Silkwood family's lawyer writes about legal system

[Pambo1@aol.com]

The essay below was sent to me by a fellow DOE (formerly AEC) worker here in Oak Ridge, Tennessee.  It's written in a dramatic style, but it's an interesting story, nontheless.  Does anyone have any additional information to contribute?

Pam Watson
_______________

Juries: The Great American Myth*
 Gerry Spence

 Somewhere in this country a man tosses in sleepless torment, the threats of 
 the banker still pounding in his ears, his eyes staring up into the blackness
 where he sees his wife and kids standing frozen, the pans and kettles, their 
 clothes, everything, piled up in cardboard boxes stacked up in the street in 
 front of the house.  Where will they go when the bank forecloses and the 
 sheriff comes?  The man's wife reaches across the bed covers and pats him 
 gently on the shoulder and says, "Don't worry, honey.  No jury in the country
 will do that to us, not when they hear our side of it," and finally the man's
 eyes close.  But a jury will never hear their side of it.  Foreclosure, a 
 matter of money and property, is for judges, not juries.  
     At the same time, across town another man lies paralyzed in a bed of 
 pain, his spine ripped in two by one of those trucks that bears down on you 
 on the highway like a runaway freight train, a truck owned by a large 
 transport service and driven by a dopehead who slipped through when the 
 company began hiring damn near anybody who could hold on to a wheel and would
 work cheap.  The truck smashed the man's small car flat, with him in it.  He 
 has been bedridden now for over two years.  He has sores on his body and on 
 his soul, and slowly he disintegrates-while the insurance company stalls.  
 The one thought that keeps seeping through his misery is that someday his 
 case will go before a jury, and then he will be awarded enough damages to 
 hire a nurse to relieve his exhausted wife and to pay for therapy that will 
 help the torturous cramping in his muscles, and to stop the phone's incessant
 ringing and the bill collector's shrill voice, and maybe there will also be 
 enough left to buy a small house in a nice neighborhood with a ramp up the 
 front entry for his wheelchair.
     The injured man's case will be heard by a jury all right, but the 
 controlling issues in his case will first be decided by a judge--a judge the 
 insurance-company lawyer probably knows pretty well, a man he can predict, a 
 judge who may not let the injured party's case even go to a jury at all if he
 thinks the evidence does not fit into certain precise legal boxes.  And if 
 the judge allows the case to go to the jury, and even if the jury finds in 
 the man's favor, before the insurance company has to pay out a penny, a panel
 of appellate judges--not a jury--will actually decide his case.  Thankfully, 
 nobody told the man that.
 * * *
     We cling to the myth that when we need justice we can turn to a jury of 
 our peers and justice will be ours.  But as with all myths, reality keeps 
 intruding.  I have written about the case of Karen Silkwood at length 
 elsewhere, but I would like to examine it again as a classic example of a 
 well-kept secret-that Americans have lost their right to a trial by jury.
     The saga of Karen Silkwood was of a modern woman who some claimed knew 
 too much and talked too frequently about how her employer, Kerr-McGee, was 
 dealing with the deadly man-made element plutonium.  She was particularly 
 concerned for young workers who were being contaminated and didn't know the 
 dreadful consequences of that exposure.  Further, she had discovered certain 
 photomicrographs she believed had been touched up to hide defects in the 
 welds of the plutonium fuel rods.  These fuel rods were used to feed the 
 experimental "breeder reactor," a treacherous contrivance that could breed 
 more plutonium than it consumed in a never-ending process of self-renewal.
     Ms. Silkwood had agreed to meet with David Burnham of The New York Times,
 fully intending to expose Kerr-McGee.  But she never made it to the meeting. 
 Her small Honda was found smashed against a concrete culvert within eyesight 
 of the plant.  She was dead.  Based upon the report of a reconstruction 
 engineer, it was claimed that she had been hit from behind and run off the 
 road.  Kerr-McGee charged she was doped up with Quaaludes.  But according to 
 a fellow worker, just before she had left to meet Burnham, Ms. Silkwood had 
 shown her a file she said contained the incriminating evidence.  After the 
 accident, the file was never found, and the cause of the accident has 
 remained in violent dispute to this day.
     Ms. Silkwood's father, Bill Silkwood, a house painter who lived in 
 Nederland, Texas, brought suit against Kerr-McGee on behalf of Ms. Silkwood's
 children, seeking the damages he claimed his daughter suffered during her 
 lifetime at the hands of Kerr-McGee.  She too, had been contaminated by 
 plutonium, the element named after Pluto, the god of the dead.  Bill 
 Silkwood's attorneys undertook a search for a trial lawyer.  His job would be
 to convince an Oklahoma City federal jury that Kerr-McGee's operation was a 
 menace to its workers.  He would seek from the jury large enough damages to 
 assure society that these dangers would, in the future, be eradicated.  For 
 reasons best known to them, they offered the case to me.  
     I wish you had been in Oklahoma City with me.  I wish you had heard the 
 voice of Karen Silkwood speaking to Steve Wodka of the Atomic Workers' Union.
  Before she died, Wodka had recorded their phone conversation, and we played 
 the tape to the jury.  Hers was the tiny plaintive voice of a Texas woman 
 full of worry and love.  "Steve, in the laboratory, we've got eighteen-and 
 nineteen-year-old boys and they don't have any schooling, so they don't 
 understand what radiation is.  They don't understand.  They don't understand,
 Steve.  They don't understand."  They had received little training on the 
 job, and had not been plainly told that plutonium caused cancer.  Spills were
 routine, contaminations were treated indifferently, and nobody in charge 
 seemed to give a damn.  
     I wish you could have seen the faces of that Oklahoma City jury: an 
 engineer, a retired schoolteacher, a businessman, a housewife-honest people 
 who were worried about what was happening in America.  I wish you could have 
 heard the physician and nuclear chemist Dr. John Gofman explain to them how 
 infinitesimal amounts of plutonium in the lungs will guarantee lung cancer.  
 "So, when people say a small amount of this won't hurt you (which Kerr-McGee 
 had alleged), that is so absurd one wonders how anyone can think it.  
 Expecting that an alpha particle will go through a cell and not do horrible 
 damage is like ramming an ice pick through a fine Swiss watch, or shooting a 
 machine gun through a television set and saying it will function just fine."
     I wish you could have seen the faces of the jury as the awful specter of 
 the future unfolded before them.  Workers and innocent citizens were being 
 contaminated with small quantities of radiation that sealed their deaths by 
 cancer while the government stood by impotently and the company told its 
 workers they were safe.  What that Oklahoma jury saw was a scene of terror, 
 of an insidiously slow, agonizing death for uncounted Americans, and, for the
 first time in the history of the world, a jury was to hear the sworn 
 testimony of the experts on radiation and hear them cross-examined by skilled
 trial lawyers.
     Dr. Gofman continued, "So when somebody says, 'We only lost one 
 thousandth of a pound of plutonium,' and 'That isn't very much,' well let me 
 tell you something."  Dr. Gofman looked very long and intently at each of the
 jurors.  "A thousandth of a thousandth of a thousandth of a pound of 
 plutonium is a very great deal with respect to the life and health of a human
 being concerned about the development of cancer."
     Understatement is as much a misrepresentation as exaggeration.  Gofman 
 pulled no punches.  "No plant should operate that can give rise to any 
 qualities like that.  No plant has any right to talk of safe amounts and 
 permissible amounts.  Those words have no meaning."  He told the jury we were
 being fooled by the government when its agencies set up "safe standards."  To
 tell workers they had not as yet reached the "permissible" dose and that they
 could thereafter go back for more was a unmitigated lie.  "There is no such 
 thing as a safe amount.  The 'permissible' is simply a license to give you a 
 poison that can kill you."  Not once did the jurors take their eyes from him.
     "Doctor," I asked, "have you seen the documents on the autopsy of Karen 
 Silkwood?"
     "I have."
     "What amount of radiation did she have in her lungs?"
     "Five nanocuries . . . which means she had 1.3 times as much plutonium as
 was required to give her lung cancer.  And there is no way to stop that 
 process, because once plutonium is there . . . you inevitably launch the 
 process of cancer."  The amount of plutonium in her lungs at the time of her 
 exposure was considerately greater, because its traces had dissipated by the 
 time of her autopsy by probably half.
     "Doctor, are you saying that at her death she had lung cancer?" I asked.
     "I'm saying unequivocally that Karen Silkwood was married to cancer.  
 They are inseparable."
     "Do you have an opinion as to whether failure to adequately train is 
 negligence?"
     "I do."
     Kerr-McGee objected.
     "I think he's about to hit pay dirt on this one," Judge Theis said, 
 overruling the objection, and Dr. Gofman answered.
     "My opinion is that that is clearly and unequivocally negligence."
     The jury heard Kerr-McGee's expert, Allen Valentine, a health-physicist 
 responsible for establishing the plant's original safety program.  He said he
 had taken special care to create a manual that adequately warned the workers 
 of the dangers of plutonium.  "I thought it was fair game to tell workers 
 about malignancy as a major hazard of plutonium," he testified.  
 Interestingly, the word cancer, the word that strikes terror into the hearts 
 of everyone, seemed to have been carefully avoided.  He admitted obtaining 
 much of the material for his manual from a 1959 publication.  Even then, 
 Valentine had omitted critical portions of the publication, about "bone 
 cancer, chronic anemia, osteoporosis and bone necrosis . . ." and other 
 symptoms of radiation poisoning that had been clearly identified in the 
 article, and the information that the "high incidence of cancer" in radium 
 workers had been known for over four hundred years.  Instead, Valentine had 
 chosen to "inform" the nineteen-year-old farm boys and the ordinary 
 unsuspecting workers at the plant of precious little, and even that in the 
 high-flown language of the scientist, words that seemed more obscuring than 
 enlightening.
     On cross-examination, I asked Valentine, "Now, if you told the workers 
 what you really knew and what was actually in this article from which you 
 quoted (about the bone cancer and radiation poisoning and all), you couldn't 
 have gotten a single soul to work in that plant, could you?"  I turned my 
 back on him and looked long and hard at the jury.
     "The answer to that question would be subjective on my part."  It was not
 a good enough answer for me.  I asked the court to allow an amendment of our 
 claim for punitive damages against Kerr-McGee from $10 million, a mere 
 one-half of 1 percent of Kerr-McGee's $2 billion annual income, to one for 
 $70 million.  "This may be the significant case of the century," I said to 
 His Honor in chambers.  "And I don't think I'm overstating it.  In the Scopes
 trial, we were concerned about man's freedom to think, but in this trial we 
 are talking about whether our children will inherit the face of this earth." 
 Judge Theis sat back in his chair and peered over his glasses at me.  His 
 face was still and stern and serious.  I said, "I watch these young people 
 get on the stand, open-eyed, open-faced, ignorant of what was happening to 
 them, carrying this destruction in their bodies that will kill them . . . in 
 twenty or thirty years . . . the man could have just as well said to you, 'My
 name is John Worker at the Kerr-McGee plant.  I'm dead.' "
     What right did Kerr-McGee have to put minimal information in that manual,
 and to obfuscate even that minimal information with technical jargon?  Dr. 
 Gofman had said if he'd written the manual he would have included the word 
 CANCER in capital letters on every page.  "We see Kerr-McGee's own people 
 sitting here with clear facts of the cancer-causing effects of plutonium in 
 their possession and concealing those facts from these young people.  To me, 
 that has to stop, and it can't be stopped when we are dealing with one-half 
 of one percent of their corporate assets," I said.  Later, Judge Theis ruled 
 we could ask the jury for any sum we wanted-$70 million, or even more than 
 that, if we chose.
     I had the jury read the now-infamous letter of the chairman of the board,
 Dean McGee.  It had been sent to the workers, telling them that the company's
 problems could be laid at the feet of their own union.  McGee called the 
 plant a safe, clean operation, and said that because all the dangers of 
 plutonium were known, the nuclear industry is the "safest . . . ever 
 developed."  In front of the plant, the company had erected a large sign 
 blithely informing the workers just how safe they really were: 594 DAYS SINCE
 A LOST TIME ACCIDENT.  SAFETY PAYS, ON AND OFF THE JOB, the sign read.   
     The jury heard the testimony of other well-regarded scientists.  I called
 Dr. Karl Morgan, the most "conservative" of our experts, the father of 
 health-physics, who had worked in the heart of the nuclear beast for thirty 
 years at the AEC's Oak Ridge lab.  "I felt this was one of the worst 
 operations I have ever studied," he said, and Kerr-McGee's requirement that 
 workers labor in contaminated areas in respirators meant for emergency use 
 only was "inexcusable and irresponsible."  He judged Kerr-McGee guilty of 
 willful and wanton disregard for the safety of its workers, then added his 
 own judgement-it was "callous," he said.
     Dr. Edward Martell, then our country's foremost environmental physicist, 
 gave his opinion about Kerr-McGee's burying radioactive material on its own 
 property.  "The kind of radioactive waste they are handling out there is the 
 most dangerous kind.  You are not just going to affect the people living out 
 there now; you are going to affect the larger population that may live there 
 for future generations.  It is illegal to bury this anywhere. . . . We are 
 dealing with the health and welfare of future generations."  The half-life of
 plutonium is twenty-five thousand years.  But who cared?  Certainly the 
 government didn't.  Kerr-McGee actually recorded 574 incidents of worker 
 contamination and had been cited by the federal regulatory agency no less 
 than 70 times for violations of that agency's safety rules.  Despite these 
 facts, the government never leveled so much as a twenty-five-dollar fine 
 against that corporation.  Perhaps you and I could talk an ordinary traffic 
 cop out of ticketing us for driving over the speed limit in a school zone 
 once, but seventy times?  What was going on here?  Juries may not understand 
 the niceties of the nuclear energy, but they can distinguish right and wrong.
  It is disgustingly common to discover that those who today work for an 
 industry at large salaries once policed the same industry for the government 
 at small ones.  Moreover, as Dr. Martell put it, "You don't let a 'vested 
 interest agency' decide what the health effects of their activities are."  
 You don't let the Atomic Energy Commission, while promoting America's use of 
 nuclear energy, guard the health and safety of American workers anymore than 
 you depend on the bullsnake to watch over the robin's nest.  Thomas Jefferson
 was correct when he described the jury as "the only anchor ever yet imagined 
 by man by which a government can be held to the principles of its 
 constitution."  And we were presenting our case to an American jury.
     Jim Smith was a working man who came up through the ranks of Kerr-McGee, 
 and he knew how to handle radioactive substances and stay alive.  He 
 testified about Kerr-McGee's uranium plant.  "I never saw anything so filthy 
 in my life."
     "What was Kerr-McGee's attitude as to the safety of its workers over 
 there?" I asked.
     "If you ever walked into it, you could hardly breathe when you went 
 beyond the door.  The ammonia fumes and the uranium around there was just one
 big pigpen."  Smith also disputed Kerr-McGee's claim that the forty pounds of
 missing plutonium wasn't actually missing but was simply hidden somewhere in 
 the plant's piping system.  That amount of plutonium was enough to build a 
 couple of bombs like the ones we dropped on Hiroshima and Nagasaki.  Smith 
 said when the plant was shut down for cleanup in December 1975 the pipes were
 thoroughly flushed with boiling acid.  "We spent many, many thousands of 
 hours.  It was a super cleanout."  The plutonium wasn't there.
     He told of how contaminated workers had driven a contaminated truck into 
 town and had gone into a restaurant, and how later the workers and the truck 
 were decontaminated, but the restaurant, with Lord knows how many 
 unsuspecting people and employees exposed, was never surveyed.  People could 
 walk in or out of the plant without anybody checking them, and workers 
 testified to forgeries of their records-it was a nightmare.
     I wish you could have seen the jurors' faces when they heard the 
 testimony of how Karen Silkwood herself had been contaminated with the 
 dreadful stuff.  She would leave work clean, but when she came back the next 
 morning she would set off the alarms.  Once, she had ten times the AEC limit 
 on her right forearm, face, and neck, and she was panicked because her 
 readings kept getting higher.  She thought someone was intentionally 
 poisoning her, or maybe, she thought it was coming back out of her lungs.  
 She took the company men to her tiny apartment in search of the source of the
 contamination, and they found plutonium everywhere--in the bathroom, the 
 bedroom, her sheets, the refrigerator--even on the bologna for her 
 sandwiches.  Kerr-McGee wanted the jury to believe she contaminated herself. 
 She had been working with the Oil, Chemical and Atomic Workers Union to get 
 the plant unionized.  There was conflict.  Some of her co-workers in the lab 
 were dead set against the union and had access to her urine-sample kits and 
 to raw plutonium as well.  Some believed anti-union co-workers had 
 contaminated her urine-sample kit to make it look as if she were 
 contaminating herself and to thus discredit her.  Those contentions went to 
 the jury.
     During the last weeks of her life, she had called her sister Rosemary, 
 who testified, "She was scared.  She asked me to come and visit her, to come 
 see her-she needed to speak with someone . . . She told me something was 
 happening to her.  She was hysterically upset, and she wouldn't tell me 
 anything over the phone . . . She was crying.  She couldn't get the words 
 out."
     These jurors, honest men and women, saw the faces of the witnesses, and 
 heard their voices, saw a hand clutch the arm of the witness chair and heard 
 the tightening of throats.  There was a truth being revealed that transcended
 the written word of the record.
     I wish you could have heard the defense, heard the lead counsel for 
 Kerr-McGee argue with the judge in chambers that he should be permitted to 
 smear Karen Silkwood.  I wish you could have heard him say, "In view of the 
 flavor of Mr. Spence's opening statement I think we ought to be relieved of 
 your ruling not to make mention of drugs and suicide in my opening
 statement."    "Why don't you comment on the forty pounds of missing
 plutonium?" I asked 
 Kerr-McGee's lawyer.
     "I will, Mr. Spence."
     "You know, my friend," I said, "she could have been the dirtiest hog in 
 the world, which you know she wasn't, and that has nothing whatever to do 
 with the fact that your people let forty pounds of plutonium go."
     The law is that if one handles an inherently dangerous substance and it 
 escapes the possession of the owner, the owner is responsible.  I went to the
 blackboard and in front of the jury wrote in large letters, IF THE LION GETS 
 AWAY, KERR-MCGEE HAS TO PAY.  The lion, of course, was plutonium.  If a lion 
 keeper brings his beast into the village in a cage, I argued, it made no 
 difference that the man was careful, and locked the cage, or even 
 double-locked it.  It made no difference even if someone else let the lion 
 out, because if it escaped and injured an innocent person, the lion keeper 
 was responsible.  It was a case not against a nuclear power but against 
 irresponsibility.  I told the jury, "I don't want to see the workers of 
 America cheated out of their lives anymore.  I don't want to see people 
 deprived of the truth, by the cover-ups, the word games, the mumblings.  It's
 ugly.  With your help, I want to stop it!"
     I argued that the callous manner in which Kerr-McGee permitted its 
 workers to be infected, the townspeople to be contaminated, and the 
 environment to be destroyed had to be stopped.  It takes less than a pound of
 plutonium to irradiate every human being in the world!  What about the forty 
 pounds Karen Silkwood claimed were missing?  Ask the gentlemen in gray, as I 
 called Kerr-McGee's lawyers.  Ask the gentlemen of the bar.  Ask its lead 
 counsel, the former president of the Oklahoma Bar Association.  They were 
 dignified men with stiff white shirts and shoes as shiny as black marble.  
 And they all said Kerr-McGee had done nothing wrong.  Their voices were full 
 of conviction and reason and they had that sweet, right look, like Methodist 
 ministers.  There was no plutonium missing.  It was Karen Silkwood who had 
 spiked her own urine samples.  They found plutonium in her house!  It was she
 who contaminated herself, the gentlemen in gray said.
     How does one make an earless monster understand except to bleed it 
 slightly-bleed it of its own green blood, its money?  I argued to the jury, 
 "If one of your children lied about something that had to do with the life 
 and health of his brother and sister and he said that they were safe when he 
 knew that he had exposed them to death--I suppose you might not find it 
 unreasonable to take two piddling weeks of his allowance away to punish him."
  Should a corporation receive less punishment for having contaminated its 
 workers with deadly plutonium?  Should the lifeless corporation be entitled 
 to a special privilege under a law that is not afforded to our children by 
 responsible parents?
     The case lasted nearly three months, the longest in Oklahoma's history, 
 and we had invested hundreds of thousands of our own dollars and time.  But 
 as I saw it, the safety of thousands of American workers rested on the jury's
 decision, and the jurors worried, too, and sorted through the evidence and, 
 after deliberating the better part of three days, came to a judgement that 
 they thought would do justice--that would maybe change things.  They awarded 
 a verdict of $500,000 actual damages and $10 million in punitive 
 damages--damages to punish Kerr-McGee for its willful and wanton handling of 
 the world's most dangerous substance--for letting the lion get away--and to 
 assure society that the nuclear industry would do better for its workers in 
 the future.
     Of course, Kerr-McGee appealed to the United States Court of Appeals for 
 the Tenth Circuit.  The appeal took years, and, to no one's surprise, the 
 judges reversed the case.  The majority of the panel spoke in long, dreary 
 intellectualizations about the jurisdiction of the state of Oklahoma to 
 punish an industry engaged in the nuclear business, proclaiming that the 
 right to regulate the nuclear industry was preempted by the federal 
 government.  By rendering $10 million in punitive damages, the court said the
 jury had encroached on that exclusive territory of the [Atomic Energy 
 Commission]--a bureaucracy that had already proved it absolutely would not 
 enforce its own rules and regulations for the benefit of the people.  
 Therefore, the court reasoned, Kerr-McGee would go unpunished except as the 
 [AEC] might wish to levy its own fines from time to time, which, of course, 
 it never did.  The court made no mention of more than five hundred 
 contaminations and the scores of violations that had already been found 
 against Kerr-McGee for which no citations were ever issued.  The court did 
 not address itself to the rights of American workers to be protected in the 
 workplace from the terrible dangers of plutonium.  Besides, if Karen Silkwood
 had been injured by plutonium, the injury must have been associated with her 
 job, the court said, and, therefore, she was barred by workers' compensation 
 from suing her employer, despite the undisputed evidence that her 
 contamination occurred off the premises.  In short, it was not the health and
 safety of human beings that concerned the court, but the obligation of the 
 corporation to pay punitive damages--not the right of workers to be fairly 
 informed about the dangers of radiation, but the jurisdiction of the court to
 hear the case in the first place.
         Judges, not juries, decide our cases in America.
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