February 2012 Update
The mediation tracks established by the Court have ended. Within our client group, some settlements have occurred, but most claims have not been resolved. In recent months, there has been settlement activity in some of the other plaintiff groups. Most of the hypothyroidism cases in those groups have been settled and the trial of hypothyroidism cases previously set in 2012 (Track 1) has been stricken. Like our group, some of the thyroid cancer claims in the other groups have settled, but most remain in the case.
The Court has now established two new trial tracks, one for a group of thyroid cancer claims and another for a group of thyroid nodules claims. The Court has randomly selected 23 plaintiffs from the Everson group and 14 from our Berg/Lumpkin group to participate in the thyroid cancer trial (Track 2). The Court has modified the thyroid nodule trial track (Trial Track 3) to delete plaintiffs from our Berg/Lumpkin and the Jaros groups and substitute 28 clients from the Evenson (25) and Berg (3) groups. In addition, the Court is in the process of setting a fourth trial track that will consist of 50 randomly selected plaintiffs from all non-thyroid categories. Trial Track 2 (thyroid cancer) and Trial Track 3 (thyroid nodule) will reach trial in early 2013. The Trial Track 4 (non-thyroid cancer) will lag those by two months.
The attorneys from the Engstrom Lipscomb & Lack law firm have contacted all Berg/Lumpkin clients selected by the judge to participate in the thyroid cancer trials, and are working with them to collect updated medical records and to update each plaintiff's discovery responses. Depositions of the Berg/Lumpkin plaintiffs are now being set in January and February. Expert reports for these clients will be due on July 1, 2012. Pre-trial discovery will be complete on November 1, 2012 and any motions to dismiss these claims must be filed by December 15, 2012. The trial date for these cases has not been set, but a date in mid-2013 is expected.
The next Status Conference will be held on April 18, 2012, at 8:30 a.m. PDT, at the U.S. District Court in Spokane.
The Hanford Downwinders Litigation website is a general information resource for our clients in the In re Berg (CY-96-3151-WFN) and Lumpkin, et al. v. DuPont, et al. (CT-00-5052-WFN) cases. The lawsuits arise from the environmental radiation releases caused by operation of the Hanford Nuclear Facility. Located in south central Washington State, Hanford produced plutonium for U.S. nuclear weapons from 1944 until 1990. All of the Hanford downwinder cases have been consolidated. The consolidated case is known as In re Hanford Nuclear Reservation Litigation (CV-91-3015-WFN).
Thousands of people who were exposed to Hanford's radiation filed suit in 1990 against former contractors, such as DuPont and GE, which operated Hanford for the U.S. government. DuPont operated Hanford from 1943 to 1946. General Electric ran Hanford from 1946 to 1965.
Summary of Hanford Downwinder Trials During 2005
Judge Wm. Fremming Nielsen presided over the trial that began on April 25, 2005, and went to the jury on May 13. It was a bellwether trial, comprised of 6 plaintiffs with thyroid disease and lasted 3 weeks.
After deliberating more than three days, a 12-member jury returned verdicts for two of the six bellwether plaintiffs in the first Hanford downwinder trial. Gloria Wise was awarded $317,251 and Steve Stanton $227,508 for their thyroid cancers. The jury failed to reach a verdict for the third thyroid cancer plaintiff, Shannon Rhodes. Judge Nielsen declared a mistrial in her case and a retrial was held during November 2005.
The first jury also returned defense verdicts for the three plaintiffs with hypothyroidism. In June 2005, the plaintiffs appealed these three verdicts to the U.S. Court of Appeals for the Ninth Circuit. In August 2005, the defendants appealed the verdict for Mr. Stanton and Ms.Wise.
A different jury sat through a two-week retrial for Ms. Rhodes in November 2005. The 12-member jury deliberated a little more than a day before deciding 11-1 in favor of DuPont and General Electric. In early 2006, Ms. Rhodes' case joined the others on appeal.
Court of Appeals Issues Important Rulings
On August 14, 2007, the United States Court of Appeals for the Ninth Circuit issued an opinion on the appeals of the bellwether decisions in 2005. Generally, the Court of Appeals affirmed the trial judge's instructions to the jury regarding the law of the case. This means that the court made important decisions agreeing with the Downwinder Plaintiffs that the government contractor defense did not apply and that principles of strict liability did apply.
The Court of Appeals also agreed with the trial court that the "but for" standard of causation would be applied. This sets a higher standard than the "substantial factor" test that the Downwinder Plaintiffs had proposed.
The court considered questions specific to the individual cases that were on appeal. The Court of Appeals reversed the decisions in three cases that were decided against Downwinder Plaintiffs on the grounds that the jury was improperly instructed about specific issues raised in those cases. These cases have since been settled and will not be retried.
The Court of Appeals affirmed the trial court decision against Shannon Rhodes, rejecting her challenges to certain evidentiary rulings and claims of juror misconduct.
In its amended opinion, the Ninth Circuit panel reconsidered its decision that plaintiffs who had filed individual suits while the class action suit was pending did not have the benefit of the tolling of the statute of limitations while the class action claim was pending. The court elected to follow a decision from the United States Court of Appeals for the Second Circuit and concluded that tolling principles did apply to individuals who filed individual suits while the class action suit was pending. Thus, the court's earlier comments on this question no longer apply and tolling principles will be available. In its amended opinion, the court denied all the parties' motions for rehearing and advised that the Ninth Circuit had denied the request for en banc review by a larger panel of judges.