Despite speculation that Energy Secretary Hazel O’Leary has flung open the Treasury door to Americans harmed by Cold War-era radiation tests and experiments, the Clinton administration may be able to travel the issue’s moral high road at bargain rates.
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The road map for that journey began to take shape in a Dec. 7 news conference when O’Leary released recently declassified information about nuclear weapons tests as part of “a new commitment to openness here in the Department of Energy.”
Well along in the secretary’s remarks, she mentioned previously publicized government-sponsored medical radiation experiments. Plutonium was injected into hospital patients in Chicago and elsewhere; irradiated iron was swallowed by pregnant women in Nashville; radioactive iodine was administered to Iowa newborns.
O’Leary said that although some of those experiments seem to have been perfectly legitimate, “what I expect to find is some fault, and we want to make sure that we make it possible for (victims) to have some way to be made whole.”
Asked if she wasn’t opening the department to lawsuits, O’Leary said, “It doesn’t pay to play the hypothetical game . . . We’ll take it as it comes.”
In a news conference three weeks later, O’Leary continued in the open, confessional, amends-making mode.
“We ought to go forward and explain to the Congress what has happened (with regard to victims of radiation)” she said, “and let the Congress of the United States and the American public determine appropriate compensation.”
By Jan. 2, the White House might have been wondering about the cost of the energy secretary’s candor. Appearing on ABC-TV’s “This Week with David Brinkley,” presidential adviser George Stephanopoulos said the administration was still studying the issue of compensation. “We want to make sure we have all the facts,” he said, “then we will determine the next step.”
The press jumped on stories of human guinea pigs shot up with radiation perhaps without their consent and began to speculate on the potential for costly litigation. Stories recalled the 800 people cited in a 1986 congressional subcommittee report on nuclear medical experimentation and as many as 400,000 military personnel exposed to radiation.
The Radiation Victims Compensation Act of 1988 was aimed at redressing wrongs against soldiers, defense workers, uranium miners and those living in the path of wind-borne radiation from atomic tests. Under the act, the Justice Department has authorized payments ranging from $50,000 to $100,000 to about 1,500 people. But many thousands more have applied for compensation and might now turn to the courts.
An early indicator of the level of interest in radiation victims was the hot line set up by the Energy Department in hopes of identifying those 800 subjects of medical experimentation. The three operators assigned to the number were immediately overwhelmed when as many as 10,000 callers simultaneously jammed the line.
According to the Senate Governmental Affairs Committee, 15,000 did get through in the first two weeks, 7,800 of them from people who believed they had been involved in radiation exposure. It seemed O’Leary had opened a Pandora’s box.
“More like a Pandora’s boxcar,” said Rick Oborn, one of many Energy Department public affairs and public relations personnel taken from their normal specialties and assigned to the burgeoning radiation issue.
Oborn noted that some department employees whose careers date back to the days of Cold War secrecy have had difficulty adjusting to the new commitment to openness. Public and press reaction to that commitment, however, has been favorable.
The first week in January, Oborn sent a memo to the department’s field offices.
“The `openness’ issue played so well last week that we would like to explore it as a continuing theme,” it said. “Please list as few or as many items-subjects that could be news pegs when the secretary travels to various DOE locations in the coming year. Something she could unveil at that place.”
Although the O’Leary announcements have sparked phone calls to attorneys across the country from people who think they have a case, there has been no glut of suits. One reason is the many impediments to winning a suit against the government.
Chicago attorney Philip Corboy, known for his high-profile personal injury cases, said the first hurdle is establishing proximate cause.
A link must be shown between a plantiff’s present physical condition and something done in the past, which can be difficult to prove.
“The whole world knows that cigarette smoking causes cancer, but juries don’t make that link,” Corboy said.
A further impediment is the lingering effects of an old English common law principle: The king can do no wrong. The government can claim immunity against suits for damages incurred as a result of high-level policy decisions.
Corboy noted further that the statute of limitations is bound to be raised. One way around that is to argue that the clock starts to run not when the damage was caused but when the victim became aware of being damaged.
In one case making its way toward federal court, the plaintiff’s awareness is traced to O’Leary’s second news conference.
Not only is suing the government difficult, it may be relatively lacking in profit. For one thing, the government can be sued only for actual damage and not for additional punitive award, which can be many times greater. Furthermore, cases against the federal government are bench trials, and juries are far more generous than judges.
Nonetheless, a few suits have materialized. One of them, which is from San Francisco attorney Melvin Belli, may become a blueprint for pursuing radiation damage suits.
His clients are two women who were given drinkable irradiated iron at Vanderbilt University’s Medical Center in the 1940s and the daughter of one of them who claims she was exposed to radiation in utero.
Their suit is filed as a class action in behalf of 829 women who were given the radioactive iron, 800 children who may have been damaged in utero and 771 members of the control group. The latter is included on the theory that they have suffered emotional stress through not knowing if they had been irradiated.
Filed in Tennessee, the suit names as defendants Vanderbilt University, Vanderbilt Medical Center, Union Carbide Corp. (suppliers of the radioactive isotope used in the experiments) and various public officials.
Belli and his co-counsels chose not to sue the government because they then could file in state rather than federal court and demand a jury trial.
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It is a strategy that may suit the Clinton administration’s needs, too, and one that it may hope others will follow.
The public will see justice being done according to the expectations raised by O’Leary’s public pronouncements. Yet the cost will come out of private rather than taxpayer coffers.
Suits against private entities don’t rule out suits against the government. In the past, however, the government’s lawyers have set ground rules to minimize federal vulnerability.
The government may choose to remove radiation compensation from the courts via legislation similar to the Radiation Victims Compensation Act. The new law would set the requirements for being considered for compensation and a stated level for that compensation-and perhaps rule out lawsuits.
Attorney Richard Heimann, whose firm joined Belli’s in the Tennessee suit, is concerned that the possibility of legislative remedy could put radiation lawsuits on hold.
“I’m hopeful to persuade the court,” he said, “that the (Vanderbilt) case should be heard now rather than to anticipate some future legislation.”
Heimann is not alone in sensing that government action may be a long time coming.
“A phrase you hear a lot around the halls here,” said Energy Department spokesman Mary Freeman, “is that we’re now in an `information gathering mode.’
“The issue of compensation hasn’t even been defined. Is it monetary? Is it medical care? Who gets it-just test subjects or their descendents as well?
“We don’t even have many of the pertinent documents. Many are at private institutions-prisons, hospitals-and some researchers kept their own documents.”
Even after all the information that exists has been found, Freeman said, “the medical, ethical and legal folks will debate privacy, informed consent, questions about current and future testing.
“There’s enough material to have symposiums raging for some time to come.”
That’s just what Stewart Udall fears.
Udall, who was secretary of the interior under Presidents John F. Kennedy and Lyndon B. Johnson, is now a Santa Fe attorney who, for 15 years, has represented the interests of test-site workers, downwinders and uranium miners and has become “kind of the historian of this whole miserable business.”
He said, “Certainly O’Leary’s initiative was long overdue, and she deserves tremendous praise in breaking the high wall down.”
That wall, he said was built by decades of lies from the the Energy Department’s predecessor, the Atomic Energy Commission, concerning the amount of exposure people had received and by a Justice Department more interested in “protecting the treasury than in doing justice.”