Chemical Companies Can Be Held Liable for Nuclear Exposure at Plant

Wednesday, August 15, 2007

Page 3

Chemical Companies Can Be Held Liable for Nuclear Exposure at Plant—Court

From Staff and Wire Service Reports

Chemical companies that developed plutonium at the Hanford Nuclear Reservation in Washington state in the 1940s may be held liable for illnesses suffered by nearby residents, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

In a sweeping ruling, the panel rejected contentions by E.I. DuPont de Nemours & Co., General Electric Co, and other defendants that strict liability principles should not be applied to them as government contractors. The government, however, may be liable for the damage awards under indemnification principles.

Since 1990, more than 2,300 people have sued over health problems they believe were caused by exposure to radioactive emissions from the site over the years. The downwinder cases are largely based on the release of radioiodine, or I-131, a radioactive byproduct of nuclear weapons production.

After years of litigation, including two prior appeals to the Ninth Circuit, the parties selected 12 “bellwether” cases, involving representative plaintiffs, for the first trial. Six of the cases were dismissed before trial.

In 2005, juries rejected the claims of four more plaintiffs. Just two people, who suffered from cancer, won damages totaling $544,759 against the government and the contractors that managed the federal site at the time.

The appeals court yesterday overturned the verdicts against three plaintiffs, Wanda Buckner, Shirley Carlisle and Kathryn Goldbloom, who suffer from hypothyroidism, a condition that slows the body’s metabolism.

The district judge erred in ruling that the plaintiff’s endocrinologist could not testify that he authored articles on I-131’s effect on thyroid cells, because it deprived the jury of testimony from the doctor about the extent of his expertise regarding causes of thyroid illness, Chief Judge Mary M. Schroeder wrote.

In addition, the defendants were erroneously allowed to impeach the doctor’s testimony based on inadmissible hearsay of another doctor who did not testify, the court ruled.

“We thus have no choice but to reverse the verdicts against plaintiffs Goldbloom, Carlisle, and Buckner and remand for a new trial,” Schroeder wrote for the panel.

The court also overturned the ruling in favor of plaintiff Gloria Wise, who was awarded $317,251, on statute of limitations grounds. However, the appeals court remanded the case to district court to determine whether Wise had the information necessary to file a claim within the three-year period.

The court held that plaintiffs who chose to file individual suits lost the benefit of having the statute of limitations tolled while the court determined whether to allow claims of other plaintiffs to go forward as part of a class action.

That particular ruling is significant because it could mean the claims of hundreds of other plaintiffs will be time-barred, said Kevin Van Wart, whose Chicago law firm represents General Electric, DuPont and UNC Nuclear Inc.

Richard Eymann, a plaintiffs attorney, said he did not yet know how many other clients could have their cases dismissed as a result. Despite that potential impact, Eymann called the overall ruling a victory for the downwinders.

“We’re hoping that the contractors and the government will get into serious settlement negotiations with us,” he said.

The federal government created Hanford in the 1940s as part of the top-secret Manhattan Project to build the atomic bomb. Contractors operated reactors and other facilities that historical documents say resulted in intentional and accidental releases of toxic chemicals and radiation.

Residents only learned of the emissions when the government declassified thousands of documents in 1986.

People in Arizona, Nevada, Utah and the Marshall Islands have received compensation for being exposed to radiation during the atomic buildup. Downwinders at the Hanford site have had a more difficult time because health studies have offered differing opinions on whether they have suffered substantial or chronic exposures that threatened their health.

I-131 concentrates in the thyroid, which regulates the body’s metabolism. Most of the plaintiffs have thyroid conditions, such as cancer, hypothyroidism and hyperthyroidism. To succeed at trial, plaintiffs had to prove they were “more likely than not” harmed by radioactive iodine gases released during Hanford operations.

That can be difficult to prove, in part because thyroid disorders are not caused only by exposure to radiation. The plaintiffs’ had asked the court to expand the test for causation when there are potentially multiple causes, such as radiation, smoking, genetics or pregnancy.

The appeals court rejected their argument.

The court rejected the companies’ claims that they were immune from punishment because they were government contractors.

Schroeder explained that a federal statute, the Price-Anderson Act, governs nuclear injuries. Because the “government contractor” defense was not recognized at the time that act was passed, and because the act is a comprehensive regulation of the subject, the defense does not apply.

The court denied an appeal by plaintiff Shannon Rhodes, whose claims were rejected by a jury, and upheld the $227,508 award for plaintiff Steve Stanton.

The court also denied an appeal to move to state court claims by other plaintiffs who do not yet have symptoms of any thyroid disease. They had previously sued the contractors for the costs of medical monitoring, but their claims were dismissed, and Schroeder noted that the Ninth Circuit had ruled in a previous Hanford appeal that medical monitoring costs are not recoverable under Price-Anderson.

Van Wart called the last ruling particularly significant because it could have potentially involved thousands of additional plaintiffs.

The case is In re Hanford Nuclear Reservation Litigation, 05-35648.