A-Test Victims Can’t Sue U.S., Court Decides

Survivors of government employees who developed cancer after exposure to radiation from atmospheric nuclear testing cannot sue the government or its contractors for damages, a federal appeals court ruled Monday.

In a landmark decision that could bar legal compensation for an estimated 250,000 workers who may have been exposed to radiation during atomic weapons testing in the 1950s, the U.S. 9th Circuit Court of Appeals ruled that courts cannot be asked to second-guess safety precautions taken on behalf of the exposed workers.

Moreover, families of military and civilian personnel who died as a result of radiation-related cancers have no recourse to sue the government simply because it failed to warn them of the potential hazards until years after the fact, the appeals court ruled.

‘Inherently Dangerous’

“Nuclear weapons testing was known to be an inherently dangerous activity . . . (and) the need to balance risks against test objectives was particularly acute. . . ,” a three-member panel wrote in concluding that the government had properly exercised its discretionary powers in requiring military troops to participate in the testing program.

The court’s ruling, written by Judge J. Blaine Anderson, was in response to 31 cases involving nuclear tests over the Marshall Islands and the Nevada Test Site between 1946 and 1963, when atmospheric testing was banned.

Two of the plaintiffs claimed that they were also exposed to radiation during the bombing of Hiroshima and Nagasaki. All but three of the workers involved in the suits have since died of cancers they claimed resulted from the radiation exposure.

In their lawsuits, survivors have accused the government of failing to warn military and civilian workers of the potential hazards of radiation exposure and failing to take proper steps to prevent them from being exposed to dangerous levels.

In some of the testing at Bikini Atoll after World War II, there was in many cases “literally no decontamination plan,” said plaintiffs’ attorney Alan W. Sparer of San Francisco.

“They were literally using coconut husks to scrape the ships down to decontaminate them, barefoot. There was no special equipment, no training and no plan as to what to do.”

Plaintiffs also challenged the government’s failure to issue warnings on potential radiation hazards from the testing or recommend medical follow-ups until 1977, when the federal Centers for Disease Control detected a cluster of leukemia cases among test participants.

At that time, the government began assembling radiation exposure data and notifying test participants and providing medical examinations for those whose exposure had been the greatest.

In their lawsuits, exposure victims claimed that they should have been entitled to use of Veterans Administration hospitals and service-related disability payments.

The appellate court, in a decision nearly identical to that of a U.S. District Court judge who originally heard the cases, ruled that the government’s broad immunity to lawsuits when it is exercising its discretionary powers bars damage claims.

“Escalating international tensions . . . led the government to assign the highest priority to the development and production of nuclear weapons. Weapons tests were an essential part of that effort,” the court ruled in an opinion largely drafted from U.S. District Judge William W. Schwarzer’s original decision.

The weapons testing was “known to be an inherently dangerous activity,” but the tests were conducted only after thorough reviews of safety procedures and a weighing of the risks involved, the court said.

“A court would be ill-equipped to evaluate the judgments concerning safety made by those officials based on the exigencies of the moment,” the court concluded.

Plaintiffs also challenged a 1984 law that exempts private contractors who worked with the government on the weapons tests from liability, a law that provides that the government is “the only remedy” in radiation suits.

The court also rejected that challenge, ruling that Congress was acting within its authority when it granted immunity to the contractors, who included the University of California’s Lawrence Livermore Laboratory, Sandia Corp. and Reynolds Electrical & Engineering Co.

A former Justice Department attorney who represented the government, Marc Johnston, said he could not comment on the ruling until he had seen it.

Sparer, who said he will appeal the decision, complained that victims of the radiation testing have been foreclosed from recovering damages from the government, while families of several of the astronauts killed in the space shutter Challenger explosion have received settlements exceeding $750,000 each from the government and its contractors.

“The space program is as much of a government activity as the atmospheric testing program, but the difference is that these people have been forgotten because it occurred a long time ago, and because the government was, during the ‘50s and ‘60s, so anxious to suppress any possible suggestion that atomic testing could be harmful,” Sparer said.

“These people are not out to make a fast buck. They have never gotten the same veterans’ benefits as anybody injured in World War II got,” he said.