RADIATION AND JUSTICE

There's too much radiation in this issue already, but I can't resist bringing one more item. It should not be concluded from the editorial that Kerr-McGee was altogether innocent in losing their case against Silkwood: they defended it with lawyers who knew all about the law and nothing about radiation. Nor were they the only ones. In suit after suit, plaintiffs who had contracted cancer after being exposed to some amount of radiation would get themselves a smart lawyer (or more frequently, I suspect, a smart lawyer would get himself a client on a contingency fee), bring in the professional antinuclear witnesses Morgan, Gofman, Johnson, Sternglass & Co., make the jury weep in outrage, and collect fabulous fees from private companies and the government. Defendants, though knowing themselves innocent, would settle rather than appeal, and often settle without even going to trial.

The crucial point that defense lawyers were unable to make to judge and jury was that of causation: not every cancer is due to radiation, and not every dose produces cancer. They made the point in theoretical principle, but they were unable to expose the club of professional witnesses' testimony as a sham, or to show that jury members were often exposed to the same dose in ordinary life as the plaintiff who was trying to collect.

The man who, I believe, has more merit than any other in beginning to stop this ripoff is Donald E. Jose, who until his recent joining a Philadelphia law firm was Assistant Director of the Torts Branch, Civil Div., US Dept. of Justice. He made a thorough study of health physics and began turning the tide, especially after he had trained other lawyers in his department. After a string of defenses in which meritless suits were dismissed (but given no publicity), he refused to settle a case for the US government which the other 20 co-defendants, all private companies, had settled for the reasons given above. The result was the 150-page Opinion by Judge Patrick Kelly of the US District Court, Kansas, in 1984, which may have discredited the Morgan & Co. club of professional witnesses for good [AtE Feb, Apr, Jun 85]. I have little doubt that had he defended the Silkwood case, he would have decanonized St. Karen. His method: educating judges and juries on the facts of radiation.

Yet clearly there must also be cases where a plaintiff has been genuinely injured by negligently released radiation, and he or his survivors are entitled to compensation. How can his case be distinguished from the ripoffs motivated by greed and politics?

Most scientists would say compensate everybody in proportion to the probability of causation, which is fairly easy to establish by Bayes' Theorem [AtE Nov 82]. This has a number of advantages, including the total compensation (merited or available) being distributed in the mathematically fairest way. Also, frivolous suits would not be filed because of the minute damages to be collected.

But no, that cannot be the only criterion, says Jose,... and here I must refer you to the references below.

[More: R.J. Catlin, "Determining probability of causation," Nucl. News June 86; D.E. Jose, "The limitations of probability of causation," Nucl. News July 86; V.P. Bond, "The need for probabilities in cancer litigation," Nucl. News, Aug. 86; debate by all in Nucl. News Sept. 86. See also D.E. Jose, "Causation in toxic torts," Toxics Law Reporter, 7/2/86 (Bureau Ntl. Affrs., Wash DC); D.E. Jose and R.A. Henderson. "Silkwood and Dennis," Baltimore-Wash. Chapter HPS Newsletter, May 1984; Judge Kelly's Opinion, Federal Supplement, vol. 597, pp. 374-434.]