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Plaintiffs who lived downwind of the government’s Hanford Nuclear Reservation, where the Manhattan Project built the first atomic bomb during World War II, have waited 15 years for a jury to hear their allegations that toxic emissions from the site caused their health problems. A Spokane, Wash., U.S. district court jury ended the wait for the first six of 2,300 plaintiffs on May 20. But the verdicts handed down by that jury may not have been the answer they had hoped for, and left some plaintiffs’ counsel thinking that the verdicts are too little, too late. The jury rejected the claims of three plaintiffs, and could not reach a decision on a fourth. It reached verdicts in favor of two plaintiffs, awarding $227,508 in damages to plaintiff Steve Stanton and $317,251 to plaintiff Gloria Wise. In re Hanford Nuclear Reservation Litigation, No. CV-91-3015-WFN (E.D. Wash.). The two contractor defendants at trial were General Electric Co. and E.I. du Pont de Nemours & Co., but their losses are indemnified by the U.S. government. Re-evaluation is needed Plaintiffs’ lawyers said they were satisfied with the two verdicts-to a point. “These early verdicts tell us that our cancer cases are fairly secure,” said Richard C. Eymann of Spokane’s Eymann, Allison, Fennessy, Hunter, Jones, the lead plaintiffs’ counsel. But Eymann admitted that the dismissals would prompt the plaintiffs’ team to re-evaluate their noncancerous thyroid claims. The re-evaluation is needed because most of their thyroid claims are not similar to the recent verdicts. In all, about 1,500 claims involve thyroid disease linked to iodine-131 emissions from Hanford. About two-thirds of those are for noncancerous claims, similar to those dismissed by the jury. The lesser number are for cancer claims similar to those that produced verdicts for Stanton and Wise. The remaining 800 claims are for “other” cancers-not thyroid cancer- which the defense has characterized as “nuisance” claims. These have not yet been tested by a bellwether trial, and are allegedly linked to radiation, but not iodine emissions from Hanford. “These people have already waited years,” said Eymann. “We’re not afraid to go on.” But Eymann hopes that the possibility that the 500 remaining thyroid cancer cases could yield verdicts like the two May 20 verdicts will prompt the U.S. Department of Energy (DoE) to take a hard look at settling the claims. Defense counsel Kevin T. Van Wart of Chicago’s Kirkland & Ellis said the defense has never rejected the validity of some of the plaintiffs’ claims. “Clearly some with high doses have claims,” Van Wart said. “But the [plaintiffs' lawyers] have used those to try to leverage thousands of frivolous claims.” Van Wart criticized plaintiffs’ lawyers for allegedly rejecting legitimate settlement proposals and instead trying to recoup the millions they have invested in the litigation over the years. Van Wart dismissed as “pure fiction” reports that the defense had spent $100 million, saying it was more like $2 million per year since they became involved in the mid-1990s. Eymann put the plaintiffs’ costs at around $5 million. The defense claims that as late as one month before trial a settlement offer was on the table that would have screened plaintiffs’ claims using methods endorsed by the plaintiffs’ own experts. Under the proposal, plaintiffs Stanton and Wise would have received $150,000 each, and two of the three claims dismissed by the jury would have been worth $40,000 each, according to Van Wart. “The plaintiffs’ lawyers need to get real economically,” said Van Wart. But plaintiffs’ lawyers say settlement talks have repeatedly failed because DoE has refused to come to the table in good faith. “The DoE has never offered a dime to settle those two cases,” Eymann said. Both sides claim they have appealable issues, but also concede that the judge expressed the hope that the bellwether trial would facilitate settlement talks. Other attorneys who litigate toxic tort cases feel they have a chance. “It seems to me that if I were the plaintiffs’ firm, I’d be somewhat encouraged that two did receive verdicts,” said Steven Jay Greenstein of Tobin, Koster, Oleckna, Reitman, Greinstein & Konray of Rahway, N.J., who litigates toxic tort cases. Leonard W. Schroeter, 81, an early crusader against the Hanford site dating back to the late 1960s and now of counsel to Seattle’s Stritmatter Kessler Whelan Withey Coluccio, noted that “most of the ‘downwinders,’ the ones who knew what they were living in, would say that it’s a shame.” He added, “It’s almost a prank to do it now.”

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