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News / Northwest

Plaintiffs in Hanford case hope for a settlement

Long-running legal battle waged by disease sufferers

The Columbian
Published: June 9, 2013, 5:00pm

SPOKANE — Jacklyn “Jackie” O’Neil grew up in the Spokane Valley drinking milk from her family’s backyard cow.

Decades later while working in Yakima, O’Neil learned she had thyroid cancer that could have been caused by clouds of radioactive iodine 131 released from Hanford’s plutonium plants with no public warning in the 1940s and ’50s.

The worst risks came from drinking contaminated milk, a $27 million government study concluded four years after the radioactive releases were first made public in 1986.

The 81-year old had her thyroid surgically removed in 1998. Hoping to recoup some of her medical bills, she’d also joined a major lawsuit against the corporations who ran Hanford. It was filed in 1990 after the government admitted the Iodine 131 emissions likely harmed some infants and children in the Inland Northwest.

Now, with her memory and health faltering and with dim prospects for a trial date, O’Neil is hoping for a modest settlement.

Kirkland & Ellis of Chicago, the lead law firm for the nuclear contractors, offered her $15,000 two years ago.

She rejected that offer after consulting her husband James O’Neil, a club manager and a former drummer with the Billy Tipton Trio who died of bladder cancer last year.

After her husband’s 2012 diagnosis of terminal cancer, Jacklyn O’Neil asked her lawyer, Richard Eymann of Spokane, to accept the earlier settlement offer.

In response, the firm offered $10,000, saying the previous offer was only good for 30 days.

“Our new offer reflects the fact that Ms. O’Neil has a weak case with no realistic hope of success at trial,” attorney Bradley Weidenhammer wrote in a March 2012 email.

The defense claims she had a small dose of radiation, 2.4 rads. Her lawyers estimate her dose at 17.6 rads after factoring in her family’s backyard cow — a more potent source of iodine-131 because the milk was fresher.

O’Neil, who lives on a monthly $1,769 Social Security check in an Otis Orchards trailer park, is angry about the reduced offer.

“I felt it was a total insult. I think they’re just waiting for all of us to die,” she said this week.

Letters to lawmakers

Last summer, O’Neil complained about her unresolved case in letters to U.S. Sens. Maria Cantwell and Patty Murray and Rep. Cathy McMorris Rodgers, all of Washington.

In two of six “bellwether” trials held in 2005 to get jury verdicts that might guide settlements for more than 2,000 plaintiffs, jurors returned verdicts totaling $544,759 for two thyroid cancer victims.

“And yet, for me, (the lawyers) offered only $15,000 and then knowing I was desperate, dropped it to $10,000. Where is even just a little empathy for what thousands of innocent victims suffered?” O’Neil asked.

In a response to Murray and Cantwell last December, Timothy G. Lynch, the former U.S. Department of Energy deputy counsel for litigation and enforcement, said his department is obligated to defend the nuclear contractors and couldn’t comment on O’Neil’s status because of her “active litigation.”

McMorris Rodgers’ office told O’Neil they couldn’t help her because it would be a “conflict of interest” to get involved in the Hanford case.

This year, hundreds more Hanford plaintiffs are agreeing to settle their cases instead of waiting for elusive trial dates.

Critics say the settlements are far from generous, especially compared to more than $60 million the government has spent to defend against citizens’ claims in the long-running case.

About $7.6 million has been paid out so far to people who developed thyroid cancer, nodules and other diseases linked to iodine-131, a toxic byproduct of plutonium production.

The government’s tactic has been “to delay as long as possible,” said Eymann, lead trial lawyer for the plaintiffs.

Taxpayers are footing the bill for the defendants’ legal costs and also for the settlements due to a World War II agreement to indemnify Hanford’s nuclear weapons contractors, including General Electric and DuPont.

“DuPont is writing the checks and the government is reimbursing them” for the settlements, said Kevin Van Wart, the lead defense attorney.

Hundreds remain

In 2011, 1,483 plaintiffs remained in the case after 139 people with hypothyroid disease represented by Oregon attorney Roy Haber accepted settlements of $5,683 each.

Early this year, 727 total claims remained. If the new settlements are approved by the court, the total will drop to 425, according to Van Wart.

Some 82 people with thyroid nodules, alleged Columbia River exposures and thyroid cancer are scheduled for trials starting next year, but more settlements are likely, the lawyers said.

The modest settlements are disappointing but provide some closure for elderly plaintiffs, said a plaintiffs’ lawyer engaged in settlement negotiations for more than a year.

“You’re looking at a very slow system. This case is 23 years old with no end in sight. Most of my clients want it over,” said Brian Depew of Los Angeles, who has about 300 additional cases near settlement.

In confidential offers made last year, Depew’s hypothyroidism clients were offered $6,100 each contingent on a majority accepting the offer.

The U.S. Department of Energy has been more willing recently than it was at the outset to reach settlements in the Hanford case, Depew said.

Nonetheless, Depew said his law group has spent about $4.5 million, and they don’t expect to recover their costs.

Congress passed the Price-Anderson Act to assure compensation to victims of nuclear accidents, but the Hanford case shows that many civilian victims of nuclear exposure will die without compensation, he added.

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“It’s not encouraging, to say the least,” Depew said.

Plaintiffs’ lawyers had hoped to reach a global settlement in the Hanford case after the bellwether trials, with a court-appointed special master to distribute money to qualified plaintiffs, said lead counsel Louise Roselle of Cincinnati.

“That hasn’t happened. Everything in this case has been unusual,” including the 15 years it took to get to trial for the bellwether cases, Roselle said.

The new round of pending settlements was discussed last week in a status conference before U.S. District Court Judge William F. Nielsen, who took over the case after the first judge, the late Alan McDonald of Yakima, was forced to recuse himself in 2003 for a conflict of interest.

At the recent hearing, plaintiffs’ lawyers objected to defense lawyers’ demands that families of deceased plaintiffs get a “personal representative” appointed in probate court before their cases can be settled.

The most recent settlements are likely to be approved during the next two months.