The Department of Energy has tentatively agreed to settle 139 suits brought by people who claim that radiation from the now-shuttered Hanford Nuclear Reservation gave them thyroid disease.
The plaintiffs will receive an average of about $5,700 apiece, for a total settlement of just under $800,000, according to lead defense counsel Kevin Van Wart, a partner at Kirkland & Ellis in Chicago. About 1,350 plaintiffs still remain in the litigation, In re Hanford Nuclear Reservation, which has been pending in Spokane federal court for 21 years, as previously reported by The National Law Journal.
"We are pleased with the settlement and believe it is reasonable,” Van Wart said. “As always, we welcome the opportunity to settle claims on terms that reasonably reflect their value and will spare both sides the expense and burden of continuing to litigate such claims."
The settlement resolves the largest number of claims to date in a case that has looked intractable for years. Plaintiffs lawyers—there are about half a dozen calling the shots—have spent close to $10 million out-of-pocket to litigate personal injury claims against the contractors who ran the plant.
The plaintiffs who settled were represented by Eugene, Ore. solo practitioner Roy Haber, who did not return a phone call and email seeking comment.
The government indemnified the contractors, E.I. du Pont de Nemours and Co. and General Electric Co., and is on the hook for their legal fees (which now total about $60 million), and damages. Plaintiffs lawyers originally wanted between $500 million and $2 billion to settle all the claims.
The Hanford plant in southeastern Washington state produced most of the material for the United States’ arsenal of nuclear bombs, including the one dropped on Nagasaki in 1945. It also released huge amounts of radiation, sometimes intentionally, primarily between 1944 and 1950.
Plaintiffs contend that the radiation caused cancer and other illnesses, including hypothyroidism, a condition where the thyroid is under-active, causing symptoms like fatigue, depression and weight gain.
In 2005, a Spokane jury heard the cases of three hypothyroid plaintiffs who blamed Hanford for their illnesses. The jury rejected all of their claims, finding Hanford radiation was not responsible. The verdicts were overturned on appeal in 2007 based on erroneous evidentiary rulings and the cases have not been re-tried.
With no bellwether verdicts, lawyers had few guideposts to arrive at settlement amounts for hypothyroidism. In its 2007 decision, the U.S. Court of Appeals for the Ninth Circuit made clear that plaintiffs had to show they were exposed to a very high dose of radiation in order to prove Hanford caused their thyroid disease.
A trial before Judge William Fremming Nielsen in U.S. District Court for the Eastern District of Washington is scheduled for April 30, 2012, for about 20 hypothyroid plaintiffs chosen by lottery.
Trials are also in the works for about 35 thyroid-cancer cases and 50 cases involving thyroid nodules—solid or fluid-filled lumps that form within the thyroid—with dates to be determined.