Friday, April 11, 2014

The Karen Silkwood case according to Gerry Spence

Gerry Spence and Karen Silkwood – Compensation for radiation injury.

The following is the transcript of a speech given by Gerry Spence in Pennsylvania shortly after the Three Mile Island nuclear accident in 1979.  Spence is well known for having won a $10.5 million verdict for the family of Karen Silkwood .  He has not lost a civil case since 1969 and has never lost a criminal case with a trial by jury.MR. WIDOFF:  We attempted to request a resume from our speaker tonight.  The response we received in return was, “we don’t know how to write it, let alone provide it.”Thus, I do not have any traditional biographical materials from Gerry Spence.  What I do have for you tonight is from the July 8th, 1978 edition of the Riverton Wyoming Ranger.  I will briefly quote from it.  I wish that I had the opportunity to read all of it to you, as it really is a quite fascinating article.  This was written before the Karen Silkwood litigation.Spence lived in Riverton, Wyoming for 15 years, born and reared in Sheridan, graduated from the University of Wyoming College of Law, coming to Riverton as a young attorney full of ambition and fired with idealism.When much of the community thought Spence was a young upstart still wet behind the ears, the blondish, handsome young man filed for the Office of the Fremont County Prosecuting Attorney.  Spence introduced to Fremont County the art of door-to-door campaigning, shoe leather and charm all blended by Spence.  When the votes were counted, Fremont County had a new Prosecutor.  He didn’t take long to establish himself in the job.New challenges beckoned Spence after two successful terms as County Attorney.  With a win-loss record for successful convictions that matched the Yankees at their peak, Spence turned his eye toward high political office.  The now well-known Spence decided that he had a good chance to unseat the veteran U.S. Congressman William Henry Harrison.MR. SPENCE: (Interrupting) Are you going to read the whole damn thing?MR WIDOFF: (Chuckles) No, I am not.  (Continues Reading) Casting himself in conservative clothing but promising a better idea, Spence’s staff took off to apply State-wide campaign techniques that worked for him in the Fremont County race.It goes on to describe his activity as a lawyer.  Having been urged not to read this, I will simply add that he has had extensive experience in major litigation.  He has taken on the automobile companies, the FBI, McDonalds, and has not lost a civil case since 1969.He was also the Chief Counsel in the Karen Silkwood litigation.  I, therefore, present to you, Gerry Spence.(Applause)MR. SPENCE:  I don’t know whether the lack of applause is due to the quality of the introduction or not.  It would have sufficed just to say that this is Gerry Spence, country lawyer from Jackson Hole, Wyoming.  That would have told it all.I come here to you with a lot of love.  It has to be a lot of love to bring me out of the magnificent mountains of Jackson Hole, Wyoming and to leave in the early morning with the dawn and the sun coming up over the Tetons and to get on Frontier Air Lines and to fly all day and end up on an Allegheny commuter in this community.  So you know I am here because I love you all.(Applause)The thing that bothers me about these kinds of proceedings is that they are so intellectual.  I feel so inadequate talking to you.  I hear all of these academicians, all of this sort of fine line thinking going on about human problems, and I listen to interesting words like “ENO” – all day it is “ENO” – which by the way means “Extraordinary Nuclear Occurrences”.  So all day I hear words like “ENO” and “Price-Anderson”.  I hear things like “albeit” – I wrote it down – “albeit”.  Then somebody stands up there and says “i.e.,” and someone else is over here talking about “euphemisms.”  I don’t know what the hell euphemisms have got to do with anything.Then there was this little goody – “substantial release of radiation from containment area” – “substantial release of containment from radiation area.”  Then they are talking about “emission rates.”  I got to wondering if they were checking out the love life of adolescents at summer camp, if this has no application whatsoever to people, to human beings, to people who have feelings.The lady on the television station a little while ago asked me in an interview what was going on in here.  And I said, “I don’t know.”  She said, “Haven’t you been there?” And I said, “Yes.”  She said, “That is the bottom line?”  And I said, “The bottom line has to do with a lot of people trying to find answers to a lot of questions and asking a lot more questions.”And the bottom line seems to be – I didn’t tell her this – but the bottom line seems to be something about some kind of fine legal intelligencia that has sort of left the people around this area without answers.  It hasn’t asked the people of this area how it is for them.How is it for a human being to live under Three Mile Island, to live under one of those stacks and to have this stuff spew out over the countryside and to wake up in the middle of the night and wonder if your babies are going to be born funny and triple-legged?  How is it to live at Three Mile Island and see the cows out in the pasture eating gracefully and gently away and not know what is happening to the people and to the milk and to the environment and to the future?How is it to wake up wondering what is happening back home and to have been evacuated?  It is an important human question.  It has to do with human beings.  It doesn’t have to do with insurance companies.  It doesn’t have to do with stockholders.  It has to do with the rights of individuals.  It has to do with you and me.I heard people this morning talking about whether there was – what did they call that – an ENO.  Some people were suggesting that they didn’t really think there was an ENO.

I would like to read from a very recent publication that was sent to me special delivery for this conference.  It is by Dr. John Gofman, Professor of Medical Physics at the University of California at Berkeley.  He helped to isolate the world’s first milligram of plutonium.  He was the first witness in the Karen Silkwood case.  He knows more about plutonium than anybody that I know about anywhere.The nice thing about Dr. Gofman is that he knows what he is talking about.  The very nice thing about him is that he isn’t afraid to say it.  Another nice thing about him is that he says it in terms human beings can understand.“According to the Nuclear Regulatory Commission,” it says here, “the dose to the public in the Three Mile Island so far is 1,800 person rems” – Is that what you have heard, all of you, 1,800 person rems?  Man, that really gives us a lot of information.  “A figure which we regard with extreme skepticism because it turns out there existed almost no monitoring system and because that estimated dose excludes a significant additional internal dose from the radioactive carbon-14 released.”What does all that mean?  It just means that you haven’t got very good figures, to put it in plain English.“But based upon that – and then he sets out the formula,” he says, “There are indeed going to be at least 480 deaths from cancer.”480, now that is kind of a nice thing to think about.  But it isn’t going to be right away.  Is it going to be the day after tomorrow?  No.  Or ten years from now when Johnny is ready to go to college?  Maybe.  Maybe it is just Johnny gets into the peak of his career 30 years from now, and he sees one of those nice little shadows in his left lung that somebody calls cancer.We were talking about a 20 year statute of limitations earlier today.  We were talking about whether or not people could prove any of this business.Well, he also says, “It is a fraud to imply that a dose equivalent to just a few chest x-rays” – and that is what we were told over national television – “it is a fraud to imply that a dose equivalent to just a few chest x-rays to a million people would be safe.  If you give low dose radiation to a lot of people, whether from nuclear power plants or x-rays or Mother Nature, you will kill just as many people as if you gave high dose radiation to just a few people.”Now, I never heard anybody saying that on television before.  I haven’t heard the government come out with any information like that before.And it says, “Provided the number of person rems is the same, it is not hard to understand” – now listen to this very difficult proposition, – “it is not hard to understand if you remember that six times two equals 12, but two times six also equals 12.”I don’t know exactly what I could make of that in case in Three Mile Island on behalf of people.  I am not interested in representing anybody else.  But if I were to represent people, I would like ot have somebody like Dr. John Gofman say something like that on my behalf, and I would like to hear some other things said on my behalf.Here is something that he said in response to a question raised this morning by a very fine-tuned academic legal mind.  The question was: How do you prove damage to people when it is going to occur down the line 20 years?He says this, “The elite has no trouble finding lawyers.”  The elite, who do you think that is?“The elite has no trouble finding lawyers who are eagerly beavering to establish a right to give people cancer with impunity.  Here is what you have to watch out for.  It is medically possible” – now listen to this.  Listen to this Doctor telling us lawyers how to prove our case.  Listen to this.  “It is medically impossible to prove that a particular cancer was caused by radiation even when the radiation dose is high since cancer can be induced by many agents.  It is possible, however, to calculate the probability that a particular cancer was caused by radiation even when the radiation dose is high since cancer can be induced by many agents.  It is possible, however, to calculate the probability that a particular cancer was caused by radiation if you know how much radiation dose was received.”Listen to what he said, “It is possible, however, to calculate the probability that a particular cancer was caused by radiation if you know how much radiation dose was received.  When so-called compensation for radiation entry is at issue, it is an outrage for any lawyer to argue that there should be no compensation for radiation induced cancer simply because there can be no certainty that a particular cancer was radiation induced.”I listened in the Silkwood case to these arguments for three months, and the jury understood it to be just argument.  The jury said that it was wrong, that it was an outrage.  And they gave Karen Silkwood’s heirs a half a million dollars for nine days of mental pain and suffering and torment because Karen Silkwood thought she was going to die.Now I am telling you – and I am not trying to create a new damage for you people here by what I say – but I am telling you that Dr. Gofman, one of the world’s great scientists, says that 480 people in the area around the Three Mile Island nuclear power plant are going to die from cancer induced by that little kind of – what did they call that – a non-ENO, a non-ENO.  Four hundred eighty people are going to die from that, he says.I don’t know how that makes you feel while you live here.  I don’t know how it would make my neighbor feel.  I think it would frighten me.  It would concern me and torment me.  I would wonder about my children.  And I think it is a clear compensable damage.Then he goes on to say, “When so-called compensation for radiation injury is at issue, it is an outrage for any attorney to argue there should be no compensation for radiation induced cancers simply because there can be no certainty that a particular cancer was radiation induced.  That argument simply amounts to giving private and government polluters an open season on giving people cancer.  Talk about a permissive society, we used to believe in severe penalties for killing people.  At the very least, a 43% probability that a person’s particular cancer was radiation induced” – listen to this – “entitles the victim and his family to 43% of the so-called compensation.”  A 99 percent probability, the victim to 99 percent of the so-called compensation.That is how he thinks that should be decided.  What do you think about that?  That is a doctor’s response to the technical legal issue of damages.  I am to talk to you about proof of non-economic damage.  I have come all the way from Jackson, Wyoming to talk about something as sweet and sophisticated as proof of non-economic damage.  “Non-economic damage” I don’t even know what that means.  I know you know, but I don’t know what that means. I would like to tell you how you get a jury to give ten and a half million dollars for nine days of fear and anxiety and emotional pain and suffering.  If you would like to hear about that, I will talk about that.  If you don’t want to hear about that, we will take a little recess and you can all leave. MR. MOSKOWITZ: On behalf of the Pennsylvania Law Journal, we would all like to hear about that. MR. SPENCE:  I would also be happy to talk about how a country lawyer can get punitive and exemplary damages in the amount of ten million dollars against the likes of Kerr-McGee.  I would like to tell you that that is something you can’t find very much about in law books.You think it is all about law; don’t you?  You think it is all about the kind of intelligent academic hocus-pocus like “non-economic damages”?  You want the key?  How many of you want the key?  Should I just walk down and kind of give it to you?  Do any of you want it?  How many of you want to know how to do that?  How many of you don’t give a damn?  There is one honest man among you. I will tell you how to get it.  You go out and you get a couple of Pinko Priests.  That is how you do it.  It is just that simple.That is what we did in the Karen Silkwood case.  I just got me a couple of – just be patient, I will get to it.  There is one lady sitting back in the room saying “My God”, get to it. Now there was a couple of Pinko Priests.  The reason I call them Pinko is because they seemed –I am a personal injury attorney…that is all I do is represent people…I am proud of my profession…I go into court…I try to be competent, and I try to talk to juries.  I try to talk about the law.  I try to put on a proper case. But here are a couple of Pinko Priests who seem to me that all they were doing is hanging around praying a lot, and they were all connected with the anti-nuclear cause.  I have always had a sense that all these anti-nukes were all kind of Pinko, you know, and un-American. Us folks in Wyoming are American.  We don’t want any damn Pinko Priests around praying for us while we are trying lawsuits.  But there they were, Old Bill and Old Wally. Now Wally, Imogene, my wife, really goes for.  He was beautiful.  He had curly hair and kind of an Adonis face and big blue eyes and kind of tanned because those priests don’t have to work too hard.  They have plenty of time to lay out in the sunshine.Imogene used to say to me, isn’t it a shame, she would say, that Wally had to take those vows.  I don’t know what she had in mind. And there was Bill, Bill Davis. Now Bill looked like a fighter – pug-nosed.  I found out that that is what he actually was.  One was a Jesuit, and one was a Franciscan. During the Silkwood trial, some things occurred.  I want to tell you how this has relevance.  And young lady, I will be finished here in just a minute and you will see how this has relevance.  You be sure and start taking notes.  I will tell you when to start taking notes – pretty quickly. It worked like this: Around the first week of the trial, there was a headline in an Oklahoma City paper that said this: Uranium Truck Crashes in Wichita Falls.  Now interestingly enough, Wichita was the place where Judge Theis came from who was sitting on this case, Judge Theis.  And the uranium truck came right out of Riverton, Wyoming where I came from. This truck had Kerr-McGee yellowcake on it, and it was headed for Oklahoma City.  And it happened right during the period of time that I was talking to the jury about the problems of spilling nuclear material in transportation.The jury and I had a little talk for about three months about all kinds of problems in that case, and that was one of them.  That was the first one. And I thought it was a rather strange coincidence that this occurred.  So I asked Old Wally and Bill one night for dinner.  I said, don’t you think that was a strange occurrence?  Then I just kind of kidded a little bit and joked with them.  I said, you fellows didn’t have anything to do with that; did you?  And they didn’t say anything very committal, and I didn’t push it any further. So a little later in the case, I was condemning Kerr-McGee for the way they had put the plant together to guard against tornadoes.  They set that thing right up in tornado alley.  That is just like building a house right in the middle of a flood zone, right in the middle of the river. If there were any tornadoes, they were going to come through Oklahoma City, right down through old tornado alley and just blast everything in its way including that plant at the Cimarron Facility. I was giving them a fit about that. The next day, the worst tornado in the history of Oklahoma occurred.  I got Old Wally and Bill aside, and again I said, now lookit fellows.  I said, I don’t know whether you guys have anything to do with this or not, but I really don’t need to win this case that damn bad. Then I was talking to the jury very shortly after that about how it is that these rods – these fuel rods had been doctored – the x-rays.  Now Kerr-McGee called those – they aren’t x-rays, they are microphotographs or photomicrographs.  I have never been sure which.  They always made fun of me about that, so sometimes I would walk over to the board.  I would write it up there on the blackboard.  They made fun of you, those gentlemen in gray, those corporate – big corporate, smart lawyers, made fun of me throughout the entire trial because I couldn’t understand simple little things like the difference between x-rays and microphotographs and photomicrographs.Anyway, it was found that there were all kinds of hairline cracks on certain fuel rods, but the x-ray photos were edited so that the cracks wouldn’t prevent the faulty fuel rods from being sold, they were all doctored up, and I thought that was kind of an interesting customer service that Kerr-McGee was providing for its customer out there in Hanford, Washington where they were making the breeder reactor. I kept saying to them that is such a nice customer service that you perform, isn’t it, Mr. Paul?  The gentlemen would get up and scream, “That is ridiculous, Your Honor.” The next day in the middle of Oklahoma city opened "China Syndrome”, the move, and it had to do with that issue.To show you how fine a lawyer I am, how ethical I hope you would all be this ethical – I rushed up to the bench and I said, Your Honor, I understand “China Syndrome” is in town.  It just opened in Oklahoma City.  I want to quickly tell you what theatre it is in so you can tell the jury what theater it is in so they’d be sure not to see it.  And I want you to instruct the jury what theater it is in, and tell them that they aren’t to get close to it at all. And His Honor appreciated the fact that I was so ethical.  He told the jury where the movie was and instructed the jury not to go see it. Then I got involved in the issue of a melt-down. I was talking about how the photomicrographs or microphotographs – or whatever you call them – about how these rods into the core and how you could have a meltdown and all the rest. And the next day came Three Mile Island. It hit right smack in the middle of the trial.That was the time that Wally and I and Bill Davis had a long, long talk into the night. I just want to let you know that that gets to be the sort of bottom line on how you win a case in this area. They want me to tell you that if you would like their services in any case of this kind, that Wally and Bill are available to you. Alright, now that is the secret of it. How do you prove up damages for ten and a half million dollars – five-tenths of a million for pain and suffering and ten million dollars for punitive damages? Well, let me tell you a little bit about the case. First of all, it was the first case of its kind. It is perhaps a precedent for your cases.  It is precedent for Three Mile Island. It is the first case of recovery for off-site contamination in our history. It is a case, the first case for bodily injury and for punitive damages. Those are “non-economic injuries” I suppose. I suppose there isn’t any real economic factor if daddy comes home with lung cancer one day 21 years later and after the statute of limitations has run, when the records have been destroyed, when nobody can prove that lung cancer came from that catastrophe.The suit is a simple suit.  It doesn’t involve any complex ideas. You don’t have to go kiss the NRC’s – Nuclear Regulatory Commission’s – you don’t have to be a – what is that word – a sycophant. You didn’t think I knew a word like that – to get them to declare anything about anything, like “ENO.” You don’t have to go to any of these seminaries. You don’t have to go through all of this intellectual garbage. All you have to do is to apply the plain old legal principles that you learned in first year tort law, in freshman law about negligence and gross negligence and willful and wanton negligence and strict liability and ask for punitive and ex-exemplary damages. That is it in a nutshell. I would quit here and that would be it. The audience would feel alright about that, but you would think that I cheated you or something. So I will just fill in the rest with a little talk about how that came in the Silkwood case and how it might be helpful to your case. I want to tell you the truth. The message that you must be getting from my lecture and that you must hear – each and every one of you – is you don’t have to be a genius like these people up here that have been talking to you and represent your clients. The truth is that if Gerry Spence, a simple, bungling country lawyer from Jackson, Wyoming can do it then any one of you can do it. Do you hear that?

MR. SPENCE: You can all walk home today and say, guess what, I heard today I can do it too.  I can get ten and a half million dollars.  All I have to do is go in and do the simple things that I learned to do years ago in freshman law school. And you talk about simple concepts to a jury, not because they are simple, but because the truth is simple. The simple concept in that case was strict liability.  So I said to the jury a simple proposition like this: Back in the days of old common law, there was a man who brought a lion on his property to show people.  He charged them a few shillings apiece to come look at it.  One day, the lion – a curiosity to be sure – got away and injured the neighbor.  The Court said, “You should pay”.  The lion owner said, but I didn’t do anything wrong.  I had a secure cage.  I did everything humanly possible to keep him caged.  It may have been a saboteur that did it.”  And the Court said, “If the lion gets away, you have to pay.” Now that is a simple legal proposition; isn’t it?  You can understand that and I can understand that, and a jury can understand that.  It is the simple proposition of strict liability of the law.  “If the lion gets away, Kerr-McGee has to pay.” Of course, it always helps if you have on the other side some very stiff, smiley, gray-suited, intellectual academicians and polemisicists-corporate attorneys who are always jumping up and saying “That is ridiculous.” And it helps in the proof of the defense of a case like that when corporate America jumps up, as it did in that case, and says this corporation with two million dollars annual income, with assets of over two billion dollars, one of the two hundred largest corporations in America, who got up before this simple little six man and woman jury – I don’t mean dumb, but I mean uncomplicated – I mean ordinary people out of the heart of America this corporation got up and said in the defense of their negligence and their gross negligence and of their willful and wanton negligence and of their recklessness in the defense of polluting literally hundreds, perhaps thousands of people in the area – their answer was that Karen Silkwood was a bad woman, as if somehow that was a defense.  Karen Silkwood was a bad woman, and she though sex, they said, was a participant sport.  She might have smoked dope, they said.  She was a bad woman, and she had left her children.  And, therefore, ladies and gentlemen of the jury, we have the right to pollute America and to lie to the workmen and to lie to the public and to get into bed with the government and engage ourselves under the covers with the government in some very secret and unhealthy – I think unhealthy activity.  I will talk about the undercover activities of these people in a little while. They said things like she contaminated herself.  You would think that this huge corporation could come forward with some kind of direct evidence that would solve the very difficult problem and proposition that we were faced with in this case.  They talked about the technicalities of radiation.  They talked about the technicalities of the weather and the technicalities of this and the technicalities of that. When that was all over I went over to the jury, and I suggested to them that they shouldn’t get stuck in Mud Springs.  I will tell you why I said that.  And I drew a little picture on the board.  If I had a piece of chalk, I would even draw it for you if there was a piece of chalk. Oh, there is a piece of chalk, and there is a blackboard.  It would be terrible if we went through this whole session and nobody used the blackboard and nobody drew a picture for anybody: wouldn’t it?  You want me to draw a picture on the board? GENTLEMAN IN THE AUDIENCE: Please draw a picture on the board.

MR. SPENCE: (Mr. Spence draws a picture on blackboard.) Don’t Get Stuck in Mud Springs.  Do you want to know what this has to do with “the proof of non-economic damages?”  Well I don’t know what it has to do with it. You see there it is, and that is Mud Springs. This is the poor old guy.  He is almost stuck in it. So I drew that picture for the jury, kind of like that. That is a nice picture; don’t you like it? (Applause) That is where we tend to get as we get involved in the academic, polemics, because the issues in a case of that nature are very simply. The question was: Did Karen Silkwood get polluted?  If she got polluted, was it sufficient to cause her injury?  Was there any physical injury to support pain and suffering?  And indeed if there was physical injury, was there physical injury in order to support punitive damages? Now, what is physical injury?  There came a time in that case when the jury asked that same question.  We had been waiting for the jury for three days.  We were sweating it out.  I was praying along with Old Wally and Bill by that time. I was saying, “Dear God, let me win this one, and I will never try another case.  I promise you I will never draw anymore pictures on the blackboards.  I will never write anymore poems to the jury.  I will never do nothing if you will please just let me win this one.” Along this time came the question from the jury: “What is physical injury?”  Now, Mr. Paul thought that we shouldn’t answer that question for the jury.  He thought that that was an open question that anybody could answer, and that the jury should just struggle another six or eight days.  You can understand why he might want that to happen. I said to the Judge that I thought it was imperative that he tell the jury what physical injury was.  I had a lot of Brownie Points all saved up for just such an emergency. The way you save up them Brownie Points – you know, I could write a legal article on Brownie Points and the law. The way you get Brownie Points saved up is this: When the opposing counsel is raising hell about immaterial issues, you don’t give the Judge any trouble.  And when they are raising hell and objecting and asking for a lot of things that they are entitled to, you don’t oppose it.  You sit in Court week after week listening to their inane cross examination, if you please, and you never get up and object. When it finally comes time for you to say something, you have got some Brownie Points.  I said, “please, Judge, I want you to hear me this one time.  The jury has put its finger on the exact question that needs to be solved in this case and the exact question that the people at Three Mile Island will want me to answer when they invite me to that seminar to speak to them – “What is physical injury?” Now Dr. Gofman and others have said this – and let’s listen to this because this is important, this question of injury as we see all of those alpha particles flopping around in the Hershey bars everywhere that nobody wants to talk about, that are flopping down on the hay that all the cows are chomping on.  All those little alpha particles are emitting – there are thousands of them, millions of them, billions of them.
I even had one of the scientists get up on the stand and tell me how many alpha particles there were in Karen Silkwood’s lungs which only had five nanocuries – whatever that is.  It is so small an amount that nobody in this world could tell you how small it is.  But she had millions of alpha particles in her lungs. You can’t see them.  You can’t smell them.  You can’t taste them.  But they are there.  You can’t demonstrate them, and so, how do you demonstrate injury?  Well, Dr. Gofman said this – and this is an oversimplification, but why get complex about it, ladies and gentlemen.  Why get so academic about it?  “You know,” he said, “that the human body is built up of billions of cells.”  We all knew that.  And he says, “There is something about the cells.”  He told the ladies and gentlemen of the jury that they each have a beautiful little library. Did you ever stop to think about it, what a beautiful little library there is in each cell in our body?  It tells the cell when to divide and when not, when to grow and when to stop growing.  Why, if it weren’t that way, you know our noses would keep growing and growing, and our ears would grow on.  We would grow bigger and bigger and pretty soon we would cover the whole countryside if the cells didn’t stop growing. What makes them stop?  How do they know how to grow in relationship to other cells?  It is a marvelous thing that goes on there, and it has to do with that little library called DNA and RNA and all of those fancy words. Now what does that have to do with all these little bitty alpha particles that are popping around out here around the countryside that you folks have?  Well, the alpha particle is as powerful in the relationship to other rays as a bulldozer to a jack rabbit that is how powerful they are.  It is like taking a machine gun and shooting through a television set.  If you don’t blow up the whole set, but you just blow out the transistor tube, you know the set keeps on burning.  If it is a cell and the little library is knocked out, the cell isn’t killed.  It is okay if the cell is killed, because it can build a new cell.  But if the cell isn’t killed, it just keeps bubbling and boiling away and replacing itself and growing and replacing itself. It is crazy and wild and goes on and on until that little boy of yours, now 20 years or 25 years later, comes home and starts to tell you with a pale face and a frightened soul about the little shadow that the doctor saw in his x-ray called cancer. So the Judge says – and he was entitled to say it under that evidence because that evidence stood essentially uncontradicted by the world’s experts, that that is what happens to the cell in your body when an alpha particle hits it, particularly in the lungs which are so vulnerable.  And that is the cause and the source, as these gentlemen believe, of cancer.  That is why Dr. Gofman says there is probably no real practical cure for cancer so induced. Now what does this have to do with the question that the jury asked?  His Honor said, as he answered the jury, he answered them this way:  “Physical injury may include injury to the tissues, to the bones, and to the cells.  It need not be felt.  It need not be demonstrated by physical or empirical evidence.  It is sufficient if you find it in accordance with the preponderance of the evidence of the case, and if you believe such physical injury to have occurred. Now that opens up a brand new vista for cogitation and thought in Three Mile Island.  One that I don’t need to discuss much further with you because you are all brighter than I and understand the ramifications of that instruction. Now how do you get punitive damages?  Would all of you be happy just to have the five hundred thousand dollars, or would you like to go on for the ten million dollars because it will take a little longer – just a little longer. You know when you get these government agents into Court without their press agents – do you know that when the NRC comes along and they drag in all those people behind them.  There is this great big long string of people watching everywhere they go.  Part of those people are their press corps.
Now if the man is going to tell the truth, he doesn’t need any damn press corps.  If you are going to tell the truth to the people, you don’t have to have somebody out there to figure out how to say it; do you?  Isn’t it alright if you just plain say it? Tell the truth, I say, to these people on the witness stand.  There isn’t any press corps answering the questions, and they are under the oath. You will be surprised if you ever look at the transcript in the Silkwood case about the things that came out in this microcosmic laboratory about how corporate America is handling its responsibilities with respect to the safety of the American public.  I daresay it isn’t any different at Three Mile Island, nor will it be any different at Four Mile Island when we meet next year under the shade of the then current fallout. Those people are required to tell the truth in court.  And from that comes an outrage to the jury and will come an outrage to your jury when they say how that responsibility has been taken care of. Let me tell you what the facts of that case were just a little bit.  It will perhaps spark your imagination. Karen Silkwood was a simple, ordinary woman like any ordinary woman that you know.  The nice thing about her is she stood for some nice things that Americans all like. She was a member of the working class.  She was afraid.  She was weak.  She was powerless.  She couldn’t do anything.  She represented all the people in the world who feel weak and powerless and helpless and can’t do anything. She had a little old kind of a scholarship to go to college that somebody gave her because she was a good student.
She went to college for a few semesters.  The first thing you know, she got married because she fell in love.  Now academicians never fall in love. And she got interested in what was happening there at the Cimarron Facility.  What was happening there was this: There in the Oklahoma Hills, not nearly as pretty as the hills here – this is gorgeous county, but there in the springtime, those Oakie kids who loved their countryside had bought themselves little farmsteads.  They were young people trying to make a living there.  They couldn’t make a living on the farmstead.  Farm prices are hard, and labor comes high and all the rest.  They didn’t have very much land, so they would look for outside employment.  And they went to work at the Cimarron Facility. Now I want to tell you what the government said to them.  I want to tell you want Papa McGee said to them, Papa McGee of Kerr-McGee. Papa McGee of Kerr-McGee in a letter – which I blew up about eight feet tall and four feet wide, and it was three pages and covered the whole side of the courtroom – said to the ladies and gentlemen of the jury and to those little people out there, that the plutonium industry and the radiation industry was the safest industry in America. Karen Silkwood didn’t believe that.  She saw these open faced farm boys who were being polluted everyday, who were being contaminated with drippy pipes and escape from all kinds of containments.  She saw tragic exposures daily with these people not knowing what it was about.  She saw them playing with pellets of uranium – throwing them around and shooting them with little slingshots.  She saw them taking out enriched uranium and using it as if it were some kind of curiosity as paperweights on their desks. I heard her plaintiff voice over a tape recorder when she talked to Steve Wodka.  The matter had been taped and was played to the jury, in which she said in a very quiet way, in a very frightened way, she said, “Steve, these are only 19 and 20 year old boys, and they don’t know what is going on.” How do you feel about that?  How do you feel about it when these boys – these 19 and 20 year old boys three or four years later come into the courtroom, and brothers and sisters, for the first time they get up on the stand and say we didn’t know that plutonium inhalation would cause cancer until we read it in newspaper accounts of this case.  What do you think about that?  Do you think that Kerr-McGee, corporate America and the government, has done its job?  And how would you like to know that these people who are supposed to take care of the health and safety, the so-called “health physicists” – that is a big word, you might want to write it down, madam, “health physicists” – authored little pamphlets for these people to take home under their arm and take into the kitchen and sit down with their families and to read about their health and safety, that these pamphlets were full of nothing but garbage and hogwash. And so I said, “How come this pamphlet is full of garbage and hogwash?  The jury and I would like a little better answer to that question.”  Well, he took offense to that. I said, “Did you have any kind of basis?”  Now watch these interesting questions, the skillful cross examination, zooming in on the opponent, I said, “Do you have any basis for that?”  He proved that he did.  He said, “Yes, I have got a 1954 article.” I said, “That is beautiful.  I bet you don’t have it with you; do you?”  He said, “I have got it right here in my briefcase.”  I said, “That is nice; let me see it.” And here was a 1954 article, old as the hills.  And guess what it said?  It told the whole world about those poor workers in Yugoslavia in the pitch-blend mines who die by the thousands.  It said that we have long known that alpha particles cause cancer.  It told clear back in 1954 about the poor women who didn’t know anymore about the dangers of radiation than the poor workers at the Cimarron Facility, the poor women who were the radium dial painters who put the paintbrush to their lips like this and curled up the end of the paintbrush to put the number on in radium to make our watches so that we could wake up in the night and see what time it was – and they died by the scores and the hundreds. The article told about cancer to dogs and how every one of the dogs injected with plutonium died, most late in life all of them of cancer with a few exceptions.  They all died of cancer of various kinds – bone cancer, cancer of different kinds of organs and many of them in their late years. And the bottom line was that we know that radiation from alpha particles causes cancer. And so, ladies and gentlemen, how is it that the government knows that, that industry knows that, that health physicists know that, that anybody reasonably informed knows that, that everybody in the world knows it excepting those poor open-faced boys and girls?  How is that?  And why is it? I asked the question of the ladies and gentlemen of the jury.  And I asked the witness.  I said, “Is that because, Mr. Health Physicist, if you had told the truth in your little pamphlets that they take home to their children and sit and read around the table while they drink coffee in the morning – if you would have told them the truth, you couldn’t have got a single individual to come to work for you; could you?  Not one?" Mr. Paul said, “Why, Your Honor, that is ridiculous.”  Facts came out like that, that Karen Silkwood knew about.  She knew about the doctored microphotographs or photomicrographs – or the x-rays.  She knew about that fine customer service that Kerr-McGee was providing.  She knew about the fact that there was 40 pounds of plutonium missing from the plant. And that got an objection from Mr. Paul who said, “It isn’t missing, it isn’t missing, Your Honor, and I object.  It is unaccounted for.” And I had a heck of a time in that trial keeping that straight in my mind.  I kept fumbling around because I couldn’t remember the distinction between “missing” and “unaccounted for”. But you know you get such things as the statement of Dr. Gofman that one pound of – now listen to this.  You listen to this, too. Dr. John Gofman said that there are 21 BILLION lung cancer doses in ONE POUND of plutonium if it is evenly distributed in the lungs, if it is evenly distributed in the lungs of people. Their own experts, under cross examination, had to admit to huge figures of this kind that included such statements by our people that a half a gram – now note that I don’t know how much a half a gram is, but I am told it is about that much (indicating).  It is a little tiny bit, Madam Reporter.  A half a gram of plutonium evenly distributed among the population of smokers in this country will cause 32 million cancers.  There were 40 pounds, not missing, but unaccounted for, at that plant.  That is enough some say and some claim to make four bombs of the kind that were dropped on Hiroshima and Nagasaki. The security at that plant, given the best security that Kerr-McGee would admit to, the best they could come up with, they admitted openly, without any shame, would permit a half a gram of plutonium to be taken out of that plant day or night by any worker without detection. Did you hear that?  Thirty-two million lung cancers could be taken out of that plant day or night by any one of the employees at any time.  And prior to 1974, as much plutonium as they wanted under any circumstances could be taken out because there was no security at all. Karen Silkwood knew these things.  Does any of that anger you, or does it just bore you? Karen Silkwood knew these things and was on her way to talk to the people at the press.  And as she walked away from the plant that night, she had a little packet under her arm.  It was a packet of papers about that thick and about that long in a brown case, the testimony was, and the witness could see things that looked like photographs and x-rays kinds of things in the packet.  There were Kerr-McGee papers with Kerr-McGee emblems on them. She walked out with those under her arm, and she said, “I have got the goods on these people, and I am about to meet with Mr. Burnham of the New York Times.  They are waiting for me at Oklahoma City."  And fifteen minutes later, she was dead in a ditch. And people say – some reconstruction accident experts say that she was run off the road and struck from the rear.  The papers which she had were never found. The next day, they came to the garage and the papers were gone, all gone.  And there were two Kerr-McGee employees at least who had visited the garage during that period of time.  None of that information was permitted to go to the jury by Judge Theis who thought it was irrelevant to the case, so I want you to know that that is not the way we prove exemplary and punitive damages. But there were some things that we did talk about.  For example – well, it must be time to quit.  It really hurts my feelings to see you fellows leaving.  I hope they all represent the utility companies. There were these kinds of things, ladies and gentlemen, I asked Mr. Kerr-McGee when he took the stand, I said, now Mr. Kerr-McGee, before you entered into such an important and dangerous undertaking as playing around with plutonium, certainly you got some expert advice from people that know.  And he said, “Why yes, I talked to Mr. Dunn,” he said.  I said, “That must be the Mr. Dunn that the jury and I have heard from already.”  He said, “Yes.” I said, “That is Mr. Dunn of Potash.”  “Yes,” he said. Now Mr. Dunn had already testified to the ladies and gentlemen of the jury and said he had come along as kind of a freebee along with Potash.  They bought American Potash or some such company and got Mr. Dunn free in the deal.  That is a big bargain.  You buy Potash, you get Mr. Dunn. Mr. Dunn had never seen a plutonium plant – never designed one, never ran one.  But he was in charge of the whole deal, Mr. Dunn of Potash. So we got to looking a little further, and we found out that the man in charge of the whole nuclear spread was a man by the name of Mr. Zitting who had never seen a plutonium plant, never run one, hadn’t any idea about how to construct one.  He had been up in Wyoming, Mr. Zitting, along with the rest of us country boys. Then we got to looking for the people that ran it. It was a man by the name of Morgan Moore who had been in petroleum.  I am talking about punitive damages; do you remember?  Gross, reckless disregard for the safety of people. Mr. Morgan Moore was a petroleum plant operator.  Now all these people, Mr. McGee, said were good money people.  He said, they are fine men.  I said, “Mr. McGee, I bet they are good managers; aren’t they?”  He said, “Yes.”  I said, “And they are good money people; aren’t they?”  He said, “They are excellent managers.” I was impressed except for the fact that Mr. Moore had never run a plutonium plant, and there he was in charge of this one.  And the man who was in charge of the health of the workers of the plant – of course, he was not a certified health physicist, but he had a lot of good background.  I have to give him credit for that. Now ladies and gentlemen, you have to give credit where credit is due.  I had his personnel file for cross examination.  I kind of walked up to him when it came time to ask some of my kind of questions.  And I said, “Now, I sure have been looking at what you did here in school.  You did a good job.”  He said, “Yes, sir.”  I said, “You sure got good grades.  I see all these A’s and B’s.  This sure is a mighty impressive record you have got there.”  He said, “That is right.” I said, “You must have graduated right there at the top of your class; is that right?”  He said, “Yes, I did, as a matter of fact.”  He had one of them kind of crooked smiles that always comes up on the side of his face.  When you really get to him, it would come up on the other side of his face.  If you would watch that carefully, he would give you a clue. And it started coming up on the other side of his face when I asked what was it that you did when you got out of school and put to work your education?  He kind of hesitated a minute.  I said, “Why don’t you just turn to the ladies and gentlemen and tell the ladies and gentlemen of the jury what your degree is in?”  And he says, “Poultry farming and turkey raising.” Now that, of course, qualified him to take care of health physics – of course, to be fair, he had some other experience but his degree was in poultry. I found that there was a fellow from a company that did all kinds of things.  They manufactured paint.  He was the man who designed the whole shebang at Cimarron. This man had never designed a plutonium plant before.  He had gone over and seen other plutonium plants which had been failures, somewhat, and designed this after those other plants because it was now the state of the art; don’t you know? And I said, “What kind of experience have you had?”  He got to telling me how they made Durkee’s dressing.  You know, he was in charge of it.  Well, that is impressive now.  You have got to hear that.  A man is in charge of Durkee’s dressing on one side, making Durkee’s dressing, is in charge of the safety of the workers in those Durkee’s Dressing plants that was owned by the paint plant.  They make paint and Durkee’s dressing in the same company, which hadn’t anything to do with the Silkwood case. But on the other hand, we have the turkey farmer, and I got to thinking about turkey sandwiches with Durkee’s dressing.  I got so sidetracked and so hungry one day when I got to thinking about that that I asked the Court for a recess. This was the basis in part, of the expertise, brothers and sisters, of the putting together of that plutonium plant. Now, I don’t know what will be revealed when you start to look at the operation of the Three Mile Island proposition and the kind of training that these people have had and the records that are involved that show the training.  Don’t take them on face value, please.  Look behind the records.  Talk to the people.  But get the records. How about the security?  Do you know who the security was there, the man in charge of this stuff, this plutonium that is so potent that half a gram in the New York water system would require the entire water system in New York to be dug up?  Do you know who was in charge of that system?  A man retired from the Air Force whose work in the Air Force had been in maintenance. There was all kinds of evidence about how the fish were killed in the Cimarron River, and men out in their suits and ties burying the fish and trucks were washed in town, and the pollution from those trucks was going down the Crescent water system.  And there was a café that was contaminated; there was this one café, at least, with people who were contaminated themselves who came in and, contaminated nobody knows how many other people.  It was never reported to the NRC because they didn’t want anybody to worry.
There, of course, was the continuing lie to the workers, and finally, there was what I have already called a kind of sadomasochistic relationship between the government and industry.  Now what is a sadomasochistic relationship? Government and industry have to admit that.  They know they hate each other with a passion.  It is just as if industry feels like it is chained, and the government is whipping it, but there is a sort of gleeful grin on its face as it gets the whip.  There is a little slobber of joy that comes down the corner of the mouth of the industry, but when the chips are down, they are there together hands clasped together. A doctor was to be their last witness.  He was the top man in government-funded project. Here we had been in this trial for three months, and they called this doctor.  He had looked at Karen Silkwood while she was alive and put her in a machine to see if she had any lung burden.  He said, you don’t have any lung burden.  He couldn’t find any lung burden. On cross examination, examination, we find out that her autopsy showed she only had five nanocuries, which Dr. Gofman said absolutely married her to cancer.  That is his language – five nanocuries married her to cancer.” The doctor said she didn’t have any problem and told her so.  On cross examination, we found out that there were some people with as high as 240 nanocuries – even higher than 240 nanocuries in their bodies whose burden could not be detected by the machines that they used.  So the tests were meaningless.  They didn’t know if she had five nanocuries, no nanocuries, 240 nanocuries.  There was no way they could know because the machine didn’t register as low as 240 nanocuries. She asked the doctor things like whether or not she could have babies.  He said, “Yes.”  Then she said, “Will they be deformed?”  He said, “Why, of course not.”  There was a doctor patient relationship between them based upon that evidence. And later on, we find him testifying there in Court as the paid consultant for Kerr-McGee.  This man who was the highest man under that government supported programs who was the man at the top of the totem pole, who was in charge of the environmental studies, the health studies of some 12 major studies involving thousands of personnel he was the top man, Kerr-Mcgee plucked him off and brought him into Court and had him testify against Karen Silkwood as the paid consultant of the Defendant, not only of Kerr-McGee, but of such people as Mobil Oil. The numbers games are frightful.  It was he, this Doctor who under cross examination said such things as “yes, yes, we are nothing but “numbers crunchers.”  They are numbers games. Dr. Morgan, who was the father of health physics, who has trained the trainers of the health physicists of this country, who is the man who was on the committee who established the world’s safest standards in the international organizations came into Court and humbly said, “although I was on the committee many years ago which established the standard of safety, it is meaningless.  It is as many as four hundred times too high.  Did you hear me?  It is four hundred times too lax. Dr. Martel – he was a straightlaced, red necked, short-haired, silver topped, old daddy out of Annapolis, an old Navy officer who came stiff and straight into Court and sat down, and he had done the work at Rocky Flats testing the environment when the government and industry told the American people that there was nothing wrong there, he came into Court and said those numbers games are meaningless.  They are a thousand times too lax. Dr. Gofman in his very picturesque but straight language called the standards “A license to kill. I am going to conclude this by telling you that the Silkwood case stands for the fact that the American system is still alive, that lawyers like you and like me can still go into our Courts.  We don’t have to be very bright.  All we have to know are a few facts.  All we have to do is to tell the truth and tell it straight.  This case stands for the proposition that the jury, not the government, is going to set the standards. The jury has the right to determine whether those standards are real or meaningless.  The jury is going to determine if the government standards are safe, and whether there is or isn’t an injury based on facts, not what some government agency says is safe. Mr. Kepler was the high man on the totem pole in the NRC for his district.  He had checked and investigated the plutonium plant at Kerr-McGee.  He had found 554 contaminations of individuals there on the records that they keep themselves.  I don’t know how many there were that they did not tell us about. He found that there were at least 75 violations of regulations by Kerr-McGee.  I am still talking about exemplary and punitive damages, ladies and gentlemen. I said to him, “It is kind of like getting stopped by a traffic cop, isn’t it, and he gives you a citation?”  He said, “Yes.”  I said, “For like speeding?"  And he said, “Yes.”  I said, “After you speed the second time, they kind of give you another citation?”  And he said, “Yes.” "And then after they give you 76, they surely give you a fine; don’t they – after you have gotten 75 citations?”  He finally said, “We didn’t ever fine Kerr-McGee, never in their history.” The case stands for the proposition that truth is a lot cheaper than fiction.  It would be a lot cheaper to go into Court and tell the truth – the straight, plain, unadulterated truth, to make an honest defense, tell the ladies and gentlemen of the jury what you have done and deal with the facts straight, and it stands for the fact that workers have to be told the truth. It stands for what I call the harvester ant syndrome.  If you will permit me, in closing, I will tell you a Wyoming true story.  By the way, I see a Wyoming man here.  It is a small world. In  Wyoming, we have what are known as the harvester ants.  I don’t know if you have harvester ants out here or not.  In Wyoming, they are a plumb nuisance.  They cover half the landscape. A third of the counties, they say, are taken out of grazing in Wyoming because the harvester ant comes and builds his big house.  Then those little ants tromp around the big house like your kids do around your house until they cover an area of 20 or 30 feet in diameter.  Those anthills are all over.  It takes all kinds of land.  And if we could just wipe the countryside free of the harvester ants, we would be so happy. While I was practicing in Riverton, Wyoming, one of my next door neighbors was a member of the Game and Fish Department.  We were a little community there, about five thousand people.  And he was trying to figure out how to kill the harvester ants. He was a great scientist.  He figured out some poisons.  And the poisons, you see, when they were eaten by the ants, they killed them immediately.  But the ants soon found out where the poison was coming from and quit eating it. You and I both know that that isn’t intelligence because intelligence is reserved only for human beings. All other creatures in the world are not intelligent.  They are instinctive; isn’t that right?  The harvester ant is one of those non-intelligent creatures who just quit eating the poison.  We intelligent people continue to eat poison everyday; although we know it kills us, but not the harvester ant. So they found a new kind of poison they can put on the feet of the harvester ant.  It would be absorbed up through the body when the harvester ant walked into his house.  So they put the poison all around the anthill so surely that would get them.  It did until they found out where the death was coming from, and they built a bridge across it. Finally, this man said I fixed a poison that would get them good.  It is a poison that they eat today, but nobody dies in the anthill for 25 days.  And then guess what happens?  They all die at once.  And they killed the harvester ants. The Karen Silkwood case, brothers and sisters, stands for the proposition that we know the truth.  We know that the harvester ant syndrome doesn’t apply to us, that plutonium will kill us 20 or 30 years from now; we know what radiation and alpha particles will do in this generation and the generations to come. We are in an extraordinary era in our life.  We are part of a great and extraordinary part of history. Those of you who have the presence of where we are and what is happening to us know that.  The cases that you and I are going to deal with today and tomorrow have to do with how we as a species will survive. Godspeed in your undertaking.  Thank you very much for permitting me to be a part of your program and to be with you today.

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