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The families of nearly 500 people whose internal organs were removed without consent during a 20-year study of radiation exposure at Los Alamos National Laboratory in New Mexico will share in a $9.5 million settlement of a class action. The case stems from the 1959 death of a Los Alamos lab technician and the revelation to his family decades later that about eight pounds of his internal organs — including his brain — his bones and other portions of his body were removed without consent, said plaintiffs’ attorney John C. Bienvenu, a solo practitioner in Santa Fe, N.M. On Dec. 30, 1958, Cecil W. Kelley, 38, a veteran technician at the lab, suffered lethal radiation exposure when a mixture of waste product from which he was extracting traces of plutonium became “critical,” according to court documents. Kelley, suffering extreme symptoms of radiation poisoning, was rushed to the Los Alamos Medical Center, which at the time was operated by the U.S. Atomic Energy Commission. He died there on New Year’s Day 1959. Bienvenu said that immediately after Kelley’s death, his wife, Doris E. Kelley, agreed to allow an autopsy to determine the cause of death. Without her knowledge or consent, the pathologist, Dr. Clarence C. Lushbaugh, removed and kept extensive tissue samples. Cecil Kelley was buried on Jan. 5, 1959, in a sealed casket. “The death of Cecil Kelley was the opportunity the lab had been waiting for,” said Bienvenu. “They had already decided that when the opportunity arose, they were going to take advantage, and here was the chance to see where in Mr. Kelley’s body was all the plutonium that he had absorbed over the past 15 years.” The Kelley family did not learn of the unauthorized removal of his organs until a newspaper reporter, Eileen Wilson of The Albuquerque Tribune, contacted them as part of series of articles on plutonium exposure issues at the laboratory that eventually won her a Pulitzer Prize. Although New Mexico law expressly forbids removal of tissue from a cadaver for purposes unrelated to determining cause of death without consent, Bienvenu, who specializes in litigation with government entities, said the case was fraught with knotty and sometimes unique legal issues. “We faced many novel and convoluted legal issues which the court had to resolve, such as whether New Mexico law addresses negligently mistreating a corpse,” he said. “In addition, the defendant is the state of California, so there were many immunity issues.” The Los Alamos National Laboratory is now owned and operated by the University of California under contract with the U.S. Department of Energy. THE LAB’S CASE Bruce Hall of Albuquerque’s Rodey, Dickason, Sloan, Akin & Robb represented the lab. The policy of the Los Alamos Lab precluded Hall from commenting on the case, he said. In a written statement, the lab acknowledged “that while the program was conducted with the best of intentions, and within the legal and ethical standards of the time, if initiated today it would be conducted under current informed consent practices that are more formal and highly detailed.” The research program initiated with Kelley’s death ran until 1980. Bienvenu found evidence of tissue being removed without consent from approximately 250 deceased lab employees and nearly as many members of the general population of New Mexico. “The motivation was to determine how much plutonium workers and citizens at large were absorbing occupationally and from nuclear fallout,” he said. “I think many people would have said yes if they had just been asked, but the bottom line is they didn’t ask, and they didn’t ask because they wanted 100 percent participation.” Mareau v. Regents of the University of California, No. SF-96-2430(c) (1st Jud. Dist. Ct., Santa Fe, N.M.).

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