Johnston v. United States

• Decision Date: 15 November 1984
• Docket Number: 82-1537,82-1539,81-1100,81-1061,81-1101 and 82-1538.,No. 81-1060,81-1060
• Citation: 597 F. Supp. 374
• Parties: Ada G. JOHNSTON, Individually, and as Administratrix of the Estate of Earl E. Johnston, Deceased, Plaintiff, v. The UNITED STATES of America, et al., Defendants. Barbara J. WOMACK and Loyd B. Womack, Plaintiffs, v. The UNITED STATES of America, et al., Defendants. Estella I. VESSELS, Individually, and as Executrix of the Estate of Don C. Vessels, Deceased, Plaintiff, v. The UNITED STATES of America, et al., Defendants. Lila M. MEWHINNEY and Richard M. Mewhinney, Plaintiffs, v. The UNITED STATES of America, et al., Defendants.
• Court: U.S. District Court — District of Kansas

597 F. Supp. 374

Ada G. JOHNSTON, Individually, and as Administratrix of the Estate of Earl E. Johnston, Deceased, Plaintiff, v. The UNITED STATES of America, et al., Defendants.

Barbara J. WOMACK and Loyd B. Womack, Plaintiffs, v. The UNITED STATES of America, et al., Defendants.

Estella I. VESSELS, Individually, and as Executrix of the Estate of Don C. Vessels, Deceased, Plaintiff, v. The UNITED STATES of America, et al., Defendants.

Lila M. MEWHINNEY and Richard M. Mewhinney, Plaintiffs, v. The UNITED STATES of America, et al., Defendants.

Nos. 81-1060, 81-1061, 82-1537, 81-1100, 82-1539, 81-1101 and 82-1538.

United States District Court, D. Kansas.

November 15, 1984.

Ken M. Peterson, Dennis Feeney, Morris, Laing, Evans, Brock & Kennedy, Christopher W. O'Brien, Redmond, Redmond, O'Brien & Nazar, Wichita, Kan., for plaintiff.

Donald E. Jose, Asst. Director, Pamela L. Wood, Ralph H. Johnson, Trial Attys., Carl N. Kelly, Special Trial Atty., Torts Branch-Civil Div., U.S. Dept. of Justice, Washington, D.C., Steve Lester, Asst. U.S. Atty., Wichita, Kan., for defendants.

MEMORANDUM AND DECISION

PATRICK F. KELLY, District Judge.

These consolidated lawsuits have been fully tried before the Court pursuant to 28 U.S.C. § 1346(b) (1976), and the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680 (1976). Venue of the action is proper pursuant to 28 U.S.C. § 1402(b) (1976).

Simply said, the cases concern the claims of four employees of Aircraft Instrument and Development, Inc. (AID), of Wichita, Kansas, who personally, or through their representatives, contend that their respective cancers and resultant damages were caused by exposure to minute quantums of ionizing radiation¹ that originated from luminous dials and instrument parts sent to the AID Plant. The United States, being the primary supplier of these products, is the sole remaining defendant.

Essentially, this case deals with the science of health physics² and the ramifications, if any, of exposure to ionizing radiation. The litigants offered the testimony of 53 witnesses, including that of some of the most eminent persons in the field. Massive documents from both sides were offered. The testimony of each witness has been carefully digested with perceptions of demeanor and expertise noted. Each of the exhibits has been carefully reviewed and studied. The Court's detailed trial notes and much of the transcript (5,409 pages) have been reviewed and reread. Counsel have provided the Court with suggested findings of fact and conclusions of law and have fully argued their causes.

This decision is intended to address and detail as fully and succinctly as possible the factual and legal reasons why the plaintiffs cannot recover in this suit.

I. Introduction of the Parties; Some History of the Litigation; and a Brief Resume of the Respective Claims and Defenses

The estate of Earl E. Johnston claims damages for his wrongful death and conscious pain and suffering in that his exposure caused leukemia; the estate of Don C. Vessels similarly claims damages as a consequence of his lung cancer; Barbara J. Womack claims damages for pain and suffering, for a shortened life expectancy, and for related damages as a consequence of her thyroid cancer. She additionally claims damages for mental suffering from an expectancy of future cancers. Loyd B. Womack, husband of Barbara Womack, claims a loss of consortium and mental suffering from an expectancy of cancer; Lila M. Mewhinney and her husband, Richard, similarly claim damages as a consequence of her colon cancer. Plaintiffs Womack and Mewhinney have claimed damages for an expectancy of cancer in their children. It appears that these children had from time to time visited the AID facility and been exposed. These claims were stricken by the Court in its order dated February 24, 1984.

The detailed history of each person's involvement, as to time and extent of alleged exposure and the ramifications of their respective claims, are hereinafter discussed.

From the outset, each has urged that radium-226, a radioisotope which produces ionized radiation, is ultrahazardous per se and inherently dangerous, as it is destructively powerful. They urge here, by example, that should radium-226 be inhaled and ingested into the human body, it gives off alpha particles that alter a cell formation and start the cancer process. Detailed ramifications of radium-226, radon gas, daughter products, etc., are also hereinafter defined and discussed. Plaintiffs claim that since there is no known safe threshold from such exposure, the United States was required to adequately warn of the dangerous properties by clearly labeling each radium-painted instrument, which instruments were then distributed into surplus markets.

The plaintiffs further contend that through the recent years, the United States has released massive quantities of unmarked radioactive aircraft instrument parts into the surplus market; that while stored and used at such places as the plaintiffs' employer's plant, AID, these parts accumulated in storage areas and about the employees' work area, during which time the ionized radiation was permitted to build up to dangerous quantums, giving rise to injury.

Shortly prior to this trial, these cases were also pending against numerous manufacturers and suppliers of these products, who, in turn, directly or indirectly, distributed the products, including those from the United States. This is mentioned here inasmuch as a goodly number of different types of instruments have been discussed, and for the following reasons: The plaintiffs have always maintained, in part, that the United States' liability is absolute, following Rylands v. Fletcher, L.R. 3 H.L. 330 (1868). The Court ruled prior to trial (Memorandum and Order Feb. 24, 1984) that as it would appear that radium compounds and one's exposure to such compounds are highly dangerous, then in such an event, the doctrine probably should be considered. The Court alternatively suggested a remedy under the concepts embodied in the Restatement (Second) of Torts § 519 (1979). A decision on these issues, however, was reserved pending receipt of the evidence. Coinciding with this theory, if applicable, however, was the Court's additional finding that inasmuch as the plaintiffs' claim asserts a fault concept at the hands of others, it should as a consequence be weighed pursuant to the comparative fault principles of Kansas (K.S.A. 60-258a). Thus, in the course of these cases, the respective comparative fault has been jointly considered. In this regard, the Court has heard the evidence as it may apply to the plaintiffs' employer; perhaps the State of Kansas, whose duty it was to regulate, monitor and/or inspect the premises; and the plaintiffs' acts themselves. In other words, each have been weighed consistent with the law of Kansas. For reasons shown, all of this has been an unnecessary exercise.

For the most part, these cases, considered alternatively as negligence actions, test the traditional duties, if any, of the United States. They suggest that the product is highly dangerous, and that the United States has a high standard of care and is required to warn ultimate users such as the plaintiffs of the consequence or dangerous propensity of radiation exposure; that failure here has caused or contributed to the plaintiffs' injuries.

The United States has adamantly denied any liability to these plaintiffs for sundry reasons. Some of their defenses have been previously addressed, including those of the statute of limitations and the propriety of filing of the plaintiffs' claims (Memorandum and Order Jan. 12, 1984). It is first contended that the United States is immune by reason of the discretionary clause found in 28 U.S.C. § 2680(a), and as a consequence this Court has no jurisdiction. Again, prior to trial, the Court took this issue under advisement awaiting some developments in the evidence. When the plaintiffs rested their cases, the Court ruled that the government's decision to use and/or ultimately dispose of these instruments was indeed a discretionary function and no liability will flow from that decision. This issue is additionally addressed herein. As to immunities, if any, for the government's alleged failure to label or warn of the propensities of the products, the Court, sensitive to the Tenth Circuit's rationale in Miller v. United States, 710 F.2d 656 (1983), again took that issue under advisement. The Court, in this decision has also fully addressed its views and findings.

Next, and what develops to be the central issue in these cases, is the United States' insistence, that while there may not, as yet, be a scientifically established threshold of exposure from which these cancers could arise from exposure to ionized radiation, that nevertheless all of the scientific studies, tests, and experiments known to the health physics community suggest that there are no epidemiological studies or findings to support an occurrence of cancer from exposure at less than 50 rad. There probably is, at least, a safe or practical threshold from exposure at about five rem per year, as a maximum permissible low dose (LET). A rem is a unit for measuring a dose of radiation received by an individual.³ Even in this event, the kinds of cancers claimed by the plaintiffs would not occur. They have claimed here, under the circumstances shown, the plaintiffs' exposure from the instruments is so minute that each would have to literally eat the paint, and even then only incur the unfortunate result of bone sarcoma or cancer of the paranasal sinuses. Admittedly, as these cases commenced, this Court, a layman in the truest sense, impressed with representations of the plaintiffs' counsel from the outset, received the government's claims with some skepticism. Indeed, the government's counsel was chided from time to time, as these claims were then thought to border on the facetious.

To give some contrasting...