THERE IS STILL JUSTICE IN AMERICA

Most jurors have an asset that many judges lack: common sense and a sense of justice that has not been impaired by Harvard Law School or other Halls of Higher Unlearning. The Hon. John Sirica sentenced a man (Gordon Liddy) to 10 years in prison for a first-offense burglary in which nothing was stolen and no resistance was offered to police; and the equally honorable Gerhard Gesell ordered the Dept. of Labor to accept an application for reinstatement by an alcoholic fired after a 12-week absence.

How gratifying and inspiring, then, to report on a judge who went through 10 months of self-elected, self-imposed, intensive study of health physics in his dedication to the highest values of a civilian society: justice and truth.

The man is Judge Patrick F. Kelly of the US District Court in Kansas. The plaintiffs were five parties of cancer victims seeking damages from 21 defendants who had been exposed to the ionizing radiation of radium paint used in luminescent dials. 20 of them settled for a total of $1.6 million, as is now customary for companies who, after ample experience ranging from asbestos to Agent Orange, realize that in the present climate it is easier to pay up than to defend the truth. Only one defendant insisted on a trial: surprisingly, perhaps, it was the United States. The leading attorney for the US was Donald E. Jose, Asst. Dir. of the Torts Branch, Dept. of Justice, who also won the Dennis case and several other trials of this type. Jose is a hard-working lawyer who realizes that the PAWs must be defeated on their own grounds: health physics. He has been diligently studying the subject; in the present case, for example, he filed a 3-volume post-trial brief. I hope he and his colleagues will provide many more occasions to visit these pages.

"As these cases commenced, this Court, a layman in the truest sense, impressed with representatives of the plaintiffs' counsel from the outset, received the government's claims with some skepticism..." [but after prolonged and serious study, he changed his mind:]

"This Court accepts BEIR III [see reference after ½-inch leap item, p.3, this issue, P.B.) as eminently authoritative..."

While Dr. Morgan can use his complex mathematical approach to calculate any dose he wants, his conclusion is obviously scientifically flawed and contradicted by both common sense and available factual data...

"This is not a situation where the scientific community is equally divided between two respected schools of thought. It is a case where there is a small, but very vocal, group of scientists, including Drs Morgan and Gofman, that holds views which are not considered credible by experts in the field.

"This Court rejects the opinion testimony of Dr. Morgan and Dr. Gofman because they both evidence an intellectually dishonest invention of arguments to protect their opinions...

"The paramount and obvious overriding interest [of the United States] has been 'to put to rest, once and for all, the likes of Drs. Gofman, Morgan and Johnson.' [...] These experts' conclusions are not supported by any fact other than that the instruments are coated with a radioactive paint and each plaintiff has cancer. Beyond that there is nothing! Further, the factual data is inaccurate, incomplete, and is the product of rank speculation. [...] This Court is disappointed with the apparent fact that these so-called experts can take such licence from the witness stand; these witnesses say and conclude things which, in the Court's view, they would not dare report in peer-reviewed format...

"Every year a model coal-fired generating plant releases enough radium from its smokestack to make 200,000 average aircraft dials. This smoke is not labeled. Every year Florida ex-ports enough unlabeled radium-226 in fertilizer to make 300,000 aircraft instrument dials. If this court accepted MIL-STD-1458 (label at 0.01 microcuries) as the reasonable person standard, then every 10 lbs of standard Kansas wheat farm fertilizer would have to be labeled because it contains that much radium ... a reasonable person in Kansas would have a tort duty to label every bucketful of dirt he owned ... that Kansas town would be required to label every 600 gallons of public water."

Hats off to Judge Kelly! I am sending him a lifetime subscription to Access to Energy as a token of my deep respect and admiration. If you, too, feel gratitude to a man who puts justice above fashion and reason above repetition, please send him a word of appreciation: The Hon. Patrick Kelly, US District Court (Kansas), US Courthouse/Room 232, 401 N. Market St., Wichita, KS 67202.

[Source: Johnston vs. US, US District Court for the District of Kansas, Memorandum and Decision filed Nov. 15, 1984.]