Saturday, February 22, 1997
Holdouts call deal inadequate
Three families object to settlement in radiation case

BY TIM BONFIELD
The Cincinnati Enquirer

A two-day hearing on a proposed $4.27 million settlement in the case of Cold War radiation experiments at the former Cincinnati General Hospital ended Friday.

But a preliminary decision on the fairness of the settlement remains several weeks away.

After hearing supporting arguments most of the day on Thursday, attorneys representing three objecting families spent Friday detailing why they think the proposed settlement is a bad idea.

''This (settlement) is like a slap in the face to me,'' testified Lillian Pagano, whose mother, Maude Jacobs, was patient No. 045 in the experiments. ''My mother went through hell.''

Mrs. Jacobs, then 49 years old, had breast cancer that had spread to several other parts of her body. Yet she was caring for her children and handling daily housework duties up to the day she took a taxi to General Hospital for a dose of whole body radiation.

Following her exposure, research documents state, Mrs. Jacobs ''had severe vomiting which continued throughout the next 24 hours in spite of intramuscular compazine (an anti-nausea medication).''

Mrs. Pagano testified: ''She could hardly speak .Ç.Ç. her skin was fire red.''

After returning to General Hospital, Mrs. Jacobs never left. Her white blood cell and platelet counts plummeted. Her heart raced. Her right lung partially collapsed. She died Dec. 2, 1964, 25 days after whole body radiation exposure.

Mrs. Jacobs was one of 90 cancer patients who received whole body or partial body radiation during the 1960s as part of the experiment at General Hospital.

Chief researcher Dr. Eugene Saenger and other doctors involved in the study have testified that they were giving patients treatment to relieve their pain. Critics contend the study was meant to provide the military with information on how a nuclear at
tack might affect troops.

Although Dr. Saenger maintains that no deaths were caused by the treatments, critics say Mrs. Jacobs was among at least eight patients whose deaths were hastened by their exposure.

The settlement proposal calls for paying each surviving family $33,000 to $66,000, hanging a plaque with patient initials somewhere on the University of Cincinnati campus, and providing more information to families. A side agreement would produce an apology from the federal government.

The settlement would be mandatory, which means it would apply to all families involved. Most of the families support the settlement, but Mrs. Pagano and others want the right to pursue their own cases.

''My mother had a name. Her name was Maude Jacobs. What is this about initials (on the plaque)?'' Mrs. Pagano said. ''This is not about money. My greatest goal would be to see those doctors up in front of the court .Ç.Ç. I want the doctors to admit they made a mistake.''

University attorney Ken Faller said researchers and others were concerned that a plaque would be a blot on their professional careers. The initials, rather than full names, was a compromise.

Lawyers arguing in favor of the settlement said the families would face 10 years of litigation to bring their case to trial. They would have to overcome several legal defenses, including whether there was any therapeutic intent to the radiation, whether there was informed consent, whether researchers would have immunity as government contractors, and whether publicity in 1972 triggered statutes of limitation that would have expired years ago.

Lawyers opposed to the settlement said they have answers for all the potential legal roadblocks. They argued that a settlement would leave many questions about the radiation experiments forever unanswered. And they argued that the families may be entitled to much more money than offered in the settlement.

One objector, Gwendon Plair, son of Beatrice Plair, patient No. 044, said he thought a fair settlement would be closer to $1.5 million per family.

Attorneys will have about two weeks to file written briefs. Then U.S. District Judge Sandra Beckwith could take several days to a few weeks to issue her ruling.

The $4.27 million would come from four sources. Individual researchers (and their insurance companies) would pay about $2.32 million; the federal government would pay $1,030,000; the City of Cincinnati (which owned General Hospital at the time) would pay $450,000; and the University of Cincinnati (which employed the researchers and ran the hospital) would pay $399,000.

Lawyers are still negotiating who will pay for about $70,000 in agreed upon settlement funds.

Should Judge Beckwith reject the settlement and allow families to opt out, all bets are off. Defense attorneys say they will not agree to any settlement that does not include all the families.

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