Gerry Spence and Karen Silkwood – Part 1 – Compensation for radiation injury

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A photo of Gerry Spence
A photo of Gerry Spence

This is Part 1 of a 2 Part mini-series – Read Part 2 Here

The following is the transcript of a speech given by Gerry Spence in Pennsylvania shortly after the Three Mile Island nuclear accident in 1979, published here with his approval.  Spence is well known for having won a $10.5 million verdict for the family of Karen Silkwood .  He has not lost a civil case since 1969 and has never lost a criminal case with a trial by jury.

MR. WIDOFF:  We attempted to request a resume from our speaker tonight.  The response we received in return was, “we don’t know how to write it, let alone provide it.”

Thus, I do not have any traditional biographical materials from Gerry Spence.  What I do have for you tonight is from the July 8th, 1978 edition of the Riverton Wyoming Ranger.  I will briefly quote from it.  I wish that I had the opportunity to read all of it to you, as it really is a quite fascinating article.  This was written before the Karen Silkwood litigation.

Spence lived in Riverton, Wyoming for 15 years, born and reared in Sheridan, graduated from the University of Wyoming College of Law, coming to Riverton as a young attorney full of ambition and fired with idealism.

When much of the community thought Spence was a young upstart still wet behind the ears, the blondish, handsome young man filed for the Office of the Fremont County Prosecuting Attorney.  Spence introduced to Fremont County the art of door-to-door campaigning, shoe leather and charm all blended by Spence.  When the votes were counted, Fremont County had a new Prosecutor.  He didn’t take long to establish himself in the job.

New challenges beckoned Spence after two successful terms as County Attorney.  With a win-loss record for successful convictions that matched the Yankees at their peak, Spence turned his eye toward high political office.  The now well-known Spence decided that he had a good chance to unseat the veteran U.S. Congressman William Henry Harrison.

MR. SPENCE: (Interrupting) Are you going to read the whole damn thing?

MR WIDOFF: (Chuckles) No, I am not.  (Continues Reading) Casting himself in conservative clothing but promising a better idea, Spence’s staff took off to apply State-wide campaign techniques that worked for him in the Fremont County race.

It goes on to describe his activity as a lawyer.  Having been urged not to read this, I will simply add that he has had extensive experience in major litigation.  He has taken on the automobile companies, the FBI, McDonalds, and has not lost a civil case since 1969.

He was also the Chief Counsel in the Karen Silkwood litigation.  I, therefore, present to you, Gerry Spence.

(Applause)

MR. SPENCE:  I don’t know whether the lack of applause is due to the quality of the introduction or not.  It would have sufficed just to say that this is Gerry Spence, country lawyer from Jackson Hole, Wyoming.  That would have told it all.

I come here to you with a lot of love.  It has to be a lot of love to bring me out of the magnificent mountains of Jackson Hole, Wyoming and to leave in the early morning with the dawn and the sun coming up over the Tetons and to get on Frontier Air Lines and to fly all day and end up on an Allegheny commuter in this community.  So you know I am here because I love you all.

(Applause)

The thing that bothers me about these kinds of proceedings is that they are so intellectual.  I feel so inadequate talking to you.  I hear all of these academicians, all of this sort of fine line thinking going on about human problems, and I listen to interesting words like “ENO” – all day it is “ENO” – which by the way means “Extraordinary Nuclear Occurrences”.  So all day I hear words like “ENO” and “Price-Anderson”.  I hear things like “albeit” – I wrote it down – “albeit”.  Then somebody stands up there and says “i.e.,” and someone else is over here talking about “euphemisms.”  I don’t know what the hell euphemisms have got to do with anything.

Then there was this little goody – “substantial release of radiation from containment area” – “substantial release of containment from radiation area.”  Then they are talking about “emission rates.”  I got to wondering if they were checking out the love life of adolescents at summer camp, if this has no application whatsoever to people, to human beings, to people who have feelings.

The lady on the television station a little while ago asked me in an interview what was going on in here.  And I said, “I don’t know.”  She said, “Haven’t you been there?” And I said, “Yes.”  She said, “That is the bottom line?”  And I said, “The bottom line has to do with a lot of people trying to find answers to a lot of questions and asking a lot more questions.”

And the bottom line seems to be – I didn’t tell her this – but the bottom line seems to be something about some kind of fine legal intelligencia that has sort of left the people around this area without answers.  It hasn’t asked the people of this area how it is for them.

How is it for a human being to live under Three Mile Island, to live under one of those stacks and to have this stuff spew out over the countryside and to wake up in the middle of the night and wonder if your babies are going to be born funny and triple-legged?  How is it to live at Three Mile Island and see the cows out in the pasture eating gracefully and gently away and not know what is happening to the people and to the milk and to the environment and to the future?

How is it to wake up wondering what is happening back home and to have been evacuated?  It is an important human question.  It has to do with human beings.  It doesn’t have to do with insurance companies.  It doesn’t have to do with stockholders.  It has to do with the rights of individuals.  It has to do with you and me.

I heard people this morning talking about whether there was – what did they call that – an ENO.  Some people were suggesting that they didn’t really think there was an ENO.

RADIATION INJURY

I would like to read from a very recent publication that was sent to me special delivery for this conference.  It is by Dr. John Gofman, Professor of Medical Physics at the University of California at Berkeley.  He helped to isolate the world’s first milligram of plutonium.  He was the first witness in the Karen Silkwood case.  He knows more about plutonium than anybody that I know about anywhere.

The nice thing about Dr. Gofman is that he knows what he is talking about.  The very nice thing about him is that he isn’t afraid to say it.  Another nice thing about him is that he says it in terms human beings can understand.

“According to the Nuclear Regulatory Commission,” it says here, “the dose to the public in the Three Mile Island so far is 1,800 person rems” – Is that what you have heard, all of you, 1,800 person rems?  Man, that really gives us a lot of information.  “A figure which we regard with extreme skepticism because it turns out there existed almost no monitoring system and because that estimated dose excludes a significant additional internal dose from the radioactive carbon-14 released.”

What does all that mean?  It just means that you haven’t got very good figures, to put it in plain English.

“But based upon that – and then he sets out the formula,” he says, “There are indeed going to be at least 480 deaths from cancer.”

480, now that is kind of a nice thing to think about.  But it isn’t going to be right away.  Is it going to be the day after tomorrow?  No.  Or ten years from now when Johnny is ready to go to college?  Maybe.  Maybe it is just Johnny gets into the peak of his career 30 years from now, and he sees one of those nice little shadows in his left lung that somebody calls cancer.

We were talking about a 20 year statute of limitations earlier today.  We were talking about whether or not people could prove any of this business.

Well, he also says, “It is a fraud to imply that a dose equivalent to just a few chest x-rays” – and that is what we were told over national television – “it is a fraud to imply that a dose equivalent to just a few chest x-rays to a million people would be safe.  If you give low dose radiation to a lot of people, whether from nuclear power plants or x-rays or Mother Nature, you will kill just as many people as if you gave high dose radiation to just a few people.”

Now, I never heard anybody saying that on television before.  I haven’t heard the government come out with any information like that before.

And it says, “Provided the number of person rems is the same, it is not hard to understand” – now listen to this very difficult proposition, – “it is not hard to understand if you remember that six times two equals 12, but two times six also equals 12.”

I don’t know exactly what I could make of that in case in Three Mile Island on behalf of people.  I am not interested in representing anybody else.  But if I were to represent people, I would like ot have somebody like Dr. John Gofman say something like that on my behalf, and I would like to hear some other things said on my behalf.

Here is something that he said in response to a question raised this morning by a very fine-tuned academic legal mind.  The question was: How do you prove damage to people when it is going to occur down the line 20 years?

He says this, “The elite has no trouble finding lawyers.”  The elite, who do you think that is?

“The elite has no trouble finding lawyers who are eagerly beavering to establish a right to give people cancer with impunity.  Here is what you have to watch out for.  It is medically possible” – now listen to this.  Listen to this Doctor telling us lawyers how to prove our case.  Listen to this.  “It is medically impossible to prove that a particular cancer was caused by radiation even when the radiation dose is high since cancer can be induced by many agents.  It is possible, however, to calculate the probability that a particular cancer was caused by radiation even when the radiation dose is high since cancer can be induced by many agents.  It is possible, however, to calculate the probability that a particular cancer was caused by radiation if you know how much radiation dose was received.”

Listen to what he said, “It is possible, however, to calculate the probability that a particular cancer was caused by radiation if you know how much radiation dose was received.  When so-called compensation for radiation entry is at issue, it is an outrage for any lawyer to argue that there should be no compensation for radiation induced cancer simply because there can be no certainty that a particular cancer was radiation induced.”

I listened in the Silkwood case to these arguments for three months, and the jury understood it to be just argument.  The jury said that it was wrong, that it was an outrage.  And they gave Karen Silkwood’s heirs a half a million dollars for nine days of mental pain and suffering and torment because Karen Silkwood thought she was going to die.

Now I am telling you – and I am not trying to create a new damage for you people here by what I say – but I am telling you that Dr. Gofman, one of the world’s great scientists, says that 480 people in the area around the Three Mile Island nuclear power plant are going to die from cancer induced by that little kind of – what did they call that – a non-ENO, a non-ENO.  Four hundred eighty people are going to die from that, he says.

I don’t know how that makes you feel while you live here.  I don’t know how it would make my neighbor feel.  I think it would frighten me.  It would concern me and torment me.  I would wonder about my children.  And I think it is a clear compensable damage.

Then he goes on to say, “When so-called compensation for radiation injury is at issue, it is an outrage for any attorney to argue there should be no compensation for radiation induced cancers simply because there can be no certainty that a particular cancer was radiation induced.  That argument simply amounts to giving private and government polluters an open season on giving people cancer.  Talk about a permissive society, we used to believe in severe penalties for killing people.  At the very least, a 43% probability that a person’s particular cancer was radiation induced” – listen to this – “entitles the victim and his family to 43% of the so-called compensation.”  A 99 percent probability, the victim to 99 percent of the so-called compensation.

That is how he thinks that should be decided.  What do you think about that?  That is a doctor’s response to the technical legal issue of damages.  I am to talk to you about proof of non-economic damage.  I have come all the way from Jackson, Wyoming to talk about something as sweet and sophisticated as proof of non-economic damage.  “Non-economic damage” I don’t even know what that means.  I know you know, but I don’t know what that means.

KAREN SILKWOOD CASE

I would like to tell you how you get a jury to give ten and a half million dollars for nine days of fear and anxiety and emotional pain and suffering.  If you would like to hear about that, I will talk about that.  If you don’t want to hear about that, we will take a little recess and you can all leave.

MR. MOSKOWITZ:  On behalf of the Pennsylvania Law Journal, we would all like to hear about that.

MR. SPENCE:  I would also be happy to talk about how a country lawyer can get punitive and exemplary damages in the amount of ten million dollars against the likes of Kerr-McGee.  I would like to tell you that that is something you can’t find very much about in law books.

You think it is all about law; don’t you?  You think it is all about the kind of intelligent academic hocus-pocus like “non-economic damages”?  You want the key?  How many of you want the key?  Should I just walk down and kind of give it to you?  Do any of you want it?  How many of you want to know how to do that?  How many of you don’t give a damn?  There is one honest man among you.

I will tell you how to get it.  You go out and you get a couple of Pinko Priests.  That is how you do it.  It is just that simple.

That is what we did in the Karen Silkwood case.  I just got me a couple of – just be patient, I will get to it.  There is one lady sitting back in the room saying “My God”, get to it.

Now there was a couple of Pinko Priests.  The reason I call them Pinko is because they seemed –I am a personal injury attorney…that is all I do is represent people…I am proud of my profession…I go into court…I try to be competent, and I try to talk to juries.  I try to talk about the law.  I try to put on a proper case.

But here are a couple of Pinko Priests who seem to me that all they were doing is hanging around praying a lot, and they were all connected with the anti-nuclear cause.  I have always had a sense that all these anti-nukes were all kind of Pinko, you know, and un-American.

Us folks in Wyoming are American.  We don’t want any damn Pinko Priests around praying for us while we are trying lawsuits.  But there they were, Old Bill and Old Wally.

Now Wally, Imogene, my wife, really goes for.  He was beautiful.  He had curly hair and kind of an Adonis face and big blue eyes and kind of tanned because those priests don’t have to work too hard.  They have plenty of time to lay out in the sunshine.

Imogene used to say to me, isn’t it a shame, she would say, that Wally had to take those vows.  I don’t know what she had in mind.

And there was Bill, Bill Davis.  Now Bill looked like a fighter – pub-nosed.  I found out that that is what he actually was.  One was a Jesuit, and one was a Franciscan.

During the Silkwood trial, some things occurred.  I want to tell you how this has relevance.  And young lady, I will be finished here in just a minute and you will see how this has relevance.  You be sure and start taking notes.  I will tell you when to start taking notes – pretty quickly.

It worked like this: Around the first week of the trial, there was a headline in an Oklahoma City paper that said this: Uranium Truck Crashes in Wichita Falls.  Now interestingly enough, Wichita was the place where Judge Theis came from who was sitting on this case, Judge Theis.  And the uranium truck came right out of Riverton, Wyoming where I came from.

This truck had Kerr-McGee yellowcake on it, and it was headed for Oklahoma City.  And it happened right during the period of time that I was talking to the jury about the problems of spilling nuclear material in transportation.

The jury and I had a little talk for about three months about all kinds of problems in that case, and that was one of them.  That was the first one.

And I thought it was a rather strange coincidence that this occurred.  So I asked Old Wally and Bill one night for dinner.  I said, don’t you think that was a strange occurrence?  Then I just kind of kidded a little bit and joked with them.  I said, you fellows didn’t have anything to do with that; did you?  And they didn’t say anything very committal, and I didn’t push it any further.

So a little later in the case, I was condemning Kerr-McGee for the way they had put the plant together to guard against tornadoes.  They set that thing right up in tornado valley.  That is just like building a house right in the middle of a flood zone, right in the middle of the river.

If there were any tornadoes, they were going to come through Oklahoma City, right down through old tornado valley and just blast everything in its way including that plant at the Cimarron Facility.  I was giving them a fit about that.

The next day, the worst tornado in the history of Oklahoma occurred.  I got Old Wally and Bill aside, and again I said, now lookit fellows.  I said, I don’t know whether you guys have anything to do with this or not, but I really don’t need to win this case that damn bad.

Then I was talking to the jury very shortly after that about how it is that these rods – these fuel rods had been doctored – the x-rays.  Now Kerr-McGee called those – they aren’t x-rays, they are microphotographs or photomicrographs.  I have never been sure which.  They always made fun of me about that, so sometimes I would walk over to the board.  I would write it up there on the blackboard.  They made fun of you, those gentlemen in gray, those corporate – big corporate, smart lawyers, made fun of me throughout the entire trial because I couldn’t understand simple little things like the difference between x-rays and microphotographs and photomicrographs.

Anyway, it was found that there were all kinds of hairline cracks on certain fuel rods, but the x-ray photos were edited so that the cracks wouldn’t prevent the faulty fuel rods from being sold, they were all doctored up, and I thought that was kind of an interesting customer service that Kerr-McGee was providing for its customer out there in Hanford, Washington where they were making the breeder reactor.

I kept saying to them that is such a nice customer service that you perform, isn’t it, Mr. Paul?  The gentlemen would get up and scream, “That is ridiculous, Your Honor.”

The next day in the middle of Oklahoma city opened the China Syndrome”, the move, and it had to do with that issue.

To show you how fine a lawyer I am, how ethical I hope you would all be this ethical – I rushed up to the bench and I said, Your Honor, I understand “China Syndrome” is in town.  It just opened in Oklahoma City.  I want to quickly tell you what theatre it is in so you can tell the jury what theater it is in so they’d be sure not to see it.  And I want you to instruct the jury what theater it is in, and tell them that they aren’t to get close to it at all.

And His Honor appreciated the fact that I was so ethical.  He told the jury where the movie was and instructed the jury not to go see it.  Then I got involved in the issue of a melt-down.  I was talking about how the photomicrographs or microphotographs – or whatever you call them – about how these rods into the core and how you could have a meltdown and all the rest.  And the next day came Three Mile Island.  It hit right smack in the middle of the trial.

That was the time that Wally and I and Bill Davis had a long, long talk into the night.  I just want to let you know that that gets to be the sort of bottom line on how you win a case in this area.

They want me to tell you that if you would like their services in any case of this kind, that Wally and Bill are available to you.  Alright, now that is the secret of it.

How do you prove up damages for ten and a half million dollars – five-tenths of a million for pain and suffering and ten million dollars for punitive damages?

Well, let me tell you a little bit about the case.  First of all, it was the first case of its kind.  It is perhaps a precedent for your cases.  It is precedent for Three Mile Island.  It is the first case of recovery for off-site contamination in our history.  It is a case, the first case for bodily injury and for punitive damages.  Those are “non-economic injuries” I suppose.

I suppose there isn’t any real economic factor if daddy comes home with lung cancer one day 21 years later and after the statute of limitations has run, when the records have been destroyed, when nobody can prove that lung cancer came from that catastrophe.

The suit is a simple suit.  It doesn’t involve any complex ideas.  You don’t have to go kiss the NRC’s – Nuclear Regulatory Commission’s – you don’t have to be a – what is that word – a sycophant.  You didn’t think I knew a word like that – to get them to declare anything about anything, like “ENO.”

You don’t have to go to any of these seminaries.  You don’t have to go through all of this intellectual garbage.  All you have to do is to apply the plain old legal principles that you learned in first year tort law, in freshman law about negligence and gross negligence and willful and wanton negligence and strict liability and ask for punitive and ex-exemplary damages.  That is it in a nutshell.

I would quit here and that would be it.  The audience would feel alright about that, but you would think that I cheated you or something.  So I will just fill in the rest with a little talk about how that came in the Silkwood case and how it might be helpful to your case.

I want to tell you the truth.  The message that you must be getting from my lecture and that you must hear – each and every one of you – is you don’t have to be a genius like these people up here that have been talking to you and represent your clients.  The truth is that if Gerry Spence, a simple, bungling country lawyer from Jackson, Wyoming can do it then any one of you can do it.  Do you hear that?

[To Be Continued…]

[Read Part 1 of this 2-Part Mini-Series]

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