BY TIM BONFIELD
The Cincinnati Enquirer
After six months of fruitless "last-minute" settlement talks, lawyers in the University of Cincinnati Cold War radiation case declared an impasse Monday.
That means a proposed $4.26 million settlement that might have ended a bitter, four-year battle for families who claim their relatives were guinea pigs in a 1960s military experiment appears dead. The case now seems destined for several more years of litigation and appeals.
"The plaintiffs are greatly disappointed that we have not been able to settle this case," said attorney Robert Newman, who represents most of the families in the case. "Unfortunately, it looks like we'll have to go back to litigating all the issues, which will be an expensive and time-consuming process."
The proposed class-action lawsuit involves the families of 89 cancer patients who claim their relatives were unwitting subjects in military-sponsored radiation experiments conducted at the former General Hospital (now University Hospital).
Defendants, including lead researcher Dr. Eugene Saenger, the University of Cincinnati and the federal government, have insisted that the experimental treatments were meant to help patients.
The proposed settlement would pay families roughly $50,000 each, a figure that depends on how many families make a claim. It also calls for placing a memorial plaque at University Hospital, an apology from the federal government, and promises meetings with Dr. Saenger.
The settlement battle has focused on whether the deal should be mandatory for all the families.
A dozen families have hired their own team of lawyers to fight the settlement, in part because they think their individual cases are strong enough to win more than $1 million from a jury.
However, the defense lawyers insist the deal is off for everybody if any families are allowed to "opt out." They also contend the plaintiffs cannot prove their case if it ever goes to trial.
These issues -- and more -- were raised in March at a hearing to determine whether the proposed settlement is fair and meets legal requirements. After raising her own concerns about the settlement, U.S. District Judge Sandra Beckwith asked the warring factions to try again to make a deal that could satisfy all sides.
Despite repeated meetings with a federal mediator, and then with Judge Beckwith, the lawyers could not agree. That means Judge Beckwith will rule on the original settlement proposal by Sept. 25 -- a ruling that is almost certain to be appealed.
"This is a difficult case, with lots of considerations on all sides that apparently are insurmountable," Judge Beckwith said Monday. "If the class is not certified or if the settlement is not approved, you'll be back in the (U.S. Court of Appeals for the 6th Circuit). Or if I approve the settlement, you'll be back arguing whether the settlement should have been approved. Either way, whatever I decide won't be final."
Mr. Newman said he still hopes a deal can be cut by Sept. 25. But there seemed to be little interest in further talks.
"Our clients value their loved ones very highly. We're not opposed to a settlement for Mr. Newman's clients, but our clients have a right to pursue their cases," said attorney John Metz, who represents the objecting families.
But the defense gains nothing from a settlement that allows individual families to continue pursuing their cases, said R. Joseph Parker, the lead attorney for Dr. Saenger and the other doctors. The only interest the defendants have in settling would be to avoid the time and expense of defending themselves in case after case.
