Judge rules plaintiffs can stay in Hanford suit
A federal judge has denied a motion by former Hanford contractors to oust many plaintiffs from a major Hanford radiation exposure case headed for trial next March.
U.S. District Judge William F. Nielsen, in an order Thursday, said he disagrees with the defendants’ argument that people claiming harm from Hanford emissions waited too long to file suit in 1990 because they’d already been informed of the risks in a series of newspaper articles starting in the mid-1980s, including many from The Spokesman-Review. Thousands of people filed suit, alleging their health was harmed by emissions of radioactive iodine 131 during plutonium production at Hanford from 1944 through the 1960s.
In oral arguments July 15, attorneys for DuPont, General Electric and other early Hanford contractors said newspaper reports on Hanford should have started the statute-of-limitations period earlier and all plaintiffs who were diagnosed with thyroid cancer before Aug. 6, 1987 – exactly three years before the first lawsuit was filed – should be tossed from the case.
Plaintiffs’ attorneys argued that the effects of the radiation were still being debated in the mid-1980s and people couldn’t be sure whether there was a connection to their health problems until July 11, 1990, when a scientific panel of the Hanford Environmental Dose Reconstruction Project first stated that Hanford releases were large enough to cause serious risk of illness.
Under Washington state law, there’s a three-year statute of limitations for people to file personal injury suits after they’ve learned they may have been put at risk from toxic emissions or other hazards. The Hanford plaintiffs have brought their claim under the Price-Anderson Act, a federal statute governing nuclear mishaps, which doesn’t have a statute of limitations.
While the 9th U.S. Circuit Court of Appeals has declined to decide whether federal or state law applies to Price-Anderson Act claims, the 6th U.S. Circuit Court of Appeals has ruled that state law prevails, Nielsen said in his order.
When the plaintiffs had a duty to inquire about their thyroid disease is a key issue in the legal dispute.
“Publicity defendants cite did not report that radiation was the only cause of thyroid cancer, only that it was a cause of thyroid cancer … It is thus disputed whether the diagnoses of thyroid cancer alone would have put the Plaintiffs on notice and given them a duty to inquire” by August 1987, Nielsen wrote.
Also, when the U.S. Department of Energy released its first stack of documents on the Hanford emissions from the 1940s and ‘50s in February 1986, the agency denied the radiation could have caused health risks, Nielsen noted.
He also cited a Hanford lawsuit filed July 31, 1986, by two members of the Colville Confederated Tribes. It was dismissed June 25, 1987, with a right to refile and a legal agreement reported in The Spokesman-Review that the case might be revived after dose reconstruction studies of the Hanford emissions provided “more definitive data on health effects.”
“A reasonable person might not have been expected to inquire about the cause of his/her disease based upon this aborted litigation,” Nielsen wrote.
Nielsen also ruled that the three-year statute of limitations clock was suspended from Aug. 6, 1990 – when the first Hanford case was filed – until May 30, 2003, when plaintiffs withdrew their motion to make the case a class action. That means people still have another three years – until May 30, 2006 – to file claims.
U.S. District Judge Alan McDonald, the case’s previous judge, ruled Sept. 22, 1994, that he was reserving judgment on whether to certify the case as a class action. McDonald recused himself from the case last year after a plaintiffs’ lawyer raised conflict-of-interest objections over an orchard he’d purchased in Ringold, Wash., in one of the farm communities hardest hit by the Hanford radiation emissions. McDonald never ruled on the class action issue.