Radiation overexposure claims: fighting defense tactics creatively.

In July 1994, workers and former workers at the Fernald, Ohio, uranium refinery reached a settlement in Day P. National Lead Co. of Ohio (NLO) under which they will receive three kinds of unprecedented relief from exposure to radiation.(1)

* Workers will be compensated based on the number of years they worked at the plant.

* Workers will undergo medical monitoring for the rest of their lives.

* Employees who file workers' compensation claims in the future alleging that they have diseases caused by their exposures at the plant are guaranteed that the employer will not oppose these claims if a panel of doctors finds that the exposures caused the condition.

The workers are further guaranteed that if the administrative agency (the Ohio Industrial Commission) finds that the condition is work related, the employer will not challenge that decision in the courts.

The facts of how the government and its contractors dealt with ionizing radiation and the application of these facts to emerging legal concepts offer many lessons-including suggestions for victims of harmful exposures who face arguments that their exposures were not sufficient to cause injury. The inability of the voluminous records kept at atomic weapons production plants to provide an accurate picture of exposures led to examples of how company-generated exposure and epidemiologic data can be attacked. Legal precedents offer possible avenues of relief for injured workers.

The settlement was the result of applying emerging legal concepts to the circumstances of the radiation exposures. These exposures were a direct consequence of nuclear materials and weapons production, beginning with the Manhattan Project that developed the nuclear bombs that were used against Japan in World War II.

The plants that produced the weapons were operated by private contractors, subject to government control and regulation. The government owned aH materials at the plants (an arrangement referred to by the government and its contractors as "down to the paper clips"), and the contractors were paid on a costplus basis in which all expenditures were to be government approved.

Information about the plants and the workers' safety and health was maintained by the government and its contractors. The contractors were indemnified by the government, and federal court jurisdiction was provided by the Price Anderson Act.(2)

Secrecy

Since its inception, the nuclear weapons program has been shrouded in secrecy. Workers were told not to discuss any aspects of their work outside the plants. When they visited their personal physicians, workers did not believe they were free to discuss the materials they were being exposed to.

Residents who lived near many of the plants were led to believe that the mission of die plants was far less hazardous than it was. For example, many residents near the Fernald plant believed it made animal food because it was known as the Feed Materials Production Center (FMPC). Major industrial accidents that led to radioactive contamination of adjacent residential areas were kept secret at Fernald and other similar plants. Although there is no doubt that production of nuclear weapons necessarily involves secrecy, documents uncovered in 1994 confirmed long-held suspicions that the government policy of keeping information "classified" was deliberately intended to accomplish more than protect national security. One recently declassified Atomic Energy Commission (AEC) document from 1947 said: However, there [are] a large number of papers which do not violate security, but do cause considerable concern to the Atomic Energy Commission Insurance Branch and may well compromise the public prestige and best interests of the Commission.

Papers referring to levels of soil and water contamination surrounding Atomic Energy Commission installations, idle speculation on the future genetic effects of radiation and papers dealing with potential process hazards to employees are definitely prejudicial to the best interests of the government. Every such release is reflected in an increase in insurance claims, increased difficulty in labor relations and adverse public sentiment.

Following consultation with the Atomic Energy Commission Insurance Branch, the following declassification criteria appears desirable. If specific locations or activities of the Atomic Energy Commission and/or its contractors are closely associated with statements and information which would invite or tend to encourage claims against the Atomic Energy Commission or its contractors, such portions of articles to be published should be reworded or deleted.(3)

Secrecy was also the policy regarding information on employee health. Workers at these facilities were the subjects of environmental, biological, and medical monitoring long before these procedures were provided for most other industrial workers. In addition to periodic measurement of radiation in work areas, many employees received biological monitoring, such as urine or breath analysis.

Because of known hazards, workers received annual medical examinations. The information acquired was made available under strict government control to a limited number of researchers.(4) It was not made available to researchers outside the government ambit until 1990 when Freedom of Information Act (FOIA) litigation(5) against the Department of Energy (DOE) was settled.

The government and its contractors allowed only the release of information purporting to show there were no hazards associated with radiation work. When researchers expressed concern about problems such as excess cancers, they were harassed. The efforts by the DOE and its predecessor agencies against scientists who reported worker illnesses have been the subject of congressional investigations.(6)

In plants such as Fernald, epidemiologic data were gathered for decades, but no public studies or reports were issued. The Fernald plant manager said, "[W]e do not believe the epidemiologic information currently available to us justifies dissemination to our employees."(7)

Whenever it was alleged that there might be harmful effects to workers or area residents, the government and its contractors were quick to dispatch scientists who would report on unpublished data--always with the reassuring conclusion that there was no possible harm. Studies were kept secret.

Misleading assurances of safety were a hallmark of reports the government and its contractors issued. In the 1940s, physicians recommended that the workers be told of their exposures, but the AEC's opinion was that "in place of the stated recommendation a terminating employee should be advised at the exit interview as to the care that the AEC utilizes in protecting each employee."(8)

However, the truth was well known to all but the workers themselves. When NLO considered hosting an employee picnic to improve labor relations in 1985, it had to be called off. The reason was plainly stated in a letter to Fernald's director of the Health, Safety & Environmental Division: "There is, however, yet a more compelling reason not to invite large numbers of people, particularly children, into the facility. As we have indicated, once friskers are placed in the changerooms and become readily available, workers are very likely to learn that they have frequently been leaving the plant contaminated." Friskers are devices that detect ionizing radiation and are commonly known as Geiger counters.(9)

Up until the late 1960s, workers at Fernald were assured that they had not been overexposed to radiation because their urine tests showed them to be "safe." This oft-repeated statement was based on many levels of misinformation.

Urine samples were taken for the primary purpose of determining exposure to the lungs--the organ most at risk as a result of inhaling uranium dust. However, for urinalysis data to be meaningful, samples must be taken frequently. Random or sporadic sampling is inadequate because any single test result provides only a "snapshot" of information.

Although a single test result could possibly represent a period of time when a person's uranium level was relatively stable, it could just as easily indicate a time when the level was rapidly rising or falling. If a sample result is "within limits" but was taken during a period of time when the levels were on the rise and no follow-up was done, doctors could inaccurately conclude that the worker was "safe" when, in fact, an extreme overexposure might have occurred. At Fernald, however, the infrequency of urinalysis and the haphazard follow-up made it impossible to tell what any single reading represented.

Even if the samples had been taken often enough to accurately determine the uranium level over time, the calculation for translating the urinary uranium levels to lung burdens was based on a faulty mathematical model. In the words of NLO health officials, the model was based on a study of "some mongrel dogs." The company went on to say, "Surely the worldwide uranium industry, after more than 20 years of operation, can produce more exposure data than that from one human, at least 14 years ago, and data from a discontinued study of a few dogs."(10)

The plant's health officials knew that their assurances were false for another reason. At the same time officials were telling employees that the urine tests were proof that the workers were "safer on the job than at home," a 1963 letter from the company doctor to the AEC said, "We do not consider the urinary uranium excretion measurement as an accurate method of estimating either body burden or exposure."(11)

The supposedly safe level of uranium in urine was based not on the radiation risk to the lung but on the amount that would block kidney function due to the chemical characteristics of uranium as a metal. These data were developed from experiments conducted by injecting radioactive isotopes into uninformed subjects, including terminally ill patients at the University of Rochester.(12)

Thus, although the doctors recognized that lung cancer, the principle health risk of inhaled uranium dust, was brought on by uranium's radioactivity, the "safety" level was based on the amount that would cause acute injury to the kidneys. Another problem with this calculation was that chemically induced kidney damage is an acute effect, while radiation-induced lung cancer has a latency period and often does not manifest itself for years or even decades. The company plainly stated this fundamental flaw: "[T]he present maximum allowable concentration for uranium dust is based on the chemical toxicity of uranium rather than the radiological toxicity."(13)

Use of Faulty Data

In addition to the shortcomings and logical inconsistencies in the exposure data that plant safety officials used to assure workers of their safety, the officials regularly reported false "exposure" data. These included "zero" entries when, in fact, no measurements were taken at all and even contained negative (below zero) exposure readings, resulting from "adjusting" the data by subtracting the so-called background radiation. Company reports of exposure data contained only averages (including the "zeros" and negative numbers), which had the effect of vastly minimizing instances of gross overexposure.

To accurately assess the radiation exposures at the plant for the first time, the plaintiff' counsel used court-ordered discovery to obtain the raw data for an independent study. The study started by examining the ratio between data on uranium in urine and data from in vivo monitoring of lungs in later years. An in vivo counter was used starting in the late 1960s to measure radiation emitted from uranium dust retained in the lungs. This allowed inferences to be drawn about lung data for earlier periods when no in vivo measurements were taken.(14)

Company and government assurances about satisfactory worker health were "backed up" by secret medical studies. At Fernald, research was conducted on workers in the 1960s.(15) It revealed a variety of problems but was not released, even to scientists from other government agencies who were studying the same workforce 20 years later.

Workforce Comparison

Plant and government doctors had based their assurances on favorable comparisons of the workforce to the population at large, known to epidemiologists as standard mortality ratios. The problem with comparing a working to a general population is that the latter includes people too sick to work. Any comparison between the two populations is skewed by the phenomenon known as the "healthy worker effect."(16)

The importance of this crucial distinction was recognized by the plant's doctors. The workers were thoroughly screened during preemployment physical examinations and were specifically selected because of their extraordinarily good health. Thus, any comparison made to the "normal" population that included weakened or ill people was inherently fallacious.

[The investigators] recognized early in this study that the employees at these feed sites had been selected through a preemployment screening and had satisfied certain requirements with respect to education, social compatibility, security clearance, and medical suitability. This meant that they could be expected to be different from the general population and probably different from any other industrial population ...."(17)

The problems in assessing the health of nuclear weapons workers are inherently related to the particular hazardous qualities of ionizing radiation. By the late 1940s, these hazards were known by the government and its contractors.

By 1951, it was recognized that ionizing radiation causes genetic damage and cancer and that there is no threshold level of exposure below which these risks are nonexistent.(18) In other words, there is no magic level above which risk of injury begins and below which people are completely safe. The Advisory Committee for Biology and Medicine of the AEC straightforwardly said, "[C]ancer is a specific industrial hazard of the atomic energy business."(19)

Iorizing radiation poses unique biological hazards. Unlike many toxins and carcinogens, radioactive material such as uranium dust physically remains in the body for extended periods, causing continuous exposure and injury. Uranium exposures were known to be greatest during the 1950s and 1960s, and millions 6f dollars were spent on epidemiological studies of workers. Yet the company never calculated the radiation doses for these most heavily exposed workers, and no study of worker health has been published in the public domain.

The hazards of ionizing radiation posed dilemmas for plant managers. Because there isn't a threshold dose below which there is no risk of cancer and because only limited empirical data were available, the official policy of the weapons plants was to keep radiation exposure to a minimum.(20)

Over the years the policy became formalizcd: first under the acronym ALAP (As Low As Practicable) and later as ALARA (As Low As Reasonably Achievable). In simple terms, the Los Alamos lab said, "Any unnecessary exposure to radiation is too much."(21) Early in the plant's history, Fernald's medical director said, "Every effort should be made to keep all exposure to both penetrating and nonpenetrating radiation at the lowest possible levels."(22)

It is important to recognize that the ALARA principle is ambiguous by definition. Determining how much money to spend to lower exposures depends on the interpretation of "reasonable."

As a result, objective (numerical) exposure limits were developed. However, as previously noted, these levels were based on extrapolations from limited data and therefore could not be said to guarantee safety. The focus of NLO's industrial hygiene activities and reports was attempted compliance with these numerical goals even though the more general prime imperative--to keep exposures as low as possible--was simultaneously in effect.

This two-track thinking continued throughout the operation of the plant. Although management and health officials repeatedly told the workers they were safe because exposures were "within limits," internal documents unavailable to workers acknowledged persistent hazardous exposures. These "confidential" memorandums frequently cited management attitudes of "catch-me-if-you-can" and "production first" that prevented effective improvements in health and safety.

Legal Theories

Efforts to obtain restitution for workers based on a claim of overexposure to radiation face formidable legal hurdles. The workers' compensation system was designed to be the exclusive remedy for workplace injuries and is a roadblock to tort claims. Traditional avenues to escape this bar follow three lines of reasoning.

The first legal theory is based on a claim of intentional injury. For instance, workers' compensation was not intended to cover assaults by an employer. The second theory is a claim of fraud. This exception arises when the employer has concealed the availability of workers' compensation, and the theory may be akin to an argument of equitable estoppel. Finally, it has been argued that some injuries by their very nature are not covered by workers' compensation. These include claims of slander, discrimination, or retaliation.

Proof Requirements

Day was premised primarily on a theory of intentional tort. In Ohio, an intentional tort is legally sufficient to avoid the exclusivity of workers' compensation if the employer required the employee to work under conditions that made the injury substantially certain to occur.(23) The Ohio courts have held that this theory can be applied to overexposure cases, but the employee must be able to prove more than the employer's negligence, or even gross negligence or wantonness.

The case focused on injuries that were not personal injuries in the traditional sense. Plaintiffs argued that overexposures caused an increased risk of cancer that made medical monitoring necessary. The legal injury was not the increased risk itself but the need for medical monitoring. This injury has been determined to be an economic injury.(24) Other cases have argued that medical monitoring is the kind of injury that is not covered by workers' compensation and, thus, there can be no bar against it.(25)

Day also focused on a second type of injury not covered by workers' comp: emotional distress. To determine if plaintiffs could escape the workers' compensation bar, the court had to determine whether the emotional distress was severe and debilitating, as well as what the source of the distress was.

Some states allow plaintiffs to escape the confines of workers' compensation with claims of mental distress that do not stem from a physical injury but block emotional distress claims that grow out of a physical injury. Therefore, the Day court had to detemine the nature of the claim of emotional distress as a result of overexposure.

Good Examples

Day was particularly well suited to class certification because it short-circuited the defense that the injuries were individual. The case was certified as a mandatory non-opt out Rule 23B2 class because it did not focus on claims of individuals.(26)

Plaintiffs pointed to the employer's systematic policies and practices that led to overexposure, such as (1) the knowledge of the health hazards of radiation, (2) the conscious decision not to lower exposures despite poor working conditions and gross overexposures, (3) the practice of false reassurances, and (4) false and misleading radiation-exposure record keeping. By contrast, the defense effort was directed toward the exposure records of particular people and the lack of actual malice toward specific plaintiffs.

Excluding personal injuries made settlement more likely because there was less individuation of the issues that were in dispute and because any worker with a personal injury still retained the right to pursue that claim regardless of the settlement.

Finally, the plaintiffs sought to demonstrate that workers had not been treated fairly or honestly by the defendant when workers' compensation claims were filed. This contention was bolstered by company documents that bragged,

In the alleged radiation cases, [the State] relied on the facts presented by our staff in presenting their cases. The radiation claim was disallowed in all four cases.... Our Director of Health Safety has spent some time over the last few years indoctrinating the Ohio State Workmen's Compensation Investigator assigned to our radiation cases in the various aspects of radiation hazards.(27)

Other compelling evidence of collusive efforts between the AEC and its contractors to evade and mislead applicants for workers' compensation has been uncovered.(28)

Day also asserted the fraud exception to workers' compensation exclusivity, and it resulted in a settlement where the DOE agreed to be bound by new procedures in future workers' comp cases. Previously, the AEC, DOE, and contractors (including NLO) collaborated to deny workers' comp to employees claiming to have radiogenic disease. These joint efforts of the government and its contractors had been almost universally successful.(29)

The AEC and DOE have been criticized for spending funds far exceeding the highest potential compensation awards to defeat these workers' claims. The Fernald settlement put into place a three-doctor panel (one doctor to be chosen by the workers, the second by the DOE, and the third by the court if the first two doctors could not agree on a third) to review all claims of occupational disease. The DOE bound itself to not oppose any claims that the panel found to be work-related and also agreed not to appeal to the Ohio courts any final decision of the industrial commission for the workers.

Gaping Hole

Unique circumstances call for creative legal theories and remedies. In ruling on a motion to dismiss filed against the victims of AEC-funded human experimentation in a recent Ohio lawsuit, U.S. District Judge Sandra Beckwith responded to the argument that the victims' claims did not fit neatly into the traditional tort framework.

Quoting Thomas Jefferson, philosopher Isiah Berlin, and the Nuremberg trials, she observed, "If the Constitution has not clearly established a right under which these plaintiffs may attempt to prove their case, then a gaping hole in that document has been exposed."(30)

In Day, further evidence to support these points was developed. Although the hazards of ionizing radiation are in some ways unique, the tactics used by the defendants--incomplete exposure records, misleading epidemiologic data, false reassurances of safety, and rigid reliance on adherence to numerical "acceptable" limits--are unfortunately not limited to this industry and not unique to the AEC, the DOE, or any of its numerous contractors.

Notes

(1) 851 F. Supp. 869 (S.D. Ohio 1994). (2) Pub. L. No. 100-408, 102 Stat. 1066 (1988) (codified as amended at 42 U.S.C. [subsections] 2011-2286 (1993)). (3) Memorandum from the Atomic Energy Commission to the Advisory Board on Medicine Biology 8 (Oct. 8, 1947) (discussing medical policy) (emphasis added). (4) H. JACK GEIGER & DAVID RUSH, DEAD RECKONING: A CRITICAL REVIEW OF THE DEPARTMENT OF ENERGY'S EPIDEMIOLOGIC RESEARCH 21-22 (1992). (5) Id. at 22. (6) Id. (7) Letter from R-M. Spenceley, Manager at NLO, to M.R, Theisen, Director of the Weapons Division of the Department of Energy (June 29, 1984). (8) Minutes of the Thirteenth Meeting of the Advisory Committee for Biology and Medicine 8 Dec. 10-11, 1948) (available at Department of Energy Historian's Office Archives). (9) Letter from Linda F. Munson, Associate Manager of Dosimetry Technology Section, Health Physics Department, Battelle-Pacific Northwest Laboratory, to Robert B. Weidner, Director of Health, Safety & Environmental Division, Feed Material Production Center (June 12, 1985). (10) J.F. Wing et al., Accidental Acute Inhalation Exposure of Humans to Soluble Uranium 15 (June 1, 1965) (unpublished manuscript presented at the Tenth Annual Meeting of the Health Physics Society). (11) Letter from J.A. Quigley, M.D., Director of Health and Safety at NLO, to William T. Doran (Nov. 1, 1963) (discussing a proposed study about the correlation between radiation exposure and the health of AEC employees). (12) PHARMACOLOGY AND TOXICOLOGY OF URANIUM COMPOUNDS (Carl Voegtlin & Harold C. Hidges eds., 1949). (13) Radiation Hazards at Fernald, NLO document supplied in discovery (mid-1950s). (14) M.C. Thorne, Some Thoughts on the Interpretation of Uranium Lung Contents and Urinary Excretion Data (report by plaintiffs' expert written for the litigation) (rev. June 1994). (15) See, eg., Robert F. Bell, Feasibility Study Report (Nov. 1, 1962) (discussing preliminary findings on health problems of NLO workers exposed to uranium); J.A. Quigley & M.G. Mason, Epidemiological Study of Uranium Workers--Feasibility (May 31, 1963) (reporting further statistics on NLO worker health). (16) See generally Gregg S. Wilkinson, Epidemiologic Studies of Nuclear and Radiation Workers: An Overview of What Is Known About Health Risks Posed by the Nuclear Industry, OCCUP. MED. STATE OF THE ART PEVS., Oct.-Dec. 1991, at 717. (17) J.A. Quigley, Epidemiological Study of Uranium Workers--Feasibihty 11 (Sept. 14, 1967) (unpublished manuscript) (emphasis added). (18) See, eg., Hylton Smith & M.C. Thorne, The Origins and Work of the International Commission on Radiological Protection, INVEST. RADIOLOGY, Nov. 1987, at 918-21. (19) Letter from E.W. Goodpasture, M.D., Vice Chairman of the Advisory Committee for Biology and Medicine, to Gordon Dean, Chairman of the AEC (Dec. 3, 1951 (20) The uncertainties are such that he risk of cancer from radiation is still calculated by extrapolating from data on Japanese atomic bomb survivors. This data is still not complete and is in the process of being revised to better identify the hazards at lower levels of exposure. See generally COMMITTEE ON THE BIOLOGIC EFFECTS OF IONIZING RADIATIONS, HEALTH EFFECTS OF EXPOSURE TO LOW LEVELS OF IONIZING RADIATION 218 (1990). (21) LOS ALAMOS SCIENTIFIC LABORATORY GENERAL HANDBOOK FOR RADIATION MONITORING (Robert F. Barker 2d ed. 1954). (22) Address by J.A. Quigley, 43d National Safety Congress & Exposition (Oct. 19,1955). Ironically, this statement was made during the period of time when working conditions and the resulting massive exposures were at their zenith. (23) Van Fossen v. Babcock & Wilcox Co., 522 N.E.2d 489 (Ohio 1988). (24) Paoli R.R. Yard PCB Litig., 916 F.2d 829 (3d Cir. 1990), cert. denied, 499 U.S. 961 (1991). (25) See, eg., Acevedo v. Consolidated Edison Co., 596 N.Y.S.2D 68 (N.Y. 1993) (prophylactic care was not covered by workers' compensation and could not be barred by the doctrine of workers' compensation exclusivity). (26) 851 F. Supp. 869, 886. (27) Letter from J.H. Noyes to C.L. Karl (Oct. 22, 1958). (28) Sec, eg., Prescott v. United States, 731 F.2d 1388 (9th Cir. 1984). (29) Deposition of James L. Foutch, May 18, 1994, at 153-54. (30) In re Cincinnati Radiat. Litig., No. C-1-94-126 (S.D. Ohio Jan. 11, 1995).