Atomic Test Case

By KURT ANDERSEN

For radiation victims, justice a generation later

The nuclear bombs began exploding in the Nevada desert in 1951, when Sheldon Nisson was five. "They used to tell us to get up and watch the blasts," recalls his mother Helen, who still lives in Washington, Utah, some 125 miles downwind from the test site. "We saw the clouds go over all the time. Our children played outside. All the while, the Government kept saying that it wouldn't hurt us." But when the last of 102 mushroom clouds rose above the desert in 1962, Sheldon Nisson was dead from leukemia. His cancer, along with that of nine other victims, Federal District Court Judge Bruce Jenkins ruled last week, resulted from exposure to those drifting clouds of radioactive fallout. The judge found that area residents had not been given sufficient warning about the dangers of radiation and ordered the Government to pay $2.66 million to the afflicted families.

Jenkins' elaborate 489-page decision, which took 17 months to complete, interspersed his reflections about physics, medicine, probability theory and Greek philosophy with the legal issues at stake. "This case is concerned with atoms, with government, with people, with legal relationships and with social values," he wrote. As evidence that atomic tests cause cancer, Jenkins cited several studies, including one of thousands of Utah residents who lived near the testing area: among those residents the incidence of cancer is 50% greater than normal. Some of the malignancy, Jenkins wrote, "is demonstrated to have been caused more likely than not by nation-state conducted open-air nuclear events."

The Government, Jenkins ruled, did not deliberately expose civilians to radioactivity in the 1950s, as some have suggested, when test bombs were being detonated almost monthly. Nonetheless, officials were negligent. When winds were blowing eastward from the test site toward the sparsely populated stretches of Utah and northern Arizona, the Government seemed unconcerned. Radiation sensors were few and often operated improperly. And officials disregarded evidence of potential hazards. Said former Interior Secretary Stewart Udall, one of the lawyers for the plaintiffs: "The tragic thing is that all this could have been prevented."

The ten successful plaintiffs were among a vanguard group of 24 whose cases were heard by Jenkins as representative of the claims being made by relatives of 375 cancer victims. In the 14 other cases, the judge decided, atomic radiation was not clearly the cause of cancer. J. MacArthur Wright of St. George, Utah, an attorney who represented the victims, was pleased that Jenkins' decision establishes clear standards for litigating--or settling out of court--the remaining cases. "What I see as important," said Wright, "is that in all of the leukemia cases we tried, the court ruled for us. And in two of the tumor cases, he ruled for us. So in the case of leukemia, thyroid and breast cancers, the judge seems to be saying that there is enough evidence to show that radiation was responsible."

The Government may seek to have each of the remaining cases tried separately. For last week's victorious plaintiffs, a long appeals process is probably inevitable. Jacqueline Sanders, 38, the only living cancer victim involved in the ten winning lawsuits, was buoyed by the district court ruling nevertheless. She still lives in St. George, where as a six-year-old she watched the tests and subsequently developed thyroid cancer. "The Government takes too many decisions without thinking of the people," she said. "This is just one small way of telling them that their power has just got way too big."

-- By Kurt Andersen. Reported by Russell Leavitt/Los Angeles

With reporting by Russell Leavitt/Los Angeles