For Immediate Release: January 21, 1998

For More Information Contact: TLPJ, 202-797-8600
Amicus Brief

TLPJ Challenges No-Opt-Out Class Action Settlement of Cincinnati Radiation Experimentation Victims' Claims

U.S. Constitution and Federal Rules Guarantee Right to Opt Out

Trial Lawyers for Public Justice (TLPJ) has challenged a proposed no opt-out class action settlement of all civil rights and personal injury claims that could be pursued by victims of human radiation experiments conducted by the University of Cincinnati. TLPJ contends that the proposed settlement in In Re: Cincinnati Radiation Litigation, currently pending in the U.S. District Court of the Southern District of Ohio, is an unconstitutional attempt to cap the defendants' liability and prevent all class members from pursuing their claims individually.

"If this no-opt-out settlement is approved, each of the 88 plaintiffs will be forced to accept the settlement," said TLPJ Foundation President Fred Baron of Dallas' Baron & Budd. "This is not how class actions are supposed to work. These individuals should not have been forced to undergo radiation experiments without their consent, and they should not be forced to settle their claims based on those experiments without their consent. Their rights should have been and need to be protected."

The class action lawsuit In Re: Cincinnati Radiation Litigation, arises out of a series of radiation experiments conducted by doctors at the University of Cincinnati between 1960 and 1972. A total of 88 cancer patients, all of whom apparently had radio-resistant tumors, were selected to undergo total or partial radiation. The majority of the patients were elderly, their schooling averaged out to 4th grade level, and many were African-American. All the patients have since died.

The plaintiffs, who are family members of the former patients, allege that the radiation treatments were illegal and were performed to provide the U.S. Department of Defense with information on the effects of nuclear radiation. They also allege that the patients were not adequately informed of the nature and risks of the treatment and that the radiation accelerated the deaths of many of the patients and caused extensive pain and suffering.

When the class action was originally filed, several (if not all) of the class members were specifically promised that they would always have the right to opt out and pursue their claims individually if they chose to do so. However, the defendants, including the United States of America, the City of Cincinnati, and the University of Cincinnati, insisted they would settle only if no one were allowed to opt out. So, now a proposed no-opt-out settlement has been reached, even though the U.S. Constitution and the Federal Rules governing class actions both protect class members' rights to opt out of cases for money damages unless, perhaps, the defendants simply don't have sufficient funds to satisfy all claims.

TLPJ's amicus brief, filed yesterday, contends that the proposed no-opt-out settlement violates both the law and the Constitution by depriving the class members of the right to opt out and forcing them to settle their claims without their consent. The brief further notes that the no-opt-out deal improperly treats all of the class members the same, even though their individual circumstances varied.

For example, some patients received total body radiation while others received only partial radiation, and some patients died as a direct result of the radiation, while others did not. The no-opt out settlement presents all of these patients' families with exactly the same remedy, regardless of the individual circumstances. As a result, individuals with large claims may have those claims compromised against their will, and individuals with smaller claims may receive more than they may be entitled to, simply to ensure all class members receive exactly the same compensation.

"The principle governing this case is clear," said TLPJ Staff Attorney F. Paul Bland Jr., who authored the amicus brief. "When plaintiffs bring highly individualized claims against financially well-heeled defendants, those claims simply cannot be settled on a no-opt-out basis."

The fairness and propriety of the settlement will be the subject of a hearing on March 16, 1998 before U.S. District Court Judge Beckwith in Cincinnati. TLPJ's Bland intends to attend the hearing to voice TLPJ's concerns.

This challenge was filed as part of TLPJ's Class Action Abuse Prevention Project.