A federal judge on Monday rejected a proposed $4.27 million settlement in the case of Cold War radiation experiments at the former Cincinnati General Hospital.
But U.S. District Judge Sandra Beckwith also gave attorneys another 30 days to try to fix several problems she cited with the proposal.
The case involves the families of 90 people with cancer, mostly black, mostly poor, who claim they were treated as unwitting guinea pigs in a radiation experiment conducted for the Department of Defense from 1960 through 1971.
The plaintiffs claim several patients' lives were shortened by radiation doses that were intended not for treatment but to measure how soldiers would be affected during nuclear war.
The defendants - which include the federal government, the city of Cincinnati, the University of Cincinnati and several individual researchers, claim the radiation always was intended as an experimental treatment to relieve pain.
The legal battles started in 1994, after an Enquirer investigation revealed many long-withheld patient identities. The Enquirer published the entire patient list Feb. 18 of this year. |LIST|
If a settlement cannot be reached, the case would go back to federal appeals court, where attorneys have been fighting over which defendants can be included and whether the case is a legitimate class action. Those and other preliminary arguments could take months, perhaps years, before a trial would be held.
Ultimately, if the proposed class action is rejected, the families of former experiment subjects would have to pursue their claims as individuals rather than as a class.
Judge Beckwith's ruling comes five months after oral arguments were made about the proposed settlement.
The settlement called for paying each family of an irradiated patient $36,000 to $66,000; getting an apology from a government official; and placing a memorial plaque somewhere on the University of Cincinnati campus.
Judge Beckwith did not question any of the monetary amounts in the settlement, but she questioned whether the patients would form a legal class, and she criticized several non-monetary settlement terms. Among the issues:
A new court ruling. She asked lawyers for more arguments about how a recent U.S. Supreme Court decision in a massive national asbestos class-action case, called Amchem Products Inc. vs. Windsor, would affect this case.
Informed consent. Judge Beckwith wrote that it could be a problem to lump patients together as a class when testimony shows they were given different amounts of information about the experiments.
The plaque. The judge wrote that an agreement from UC to accept a plaque showing the initials of patients was not satisfactory. More details about where the plaque would be located are needed.
Finding survivors. Given that the settlement would be mandatory, even though family members for many former patients had not been found, Judge Beckwith questioned whether enough effort had been made to find potential class members.
Limited funds. A key justification for the settlement was a two-part argument that several defendants, including UC the city of Cincinnati and the federal government would not be liable for monetary damages and that the remaining individual researchers would not have much money to pay damages - should the case go against them. Judge Beckwith questioned both assertions and asked for more information about defendants' insurance coverage.
Attorneys on both sides of the case said many, if not all, of the issues can be addressed.
''We have to study these questions carefully. All the lawyers will have to sit down and see what we can do,'' said R. Joseph Parker, attorney for lead researcher Dr. Eugene Saenger and spokesman for other individual defendants.
''It is certainly our goal to get Judge Beckwith to approve the settlement. I think it's a very good settlement for all parties involved,'' Mr. Parker said.
Robert Newman, who represents the largest group of plaintiff families, said, ''We've got a lot of work in front of us. Many of the clients are really anxious to get this over with.''
Previous story
FAMILIES NOT IN AGREEMENT ON SETTLEMENT Feb. 18, 1997
