A class action lawsuit by Oregon prisoners involved in radiation experiments from 1963 to 1973 and still living as of December 31, 1997, who were not treated under Oregon's Medical Monitoring Statute (MMS) was settled for $675,000 in damages, attorneys' fees, costs and expenses.
Sixty-seven prisoners at the Oregon State Penitentiary (OSP) participated in experiments funded by the federal government, in which their testicles were irradiated to determine the effects of Xray radiation on the reproductive process. In 1987, in response to these controversial experiments, the Oregon legislature enacted the MMS, which requires the State to provide medical and/or psychological evaluations, examinations, care and treatment to subjects of the experiments.
Prisoners filed suit in state court alleging that the Oregon Department of Corrections (ODOC), its Director, David Cook, Oregon Health Sciences University (OHSU), and its President, Peter Koheler, failed to comply with their statutory duties under the statute.
In June 1999, the court permanently enjoined the ODOC to administer the statute, compelling it to comply with its notice, evaluation and treatment obligations under the MMS. The court refused to find OHSU or Koheler liable under the statute.
Twelve members of the certified plaintiff class also brought individual lawsuits in state court, seeking monetary damages against defendants, claiming that the failure to comply with the statute resulted in bodily harm and emotional distress. The individual suits involved different legal claims than those involved in the class action.
In February 2000, counsel for individual and class plaintiffs, and defendants ODOC and Cook, agreed to enter into mediation. Since OHSU and Koheler were not found liable, they were not parties to the mediation or resulting settlement and plaintiffs did not oppose a motion to dismiss them from the case.
The settlement requires the ODOC and Cook to pay the class of plaintiffs $675,000 for damages, attorneys' fees, costs and expenses. This settlement was in addition to the settlement of the twelve individual lawsuits, the aggregate amount of which totaled $25,000.
During the course of the litigation only 21 of the 67 experiment subjects were located and at least 41 were determined to be deceased. Twelve of the located class members participated in the litigation as named plaintiffs, one of whom died after the litigation began. Five other experiment subjects are believed to be living but could not he located. It was believed that it was unlikely that many more than the 21 claimants would make claims.
Upon that assumption, the base pro rata share for each claimant would be $32,142 before attorneys' fees and costs; an incentive award for plaintiff Harold Bibeau; and interest on the settlement fund. The distribution was on an essentially pro rata basis based upon the number of claimants because there was no mechanism for compensating class members differently based upon any claimed differences in the nature or severity of any physical, emotional or other injuries they sustained.
In addition to the base recovery, Bibeau was awarded a $10,000 incentive "due to his very active participation in and pursuit of the litigation." Thus, assuming that only 21 claimants filed claims, it is estimated that "the approximate net amount that will be available for distribution to each claimant is $14,476."
The settlement of the twelve individual suits resulted in an award of $5,000 each to Bibeau and Michael Spacer, due to the severity of their injuries, and $1,900 to each of the remaining individual plaintiffs.
Aside from the state court action, plaintiffs filed suit in federal court as well. [See accompanying article, "Oregon Radiation Suit Settled for $1.5 Million.] Between the state and federal Heller Experiment settlements, each Oregon claimant can reasonably expect to receive an average of between $40,000 and $50,000.
For a more detailed discussion of the Heller Experiments, see PLN's prior reporting, "Cheaper than Lab Rats" [ PLN , March 1999]; and "Irradiation Limitation Remains Unsettled" and "Washington Radiation Suit Settled for $2.4 Million" [ PLN , Nov. 2000].
See: Bibeau v. Department of Corrections, et al. , Multnomah County Circuit Court, Case No. 971210262.
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Related legal case
Bibeau v. Dept of Corrections, et al
|Cite||Multnomah Co Circuit Court, Case No. 9712-10262|
|Level||State Trial Court|