decided: May 13, 1980.
PUNNETT, HOPE AND HINKIE, IRENE AND HINKIE, PAUL, A MINOR, BY HIS PARENTS, HOWARD E. AND IRENE HINKIE, AND HINKIE, HOWARD E., ADMINISTRATOR OF THE ESTATE OF TIMOTHY HINKIE, DECEASED, ON BEHALF OF ALL OTHERS SIMILARLY SITUATED.
CARTER, JIMMY, PRESIDENT, BROWN, HAROLD, SECRETARY OF DEFENSE, SCHLESINGER, JAMES R., SECRETARY OF ENERGY, LIVERMAN, JAMES, DR., DEPUTY ASSISTANT SECRETARY OF ENERGY, HENDRIE, JOSEPH M., CHAIRMAN, NUCLEAR REGULATORY COMMISSION, JONES, DAVID O., GENERAL CHAIRMAN, JOINT CHIEFS OF STAFF, CALIFANO, JOSEPH, JR., SECRETARY, DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, ALEXANDER, CLIFFORD L., JR., SECRETARY OF THE ARMY, LUSHBAUGH, CLARENCE, DR., ADMINISTRATOR, MEDICAL DIVISION, OAK RIDGE ASSOCIATED UNIVERSITIES, MARX, SIDNEY, DR., GOVERNMENT CONTRACT OFFICER, SEABORG, GLENN T., FORMER HEAD, ATOMIC ENERGY COMMISSION, AND CERTAIN OTHER PAST AND PRESENT OFFICERS OF THE U.S. DEPARTMENT OF DEFENSE, DEPARTMENT OF THE ARMY, AND THE FORMER ATOMIC ENERGY COMMISSION, WHO WILL BE NAMED AS DEFENDANTS WHEN ASCERTAINED INDIVIDUALLY, AND IN THEIR OFFICIAL CAPACITIES, HOPE PUNNETT, IRENE HINKIE, PAUL HINKIE, AND HOWARD E. AND IRENE HINKIE, ADMINISTRATORS OF THE ESTATE OF TIMOTHY HINKIE, DECEASED, APPELLANTS
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 79-0029)
Before Gibbons, Rosenn and Garth, Circuit Judges.
The legal fallout in this action stems from a nuclear mushroom cloud formed high over the Nevada desert about twenty years ago. In this appeal we are presented with a claim for preliminary injunctive relief for alleged mutagenic dangers arising out of the open-air testing of nuclear weapons in the Nevada desert in the 1950's and early 1960's and for damages. The district court denied the requested relief. We affirm.
On January 4, 1979, the plaintiffs filed a class action complaint*fn1 in the United States District Court in the Eastern District of Pennsylvania against President Carter and other government officials of the United States, alleging that the defendants had withheld information of the deleterious health effects of the Nevada nuclear bomb tests upon United States Army servicemen who had participated in the tests. An amended complaint sought preliminary injunctive relief enjoining the defendants from withholding public dissemination of all documents or studies now available to the United States Government relating to the long range health effects from radiation exposure to all participants in the Nevada testing from 1951 to the present date.*fn2 Relief was also sought requiring the United States to issue public warnings of the higher risks of mutagenic defects that may result in offspring born to such participants. The complaint sought a permanent injunction enjoining the defendants from causing anyone to participate in peace time testing of nuclear military devices without first informing them of the high risks to their health and safety, of the possible mutagenic dangers to their offspring, and without having obtained full voluntary consent. Finally, the complaint sought exemplary and compensatory damages, attorneys' fees, and costs.
At the hearing on their motion for a preliminary injunction for the requested warning,*fn3 plaintiffs presented testimony by both lay and expert witnesses. At the conclusion of the plaintiffs' presentation of evidence, the Government moved for a denial of the preliminary injunction and for a dismissal of the case. The district court granted the motion to deny the preliminary injunction but rejected the motion to dismiss the action. The plaintiffs appeal.
The plaintiffs' argument in support of their motion for a preliminary injunction may be summarized as follows. First, the servicemen present at the Nevada tests were exposed to a level of radiation substantially in excess of that suffered by the general population. Second, as a result of such exposure, the servicemen have a significantly higher risk of radiation-induced damage to their genetic structure. These genetic defects may be passed on to their offspring, producing birth defects or other undesirable consequences. The plaintiffs claim affected servicemen are entitled to a warning to allow them and their families to make informed family planning decisions and to take such other health precautionary measures as may be necessary.
Plaintiffs' lay witnesses consisted of six Army servicemen who testified they had participated in the Nevada tests during the period 1954-1955 and had been present at the detonations.*fn4 These witnesses testified that they had performed various functions at the tests and were positioned at various distances from the actual detonation site. The number of atomic tests which each of them attended varied widely from one to eighteen. They testified that they and their fellow participants had experienced nose bleeds, nausea, and vomiting during and after the detonations. Testimony as to the frequency of such occurrences, however, varied widely. Some indicated such symptoms were common, others stated they were infrequent, and one witness said that he personally had experienced none. Only one indicated that he had subsequently suffered from a serious physical disorder, an incurable muscle disease. No evidence, however, was offered to link that disorder with the radiation exposure. One of the witnesses, Howard Hinkie, is a named plaintiff in this action. He testified that since the tests he has fathered two children who suffered from birth defects, one of whom has died. Although testimony was introduced which indicated the problems of this child and another of the Hinkie children are consistent with those that might result from a parent's exposure to radiation, there was no evidence showing the presence of such a causal connection. Each of the witnesses testified that neither he nor his family has ever been notified of the possible mutagenic dangers posed by his exposure to the radiation.
The plaintiffs also presented testimony by four experts: Dr. Ernest Sternglass, Dr. Rosalie Bertell, Dr. Hope Punnett, and Dr. Victor W. Sidel. Dr. Sternglass testified to the amount of radiation sustained by the servicemen who participated in the Nevada tests and he calculated their average dosage. Dr. Bertell presented computations on the effects of radiation and the mutagenic effects of radiation. Dr. Punnett testified to the genetic effect of radiation exposure and to the diagnosis and treatment of genetic defects. Dr. Sidel testified to the possible mutagenic dangers of radiation exposure.
The court denied the preliminary injunction, holding that the plaintiffs had failed to demonstrate a likelihood of success on the merits and that they had made no showing of irreparable harm. The court's holding rested substantially upon its conclusion that the plaintiffs had failed to show by persuasive scientific evidence that the risk of mutagenic defects in the offspring of exposed servicemen and their descendants is substantially greater than the risk to many segments of the civilian population or even to the population as a whole.*fn5
The court also found a strong likelihood that the granting of the preliminary injunction would result in substantial harm to others. Judge Ditter found that "(the) effect of a warning from the United States Government that the recipient has been exposed to radiation which may cause mutagenic defects in his children could be thoroughly devastating." He also found that plaintiffs' experts also recognized that there are many social, moral, and political issues to be considered in the dissemination of the warning plaintiffs sought. Judge Ditter also found that "(the) public interest does not favor the dissemination of this warning, at least not until there has been much greater exploration of its potential effects than what may be involved in it." The court concluded that "(in) light of the unconvincing nature of plaintiffs' scientific evidence, their failure ...
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