Chernock v. US, 87-50009-RV.
| Decision Date | 14 June 1989 |
| Docket Number | No. 87-50009-RV.,87-50009-RV. |
| Citation | 718 F. Supp. 900 |
| Parties | Joseph S. CHERNOCK, Charles Young, and Conor P. Sheehey, Plaintiffs, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — Northern District of Florida |
Lynn C. Higby, Bryant, Higby & Williams, Panama City, Fla., for plaintiffs.
K.M. Moore, U.S. Atty. N.D. Fla., Pensacola, Fla., and Leon B. Taranto, Torts Branch, Civ. Div., U.S. Dept. of Justice, Washington, D.C., for defendant.
The plaintiffs filed this suit under the Federal Tort Claims Act, claiming damages as a result of exposure to radiofrequency radiation at Tyndall Air Force Base in Bay County, Florida. The cause was tried before the Court without a jury on February 6-7, 1989, in Panama City, Florida. After hearing all the evidence, I ruled from the bench for the defendant. In accordance with Rule 52(a), Federal Rules of Civil Procedure, I make the following findings of fact and conclusions of law.
The three plaintiffs Joseph S. Chernock, III (Chernock), Charles Young (Young), and Conor P. Sheehey (Sheehey), with Chris Ullem (Ullem) arrived at Tyndall Air Force Base on the morning of Saturday, December 21, 1985, to repair the catwalk encircling Building 1281, also known as the Radome. A contract for maintenance on the Radome had been awarded to John McLemore of Beaches Remodeling in Panama City, Florida. He contacted Chernock who was then doing business as Ace Products, an aluminum fabricator, with respect to providing labor and materials. The Radome contract required the wooden railing on the Radome catwalk be replaced with an aluminum railing. Chernock arranged for Young, Sheehey, and Ullem to help him perform the subcontract, and the four men arrived at Tyndall with McLemore between 8:00 and 9:30 a.m. on December 21 to begin work.
Building 1281 is a joint use site for the Federal Aviation Administration (FAA) and the United States Air Force. It houses the Air Route Surveillance Radar (search radar) and a beacon transponder system, both used by the FAA for air traffic control. About 400 feet away from Building 1281 is Building 1283, the site of the Height Finder Radar. All three radar systems transmit radio-frequency (RF), or microwave, radiation.
The Radome contract required the work to be performed on weekends, when the search radar could be shut down and its functions assumed at another FAA site. The shut-down scheduled for December 21 was delayed, and at the time of their arrival, the crew was told that they could not begin work for about two hours.
McLemore, Ullem, and the three plaintiffs went to a breakfast restaurant and returned about an hour and a half later. Soon after their second arrival, the crew was allowed to begin work. The temperature on December 21, 1985, was cold; as the work was to be performed outside, the men had all worn several layers of clothing. The work of removing the wooden railing required the men to lay on their stomachs to remove the rail attachments at the base of the catwalk. The catwalk itself consisted of an open grill with a rough nap about 30 feet above the ground.
After the men had worked on the catwalk for about four hours, they communicated to each other that they were all suffering from nausea and dizziness. They decided to stop working for the day at about 2:30, and return the following morning. They informed the Radome personnel, secured their equipment, and left.
The four lived fairly close together. Young lived in the same house as Chernock; Sheehey lived next door; and, Ullem lived two blocks away. After showering and changing clothes, they met at Chernock's house.
Each man remarked to the others that he had noticed reddened skin on his chest. Chernock suggested that they go to Bay Medical Center for an examination. At the emergency room, the men were examined separately, but each man told the attending medical personnel of his work activities that day. Only Young's medical examination reports "florid chest skin." Chernock, Young, and Sheehey were all diagnosed as having suffered microwave radiation injuries.
Following the visit to the emergency room, the men were examined by Dr. Thomas Merrill. He saw the plaintiffs first about a week after the incident. At that time, no skin redness was present. He testified that redness and nausea were consistent with exposure to microwave radiation. Merrill prescribed Xantac for the plaintiffs' nausea.
According to Dr. Merrill, Sheehey and Young were not suffering from any permanent physical effects of the alleged exposure at the time of trial. Chernock was still experiencing hyperacidity, which Merrill believed was related to the exposure. However, Merrill testified that the damaging effects of exposure would most likely appear in the future rather than at present, and, therefore, future monitoring was necessary.
Michael Chandler, an electronics technician, was working at the Radome on December 21, 1985. According to Chandler, the search radar was scheduled to be shutdown that morning as soon as the work crew arrived. After the arrival of McLemore, Ullem, and the plaintiffs, Chandler requested permission of the FAA to shutdown the radar. He was denied downtime for a period of about two hours, which he communicated to the men. When the crew returned later in the morning, the downtime was approved. The search radar log indicates that it was shut down at 1755 Greenwich Mean Time, or 11:55 a.m. local time, on December 21. The beacon transponder was not shut down at all while the men were working. The search radar was returned to operation at 2140 GMT, or 3:40 p.m. local time.
Carl Johnson of the FAA testified about the operation of the search finder radar. He stated that it could not be turned on by accident, that it required 20 minutes warmup, and that there were audible alarms for unplanned startups.
Johnson and Robert Fent explained the operation of the height finder radar on December 21, 1985. During the time the crew was working, the height finder was manually oriented to radiate at 180 degrees in azimuth toward the south in a direction away from Building 1281. The radar blanker also had been turned on so that its power would shut off if it did rotate into the direction of the Radome; the blanker prevents the height finder from rotating into the arc which includes the Radome. The blanker was turned on at 1755 GMT (11:55 a.m.) and turned off at 2205 GMT (4:05 p.m.).
Sergeant Fairly was in charge of the height finder in Building 1283 on December 21. He was notified by Fent that the crew was working on Building 1281. He noted during the afternoon check that the search radar was off, but the beacon was on. He personally took manual control of the antenna and turned it into a 180 degrees south azimuth at 9:00 a.m.
The alleged overexposure was reported the next day to the Air Force. On December 26, 1985, Lt. William K. Shelton, Chief of Bioenvironmental Engineering Services at Tyndall, took RF radiation measurements on the catwalk of the Radome. Using a Narda Broadband Isotropic Radiation Meter (Model 8611), Lt. Shelton took measurements around the entire circumference of the Radome. He measured no significant radiation with the beacon transponder emitting and the search radar turned off. With both sources transmitting, he took a measurement of 0.02 mW/cm2 (milliwatts per square centimeters). Under Air Force standards, the permissible exposure limit for RF radiation produced by the search radar is 10 mW/cm2.
Dr. Eleanor Reed Adair, director of the microwave laboratory at the John B. Pierce Foundation in New Haven, Connecticut, testified on behalf of the defendant about the effects of RF radiation. She explained that there are two types of radiation: radiofrequency, or microwave, radiation, and electromagnetic radiation. The former appears at extremely low frequency ranges with very long wave lengths; the latter in the higher frequency range with shorter wave lengths.
At higher frequencies, there is greater energy. An electromagnetic beam has greater energy than the binding energy in electrons; thus, it causes the ions in matter, including flesh, to separate. This causes tissue damage in animals. Exposure to such "ionizing" radiation always produces an effect.
RF, or microwave, radiation, on the other hand, is "non-ionizing," that is, RF beams do not produce sufficient energy to cause ion separation. Exposure to non-ionizing radiation requires a certain threshold level to produce an effect. Below the threshold, there is no cumulative damage. Damage occurs because water molecules oscillate at the frequency of the beam. When the threshold is reached, heat is produced through friction. It is the heat, rather than the radiation itself, which causes damage from microwave radiation. In determining the threshold level for a potential damaging effect of RF radiation, two factors must be considered: the frequency of the beam determines its depth of penetration; the size of the organism determines the absorption rate of the radiation. The distance from a source also affects exposure levels because energy levels decrease with the square of the distance from the source.
The human body is able to effectively dissipate heat with no adverse biological effects at a specific absorption rate (SAR) of 4 watts per kilogram or less as averaged over any six minute period. The permissible exposure levels (PEL) under Air Force standards are based on an exposure to RF radiation of one-tenth this value, i.e., .04 W/kg. PELs are expressed as the maximum average plane wave power density, in milliwatts per centimeter squared, that individuals may be continuously exposed to with no adverse effect.
The search radar housed in Building 1281 is located on a tower about 20 feet above ground level. The radar's reflecting surface, or antenna, is contained in the Radome on top of the tower. The exterior catwalk is approximately 9 feet...
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