The Paducah Sun
The Paducah Sun
Paducah, Kentucky
Tuesday, April 17, 2001

Both sides see gains in DOE site ruling
A federal judge said workers' compensation laws usually immunize employers from negligence claims. But there are other aspects.

By Joe Walker jwalker@paducahsun.com--270.575.8650

Lawyers disagree on the significance of a federal judge's ruling barring current and former Paducah Gaseous Diffusion Plant workers from suing their employers for job exposure to radiation and toxins.

Lead defense lawyer Bob Tait of Columbus, Ohio, called the decision a big victory for former plant contractors Union Carbide and Martin Marietta (later Lockheed Martin), while plaintiffs' attorney Bill McMurry of Louisville described it as a setback that shouldn't change the ultimate outcome of the case.

On March 30, U.S. District Judge Joseph McKinley Jr. threw out the claims because state workers' compensation laws generally immunize primary employers from negligence arising from regular business. Although one notable exception is a deliberate intent to hurt workers, there was no basis for that claim in the Paducah case, the judge wrote.

"The allegations ... even if true, are insufficient to invoke the exception," the ruling said.

Tait, who represents the contractors in several similar suits in Paducah, said defense attorneys will seek to apply McKinley's ruling in those cases.

"It's a very significant development to the extent that it establishes, as a matter of law, that these former employees can't sue their employers," Tait said. "In a nutshell, what that means is that anyone who worked for both Union Carbide and Martin Marietta is essentially no longer a plaintiff in the case as it deals with that particular defendant."

Tait said the decision does not apply to a whistle-blower lawsuit because it claims an entirely different premise. That suit, which touched off a Washington Post expose and Justice Department investigation, alleges plant contractors conspired to defraud the federal government by obtaining huge performance fees while covering up worker and public exposure.

In his ruling, McKinley denied other defense motions to dismiss claims, including one that time had run out. Those victories give the plaintiffs confidence to still win the case, McMurry said.

"The most significant result, in our opinion, is the court's refusal to grant the defendants' motion to dismiss based on the statute of limitations ...," he said. "Obviously, that (workers' compensation law ruling) is disappointing, but at the same time, we firmly believe that Union Carbide (and other contractors) will ultimately be held accountable for their misconduct, whether or not it's their own employees who are compensated."

The negligence suit, filed in Paducah in 1999 a few months after the whistle-blower action, seeks $10 billion on behalf of current and former workers at the plant, which enriches uranium for use in nuclear fuel. McMurry said the recent ruling does not bar claims against Union Carbide by Martin Marietta employees who never worked for Union Carbide. Carbide was the contractor at the plant from its opening in 1952 until 1984, when Martin Marietta took over.

Tait agreed, but said there is only one defendant left in the action who worked for Martin Marietta and not Carbide.

The ruling also does not hinder claims against General Electric, DuPont and other firms for allegedly supplying highly radioactive feed material to the plant, or claims by workers' families against any of the defendants for "having been exposed to their material in their homes," McMurry said.

Workers' compensation laws generally immunize employers because injured or sick workers are entitled to benefits from employers or their insurance companies, Tait said.

Some cases, such as the late Joe Harding, who claimed he was poisoned by the plant, have resulted in paltry workers' compensation benefits. Plaintiffs' attorneys in similar suits have said that protecting employers against negligence claims is unfair because workers' compensation is generally inadequate.