Karen Dorn Steele: Our second interview is with Richard Eymann, Spokane attorney and lead trial attorney for the Hanford downwinders.
Trisha Pritikin: Okay. We are interviewing Richard Eymann. It is April 29, 2019. We are in Spokane, Washington at the Patsy Clark Mansion. Dick—may I call you Dick?
Dick Eymann: Dick or Richard is fine.
Pritikin: What type of law did you practice prior to becoming involved in the Hanford Downwinder Litigation?
Eymann: Except for the very first job I had out of law school working for a defense firm, which lasted about six months, I have been a plaintiff’s lawyer ever since. I do not represent insurance companies, nor do I represent large corporations. I essentially have been representing those who have been victims of other people’s wrongs.
Pritikin: For people who may not be acquainted with the Hanford downwinder litigation, can you tell us a little bit about that litigation? How many people are involved? What it’s all about?
Eymann: Probably you have had other persons who have spoke about when Hanford started. They started building the place about the end of 1942. They were online to produce plutonium by I think September 1944. This was part of the Manhattan Project. It totally changed the entire area of what is known as Richland, Kennewick, and Pasco, Washington.
I believe they brought in 50,000 workers to build Hanford. Most of the people had no idea even what they were building when they built it—except the contractors, which was DuPont at that time—which was essentially a contract with United States to create what turned out to be the atomic bomb. That is how it got started.
Obviously, this was before Chernobyl, this was before Fukushima, it was before Three Mile Island. Hanford itself is 580 square miles of essentially sagebrush scrubland, and they turned it into a manufacturing plant of essentially plutonium, which then was used in the bombs that were dropped on Japan.
At some point thereafter, although there were suspicions among those who were in charge of Hanford, those who were operating it—by the way, DuPont got out of it early on and turned it over to other contractors. Essentially, the secret of Hanford was kept until the late 1980s in which FOIA [Freedom of Information Act] requests, one of which was the Spokesman-Review in Spokane, sought information about really what had been done at Hanford and whether or not there had been releases of any radiation.
Out of that, it came to be that incredible amounts of radiation had been released from Hanford especially in the early days starting in 1944, continuing very heavily into the early 1950s, at least of Iodine-131. There is a whole entire story behind that. Obviously, you’ve asked probably other persons who have been interviewed about what happened back when.
Moving forward to your question with regard to the litigation, it was determined that many thousands, in fact—possibly 15,000 to 25,000 people—were exposed to radiation as downwinders. In other words, off campus from what was known as the Hanford Reservation. Given the fact that mysteriously for all these years, people had been having diseases or problems that were thyroid related such as hypothyroidism, such as thyroid cancer.
There was then a rush among some lawyers—I was not one of them—to sign up persons who felt that they had been harmed by Hanford. That led to even lawyers going town-to-town, downwind. Now “downwind,” what does that mean? Downwind from Hanford is an interesting question. The government looked at it one way.
Just to show you the government’s interpretation of Hanford shown here, this shows the Hanford Reservation. Their interpretation of those that were downwind was a small area just around Hanford itself. The real story shown here is that all of this area received radiation from Hanford.
Hanford is the small white dot here. Through different studies that had been done—and this one is the government study, which I think has been proven to be quite erroneous. It gave doses, and you can see those doses immediately right next to Hanford had 100 to 235 rads. If you happened to be a young child, age from birth up until probably 10 years old, you would be subjected to 135 rads. Now I say that, and to put that in context as far as the litigation is concerned, this was the government’s interpretation of the exposure to the dose that was to these particular young adults downward to those at birth.
We are sitting in Spokane today, and Spokane is sitting on the edge of what they said at that time was essentially 3.2 rads down to 10 rads. Later experts, especially those that were brought in by the plaintiffs in this particular case, found out that this was underestimated on a frame of like 1:8. In other words, eight times as much radiation exposure to these people as was indicated by the government.
One of the big things that rose out of the fact that all of a sudden, there was a case against the contractors and the United States Government, which was defending, and there is a story behind that. But the government agreed at the very start of this that it indemnified the contractors for any harm that might incur to any individual. The litigation itself was defended by the Department of Energy of the United States and the United States itself. There is a whole story behind that, and I do not mean to digress from your question.
But to give you some background, there were two studies that were done, HTDS [Hanford Thyroid Disease Study] and HEDR [Hanford Environmental Dose Reconstruction], and both of those were funded by the United States. Both were worked on by persons who actually worked at Hanford or had connections with Hanford.
As the litigation went on—which I presume you will be asking more questions about—we learned that both of those particular studies, which were used heavily in the litigation by the defense, really grossly underestimated the dose that these toddlers, these kids, even young teenagers, had been receiving at Hanford.
Pritikin: How many years of releases are you talking about here? It started in late 1994, and how long did these airborne and river-borne releases continue?
Eymann: That requires a complex answer. It depends on the radionuclide. For some of these, like radioactive zinc the half-life—I am sure you have had scientists that have already discussed for purposes of these interviews what the half-life is. I cannot remember the number but for the zinc isotope, the half-life is 27,000 years.
If you are eating oysters out of Willapa Bay on the coast of Washington, personally, I would not do it. I stopped eating oysters from the coast of Washington, because the zinc readings of the isotope for zinc are highest there as any place in the world, including anything that was downriver from Chernobyl.
With regard to other radioisotopes, what the main litigation in this case centered around was Iodine-131, which has a much shorter half-life.
There were two avenues to radiation. They built Hanford, they needed to cool the water for the production of plutonium. Without something to cool the plants as they conducted the process, you could have essentially the entire plant blow up. It almost went crazy like that at Three Mile Island. It did at Chernobyl. Without protective cold water—that is why Hanford was picked. It was also a remote area, and you had plenty of water in the Columbia River.
What I am alluding to is the fact that there are two ways for the radioactive isotopes, of which there are many different ones, one would be through the air and another one would be into the river water. Because they circulated the river water out of the Columbia and then through the cooling portion of the plant and then back into the river, various isotopes of radiation were going into the Columbia River.
I am probably digressing from your question. But when it goes into the air, you have something called the “Milk Pathway.” It is a term that is used about how these downwinders, these kids and adults, everyone who lived downwind had radioactive iodine get into their bloodstream.
When it gets into their bloodstream, it goes to that gland in the human body that really wants iodine and looks for iodine, and pulls iodine out of the bloodstream into the thyroid gland. That happens with or without radiation being in the iodine. The way that happens is that when it comes out of the stack, as shown here, you have this gas. The radioactive material, after it comes out as a gas, starts to fall, and it falls all the way to the ground. When it falls to the ground, it would get into the grass or fall on the grass. Cows would eat the grass. Goats too, because there were a lot of goats around Hanford before Hanford ever existed. In fact, it was one of the largest populations of goats that existed at that time in the United States. In any event, goats and cows would eat the grass.
Once they ate the grass, cows are very good at taking the radioactive isotopes and putting it into their milk. Once it got into the milk, as long as it was fresh milk delivered throughout all of Eastern Washington, Northern Oregon, and into all of Northern Idaho at that time.
I was a kid, I was born in 1945. If you did not drink milk, you were not going to grow up to be big and strong, or you were not going to grow up to be pretty. Parents pushed milk, and so kids drank milk. It was nothing at that time for myself to drink five or six glasses of milk a day. You had milk with breakfast, you had milk at school, coming in those little Carnation cartons, and you would have two or three glasses of milk at night.
Did they have water in those days like this? No, nobody served water. For these kids, they drank milk. Myself, I was lucky I was down in the Willamette Valley away from this radiation. Once they were drinking the milk, they got the radioactivity into their system and it went to the thyroid. That is the pathway.
Now, the other pathway that you ask about was the river water. If it got into the river water, fish, especially bottom fish—those that hang around and do not go out to sea such as the salmon, that were native white fish—they eat what is available in the river. They were essentially eating radioisotopes. In those days, nobody said the fish that you caught was bad fish. Nobody said that if you were eating fish that it was unhealthy for you. In fact, today, nutritionists advise eating fish.
Some people, a lot of people in eastern Washington at that time, were poor. One thing the Columbia had was plenty of fish, whether it be salmon that would go out to sea and come back or the native fish. A lot of families that was their main meat, diet, was fish. That is another way that they got radiation into their system. Not radioactive iodine, other radionuclides.
That was a portion of the litigation that we never really got to in this particular case. There are reasons for that, and it had to do more with the cost or the expenses of this Litigation for the plaintiffs’ lawyers that we never really were able to put the avenue of the radioactive materials that were getting into the downwinders and essentially causing cancers.
I can say that the Department of Health recognized a significant number of cancers that were related to fish, that the Department of Energy never would recognize and refused to recognize. And said that the Department of Health was just giving a free handout to these people who had various kinds of brain cancer, bone cancer, pancreatic cancer, liver cancer. All these other cancers that the Department of Health related to Hanford for the workers, not for the downwinders, but for the workers.
The Department of Energy and the defense lawyers in this particular case refused to go there. One of the largest disappointments for me in being involved in Litigation for 20-plus years was we never really were able to bring that to the table. I am sure there have been many people who had died from various cancers as a result of being exposed to fish, never were compensated. Something that obviously the government and anyone who produces these kinds of radionuclides should take attention to is, that is the other avenue in getting sick and dying from cancer.
Pritikin: Speaking of the thyroid disease clients, did you find that many of your clients had additional issues along with the thyroid disease, so it was sort of like a syndrome of problems?
Eymann: I would say a few. We did have those that had thyroid diseases, and then also developed another cancer. The defense the government in this particular case refused to even look at the other cancers. During the course of the litigation, we had to focus, based upon court decisions, on the thyroid diseases: the hypothyroidism, the thyroid cancer, and the other thyroid diseases. Interestingly enough, there would be some epidemiologists out there that would say that hyperthyroidism that was also caused by Hanford.
But in these cases, you have to have the ability to prove that a particular disease was caused by the radioisotopes, the radioactive iodine or whatever other radioisotope that was involved. Unfortunately, over the course of 22 years, we never got to that particular point, where we could even settle cases for those kinds of cancers, other than thyroid diseases.
Pritikin: Okay. Now can you talk a bit about how long the litigation lasted, and what the bellwether trials were?
Eymann: From start to finish, I think it covered 24 years. I already alluded or already said that at the very beginning, certain lawyer firms who were accustomed to doing class actions, or were environmental-type lawyers like Tom Foulds. What they did was go out and recruit downwinders to be plaintiffs. Unfortunately, I think the original number, which was used by the defense, as a sword as opposed to anything else, was that there were 3,600 downwinder plaintiffs, of which approximately only half were legitimate.
When those out in the communities felt that every little problem that they had might be related to Hanford, they would sign up. As it turned out, a lot of the things that they felt were related were not. So, it went from probably 3,500 plaintiffs down to—I believe at the time that everything got serious about litigating the cases, it was down to around 1,500 to 1,700, legitimate plaintiffs.
That does not include all of those who decided, “I do not want to be involved in this. I do not like getting involved in litigation,” and so those stepped away. Others were dead, they had already died of thyroid cancer. Others moved away. Even to this day, my law firm is receiving phone calls and emails from those who just came down with thyroid cancer who were toddlers, little kids, living at Hanford during that period of time.
We are no longer taking these cases. It was a big, economic, financial strain on my particular law firm and probably on the other law firms that were involved, of which it really wound up being about I think five major law firms continued after the original. I think there were 30 law firms originally involved, and it got down to five law firms that marched forward. My law firm and the Tom Foulds’ law firm, we were the last two to be in this particular litigation, which did last 24 years. I can tell you a lot about the course of the Litigation, but maybe I have already answered your question.
Pritikin: I think maybe it would be helpful to people watching the video to know what a bellwether trial was for, and how many there were in this litigation, and what the result was.
Eymann: There were two bellwether trials. Bellwether is called an experimental trial with real results for a very limited number of litigants. It is still used to this day and by various law firms, especially those in class actions—pharmaceuticals, drugs and things like that—to determine what would be an appropriate amount to compensate victims.
I should tell you that in this particular case—and I do not know whether you have questions about this. I am sure that some of those who have already been interviewed, such as Karen Dorn Steele, probably has commented about the fact that the original federal judge in this particular case was with it for several years, and he eventually recused himself from a particular case. He was shown to be in a conflict of interest. He has since passed away. Judge [Alan] McDonald was his name.
In any event, after he recused himself, Federal Judge Frem Nielsen in Spokane took over the cases. It was after that, that an agreement was reached among defense counsel and those remaining plaintiffs’ counsel groups to see what a jury would do with the different types of diseases that had been allegedly—the government, I can tell you, did not think anybody was injured by Hanford. The plaintiffs thought significant numbers—in excess of at least 1,500, maybe more—that were in the litigation had been harmed by Hanford.
The Judge decided we will have these trials. It started out with the plaintiffs picking cases that they thought would be good ones to try, and the defense picking ones that they thought should be tried. As it turned out the defense picked, if I remember correctly, five plaintiffs who were still in the case and should not have been in the case. Their doses, based upon both plaintiffs’ counsel and defense counsel, agreed that those doses were so low that given what we had to prove in the particular case, should not go forward to trial. The plaintiffs came up with ten different plaintiffs. I had one in particular that I thought, and the rest of the counsel had nine. Out of those ten, the number was reduced down to five.
During that period of time with Judge Frem Nielsen on board, we had agreed on a lead counsel for the case. That would be a counsel for the plaintiffs who would communicate with the Judge, and be the messenger to the other plaintiffs’ groups. That was Louise Roselle. I had recommended her. She was working for a Cincinnati law firm that was well experienced with regard to these kinds of complex litigations. As it turned out, she was excellent.
Me being from here and having had the kind of trials that—I had previously I had done a variety of different litigation, I had done sexual abuse cases, sexual molestation cases, I had done medical malpractice. I had done a lot. I had taken on Burlington Northern Railway for wild fires that they started. I was selected as lead trial counsel. As lead trial counsel, I felt it would be a conflict for me to have one of my clients in this particular set of bellwether trials.
You asked what the bellwether trials were about, it was to determine if we could prove specific causation with regard to these five clients, and if we could prove that, what the appropriate compensation would be.
I should mention right now Kirkland and Ellis—I do not know at which time, but they had 47 lawyers working on the defense of this particular case. We already knew, by the time we got to bellwether trials, based upon information that we had received, that the government had already spent $50 million in attorney fees and costs defending this litigation. Obviously, the plaintiff group had nowhere near that kind of financing. This was a whole new area type of litigation. I think overall throughout the whole entire length of litigation, what the plaintiffs’ lawyers came up with was approximately $10 million. By the time the entire case was over—not counting out what was paid in compensation, just attorney fees and costs—I have heard that the government, which is us taxpayers, spent over $82 million defending these cases. That is one of the reasons that it was so difficult.
But Judge Frem Nielsen, before the bellwether trials even occurred, had a series of motions. He wanted to know whether or not we could even prove the case. In fact, there were appeals before we ever got to the bellwether trials.
The first one was on general causation. At that time, there were two different major lawsuits going on. One was called the Berg case, and one was called In Re Hanford. In Re Hanford went to the Ninth Circuit Court of Appeals. Judge McDonald, who had thrown out approximately 95% of this particular case, he was reversed by the Ninth Circuit. General causation was found to be proven. Then we moved on to having to come up with the experts in the particular case that could prove specific causation and of course, obviously, what the damages would be.
The defense before the bellwether trials—well, I am not sure who moved first, but liability in the case was put at issue, along with many motions regarding experts under what was called the Daubert standard. Frem Nielsen, after reviewing everything, he granted, as it turned out, the plaintiffs’ motion that this matter would be tried as strict liabilities. So, the government then knew that they were on the line at least for general causation, and that their negligence was essential strict liability. We were passed having to prove, for lack of a better term, that the government was at fault.
But what was left out there was, was a specific client that the government’s negligence or their fault, did it cause a specific downwinder’s disease? That is where we went forward into the bellwether trials.
It was a complicated trial. The two with thyroid cancer prevailed. However, the amounts that they received were not a surprise to me, because they had been caught early. This lady and this gentleman, their thyroid cancer had been caught in time by the medicals. They removed the thyroid, they were able to stop the progression of the cancer within their bodies, and so the verdicts were around $250,000 to $350,000. For me, I felt it was quite reasonable.
For somebody like one of the other clients that we tried—and I cannot believe I am not remembering her name right now.
Pritikin: Shannon Rhodes?
Eymann: Shannon Rhodes. What an incredible lady. She had thyroid cancer and it metastasized throughout her body. In the original trial, bellwether trial, she had a hung jury. In other words, they could not agree on whether or not Hanford had caused her particular disease.
With the two other ones, the hypothyroid cases, we lost those two. But later those were settled favorably for those two clients, which is always an indication to me that the government did not want to go forward trying those particular cases. Because they knew that given the great number of them, that it could become very costly if we ever had any bellwether trials concerning the hypothyroid disease, which was related to the same thing that the thyroid cancer cases evolved from.
In any event, the second bellwether trial was the re-trial of Shannon Rhodes. By the way, we found out from the jurors after the first trial that we came within one juror of prevailing for Shannon Rhodes. It was a 9:3 plaintiffs’ verdict. Normally in federal court, a unanimous verdict is necessary. But both sides stipulated that a 10:2, which is necessary under State law in the State of Washington, plaintiff and defendant agree to that.
In the second trial, we were told that originally it was pretty much deadlocked again, but after two or three days of deliberation it turned around and we lost that particular case.
You should ask me about the doses that were ascribed to the plaintiffs in those bellwether cases.
Pritikin: That’s the next question I had. What sort of doses were ascribed to the plaintiffs in the bellwether trials?
Eymann: Heading into that particular litigation, the plaintiffs’ lawyers had already spent millions of dollars on their experts. The defense had an entire team of experts indicating that the doses that came from what is called HEDR, that those are the kinds of doses that were the real truths. We said they are not the truth at all, that they are flawed and scientists had been coming forward.
But unfortunately, the vote among the plaintiffs’ counsel—which, by the way, was a fairly dysfunctional group throughout the litigation. I am being transparent. It was. It seemed like every group had a different view of how we should proceed. But one of the things that is really unfortunate—and I have already said this before, I said this in the National Law Journal years ago. It was unfortunate that the plaintiffs stipulated with the defendants to use the HEDR doses.
Shannon Rhodes had a HEDR dose of 6.9. The other two that prevailed had doses between 25 and 30, I am talking rads. I am not going to get into a discussion of what a rad is. Our expert with regard to Shannon Rhodes said her dose was over 82. That would be plenty to prove causation for her disease.
I went down to her house where she grew up. She lived in this area right here south of Spokane in a place called Dusty, Washington. That is where she grew up, that is where she was when she was a little kid. She ate vegetables and she drank milk, and she did all the things. But HEDR said her dose was 6.9 rads. Ours said it was over 80, I think 82.
It was extremely disappointing for me, having tried both cases, to see her near death, at the time of the trial, lose that particular case. Her only words at the end of that second trial bellwether trial, which had to occur because it was a hung jury the first time, was that she hopefully could never ever stipulate again to the HEDR doses. Thereafter, we refused. But we never got another trial. We never got any relief from the court about actually putting on the trial.
That occurred because of some of the division between the plaintiffs’ counsels. There was plaintiffs’ counsels at that time—and I will not get into names—but decided to throw in the towel. They had already exhausted their savings accounts. I know one lawyer mortgaged his house to continue forward. Another one had other things he wanted to do in life. Instead of forcing the issue of going to trial with another bellwether trial, or at least getting that on board, I think the Judge saw that we had stipulated to HEDR and once we stipulated to HEDR, we are stuck with HEDR.
Tom Foulds never gave up. Of course, I was working with him. He and I were closely connected through this entire Litigation. We never gave up trying to get what we believed to be the proper doses on the table, or at least have HEDR dose fighting against what I would call the Crawford-Brown dose, getting that in front of a jury so the jury could decide, “Is the HEDR dose the appropriate dose or is the Crawford-Brown dose?” We had other experts that backed up Crawford-Brown. We never got there. That is when settlements late in the litigation started occurring. I think the Judge felt that, “This needs to end. This cannot go on.” Here we were fighting the Judge on this, in addition to very articulate and very persuasive defense counsel.
There was one particular client who I came to know because I went out to her farm when she was a little kid. It is this lady here. Deborah Clark had already lost a sister to thyroid cancer. She grew up on a little farm near a town called Umatilla right on the Columbia River. Deborah Clark already had thyroid cancer. I learned from her, by going down to where she grew up, that her dad owned a little dairy with 12 cows. They supplied milk to people in Umatilla and Pendleton. She had already had surgery on her thyroid at the time that I went down and visited her. She had a hole right here in her neck. The only way she could speak was to put her finger over this hole in her neck, so that she would be able to raspily tell you about her life.
When I said “spin,” the HEDR dose, according to Mr. Van Wart, the lead trial counsel, for HEDR, said that her dose was less than 1 rad. Less than 1 rad because she was not around when the heavy doses came out. But I started doing some investigation into when she was born and what had happened around that time.
The Green Run was a top-secret U.S. government release of radioactive products. This occurred December 2nd and December 3rd of 1949. By the way, this lady was born 12 days later. This was a release that was to be detected by the United States Air Force with reconnaissance extending out some 500 miles. They had the planes ready to go to determine what the radioactive iodine that was being transmitted through out the air, how far it would go, how fast it would go.
This planned release encountered a problem in that there was an unpredicted two-week weather inversion that we were able to determine occurred around that time, which did not move the upper level winds. They stayed within 100 miles of Hanford. Sources indicated that this release alone—out of the 550,000 curies that were released—this one released up to 12,000 curies into the air. And even a greater amount of another radioisotope.
But in any event, instead of being going downwind into Canada and far away reaches that the Air Force was prepared for, it hung around Northern Oregon, “the basin,” which we call here in Eastern Washington, and a bit into Idaho. It was there for over two weeks. This lady was born while that inversion was going on. She was an infant in Pendleton, Oregon, where she was born, at this very time.
The defense in this particular case refused to even take this inversion, the Green Run, into account. What we heard in court was, “She was not born until after the Green Run, and so why are they even bringing this up?”
When I found out that from her doctor that she had one year to live—that was the prognostication, that she only had one year to live—I went to court in a motion to give her an expedited trial. The defense came back and said, “This was a stunt. The plaintiffs are pulling a stunt here. What they are trying to do is, they are trying to get out of what the court has already decided is a planned avenue to determine the resolution of all of these cases. Why they want to favor this one lady with an expedited trial, when all these other persons are not getting a trial, is an affront.” What Mr. Van Wart said is, “I cannot believe that the court is even going to allow this to occur, the fact that they are bringing it up, they are trying to cherry pick this one lady to go forward.”
She had the true story of what happened. According to our experts, they had totally miscalculated in HEDR and the other government study what the real doses were during the Green Run. The Green Run was a very small portion of the total amount of radioactivity, in terms of curies that had been emitted upon the public.
In any event, that Green Run that I just spoke of turned out to be so serious, and it so worried the government, that they called a cessation of any more experiments like they had just done. What they did during this thing—something that the defense and Hanford refused to really admit to, but now has admitted to—this was an intentional release of radiation to find out. It was because they wanted to check to see what Russia was doing with regard to their development of atomic weapons.
That was the real reason for it, and that is why they had this special intentional release. What they did was, they removed all the filters that they had at the stack. They removed them. So fresh, radioactive iodine, went out into the air and then, as I said, hung over the basin, hung over this 100-mile radius of Hanford at that time.
That was not the only thing that the Green Run did. Green Run is given its name from the processing of the uranium. In other words, it is an open loop, water-cooled nuclear reactor for the plutonium-239. It meant fresh radiation, as opposed to what they had been doing in protecting the public downwind of going to a longer decay time. They were going to a decay time of 83 to 101 days, as of 1949. Because originally, they were using the same as what they did during the Green Run.
What they did, they put fresh radioactivity into the air. This was all in the production of what was 30,000 nuclear weapons of various types that were amassed during the Cold War by the United States. They intentionally made it fresh. These two studies done by the government, which were the foundation for HEDR, according to things that I have read, grossly underestimated the amount of radiation that went in to this lady and a lot of other kids and adults even at that particular time.
I suppose if defense counsel were to hear or read or listen to me today, they would say, “Where did you come up with all this information?” Well, I read, and I have done a lot of reading. I did a lot of reading throughout this particular case. In fact, I can tell you, when you get stuck in a case like this—and I was in it at the very beginning. I got in this case in a very unusual fashion, in which another plaintiff’s counsel was in the course of being removed from the case for going out and signing up downwinders, who really—some of them had not even been in the area at the time. But I do not want to get into that particular story.
But once I got into it, I knew that I was into something that I really needed to study. I started pulling every book I could possibly find on this subject. These things are The State of the Art of Occupational Medicine, Nuclear Energy Industry. This one dogeared, this is bare five and there was bare four before this. There might even be a bare six by now I do not know. We cannot do litigation like this as an attorney without preparing.
There were other books that were coming, like Nuclear Witness. There is a big fat one, Elements of Controversy: The Atomic Energy Commission; Radiation Safety and Nuclear Weapons. I have this library, this is Final Warning: The Legacy of Chernobyl; Exposures of the American People: Iodine-131. This is Review of the National Cancer Institute. This is the Nuclear Age; Three Mile Island: Nuclear Radiation Risks and Benefits; Our Radiant World; The Making of a Real Killing; Rocky Flats and the Nuclear West; Dragon’s Tail. This is a very interesting book by the way, Dragon’s Tail. This is Justice Downwind: America’s Atomic Testing Program of the 1950s.
Pritikin: I have all of those.
Eymann: Operation Crossroads: The Atomic Test and the Bikini Atoll; The Art of War. It is all about atomic weapons, atomic bombs. The Nuclear Barons; The Making of the Atomic Bomb.
If you wanted to be really prepared, I wanted to know what was it like down at Hanford. There were larger books with lots of pictures in them, lots of drawings, that helped me get up to speed and had the other places, like Lawrence Livermore National Laboratory, the plant. Then I was really interested in this one, Tri-Cities Memories. There are a ton of pictures in here about how they built Hanford and the people that were there, unknowing at the time that they were being exposed to all of this radiation. There is a whole section on here of what it was like.
I spent a lot of time reading as much as I possibly could. You do not go into litigation like this without being well informed. Whether I am doing a sexual abuse case or I am doing some other type of case, you have to get prepared. What I kept hearing from the defense in this particular case is, they were ignoring all of this stuff, ignoring information that had already been documented. It was already out there. It was as if they were creating a whole new history that did not really exist. We would go to court. I was asked here recently what it was like to be—maybe I am perhaps answering my own question, with regard with what it was like to be in this particular litigation.
For me in this litigation—my paralegal who endured me for all these years in the Hanford litigation and my other litigation was asked by a particular legal organization. They wanted to award me with Trial Lawyer of the Year. But they did not have a trial lawyer for a quarter of a century, so they decided to give me this award. I am not trying to pat myself on the back here. But what she did is really interesting. That is all I am going to tell you is, what it was like to be a litigator in this particular Hanford litigation.
Unbeknownst to me, she put this information together and provided it to Jan Eric Peterson, who was a downwinder lawyer here in the State of Washington. He presented me for this pretty large plaintiff and defense oriented legal group. I was surprised to hear him get up to provide this particular award two or three years ago, in which these numbers came out.
I represented, in the end, 707 downwinders. At that time, it was 23 years of litigation. There were three appeals to the Ninth Circuit Court of Appeals. In this case, there were 67 status conferences in the court, and that has to be a record. In most cases, you have two or three status conferences and in this one, there were 67 status conferences.
I attended 116 depositions. Depositions are where the defense would ask questions of plaintiffs’ counsel or of experts for the plaintiff. We were able to do very few depositions of defense counsel. But in any event, I attended 116 depositions. At one time, I had 615 banker boxes. Now, I have been reduced down to 304 banker boxes, which are stored just outside of this building. Even with that many banker boxes, I still am, I guess, in possession of over 600,000 pieces of paper, pages of information.
In this particular case, I had to answer for my clients 28,987 interrogatories. You either have to sign off on them that they are accurate. That meant that I did hundreds of interviews, got medical records for these people that would come in and were not even going to put in, there were so many.
In this particular case, we had 73 experts that dealt with this case on the defense and on the plaintiffs’ side. As I said, there were the two bellwether trials. Personally, my firm put in 17,000 hours into this litigation, and I put in over 10,000 myself. It was not an easy task. I know that lawyers like Tom Foulds, he gave 24 years of his life, where he did nothing else but work on this case. What went into this from the plaintiffs’ perspective, it cannot even really adequately be put into words.
What for me it was extremely unfortunate and disappointing that we could not get more compensation for our clients, for these downwinders. I can tell you this: no matter what we got—or even if we did not get them something because of these doses that had been agreed to and we could not get to trial on many of these cases—hundreds of them thanked us. They came back with letters, with notes, with phone calls. “Thank you for finally making the government take responsibility.”
That was the one thing that we got out of this case that was heartwarming to me, and made it feel like it was all worth it. I am not so sure my partners would agree with that, because I think that we came out overall over $1 million in the hole from representing—I am talking about dollars—in the hole from representing. Yes, we did get some fees out of a particular case, we did get some costs compensated. But overall, it was one of those things in which you did it. I am still proud of it.
I would like you to explain please why the taxpayer ended up paying for the defense. I do not think people would quite understand the indemnification, or what Price-Anderson is. Just sort of in simple terms.
When they wanted to make the bomb, the Manhattan Project—I hope I state it accurately—the United States government could not find a contractor to build Hanford. It knew it wanted to, but it could not find a contractor. Finally, DuPont—it’s Nemours, whatever it is—at that time, finally agreed to build Hanford for one dollar.
But they wanted indemnification for all time, infinity, that it would not be responsible for any damages, injuries that would be caused by the United States citizens in building Hanford. DuPont went ahead and built it. General Electric took over after a short period of time.
We are paying in two ways as taxpayers. Number one, with regard to the defense of the case, the Department of Energy.
But with regard how did the taxpayers wind up paying for this? It was that contract that was entered into between the Untied States, in other words, to indemnify. A Congressional Act came along called the Price-Anderson Act. Some Congresspersons and Senators realized that we needed to do something to compensate individuals who are victims of nuclear disasters or nuclear programs that caused them harm. That particular act was passed for the immediate and just compensation of those who had been harmed.
It was a nice idea, but everything still fell back on causation. Did this nuclear event, i.e., Hanford, did it cause their specific disease? Even though it said “just and speedy compensation,” getting to the just and speedy compensation for the downwinders never occurred.
There was no teeth in the particular act with regard to making things move along faster, or making the Department of Energy adhere to the same kinds of things the Department of Health had determined was caused by Hanford.
It always amazed me, all these cancers that the government paid for. It was a small amount, but it was something like $150,000. If you worked at Hanford and you were subjected to radiation and you could show that you were there during a certain period of time, you were compensated with $150,000 for all kinds of different cancers.
The only one that Hanford litigation ever got to was radioactive iodine. As I said, the Department of Energy, they had their own program and refused to adhere to anything that the Department of Health thought was appropriate under the Price-Anderson Act.
Eymann: We are all paying for the cleanup at Hanford right now. It changes every year. I can remember early on in this litigation, the cleanup at Hanford was estimated to cost about I think about $2 billion. Well now, we are up to $2 billion. Now they are talking that it is going to cost approximately $45 billion to clean up Hanford. Where it used to be supposed to be done next year, now they are saying the cleanup of Hanford and everything that exists down there will not be done until 2079. That is the more recent [estimate].
I have been involved in litigation involving Whistleblower False Claims Acts cases against the contractors to this date. Did they learn anything? I do not think they have, but that is my own personal opinion. I think that some of these contractors agreed that they had been misleading the public, misleading the taxpayers. Because the case that I was involved in—and I played a small part in that case—it settled for $125 million. Most of that went back to the government under the False Claims Act Case.
If these contractors are willing to pay up or one contractor is willing to pay—actually it was two contractors willing to pay $125 million. Where there is smoke there is fire. Something smells, and smelled for a long time. Obviously, I have gone ahead and talked about the other taxpayer dollars. But $45 billion, that is a tidy sum.
Pritikin: I wanted to go back to one question I had. If Price-Anderson were amended to put a cap on the defense spending, would that even the playing field a little bit? That was one of the problems, I think, that it was way too much funding from out of taxpayer dollars to fund the defense. So it prolonged litigation, made it harder on plaintiffs’ counsel. Do you think that is a reasonable amendment?
Eymann: Well, this would all be post-Hanford litigation.
Eymann: That is an interesting idea. I can certainly tell you that the Department of Energy is going to be in there screaming bloody murder, to cut off their funding or reduce their funding. Of course, law firms will be saying, “How can we adequately represent the taxpayer without getting everything we possibly need to defend this case?” Their view is that some of these claims were not legitimate, that some people were making up stuff. Interesting idea, but I will bet you can never get it through Congress.
Karen Steele: One thing that has always intrigued me is the Pigford Report, that report that was sealed by Judge McDonald for years. In fact, it was under seal for nine years. Judge McDonald not only sealed the Pigford Report, which was done by a prominent nuclear engineer from Berkeley, but he also forbade any kind of discovery on HEDR and HTDS studies during that time. I am wondering if you think that made a difference?
The reason the timing is interesting is because Pigford was saying that HEDR, because it was not evaluating the topography and other unusual variations in Hanford that could have affected the doses, that HEDR and Battelle were likely underestimating the radiation doses. Since most of the plaintiffs agreed later on to stipulate to those doses, would it have made a difference had the Pigford Report come out much earlier?
Eymann: It probably would have. As you know, Judge McDonald wound up showing that he had his hand in the cookie jar. He may have had a very good reason for trying to bury the Pigford Report.
Did it change Judge Nielsen’s view? Yes, I think it did with regard to general causation, because he ruled strict liability. He had the Pigford Report in hand, and he saw that this probably should have been done by Judge McDonald years ago. Would it have changed the course of the litigation? Perhaps.
Steele: When you mentioned that Judge McDonald had his hand in the cookie jar, could you elaborate on that?
Eymann: Tom Foulds always said, “I smell a rat.” He did not say a mouse, he said, “I smell a rat.” I do not know whether Tom has explained that situation. But he was the one lawyer that thought that something was awry.
As it turned out, Judge McDonald had land that he wanted to develop into apple orchards. Apple orchards are a big deal along the Columbia River, running from Okanogan all the way down to essentially the Tri-Cities. He had this land that he wanted to turn into apple orchards. He had to sign an affidavit to get a loan from the Small Business Administration—a fairly large loan—to develop these apple orchards, that there was no radiation on any of this land.
When you look at the map, there was indeed definitely radiation adjoining the Columbia River. It had been proven by different readings for those radionuclides that do not go away in just a few days. Tom Foulds brought all this information out. With that, the Ninth Circuit, whether it was the Ninth Circuit telling him, “You’d better resign from this case, or we are going to do something about it.” However it occurred, he recused himself from further litigation of this case, and it was transferred to Judge Frem Nielsen.
I think Frem Nielsen wanted to be fair throughout. Frem Nielsen, he was thoughtful but, in the end, the whole entire litigation turned into one of, “Let’s get this done. However, we can possibly get it done, let’s get this done.” When a few of the plaintiffs’ counsel saw that coming, and not having the resources to be able to go to trial for their clients, started settling cases without other plaintiffs’ counsel even knowing about it. Once Judge Nielsen saw that these cases were settling for less than what the other plaintiffs’ counsel thought would be bare bones minimum settling for even less than that, it was a train that was heading down the track and there was no way to stop it.
Steele: I wanted to go back to the two bellwether thyroid cases, Stanton and Wise, who won their cases. You noted that it was not for a whole lot of money, $250,000/$265,000 each. But weren’t they still pretty significant in that juries decided in favor of two thyroid cancer plaintiffs in those cases?
Correct me if I am wrong, but the other big decisions like the Utah Cases, had come from Judges who were later overruled. Was this the first, or one of the first, jury verdicts in the United States Court system actually found for victims of a nuclear–?
Eymann: Perhaps I could be wrong, but I am not aware of any other verdicts rising out of the Price-Anderson Act. These particular verdicts for thyroid cancer—as I said, I think one was around $250,000 and another one was $350,000. They essentially were cancer-free, and they were going to live the rest of their lives.
For someone who is recovering from cancer, it was caught early, they had the thyroid operation, they definitely were within the range of what I would say at that time would be reasonable.
Steele: As the whole litigation was proceeding, so were these studies, both HEDR of course and then later the Hanford Thyroid Disease Study. How much did that sort of dispute the outcome of HTDS? Did it hurt your case a lot, because you were not able to specifically pin a dose to an outcome?
Eymann: I do not think the defense was really wanting to even consider—they indicated that this was a legitimate study that was done, even though if you go in and look at the authors of those particular studies. Like Judge McDonald, I think they had their hand in the cookie jar all along. They had a reason for backing up what the government had done in the Manhattan Project and for their own purposes.
Some of them had worked at Hanford, and now they are judging whether or not the doses that these people were getting or had gotten were reliable or not. Here was the government defending these cases, but it also financed these particular studies.
Not only that, but Kirkland and Ellis had a couple persons who had been involved in the studies themselves. How much they were biased? My personal point of view is, there was bias. The extent of the bias, I guess, would not be for me to judge, but there was bias in those studies. Unfortunately, with the defense doing the kind of defense they were doing which is my opinion on that, they had a scorched earth defense. A scorched earth defense is where you do everything you possibly can to defend and you do not care about the morality of it. You do not care about what it means for future generations. It does not mean being fair and honorable.
When Foulds and myself had been digging into documents and receiving information from other persons who had been investigating for other purposes the Hanford Environmental Group.
I am sure that even after today, that there still will be information coming out about Hanford that we never knew existed. Interestingly enough, when you talk about bias, Foulds had gone to the trouble to go down to Hanford, and I joined him at Hanford to what was called the Hanford Library. There was an absolutely trove of documents, boxes and boxes, and boxes about the building of Hanford, the contractors. Foulds wanted all of that information.
However, I believe it was about two or three months after we were there, while Tom Foulds is making arrangements—this is before scanning was an art to the extent it is today. For some reason all the fire valves for their fire system went off in the library, and so boxes and boxes of documents were soaked with water. I heard that they were trying to dry them out. Tom Foulds can probably give you more information about the soaking of the Hanford Library down there, and what he was able to get out of there and not be able to get out of there. I just thought it was very coincidental that those—what do you call those things?
Eymann: Sprinklers, those sprinklers went off in their Hanford Library before, as Tom said, a lot of documents that he had requested had been shipped off to him.
Steele: Regarding the final settlement amounts in 2015, the global settlement was announced, why were they kept confidential? Was it a government decision?
Eymann: The settlements, confidential?
Steele: The dollars. Why were they considered confidential? After all, the taxpayers had paid for them, they are public money.
Eymann: You will probably find this kind of interesting. This was a way of protecting those who were compensated. We gave the plaintiffs who settled choices with regard to whether or not the amount they received would be confidential or not. Almost virtually 90% wanted their settlement amount confidential. They were very happy to get it. But the reason that most of them indicated to us that they wanted it confidential was because some of them got more money than others. We had one sister that would get one amount, and another sister that might get nothing, or another brother that might get a much smaller amount.
We had those who did not want anybody knowing that they had any money at all. They did not want people coming to them asking to borrow the money. There was a lot of discussion.
But I can only speak for my clients and Tom Foulds’s clients what occurred. With regard to those represented by Mr. [Roy] Haber, those represented by Berger & Montague, those represented by Brian Depew, I cannot answer for any confidentiality. But I know there were confidential settlements, and if there are confidential settlements, does that make the total amount discoverable? I always thought that the media would find out what the total amounts were.
I guess you are telling me you never were able to find out what the total amounts were.
Steele: Not yet.
Eymann: You would be disappointed because in my view they are horribly skimpy.
Steele: Compared to the figure you gave of $84 million that was paid to the–
Eymann: I mean some of these people wound up with $5,000. Some wound up with $10,000. Some of those with thyroid cancer—I well, I will not say what the highest was, because I do not know for sure because I do not know what some clients for Mr. Depew received, and he had an entire group. He was doing, in the end, work for two or three different law firms. I cannot tell you what the higher amounts were, but I know that a lot of the settlements were very low.
Steele: Do you think that the Judge turned too much of this over to the judicial mediators at the end? The whole case seemed to move to the mediator in Oregon. Excuse me, the mediator in Spokane, I am sorry.
Eymann: That was plaintiffs’ counsel, Tom Foulds and I. We felt the only way for those that they were willing to compensate, as lawyers, we do not want to make the determination as to what was fair. We came up with that plan, where we would have them go through an interview process—either by video or if they wanted not to be on video, to be in writing. We accumulated information on what we believed to be their dose, their injuries, their damages that they felt. Then all of that information was provided to the mediator.
His name was William Etter, a very fine lawyer. He used to be quarterback for Notre Dame before he ever went into law school. I think he was a quarterback before Joe Theismann, who famously broke his leg.
In any event, we chose him, and the defense went along with that. What he did is, he very carefully and thoroughly talked either in person or on the phone with those who were receiving money to determine, out of a block of money, how to divide it up. There was not a single plaintiff that came back and expressed disappointment over how he had divided it up.
The only thing I have to add at the end is that so many of these people passed away, or would start out as downwinders, became sick, endured it all of their lives with all kinds of different problems, and then died without even knowing what their compensation would be. At one point in time, my firm wanted to put an ad in the New York Times and the local newspapers here showing photos of those who have passed away as a result of Hanford. We collected all of these photos of those who had already passed away. We never got the opportunity to actually put that ad in the newspapers, because we were too far into trying to figure out how to get some compensation.
I alluded to the problems among plaintiffs’ counsel, which is one of those unfortunate things. You get lawyers who have run out of money to go any further. Some still would like to get something, get some compensation out of the case, get reimbursed for hundreds of thousands of dollars in costs. Then there are those who do not want to give up until the bitter end. The last three in the case if, I remember correctly, were Depew. After he settled the rest of his cases, that left Tom Foulds and me. I finally was second to last to go. At the very end, Tom Foulds was the last one to stay, until the bitter end. Still I was working with Tom Foulds even through the completion of his settlements.
That guy, he put the whole rest of his life—he is still alive and he is still going strong. I think now he is about 94 years old. I still am in contact with him. What an amazing mind that that guy had. His understanding of the truth helped me understand what the real truth was in this particular devastating situation for so many different people.
It is going to continue, as they try to clean up Hanford. If people think that everything is safe down there, it is not. I know enough from the additional litigation that I have been involved, involving the contractors and cleanup, that there are tanks down there that are leaking and are extremely volatile. Just pray that we do not have a catastrophe, where some of these tanks blow up. If one blows up, there are others adjoining nearby that can blow up. And if they do, you want to run.
A lot of these people were victims: “Very suspicious that everyone in my family who stayed near Hanford got tumors. Did my daughter get nine holes in her heart because of where I grew up? Thyroid disease, breast cancer, six tumors in my uterus, I am surprised I do not glow in the dark. Three years ago, I discovered that I was exposed to radiation, what a relief.” That is the attitude that a lot of these people had. Thanks to the FOIA request, thanks to the work done by the lawyers in this particular case, the media stepping in and covering it the way they did.
Just knowing that there was an answer for these people for all the diseases, whether it was brain cancer, bone cancer, all the different kinds of cancers they would have gotten from radionuclides out of the river and those that came through the air, iodine. Just knowing that they were not unlucky in life, that actually there was an answer for the cause and that the cause arose out of Hanford radiation that was emitted out of those stacks and went into the river.
Steele: Have there been other organizations that have stepped forward to say, “You plaintiffs’ attorneys did a really, really good job in a significant case in our nation’s history”?
Eymann: Tom Foulds and I received the award from the Washington Association of Justice for the work that we did. I do not know about other lawyers in the case. There were just six different groups. He and I were recognized for the work that we did, and it took so many years.
The recent award that I read from, where they did some investigation into what my firm and I had put into it, that was a national organization called BODA. It is half plaintiff lawyers, half defense lawyers. As I understand it, the defense lawyers were the ones that selected me to get that award.