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The U.S. nuclear weapons program has had a long legal half-life, generating lawsuits that sometimes endure long after the government has closed its factories and cleaned up their radioactive residue. Consider two cases that were filed in 1990 in Colorado and Washington state, which only recently made it to trial. In November — 60 years after the Hanford Nuclear Reservation knowingly released clouds of radioactive iodine into the Washington sky — a federal jury in Spokane declined to compensate a woman who grew up nearby and contracted thyroid cancer. And last month, a federal jury in Denver awarded $553.9 million to property owners who lived downwind of the now-defunct Rocky Flats nuclear weapons plant, rejecting long-held government arguments that there was no risk of plutonium contamination. The longevity of these suits benefited at least one party: Kirkland & Ellis. From 1990 to August 2005, the firm received some $55 million in fees and costs for defense work on the Denver and Spokane cases and related suits. It’s a bill covered by U.S. taxpayers, because from the start the government indemnified the contractors who ran the plants for the Atomic Energy Commission and later the U.S. Department of Energy. Kirkland won the assignment after a hullabaloo about lawyer fees a decade ago. In 1994, Rep. John Dingell (D-Mich.) accused Kirkland and other firms of overbilling a complacent Energy Department. Six contractors had been sued over Hanford, and the agency had allowed each to hire its own legal team. Under fire, Energy ordered one contractor to conduct the defense for all. E.I. du Pont de Nemours and Company volunteered for Hanford, and The Dow Chemical Company took charge of Rocky Flats. This was lucky for Kirkland, which represented both companies. As of last September, the firm had been paid $22 million for the Hanford work and $24 million for Rocky Flats, according to Marc Johnston, Energy’s deputy general counsel for litigation. Previously, Energy paid Kirkland $1.5 million for work on a case involving a uranium processing facility in Oak Ridge, Tenn., and $7.18 million for work on a case involving a uranium facility in Fernald, Ohio. The firm will likely receive millions more for trial work. (Kevin Van Wart, the Kirkland partner leading the Hanford case, charges the federal government $435 an hour, according to Johnston. David Bernick, the partner who argued the Rocky Flats trial, charges $660 an hour.) “The government has unlimited money to fight the neighbors, but not to pay the neighbors,” says Louise Roselle of Waite Schneider Bayless & Chesley in Cincinnati, who represents both the Hanford and Rocky Flats plaintiffs with help from Philadelphia’s Berger & Montague. “It’s an injustice.” The Rocky Flats case relies heavily on government activities documented by the FBI, including storing used plutonium in leaky drums, stuffing gooey radioactive waste into concrete blocks that ruptured, and spraying toxic residue across frozen fields. At trial in Denver, Roselle’s side called this a nuisance to her 12,000 clients. Bernick replied that contamination off-site was miniscule and did not affect the residents’ health or property values. Energy offered to settle the Hanford case, but not Rocky Flats. Energy’s Johnston contends that Kirkland has saved taxpayers millions through both efficient case management and court victories. Before 2005, Kirkland won the dismissal of a case by former workers at Rocky Flats and the dismissal on summary judgment of three suits arising from Oak Ridge. It secured a $20 million settlement with workers at Fernald.
Matt Fleischer-Black is a senior reporter for The American Lawyer , an ALM publication in which this article first appeared.

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