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Thursday, March 10, 2011
Cancer victims, families file claims against Fort Detrick
Each seeking $50 million in damages
by Katherine Heerbrandt | Staff Writer
Forty-two people have submitted claims to Fort Detrick against the U.S. Army alleging that pollution on the base is responsible for giving them or their family member cancer.
Each is asking for $50 million in damages under the Federal Tort Claims Act.
The claims could be the first step to a class-action lawsuit in federal court, according to Detrick attorney Gary Zolyak, who is processing the claims.
Zolyak said the procedure is "fairly simple."
A person files a claim with the federal agency he or she believes is responsible for a wrongdoing. An attorney with the agency reviews the claim for completeness, and asks for more information, if needed. If the person has met the required burden of proof for payment, Zolyak can recommend that the Army pay. If denied, the person can go to federal court, Zolyak said.
He said that claimants can take their cases to federal court either individually or as a group for a class-action suit.
Former pastor Randy White has vowed to lead a class-action suit against the Army and Fort Detrick since he came to Frederick in June and began investigating the link between cancer and groundwater contamination at Area B.
Area B is 399-acre former waste-disposal site that was named one of the most polluted sites in the country in 2008 by the federal government when it was added to the Superfund list and given priority funding for cleanup efforts.
White confirmed that the claims filed are part of a "team strategy," and represent the first step toward a class-action suit against the Army.
White, a Frederick native who lives in Hawaii and Florida, lost a daughter, Kristen Renee Hernandez, to brain cancer in 2008. She was 30. Her mother, Debra Cross, died in November of renal cancer at 53. Both had lived near the fort.
White's actions last year prompted the Frederick County Health Department to solicit a cancer cluster study from the Maryland Department of Health and Mental Hygiene to find out if there is any evidence to connect the contamination at the fort with incidences of cancer in people living within a mile of the fort.
Preliminary findings indicate that there is no cancer cluster, but the county health officer Dr. Barbara Brookmyer said in a previous interview that the cancer cluster study is incomplete.
White and members of his organization, the Kristen Renee Foundation, said they have collected evidence of more than 800 cases of cancer related to activities at Fort Detrick.
The 42 claims submitted to Fort Detrick are only a portion of those prepared. Under direction of his attorneys, White said his foundation has helped prepare 200 claims that are being filed in increments, but that there are many more.
"We wanted to get a response, to see the kneejerk reaction from Fort Detrick," he said.
The response was "very vanilla, very generic" form letters to the claimants from Detrick, White said.
The federal claim for damage, injury or death — Standard Form 95 — requires that requests for money be accompanied by written reports by the attending physician. Claims for property damages must include at least two itemized signed statements or estimates by a reliable third party, according to the form.
Zolyak said his role is to review the claims for "obvious defects and errors," such as not including the date of death, a death certificate, doctors' reports, or other corroborating information. The claims he has received so far are missing the required documentation.
"We need that proof," Zolyak said. "Otherwise, it's just a bald allegation that Detrick gave them cancer."
Once the claims are corrected and returned, Zolyak said it could take up to six months to determine whether to write a check or deny the claim.
So far, he is not convinced that any of the claims will be awarded damages. "In this particular case, I am not sure I have a whole lot of choice," Zolyak said.
The Army paid out a claim about 10 years ago to a family when cows from a nearby farm died, but Zolyak could not recall the details. "It all comes down to proof," Zolyak said. "It is up to those who filed claims to meet that burden of proof."