"Cold War Widows" of Former Nuclear Plant Employees Seek Exception to Statute of Limitations: An Interview of Philip J. Fulton

Represented by Columbus, Ohio, attorney Philip J. Fulton, author of Fulton's Ohio Workers' Compensation Law (LexisNexis), the widows of 38 former employees of the Portsmouth Gaseous Diffusion Plant in Piketon, Ohio, are trying to win death benefits from the Ohio workers' compensation system.  The Industrial Commission of Ohio ruled that their claims were barred by the two-year statute of limitations for filing such claims.  Fulton has appealed the ruling to the Court of Common Pleas, Pike County, Ohio, where he hopes to get the case before a jury.

 The LexisNexis Workers' Compensation Law Center caught up with Philip Fulton for his thoughts on the case.

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Workers' Comp Law Center (WCLC): What happened to some of the workers at the plant in Piketon, Ohio?

Philip Fulton (PF): They were involved in the building of nuclear weapons and were unknowingly exposed to dangerous levels of radiation.  The basis of each widow's claim is that her husband "died from and as a result, or his death was accelerated as a result, of his workplace activities and unknowing exposures to various toxic substances, chemical substances and radiation exposure" at the plant.  A majority of husbands died before 2000.  The significance of this date is that it was only in 2000, with congressional passage of the Energy Employees Occupational Illness Compensation Program Act, that the government, for the first time, publicly recognized that nuclear weapons workers during the Cold War were put at risk without their knowledge or consent.  Previously, although an unusual number of such workers developed cancer, the government denied any liability or any exposure of its workers to cancer-causing agents.

WCLC: Who are you representing in this case?

PF: I am representing some of the employees but also many widows of employees who developed cancer due to this radiation exposure.

WCLC: Why should the two-year statute of limitations be waived in this case?

PF: Because the Federal government both withheld information regarding their exposure as well as denied any liability, even if someone believed there could be a relationship between the employment environment and their cancer, they were stone-walled from knowing anything about their exposures.  In addition, they were prohibited from telling their spouses what they did at work.  Thus, we believe the Ohio Bureau of Workers' Compensation should be estopped from using the two-year statute of limitations and that a discovery exception should apply.

WCLC: What were the reasons given by Ohio Industrial Commission to deny the claims?

PF: The Ohio IC simply refused to accept any equitable defenses, i.e., an equitable tolling of the statute of limitations and an estoppel from using that statute in the face of the government's knowing and intentional withholding of information regarding the radiation exposure from the decedents and their families.  Instead, the IC stood behind the two-year statute of limitations.

WCLC: What are the next steps for your clients?

PF: We are presently waiting for the Ohio Attorney General to respond to our court filings.

Editor's Note: To read the documents in this case, click here.