Plaintiffs make another strike back in Hanford radiation exposure saga

A twenty-five year legal battle continues to develop between the US Department of Energy and the thousands of plaintiffs who claim that the secretive and unsecured nuclear weapons development programs at the Hanford Nuclear Reservation unjustly caused their cancers and other ailments. The plaintiffs, dealt a series of regular blows since the battle’s inception, have filed a longshot motion asking the court to abandon the conservative metric used to quantify radiation exposure, which they claim underestimates the actual exposure levels, and await a hearing on the motion in September.

The Hanford Nuclear Reservation is a 586-square mile site 170 miles of southwest of Spokane, WA which houses the contaminated remains of a nuclear weapons development project born of the Manhattan Project in 1944 and lasting through the Cold War (the handing of the 53-million gallons of radioactive nuclear waste left on the Reservation is itself a highly controversial issue today). The site housed the B Reactor, the first full-scale plutonium production reactor in the world, and also oversaw a series of experiments in nuclear radiation under the management of outside government contractors E.I. du Pont de Menours & Co., and later General Electric Co..  Since the 1980s it has become increasingly apparent that activities at Hanford regularly released vast amounts of radiation into the surrounding air, which the government now admits.  Until 1948 the smokestacks at the plant had no filter, releasing dangerously high quantities of radiation uninhibited. Compared to the 15 curies of radioactive iodine released in 1979 during the Three Mile Island crisis, 555,000 curies were released over Hanford in 1945 alone. The most significant release followed the Soviet detonation of the first atomic bomb, which prompted the Air Force project of intentionally releasing about 7,800 curies of iodine-131 over 12 hours in December of 1949 in order to test how an airborne release of radioactive material would spread.  No members of the surrounding community were informed.  In total, Hanford released approximately 739,000 curies of iodine-131 into the atmosphere from 1944 to 1972 by a conservative estimate, exposing people as far as Idaho and Oregon.

These secret exposures became public in 1986 when the Department of Energy released 19,000 pages of documents under outside pressure, including partial data about the radioactive releases, prompting a torrent of press and lawsuits.

All of these developments were overseen by Dupont and General Electric, both of whom were granted contractor immunity as a condition of their relationship with the government, absolving them from any liability. For this reason the United States Department of Energy General Counsel bears the responsibility and pays the expenses for the defense, though Dupont and General Electric are named as the defendants.  The Department of Energy has contracted the outside firms to handle their defense, which have billed the Department $50 million in legal fees so far.  The plaintiffs’ counsel, working on contingency, has spent nearly $10 million thus far.

More than 5,000 plaintiffs under more than three dozen attorneys signed on to sue the Dupont and General Electric for causing a host of cancers and other ailments from which they suffered.  The plaintiffs’ counsel abandoned their initial attempts at a class action lawsuit, as individual claims were too diverse, and instead each plaintiff chose their own lawyer.  The attorney representing the largest group of plaintiffs (1,500 – 2,000), Nancy Maleee Oreskovich, had irreconcilable conflicts both with her first and second co-counsel, causing them both to withdraw from the case. Judge McDonald’s probe into the co-counsels’ withdrawals prompted him to withdraw Oreskovich as counsel on claims of misconduct, prompting a five-year investigation which eventually dropped all charges against Oreskovich, stalling the largest contingent of plaintiffs’ struggle for legal redress.

After Judge McDonald found in favor of the defendants in 1998 on grounds that the plaintiffs had not sufficiently demonstrated a direct causal link between the radiation and their ailments, the plaintiffs’ appeal to the 9^th Circuit faulted McDonald’s decision and sent the case back to his court two years later. After the plaintiffs’ counsel brought up evidence of a potential conflict of interest on McDonald’s part, he reluctantly recused himself from the case, passing it to Judge Nielsen in 1991.  Overwhelmed by the prospect of familiarizing himself with the 1,300 preexisting motions in the case, Judge Nielsen scheduled a bellwether trial in 2005, a type of trial in which each side would pick a small number of plaintiffs who would present their cases to a jury whose decision would be used as a benchmark to settle the other claims.

Both the plaintiffs and defendant agreed to use a standardized metric of radiation exposure, called the Hanford Environmental Dose Reconstruction (HEDR), which compiles standardized indicators to determine a plaintiffs’ “radiation absorbed dose,” or “rad,” to standardize, measure, in order to compare radiation levels in the bellwether trail.  After agreeing to this metric, the plaintiffs found that the HEDR produced what they claim are unusually low and inaccurate rads due to incomplete metereological data and bad assumptions regarding Hanford’s geology and climate.  In any data input as a range, the plaintiffs also pointed out, HEDR took the lowest value.  This led to what the plaintiffs claimed were unusually low proposed settlement amounts. Those with the highest rads were offered $150,000, those with the lowest, $10,000.

A new trial is scheduled for April of 2012, and the plaintiffs’ are working to get the HEDR standard revoked from the proceedings.  They have filed a motion in this regard on grounds that the metric would mislead a jury, and a hearing on the motion is scheduled in September.

As this battle progresses, however, the plaintiffs’ struggle for redress has borne the further grievance of lost time.  Most all of them children and young adults at the time of their exposure, and well into adulthood when the information became public, as of last year, more than 800 of the plaintiffs were older than 70, and 174 were older than 90.  One plaintiffs’ attorney reports that 123 of his clients, roughly 30% of them, have already passed away.