Thousands may join DOE lawsuit
Saturday September 4, 1999
By Joe Walker
As many as 10,000 current and former Paducah Gaseous Diffusion Plant employees and their families may be eligible to join a $10 billion federal lawsuit alleging that former contractors poisoned the work force with plutonium and other contamination, say attorneys who filed the action.
"It's about compensating these workers," said lawyer Bill McMurry of Louisville, formerly of Paducah. "It's about accountability, compensation and punishment."
Filed Friday before U.S. District Judge Edward H. Johnstone in Paducah, the suit seeks $5 billion in compensatory damages, $5 billion in punitive damages and the recovery of "hundreds of millions of dollars" in unjust profits.
Defendants are former plant contractors Union Carbide Corp. and Lockheed Martin as well as General Electric Co., which allegedly shipped reactor fuel contaminated with plutonium to the Paducah plant for reprocessing from 1952, when the plant opened, until 1965.
The suit names 14 plaintiffs, including three - Ronald Fowler, Garland (Bud) Jenkins and Charles Deuschle - who in June filed a "whistleblower's" (False Claims Act) suit against Lockheed Martin in federal court in Paducah. Fowler and Deuschle are employees, and Jenkins is retired from the plant.
Joseph Egan, a Washington attorney and nuclear physicist who filed the whistleblower's suit, is a plaintiffs' attorney in the new lawsuit.
Unlike the whistleblower's action, which asks for Justice Department intervention, the new complaint seeks damages directly from the former contractors alleging they made money at the expense of workers' exposure. The whistleblower's suit exempts Union Carbide because of a statute of limitations.
Mark Bryant of Paducah, another plaintiffs' attorney, said the new suit resulted from mounting phone calls to his office after word of the whistleblower's suit surfaced in July. The action is based on resulting facts that support the earlier suit, he said.
"We expect to get phone calls from a lot of people wanting to be plaintiffs," Bryant said.
Fowler's wife, Sandra; Jenkins' wife, Alice; and Deuschle's wife, Kay - a plant employee - also are plaintiffs.
Other plaintiffs are current or former plant workers Al Rainer, William Cossler Jr., Charles Ramsey and David Sacharnoski; Rainer's daughter, Chyanne Rainer Stevens, and Sylvia Mathis, Shanda Mathis and Sybil Mathis. Sylvia Mathis is the widow of H.C. "Ladd" Mathis Jr., a longtime plant employee and civic leader who died last year of lung cancer. Shanda and Sybil Mathis are their daughters.
"We're not trying to draw connections between anyone's death and his work out there," McMurry said. "Our task is to prove that these workers have been injured by their exposure to high levels of radiation."
The suit came as the U.S. Department of Energy, which owns the plant, announced the completion of its investigation into claims surrounding the whistleblower's suit. DOE spokesman Steve Wyatt declined comment on the new complaint, as did Lockheed Martin spokesman Jim Fetig.
"We have not seen the lawsuit and therefore are unable to comment," Fetig said.
Defendants' attorneys have 20 days to respond. McMurry said the plaintiffs' team wants to send notices to all current and former workers and their families asking them if they wish to join the suit. Johnstone must rule on that motion and set a time limit for responses, he said.
"A class action is determined by the numbers, but there is not any magic number," McMurry said. "It just has to be too numerous to handle each person's claim individually."
Bryant said the team will seek the involvement of the U.S. Department of Justice and the plant's main union, Paper, Allied-Chemical and Energy Workers International (PACE). Rainer, Cossler and Ramsey are union members.
Bryant said he would contact PACE international officials next week to ask for their support.
"The defendants can certainly afford to pay it if we can get a judgment against them," Bryant said. "It'll take years. This is not something that's going to happen tomorrow, but we're going to work with the union to try to get them on board."
David Fuller, president of PACE Local 3-550, said Bryant had not contacted him.
"Whether this lawsuit will become a part of any official response my union makes, I don't know," Fuller said. "While I'm not ruling it (involvement in the suit) out, I certainly have no knowledge and have not been a party to any of this and hold out the option for a completely different course of action. It depends on what the international decides after a thorough review."
Among the allegations:
--General Electric's Hanford facility shipped thousands of tons of highly contaminated uranium feedstocks to the Paducah plant, operated by Union Carbide from 1952 to '84, and Martin Marietta and its successor, Lockheed Martin, from 1984 to last spring. The reactor fuel had up to 700 times as much technetium and 450 times as much plutonium and neptunium than does the uranium that is typically processed. All three substances were contaminants and far more radioactive than uranium, enriched at Paducah for use in nuclear fuel.
--The contaminants led to "widespread releases" to the plant and its surroundings, and the releases continue. Workers had "a continuous series of ingestions and exposures" - in excess of federal limits - from routine operations over many years.
--Workers deserve compensation not only for physical injury but the fear of contracting radiation-related diseases and mounting medical expenses.
--Contractors hid and misrepresented the facts, knowing that employees would otherwise refuse to work and file claims. The fraud led to "unjust enrichment" of contractors through profits, bonuses and incentives earned by not using proper safety precautions.
McMurry said the suit is based on Kentucky law that allows people to recover emotional damages for radiation exposures that are especially bad. The law stemmed from an unrelated court case involving a pregnant woman injured by medical X-rays, he said.
"That's important, given what we believe to be one of the most egregious violations of health physics laws ever," McMurry said of alleged plant exposures.
Kentucky's workers' compensation laws exempt employers from
paying claims to workers injured unintentionally and in the normal course of
business. McMurry said the federal suit alleges "outrageous conduct," which, if
proved, would mean the injuries were deliberate and