Legal Fallout : Judge Rejects Claim That Nevada Test Site Radiation Caused Worker Illnesses

Alma Mosley sits alone in her cluttered house and thinks about justice.

Fallen behind a chest of drawers, unreachable, is a framed certificate for work well done, illustrated with a mushroom cloud and inscribed with her husband’s name: Hugh Mosley. He has been dead since 1978, lost to colon cancer--a victim, she says, of the Nevada Test Site, where he labored for 13 years at the height of the nation’s nuclear weapons testing program.

But a federal judge here has disagreed, ruling there was not enough evidence to conclude that radiation caused the illnesses of Hugh Mosley and five other men who worked at the site in the harsh Nevada desert long ago. The judge said that for some of the men, lifestyles--diet or cigarettes or alcohol--may have been to blame.

“My husband was a clean man,” says the diminutive Mosley, voice charged with pain, spine stiff with indignation. “He neither drank nor smoked. It was a slap in the face. . . . There’s no justice in this government. They killed my husband, my children’s father, and said they didn’t.”

The workers case, as Mosley’s was called, was the last big Nevada Test Site radiation lawsuit against the government to finish trial.

This stretch of desert--a restricted swath of sand and sagebrush larger than Rhode Island, pocked with craters from nuclear blasts and shrouded with the secrecy of its Cold War past--was the site of more nuclear warhead detonations by the U.S. government than any other place in the world.

More lawsuits have been focused on this location, 65 miles northwest of Las Vegas, than on any other stop along the so-called Atomic Trail--the nuclear weapon’s path from uranium mine through manufacturing plant to proving ground. More protesters have been arrested here than at any other target of anti-nuclear activity in the country--including more than 1,200 on one day alone in 1988.

But with the workers case possibly at an end--an appeal is uncertain--and U.S. nuclear testing halted for at least the next 14 months, a notorious chapter in the nation’s weapons history may be coming to a close. As the United States heads toward next year’s 50th anniversary of the bombing of Hiroshima and Nagasaki, the Nevada Test Site is on the precipice of a dramatic change:

* The world’s nuclear powers began meeting again last week in Geneva to continue work on a comprehensive nuclear test ban treaty that could render the Nevada site unnecessary.

* The U.S. Department of Energy is scrambling to figure out what to do with 1,350 square miles of irradiated Nevada desert. Among the options: turning the site into a Solar Enterprise Zone for solar energy research and development. A business/government task force met Saturday in Las Vegas to discuss harnessing the above-100-degree summer temperatures, which department spokesman Darwin Morgan euphemistically calls “our solar resources.”

* No new lawsuits are in the works to hold the government accountable for alleged radiation exposure to men, women, children and animals between the first blast at the test site in 1951 and the last in 1992.

“The significance of the decision (in the workers case) is that, right or wrong, it ends . . . the legal history of the Cold War nuclear weapons testing project at the Nevada Test Site,” says Larry Johns, an attorney for the plaintiffs.

Had the July 20 decision in U.S. District Court gone in favor of the six workers, says John Thorndal, an attorney involved in the government’s successful defense, “it could have opened up the government to enormous financial exposure and probably clogged the courts for years here in Las Vegas.”

Like the seven other major radiation exposure lawsuits to come out of the nation’s nuclear weapons program, the workers case was actually a combination of many other lawsuits, in this case for a grand total of 220 plaintiffs. Because class-action lawsuits against the government are not allowed, six of the individual cases--including Hugh Mosley’s--were chosen to go to trial.

As a result, “there was a substantial number of people claiming their diseases were caused by exposure at the test site, but the court ruled otherwise,” Thorndal said.

Driving south on U.S. 95 toward Las Vegas, there is very little indication that the hot, flat desert and dramatic mesas to the left hosted nuclear detonations, both aboveground and below, for 41 years. The off-ramp for the test site is marked simply “Mercury,” the name of the small support town within the restricted region. A “No Services” sign is tacked on for good measure.

Chain-link pens, constructed in the 1980s to hold protesters arrested during waves of demonstrations, gleam in the setting sun on the approach to the small, secretive town. According to the blue Adopt-a-Highway sign, the mile-and-a-half stretch of roadway bordering the test site was adopted last year by the Nevada Desert Experience, a “faith-based” anti-nuclear group whose members both protest the site and pick up its highway litter.

In the beginning, the Nevada Test Site was a symbol of pride, the place where the Atomic Age came out of the closet when nuclear testing moved from the seclusion of little Pacific atolls to the glare of the continental United States, by order of President Harry S. Truman in 1951.

Early atmospheric tests became public relations events, with Las Vegas residents throwing rooftop viewing parties to watch the blasts. “Moe Dalitz and Wilbur Clark planned the opening of the Desert Inn to coincide with a detonation,” says Deke Castleman in “The Nevada Handbook.” “A silent majority certainly worried which way the wind blew, and a vocal minority seemed to contract a strange ‘atom fever,’ marketing everything from atom burgers to nuclear gasoline and appointing a yearly Miss Atomic Blast.”

Attorney Johns, who came to spend nearly 25 years challenging the government’s alleged cover-up of radiation exposure injuries, recalls the eerie early morning glow of nuclear shots that punctuated his Las Vegas boyhood. He participated in “duck and cover” drills at his elementary school and remembers the mushroom cloud emblazoned on the cover of the 1953 yearbook for Las Vegas High, where his father taught history. The Johnses rented their family home to a test site scientist one summer when they were away on vacation.

“There was a honeymoon, a love affair that went on here into the mid-’50s,” Johns says. “It was exciting. These were super scientists, and they were going to save the world.”

Then things began to go wrong. Nearly 5,000 sheep died after a string of strong blasts in 1953 called the Upshot-Knothole series. “Wool sloughed off in clumps, most of the adult sheep had blisters and sores on their faces, and the new lambs were either stillborn with grotesque deformities or were so weak they were unable to nurse and died soon after birth,” says Stewart Udall in his new book, “The Myths of August.”

Udall, a former secretary of the interior, has brought many of the cases against the government, including the workers case and unsuccessful lawsuits seeking compensation for uranium miners and so-called “downwinders” who lived in the path of the radioactive fallout from the Nevada Test Site.

In 1956, U.S. District Judge Sherman A. Christensen ruled that the radiation doses received by the sheep were not enough to cause the carnage and that the government was not negligent. After congressional hearings in 1979 revealed that the government had falsified or withheld evidence during the trial, Christensen reversed his own decision and ordered a new trial.

“The conduct of the government amounted to a species of fraud on the court for which a remedy must be granted,” Christensen said in his 1982 opinion. But four years later, the U.S. 10th Circuit Court of Appeals rejected Christensen’s findings and canceled the new trial.

Because of strict government secrecy and general scientific ignorance about the effects of radiation, it took until the 1970s for lawsuits to be filed in large numbers against the government, alleging that radiation exposure from the test site caused injury and death.

Johns and Thorndal were opponents in the first big case of the 1970s, the Roberts and Nunamaker case. Johns filed the suit against the government and its contractors in 1972, after an underground nuclear blast vented into the atmosphere, causing a 10,000-foot mushroom cloud and exposing between 600 and 900 test site workers in 1970.

The two lawyers have become friendly adversaries over the last two decades.

“When I started the Roberts and Nunamaker case, it was the first one that laid a lot of the groundwork,” says Thorndal. “I had no kids when it started. Now my oldest is 22 and the youngest is 17.”

The case has gone to the U.S. Court of Appeals three times and is still awaiting final resolution. It is the only big Nevada Test Site case that still has some life in it (the government has won the other four); attorneys have yet to decide whether to appeal the July 20 decision in the workers case.

Darrin Tuck, for one, does not want to spend the rest of his life fighting the government on behalf of his dead father, a former test site worker and one of the plaintiffs in the workers case. “It’s a never-ending battle,” he says over coffee at smoky Saddle West casino in Pahrump, Nev., near Death Valley. “I could see that during the trial.”

Tuck, 35, was fighting to avenge the premature death of his father, Calvin, who in 1974 succumbed to pancreatic cancer at the age of 47. Calvin Tuck had worked at the Nevada Test Site for nine years as a radiation monitor, entering the tunnels after underground tests were held to see how much radiation was present.

“I’d sit on his lap, play with his badge, feel his whiskers, because he’d be gone for two or three days at a time,” recalls Tuck of his childhood and his father’s top-secret job. “I’d get the James Bond fascination when I was younger. My mother said he couldn’t talk about it.”

Calvin Tuck did, however, talk about the pain, which sent him to doctors throughout his final years at the test site in the late 1960s. One doctor said Tuck had gout, another said he didn’t know what he had. The disease was finally diagnosed in 1971 and he died in 1974. In the written opinion in the workers case, U.S. District Judge Philip Pro blamed Tuck’s death on alcohol and cigarettes.

“That hurts me here,” says Darrin Tuck, placing hand over heart and cigarette pack. “He was serving his country out there. He was a peacekeeper and didn’t get recognition. All they say is he smoked and drank too much. He’s not getting credit for what he really did.”

Of the six men involved in the workers case, Keith Prescott of tiny Francis, Utah, can claim two major distinctions: Unlike Tuck and Mosley, his lifestyle was not fingered in his cancer diagnosis. And, after watching his friends and former colleagues die, one after the other, of painful cancers, he is the only living plaintiff.

There was Robert Bergen, Prescott’s boss when Prescott came home from the test site for the last time at age 43. Bergen died 15 years ago, he says, as he lists his catalogue of colleagues. Then there was Doug Godfrey, dead for perhaps a decade, and Cal Walters, a shift boss.

“Nearly all my best friends that I worked with died of cancer,” says Prescott, the former equipment operator who has battled multiple myeloma, or tumors in his bone marrow, for 25 years. “I was a pallbearer for three of them. It’s hard on you, I tell you.”

Now that the workers case appears to be over, Prescott is left with another reason to mourn: the loss of hope, the loss of pride. Deep down, he thought his case was so strong that simply getting to trial--a process that took 15 years--would automatically lead to compensation.

He hasn’t worked since he was 43; he is 68 today, a dignified man who has always believed that he should earn his own, financially and emotionally. “I had to rely on my wife,” he says. “There was so much my kids didn’t get to do. I just thought if I could get compensation, I could pay them back and earn my way.”

Prescott must, like the Department of Energy itself, now learn to move on. As the department searches for new uses for the sprawling test site, Prescott searches for a reason to wake up in the morning. “I’ve lost all of my strength, vitality, determination,” he says. “That was a blow I didn’t expect. There’s not a thing you can do about it. I imagine after a while I’ll get used to it.”

Alma Mosley would not say she’s used to it, but the vantage point is different when you’re a survivor, not a victim. The 15 years of legal maneuvering, Mosley says, have had their advantages. For her, litigation is a memorial.

“The death of a loved one makes (the legal battle) very worthwhile, whether they compensate us or not,” she says. “It’s a way of not forgetting--even though the government said they didn’t do nothing.”