Downwinder case rejected by high court

The U.S. Supreme Court on Monday declined to hear an appeal brought by early Hanford contractors that are accused of harming the health of about 2,000 people exposed to past radiation releases carried on the wind from Hanford.

That sends the 18-year-old case back to Eastern Washington U.S. District Court in Spokane, where the claims might start being heard individually.

However, attorneys for the Hanford downwinders hope that under the new Obama administration a settlement could be reached rather than bringing each case to a jury.

Although early contractors DuPont and General Electric are named in the lawsuit, the federal government is paying for defense of the lawsuit and any awards made to plaintiffs.

The Supreme Court decision, issued without comment, affirmed 9th Circuit Court of Appeals decisions that contractors could be held liable for injuries to those living downwind during the years that Hanford was making plutonium for the nation’s nuclear weapons program and releasing radioactive iodine into the air.

Contractors had argued they were not liable because they were operating under government instructions and meeting government standards.

The decision also affirmed 9th Circuit rulings that downwinders did not have to prove contractors were negligent.

The Supreme Court’s refusal to consider the appeal was one of many defeats for the defense, said Dick Eymann, of Spokane, one of several attorneys for the downwinders.

It was no surprise the Supreme Court will not hear the case, said Kevin Van Wart, an attorney for the contractors. Only 3 percent of cases are accepted, he said.

Contractors want to settle the case by screening plaintiffs for eligibility based on how much radiation they likely received to their thyroids. Radioactive iodine concentrates in the thyroid.

They’ve offered $150,000 for thyroid cancer patients, $40,000 for patients with underactive thyroids and $10,000 for patients with thyroid nodules, if they were exposed to what they set as harmful levels of radiation.

That’s far below the $20 million to $30 million defense attorneys asked for in one of the few plaintiff cases that has gone to trial.

Twelve cases have been considered after plaintiffs asked for a sampling of bellwether cases to be tried to provide guidance that might lead to settlement of large numbers of the cases without trial.

Six of the bellwether cases did not go to trial after U.S. Judge William Fremming Nielsen said the plaintiffs would have difficulty proving them. Of the six that went to trial, three were for downwinders with overactive thyroids and a jury awarded no money.

However, last year the 9th Circuit Court ruled those three plaintiffs were entitled to new trials.

The remaining three cases were for downwinders with thyroid cancer. The jury found that in one case the cancer was not caused by Hanford radiation and awarded a combined total of about $550,000 to the other two downwinders.

“The irony is the limited recoveries are far less than what it cost to take it to trial,” Van Wart said. “These are not inexpensive cases. They hired teams of experts.”

But Eymann said the settlement offer that defense attorneys made would be “a small speck of sand” compared to what the defense has spent in government money on attorney fees and costs to fight the downwinders.

He said he hopes the scientific background of Steven Chu, a Nobel Prize-winning physicist and Obama’s pick for energy secretary, will lead to downwinders receiving a settlement that finally gives them justice.

* Annette Cary: 582-1533; acary@tricityherald.com