements or dropped their claims.
“The Department of Energy is pleased to see this long-standing matter resolved,” the Department of Energy said in a statement Wednesday.
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But Eymann said he did not believe any of the attorneys representing various plaintiffs in the case are pleased with the results.
“I’m not happy at all,” he said. “From the very beginning we dealt with a scorched-earth defense. These people were never fairly compensated for the extent of their injuries and how they suffered from their injuries over many, many years.”
The majority of the claims advancing through the legal process were for thyroid cancer or other thyroid conditions, including hypothyroidism.
During World War II and the early years of the Cold War, radioactive iodine was released into the air at Hanford during the production of plutonium for the nation’s nuclear weapons program.
The iodine drifted with the wind over communities surrounding Hanford and to the northeast, where it settled to the ground on crops and pastures where cows grazed. Children were particularly at risk of developing disease years later if they drank milk contaminated with radioactive iodine, which concentrates in the thyroid gland.
The number of plaintiffs who reached settlement agreements was not available in legal documents. They are represented by 14 different legal firms.
The settlements reached are confidential, said Kevin Van Wart, one of the lead attorneys for early Hanford contractors DuPont, General Electric, UNC Nuclear Industries, Atlantic Richfield and Rockwell International.
The contractors were indemnified by the federal government, making DOE responsible for legal costs.
Just six of the plaintiffs had their cases heard by a federal court jury.
Judge William Fremming Nielsen ordered that a dozen cases be picked for a bellwether trial in the hopes that getting jury decisions on a few cases would provide guidance to plaintiff and defense attorneys to help them settle other claims out of court.
Each side picked six cases from among 2,200 that were active when the trial started in 2005. The defense cases did not proceed to trial, with plaintiffs either withdrawing from the case or the judge ruling that the cases were not strong enough to go forward.
The six plaintiffs who went to trial were born in the 1940s and were children during 1945-47, the years of the most radioactive emissions from 200-foot tall stacks above Hanford processing plants.
Three of those plaintiffs had noncancerous thyroid disease and the jury awarded no money.
The remaining three cases were for downwinders with thyroid cancer. A jury awarded a combined total of $545,000 to two of those downwinders and split on the third case for a downwinder believed to have less exposure to radiation.
On retrial a jury found that radiation did not cause plaintiff Shannon Rhode’s thyroid cancer. Attorneys had asked the jury for a verdict of $20 million to $30 million in the retrial.
In an early settlement offer that was made public, the defense offered $150,000 for thyroid cancer patients, $40,000 for patients with underactive thyroids and $10,000 for patients with thyroid nodules, but only if they were exposed to certain levels of radiation.
The Centers for Disease Control spent more than $20 million on an epidemiological study released in 1999 that found no evidence that any kind of thyroid disease increased among those who where children living downwind of Hanford when radioactive iodine was being released.
However, plaintiff attorneys contend that study and the Hanford Environmental Dose Reconstruction (HEDR) had substantial flaws. HEDR was prepared for DOE at Pacific Northwest National Laboratory and used to estimate how much exposure to radiation individuals received.
The principles that would guide the case going forward, including the burden of proof, were clarified by the 9th Circuit Court of Appeals, Van Wart said. Plaintiffs who went to trial would be required to show that they would not have developed disease if it were not for their claimed radiation exposure.
Settlement agreements began to be reached then, Van Wart said.
Eymann said plaintiffs were forced into settling because taking cases to trial individually would be too expensive. The costs of multiple depositions for each plaintiff and expert reports for each person that would have to be paid for in advance were prohibitive for plaintiff attorneys, he said.
The downwinder attorneys told the judge in the case in 2009 that the U.S. government had then spent $57 million to defend claims. Although the amount spent by downwinders is not public, Nielsen said that it also must amount to many millions of dollars.
While plaintiff attorneys criticized spending government money on litigation rather than compensation, defense attorneys said the downwinders could have settled on their strongest claims, such as one of those heard by the jury, but the downwinder attorneys were using them to bolster the hundreds of weaker claims.
The settlements paid out to downwinders as the case concludes is only a fraction of what was spent on defense of the case, Eymann said.
“It could not have escaped DOE that people were definitely subjected to radiation kept secret from them until 1988,” he said. Formerly classified documents had been released revealing the release of radioactive contaminants from Hanford.
“I thought all (settlements) were very unreasonable given injuries,” Eymann said. “Some were catastrophic. Even those who were not badly injured were not paid a reasonable compensation for what they went through.”
Defense attorneys plan to file a motion to dismiss all remaining claims, either because they have been settled or withdrawn. Then the court is expected to issue an order calling for any final objections before the case is closed.