Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Charles Clark was 37 when his teeth started to fall out and his jaw began to lose its structure. He’s had more than 150 cancerous growths removed from his face, many of them lodged inside his ears and nasal passage. “I had a new nose put on,” says Clark. For many years, Clark didn’t know what was causing his medical problems. But he’s certain now. Just 45 days after the United States dropped an atomic bomb on Nagasaki, Japan, Clark — a World War II Navy veteran — and his shipmates were ordered to the city. They stayed just five days. But Clark says the exposure to radiation impaired him for life. “As we went upstream, the stench became heavier and heavier,” says Clark, referring to the decaying bodies on Japanese battleships and the mainland. “We didn’t have any protection on board, so we were breathing through our shirt sleeves trying to prevent the odor.” Now 77, Clark is one of 10 veterans and families of veterans suing officials of the Department of Veterans Affairs and the Department of Defense, claiming that the government is hiding evidence that as many as 400,000 servicemen were exposed to dangerous — and potentially lethal — levels of radiation in the years following World War II. Last week, their suit got a big boost when Judge Gladys Kessler of the U.S. District Court for the District of Columbia reversed an earlier decision to dismiss the case. Kessler initially agreed with the Justice Department that the federal trial court did not have the authority to oversee veterans’ disability claims. But in an unusually frank Aug. 9 order, Kessler said she made a mistake, writing that allowing the case to go forward would “correct a clear error of law and . . . prevent manifest injustice.” The central allegation of the complaint is that government officials and contractors have purposely concealed medical records and other materials detailing radiological exposure suffered by members of the U.S. military during atomic bomb testing in the United States, as well as by those who served as occupying forces in Japan after World War II. According to the plaintiffs, the government’s actions have prevented them from obtaining service-related death and disability benefits from the Department of Veterans Affairs. The suit seeks unspecified compensatory and punitive damages. “This is so important to so many men and their families,” says Navy veteran Theodore Dvorak, a plaintiff who was a crew member on a ship that in 1947 was ordered to a site in the Pacific Ocean where other ships contaminated with radiation had been stored. “We’ve had to wait so long, and the government has not released anything to us.” 400,000 LIVES In order to receive compensation for injuries suffered while on active duty, veterans must submit claims to the Department of Veterans Affairs. The plaintiffs allege that claims for radiological injuries such as skin cancer and respiratory diseases have been routinely denied by officials of the veterans agency based on incomplete or inaccurate information. Clark, for example, filed a claim in 1995 for disability compensation with Veterans Affairs, arguing that his medical problems were tied to his duty in Nagasaki. He says the agency denied his request in a letter stating that reports from Nagasaki showed safe radiation levels at the time he was there. Douglas Rosinski, an associate at D.C.’s Shaw Pittman who, along with partner David Cynamon, represents the veterans, says the government has information that may prove his clients’ injuries were due to exposure to dangerous levels of radiation. “This case is about evidence that has been destroyed, or withheld, or tampered with,” says Rosinski, who is seeking class status for more than 400,000 veterans. “We have very strong evidence that for almost 50 years people within the government were concerned about lawsuits and liability due to exposure to nuclear weapons.” Since the complaint was filed in 2002, the Justice Department has maintained that Kessler does not have jurisdiction. “While it is impossible to read the complaint without sympathy for the plight of veterans . . . Congress has created a comprehensive and exclusive scheme for the adjudication and review of veterans benefits determinations, and the plaintiffs’ claims raise issues squarely falling within that scheme,” DOJ senior trial attorney Richard Montague wrote in the government’s answer to the complaint. Montague did not return calls seeking comment. DOJ spokesman Charles Miller declines comment. Kessler initially agreed with that view when she dismissed the action in October 2003. But a decision handed down by another federal judge on the D.C. bench caused her to change her mind. Three days before Kessler initially dismissed the atomic veterans’ suit, Judge Rosemary Collyer ruled that a group of Vietnam veterans pursuing a similar action could proceed. That case, also being litigated by Rosinski and Cynamon, involves thousands of veterans of the Vietnam War who say they were unwittingly used as test subjects for chemical and biological weapons experiments and denied benefits because of a government cover-up. Collyer found the court had jurisdiction over the matter because the case was about obtaining information intentionally hidden. YEARS OF EXPOSURE Since 1945, the U.S. military conducted more than 700 atomic weapons tests in New Mexico and Nevada and in locations in the Pacific Ocean, the complaint states. Some tests involved detonations above ground; others, underwater. All were monitored and cleaned up by members of the U.S. military. According to the federal suit, about 220,000 troops and civilian personnel were ordered to take part in the operations. The goal of the tests was to study the impact of atomic weapons on military personnel and equipment, the suit states. Meanwhile, in 1945 and 1946, about 195,000 American troops were sent as occupying forces to Hiroshima and Nagasaki, Japan, where the United States dropped atomic bombs in World War II. The plaintiffs claim that since 1946 the military has known that exposure to atomic radiation would have harmful health effects on the human body. The information, however, was not shared with military personnel ordered to test sites or atomic battlegrounds. In 1946, the government set up special safety procedures for those entering areas where atomic radiation was present. Specifically, troops were ordered to wear a radiological monitoring device when entering such areas. They were also ordered to undergo special medical exams, with those results being placed in a classified record kept separate from regular military service records, the suit claims. In 1951, the complaint claims, a special repository was established to house exposure records of personnel who participated in atomic weapons testing. This repository at one time, according to the plaintiffs, contained all the monitoring devices worn by personnel at the test sites. The complaint states that the government has yet to publicly admit that any of this information exists. Dvorak says he was 18 years old when in 1947 the Navy ordered his ship — the USS Brush — to Kwajalein Atoll, a lagoon in the Pacific. At the time, 64 vessels that had been used for atomic bomb testing had been towed there. Dvorak says men from his ship boarded the test vessels — many of which were former active battleships. He says a number of the men, including himself, took souvenirs from the ships, such as clocks, canned food, and other equipment. “There were no safety warnings to the crew,” Dvorak says. “We visited the ships not knowing the dangers.” Fifteen years later, Dvorak says, he began developing tumors on his body — primarily on his hands. Initially, doctors had no idea what they were or where they were from, Dvorak says. The tumors were eventually found to be a form of skin cancer, with one doctor telling him they were caused by exposure to radiation. Over the years, the 76-year-old Dvorak says that he has had 24 malignant growths removed from his body. Last year, he underwent an operation to remove a brain tumor. He says he has another brain tumor that is inoperable. Dvorak says the government refused to compensate him for any of the operations. One reason, according to Shaw Pittman’s Rosinski, is that the government doesn’t recognize Dvorak’s ship as ever being at risk for radiation exposure because it was not present during the actual test or subsequent cleanup. Veterans seeking compensation for injuries suffered during their service have just one outlet: filing a claim with the Department of Veterans Affairs. At that point, the agency is responsible for checking to see if the claim is valid and then issuing a decision. The process was set up to be nonadversarial and pro-claimant. The veteran must prove active military service, discharge, and that the injury was service-related. By law, the veterans agency is required to seek any relevant information — either within its own department or from other government agencies — when deciding a claim. Other government entities are required to provide such information when it is requested by the veterans agency. The agency has a set of procedures for those claiming radiological illness, including a list of diseases and the amount of time between alleged exposure and appearance of health problems, according to the complaint. For some of the diseases on its list, the veterans agency requires a “dose assessment” analysis to determine how much radiation the soldier was exposed to, the complaint states. In their suit, the plaintiffs allege that government officials have not sought all relevant information when deciding claims. Additionally, the complaint states that “many diseases and conditions recognized by medical authorities as radiogenic are not recognized by [the agency] for compensation purposes.” Some of these cited by the plaintiffs include various skin cancers and respiratory diseases. For nearly 30 years, Alice Broudy has petitioned the government for death benefits. Her husband, a veteran Marine who took part in three classified atomic missions, died in 1977 from lymphoma. Broudy, who collected a large share of the data used in the federal complaint, says the veterans agency has approved fewer than 50 atomic radiation claims over the past 16 years. “I’m so upset about my husband’s death and the cause of it,” Broudy says, “and the lying and the cover-up.”

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.