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20 Radioactive Dangers We All Face |
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The Downwinders
This independent full-feature film, called
'The Downwinders,' was written by Lance Brittan and produced by
Shawnee Brittan, who is currently filmmaker-in-residence
at the University of Oklahoma. The film was shot in the summer of 2008 in the Oklahoma City area
and is now in post-production.
"The Downwinders" is inspired by true events and takes place in two eras: the era of U.S. atomic testing in Nevada in the 1950s and the 1982 trial of Irene Allen et. al v. United States.
Synopsis [found on the web]:
'[The Downwinders] examines the consequences of the citizens living in the surrounding areas, or “downwind”, of the Nevada Nuclear Test Site in the 1950s. During the Cold War, a time when patriotism is at an all-time high, Atomic Energy Commission spokesman Tom Fisher discovers a possible cover-up and lie to the American public while meeting the locals who, unbeknownst to them, are becoming victims of radioactive fallout. Part courtroom drama in the vein of “Erin Brockovich” and “A Civil Action”, and part character drama, the film is set in two eras: the patriotic American 1950s, and the more hardened, jaded federal trial of 1982 that eventually led to the Radiation Exposure Compensation Act—a program that compensates victims of the Nevada Test Site...’
What was so significant about the 1982 federal trial?
Allen v. The United States was a notable case that stemmed from actions brought under the Federal Tort Claims Act in the 1970s by about 1200 plaintiffs who alleged that more than 500 deaths and injuries resulted from poisoning from Nevada nuclear testing fallout. The District Court of Utah chose 24 cases for a bellweather trial that was held in 1982 . After deliberating over the case details for about 1 1/2 years, in May 1984, Utah District Court Justice Bruce Jenkins determined that with regard to above-ground nuclear testing the federal government had a special duty of care towards those citizens living downwind and had been negligent in the way it conducted nuclear tests in Nevada. Jenkins, in his decision, held that:
1. The government failed to adequately warn the plaintiffs of known or foreseeable long range biological consequences from exposure to fallout radiation from open-air testing; and that such a failure was negligent
2. The government failed to measure adequately and concurrently with open-air testing the actual amount in communities near the Nevada test site on a person-specific basis; and that such a failure was negligent
3. The government failed to adequately inform individuals and communities near the test site of well-known and inexpensive methods to prevent, minimize, or mitigate the known or foreseeable long range biological consequences of exposure to radioactive fallout; and that such failure was negligent
4. As a direct and proximate result of such negligent failures, the government unreasonably placed the plaintiffs at risk of injury.
Jenkin's decision was based on the 'contributory role' that radiation from the explosions played in causing 10 cancers, nine of them fatal. He cited evidence including the fallout incident from Shot Harry in 1953 and testimony from Dr. John W. Gofman. A famous quote from the trial occurred at its end. After listening to the rebuttals, Jenkins turned to one of the plaintiffs and said: ‘As I was sitting here, I remembered a line from My Fair Lady. "I've grown accustomed to your face." I appreciate your being here. I’m rather going to miss you. I’ll do the best that I can within the time that it takes to turn out a determination on the matter.’
Jenkins ruled in favor of plaintiffs on 9 of the representative claims - providing them with compensation amounts - but against the plaintiffs on 14 of the representative claims, and left one claim unresolved. Jenkins decision, however, was later overturned by the 10th Circuit Court of Appeals, which denied all of the claims filed by the plaintiffs - and overruled Jenkin's decision to grant compensation for the victims. The decision was based on a broad interpretation of the 'discretionary function' doctrine, which is an exception in the Federal Tort Claims Act that exempts claims for damages caused by policy decisions made by high officials even if those officials abused their discretion. The appeals court however didn't overrule the underlying findings of the case; i.e., the government's negligence.
The Jenkin's decision was largely hailed as the first major victory, legal or otherwise, for downwinders. But did the decision lead to a program "that compensates victims of the Nevada Test Site..." Partly yes, but mostly no. Read more below in 'Idealist's view.'
'Character development'
We found information about the characters from the Facebook page of the casting company for the film; here's a quick overview of the types of characters: one government official "struggles with the unmoral risks of his job" and a GEIGER COUNTER TECHNICIAN, who, "when his morals are tested, he confronts the Atomic Energy Commission on the ethics of their program." Various civilians include one person "quick to speak her mind and the truth...is true to herself and her values," and another whose "trusting nature becomes thin when she becomes skeptical of the nearby atomic testing program...she also will not be deceived," and another who's "against the nearby atomic testing." There's a senator "who sympathizes with the victims of the testing. He becomes passionate to find justice for the victims."
The lead characters include various government officials and workers whose moral compasses seem a bit - in our opinion - overcompensated by Mr. Brittan. We haven't seen the film yet, but it seems that everyone is a bit too heroic. If they were in real-life this heroic perhaps all victims of the Nevada Test Site would be compensated. Read more below in 'Idealist's view'?
Idealist's view
If Mr. Brittan has cherry picked from the tragic and long history of the American Downwinders a single legal victory (in the 1984 decision of Allen v. United States) to put tears of joy in our eyes over an illusion that that event led directly or indirectly to complete or adequate relief and compensation for all or a significant portion of those poisoned by atomic testing, then he shouldn't call his film 'The Downwinders' if he doesn't want to fully offend downwinders. Virtually all Americans from sea to irradiated sea were poisoned by atomic testing yet this 1980s legal victory did not lead to relief for most of them including all Oklahomans, New Yorkers, Mainers, Californians, and northern Utahns. They all were downwinders - radiation killed or impaired some of them - yet where is their real-life Erin Brockovich victory? There isn't one. Is there a filmmaker out there who has the moral courage to tell the real story of 'The Downwinders'?
Links
'Trial to Open Today in Lawsuit Over Nuclear Fallout,' September 14, 1982
'Radiation-Cancer Link Key to Ruling,' New York Times May 12, 1984
The Radiation Exposure Compensation Act
Jenkin's decision
Judge Jenkins' 489-page decision in the case of Irene ALLEN, et al., Plaintiffs, v. UNITED STATES of America, Defendant is available for perusal and download via WestLaw. Below is the table of contents as it appears in Jenkins' May 10, 1948 opinion and following are some excerpts:
I. INTRODUCTION AND STATEMENT OF THE CASE
II. BACKGROUND: BASIC PRINCIPLES OF RADIATION
AND NUCLEAR PHYSICS
III. NUCLEAR FALLOUT
IV. BACKGROUND: BASIC PRINCIPLES OF HEALTH
PHYSICS
d V. LEGAL ANALYSIS: DISCRETIONARY FUNCTION
VI. LEGAL ANALYSIS: STATUTE OF LIMITATIONS
VII. LEGAL ANALYSIS: THE DUTY ISSUE
VIII. LEGAL ANALYSIS: BREACH OF DUTY
IX. THE QUESTION OF CAUSATION
X. DAMAGES
XI. FINDINGS OF ULTIMATE FACT AND CONCLUSIONS
OF LAW
APPENDIX A
APPENDIX B
APPENDIX C
APPENDIX D
I. INTRODUCTION AND STATEMENT OF THE CASE
In a sense this case began in the mind of a thoughtful resident of Greece named Democritus some twenty-five hundred years ago. In response to a question put two centuries earlier by a compatriot, Thales, concerning the fundamental nature of matter, Democritus suggested the idea of atoms. This case is concerned with atoms, with government, with people, with legal relationships, and with social values.
This case is concerned with what reasonable men in positions of decision-making in the United States government between 1951 and 1963 knew or should have known about the fundamental nature of matter.
It is concerned with the duty, if any, that the United States government had to tell its people, particularly those in proximity to the experiment site, what it knew or should have known about the dangers to them from the government's experiments with nuclear fission conducted above ground in the brushlands of Nevada during those critical years.
This case is concerned with the perception and the apprehension of its political leaders of international dangers threatening the United States from 1951 to 1963. It is concerned with high level determinations as to what to do about them and whether such determinations legally excuse the United States from being answerable to a comparatively few members of its population for injuries allegedly resulting from open air nuclear experiments conducted in response to such perceived dangers.
It is concerned with the method and quantum of proof of the cause in fact of claimed biological injuries. It is concerned with the passage of time, the attendant diminishment of memory, the availability of contemporary information about open air atomic testing and the application of a statute of repose.
It is concerned with what plaintiffs-laymen, not experts-knew or should have known about the biological consequences that could result from open air nuclear tests and when each plaintiff knew or should have known of such consequences.
It is ultimately concerned with who in fairness should bear the cost in dollars of injury to those persons whose injury is demonstrated to have been caused more likely than not by nation-state conducted open air nuclear events.
The complaint in this action alleges that each plaintiff, or his predecessor, has suffered injury or death as a proximate result of exposure to radioactive fallout that drifted away from the Nevada Test Site and settled upon communities and isolated populations in southern Utah, northern Arizona and southeastern Nevada. Each of the plaintiffs or their decedents resided in that area. Each claims serious loss due to radiation-caused cancer or leukemia. Each asserts that the injury suffered resulted from the negligence of the United States in conducting open-air nuclear testing, in monitoring testing results, in failing to inform persons at hazard of attendant dangers from such testing and in failing to inform such persons how to avoid or minimize or mitigate such dangers.
XI. FINDINGS OF ULTIMATE FACT
The court finds that defendant failed to adequately warn the plaintiffs or their predecessors of known or foreseeable long-range biological consequences to adults and to children from exposure to fallout radiation from open-air atomic testing and that such failure was negligent.
The court finds that defendant failed to measure adequately and concurrently with open-air atomic testing the actual fallout in communities and population centers near the Nevada Test Site on a person-specific basis, or its equivalent, and that such failure was negligent.
The court finds that contemporaneously with atmospheric atomic testing the defendant failed to adequately and continuously inform individuals and communities near the test site of well-known and inexpensive methods to prevent, minimize or mitigate the known or foreseeable long-range biological consequences of exposure to radioactive fallout, and that such failure was negligent.
The court finds that as a direct and proximate result of such negligent failures, individually and in combination, defendant unreasonably placed plaintiffs or their predecessors at risk of injury and as a direct and proximate result of such failures that each prevailing plaintiff designated in Part X, beginning at page 446, suffered injury for which the sums set opposite their respective names should be paid.
From : VII. LEGAL ANALYSIS: THE DUTY ISSUE;
E. Adequacy of Warnings & Information Given
Lawyer Stewart L. Udall's testimony at Hearing before the Committee on Labor and Human Resources, United States Senate, on S. 1483 (Radiation Exposure Compensation Act), October 27, 1981, pp.261-264
STATEMENT
OF STEWART L. UDALL, ATTORNEY AT LAW, PHOENIX, AZ.
Mr. UDALL.
Senator, it has been a long day. I
hope you will file my complete statement and take into account the constructive
suggestions we have offered on this legislation.
The
CHAIRMAN. Without objection, it will be placed in the record following your oral
testimony.
Mr. UDALL.
I would like to comment on a few highlights because I feel a little bit like a
hardened battle veteran now. It is
over 3 years. I am in my fourth
year of working on this case.
As I sat here today, I had the feeling we have come full circle, Mr.
Chairman, because when we started on these cases and first started filing claims
in September of 1978, the Government’s position at that time was there was no
evidence that any of these people had been harmed in the fallout zone.
Subsequent to that, the national media got interested in this subject.
The Governor of Utah got interested.
You got interested. Other
Senators did. For a brief moment,
which I see now as being very naïve, even President Carter addressed his
attention to this problem very briefly.
As a result of that, congressional hearings were held.
Maybe Congressmen and Senators these days are fools.
I do not know. I get the
feeling sometimes that that is what the people in the executive branch of
Government think.
Conclusions were formed at those hearings.
Yourself, Senator Kennedy, Senator Schweiker were at Salt Lake.
The opinions are in the record. The
House Investigating Subcommittee, the chief investigating arm of the House of
Representatives, filed a long report. They
concluded that there were no warnings. They concluded that there was a coverup.
These were rather angry, strong reports.
What has happened is classic. That
is, of course our attention span is short.
The television cameras were turned off.
The people went away. The
administrative agencies hunkered down and waited for time to elapse.
Now, today, we are right back where we were 3 years ago. There is no evidence.
The
CHAIRMAN: Not quite. It was worse
then than it is today.
Mr. UDALL:
Senator, I want to commend your for sponsoring this legislation.
I would like to see some amendments in it, but I think this is fair.
I think it is equitable. I
will not even use the term compassionate because we are not here to discuss
compassionate legislation.
However, it is clear to me. I
know how the Government works. I
was in the executive branch for 8 years. There
is the old boy network in the bureaucracy and OMB.
The statements here today were different only in a small degree from what
the Carter administration presented 18 months ago.
It is a hard line. Do not
let them cross the threshold.
I like the candor in General Griffith’s statement.
He is saying we cannot set a precedent.
We cannot pay anybody for radiation danger because, if we do, this will
endanger other activities that the Government is engaged in that are important.
They think they are protecting the nuclear establishment.
Actually, I think they are the enemies of the nuclear establishment.
The reason confidence in nuclear matters is declining in this country and
around the world is this kind of unwillingness to admit that there are
casualties and that radiation is dangerous.
This is my opinion after watching this for the last 3 years.
I had one other profound feeling as I watched the Government make its
presentation here today. Senator, I
used to know a lawyer out in Arizona, and you have known some.
He had a nickname, the squid. This
was because he was an expert at obfuscation.
If something was simple, he had a great capacity to make it complex.
If it was clear, he had a capacity to muddy the waters and make it murky. This is what we have witnessed here today.
I hold in my hand here the report filed by the monitors, the Public
Health Service, on one of the most notorious shots, Shot Harry, 1953, 32 KT,
which hit St. George right on the nose.
It says that the infinite calculated dose at St. George was 5.2
It says below: “The shot added measurably to the total external
exposure for the test series. The
area in which the fallout occurred – this included the area they encompassed
in their studies – was inhabited by 16,000 people.”
They never explain where they got it from.
In all of the documents I have seen going back into the 1950’s that the
Atomic Energy Commission used, there was always discussion that the people in
the fallout zone, the downwind zone, were somewhere around 25,000.
I saw the figure 26,000. I
saw the figure 30,000.
Then 1½ years ago during the Carter administration when this new
interagency task force addressed the problem, suddenly they came in with the
figure of 170,000 or 172,000. I do
not know where that figure came from. Nobody
has ever explained it to me. I
assume they took in Provo or Reno or somewhere.
They had to, Senator. You
and I know how sparsely populated that region is.
Today that 170,000 has gone up to 180,000 to 200,000.
Again, there is no explanation of where this came from.
I submit that that is an attempt at obfuscation.
This is the Halloween season. Create a hobgoblin.
Create a monster.
Your bill is essentially addressed to 1,000 or 2,000 people.
They can be identified, I believe, Mr. Chairman.
They immediately swell it to 25,000, to 30,000, and obviously this is
ridiculous. Obviously legislation
can be drafted to suit this. However,
it serves to water down and confuse. It
is a squid tactic.
What is the other squid tactic? This
is an old one. Scientists started arguing about this back in the 1950’s.
That is the technique of averaging.
St. George got so and so, or this community got so and so.
There is no human being St. George.
Humans beings got the doses: children drinking milk, ranchers riding on
their horses through clouds, and so on. They
got different doses.
By focusing on averaging, there is an effort to confuse, to use the squid
approach to the problem. In fact, you heard Dr. Wrenn say that his assumption was in
terms of the figure he used for the dose received by the people received in St.
George of 6.8. The figure that was
presented to you here today was this general average of 6, which is 12 times
less. It is not a factor of 1 or 2.
This is the kind of numbers game that has been going on in this room
today. St. George was the largest city in the region.
If that is admittedly the average dose, if some of the people in St.
George were indoors and some were outdoors, if there were indeed hot spots in
and around the St. George area, if there was rainout in the St. George area at
the time of the Harry shot, as we believe there was, Mr. Chairman, then we are
not dealing with these low figures that the scientists have been using to
discuss this here today.
I am no expert in terms of the medical aspects, or probably nothing else,
but I have had to become acquainted with it.
I find this profoundly disturbing. I
think they are trying to confuse you. I
think they are trying to make your bill ridiculous.
I commend you for standing your ground here today.
This fight has to be made.
The level we are dealing with is the bureaucracy.
I had hoped. I see now that
that hope was misplaced. I once got
into the Carter White House. Briefly,
naively, I thought maybe we could talk settlement, settlement at least of the
children that Dr. Lyon had identified in this leukemia epidemic, that maybe the
Government would step forward and we could begin to heal this whole process.
That is the other thing that is missing here today.
In the two Government statements, Dr. Lyon’s report is ignored
completely. They do not mention it.
Last year, they mentioned it, but they scurried around it and said maybe
there was something wrong with the procedures he used.
I want to be sure you got the full impact as I consider this one of the
outrageous things that was done with the proposals submitted by the University
of Utah. They granted the proposal
like the one to Dr. Wrenn to study bricks, but Dr. Lyon had asked for money to
study human beings to finish his study of leukemia, to study cancer, a
retrospective study.
There are two ways. The
medical men have not told you this here today because they are all obsessed with
dose. You can find out what the
dose was. Then by extrapolation you
can find out what the effects were.
There is another way to find out. You
can give a mouse or a monkey or another guinea pig certain doses of something
and then measure what happens and study them.
Or you can simply study the human effect, as Dr. Lyon put it today, to
find out what happens to the mice.
They will not study the human beings. The only study of these human
beings was carried out by Dr. Joseph Lyon.
He did it on a shoestring. He
did not get a Federal grant. For
that reason, they tend to put his study down.
Senator, we are left in a situation where I am past anger in all this.
I recognize reality. They
are saying stick it to them. Make them prove it.
Go to court.
We are ready to go to court. I
do not know whether we are going to win or lose, but we are going to give them a
fight. If that is the only
alternative, we have a court date in Salt Lake City next April.
We have spent a lot of time, a lot of money, and a lot of pain.
We are not going to drop this.
I personally feel that the kind of legislation that you have sponsored
would be the best way. I personally
favor a negotiated settlement. I
will always think that.
I know they think we will not win.
They think we will be tossed out on a technicality.
That is their hope. They may
be right. However, I think it may be ironical that 2 years from now
they will look back and say, “Senator Hatch had the right idea.
That is the way we should have gone.”
A bill can be drafted, and the affected area could be defined so that we
are talking about the actual people who took these heavy doses.
That can be done, Mr. Chairman.
That is all I have to say to you here today.
Speaking on behalf of the people I represent, you have made a good effort
and we appreciate it.
Idealist's public document archives: 1. 
2.
'The
greatest irony of our atmospheric nuclear testing program is that
the only
victims of U.S. nuclear arms since World War II have been our own people.'
- Forgotten
Guinea Pigs Report, 1980
In 1986, the U.S. Dept. of Energy used the cover of the Chernobyl fallout cloud over the United States to release huge amounts of radiation into the air from a failed underground Nevada nuclear test. It was called Mighty Oak.
learn more on our global fallout page
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