Gerry Spence and Karen Silkwood – Part 2 – Proving Strict Liability and Physical Injury

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Gerry Spence - Karen Silkwood

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

The following is the conclusion of a 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. SPENCE: You can all walk home today and say, guess what, I heard today I can do it too.  I can get ten and a half million dollars.  All I have to do is go in and do the simple things that I learned to do years ago in freshman law school.

And you talk about simple concepts to a jury, not because they are simple, but because the truth is simple.  The simple concept in that case was strict liability.  So I said to the jury a simple proposition like this: Back in the days of old common law, there was a man who brought a lion on his property to show people.  He charged them a few shillings apiece to come look at it.  One day, the lion – a curiosity to be sure – got away and injured the neighbor.  The Court said, “You should pay”.  The lion owner said, but I didn’t do anything wrong.  I had a secure cage.  I did everything humanly possible to keep him caged.  It may have been a saboteur that did it.”  And the Court said, “If the lion gets away, you have to pay.”

Now that is a simple legal proposition; isn’t it?  You can understand that and I can understand that, and a jury can understand that.  It is the simple proposition of strict liability of the law.  “If the lion gets away, Kerr-McGee has to pay.”

Of course, it always helps if you have on the other side some very stiff, smiley, gray-suited, intellectual academicians and polemisicists-corporate attorneys who are always jumping up and saying “That is ridiculous.”

And it helps in the proof of the defense of a case like that when corporate America jumps up, as it did in that case, and says this corporation with two million dollars annual income, with assets of over two billion dollars, one of the two hundred largest corporations in America, who got up before this simple little six man and woman jury – I don’t mean dumb, but I mean uncomplicated – I mean ordinary people out of the heart of America this corporation got up and said in the defense of their negligence and their gross negligence and of their willful and wanton negligence and of their recklessness in the defense of polluting literally hundreds, perhaps thousands of people in the area – their answer was that Karen Silkwood was a bad woman, as if somehow that was a defense.  Karen Silkwood was a bad woman, and she though sex, they said, was a participant sport.  She might have smoked dope, they said.  She was a bad woman, and she had left her children.  And, therefore, ladies and gentlemen of the jury, we have the right to pollute America and to lie to the workmen and to lie to the public and to get into bed with the government and engage ourselves under the covers with the government in some very secret and unhealthy – I think unhealthy activity.  I will talk about the undercover activities of these people in a little while.

They said things like she contaminated herself.  You would think that this huge corporation could come forward with some kind of direct evidence that would solve the very difficult problem and proposition that we were faced with in this case.  They talked about the technicalities of radiation.  They talked about the technicalities of the weather and the technicalities of this and the technicalities of that.

When that was all over I went over to the jury, and I suggested to them that they shouldn’t get stuck in Mud Springs.  I will tell you why I said that.  And I drew a little picture on the board.  If I had a piece of chalk, I would even draw it for you if there was a piece of chalk.

Oh, there is a piece of chalk, and there is a blackboard.  It would be terrible if we went through this whole session and nobody used the blackboard and nobody drew a picture for anybody: wouldn’t it?  You want me to draw a picture on the board?

GENTLEMAN IN THE AUDIENCE: Please draw a picture on the board.


MR. SPENCE: (Mr. Spence draws a picture on blackboard.)

Don’t Get Stuck in Mud Springs.  Do you want to know what this has to do with “the proof of non-economic damages?”  Well I don’t know what it has to do with it.  You see there it is, and that is Mud Springs.  This is the poor old guy.  He is almost stuck in it.

So I drew that picture for the jury, kind of like that.  That is a nice picture; don’t you like it?


That is where we tend to get as we get involved in the academic, polemics, because the issues in a case of that nature are very simply.  The question was: Did Karen Silkwood get polluted?  If she got polluted, was it sufficient to cause her injury?  Was there any physical injury to support pain and suffering?  And indeed if there was physical injury, was there physical injury in order to support punitive damages?

Now, what is physical injury?  There came a time in that case when the jury asked that same question.  We had been waiting for the jury for three days.  We were sweating it out.  I was praying along with Old Wally and Bill by that time.

I was saying, “Dear God, let me win this one, and I will never try another case.  I promise you I will never draw anymore pictures on the blackboards.  I will never write anymore poems to the jury.  I will never do nothing if you will please just let me win this one.”

Along this time came the question from the jury: “What is physical injury?”  Now, Mr. Paul thought that we shouldn’t answer that question for the jury.  He thought that that was an open question that anybody could answer, and that the jury should just struggle another six or eight days.  You can understand why he might want that to happen.

I said to the Judge that I thought it was imperative that he tell the jury what physical injury was.  I had a lot of Brownie Points all saved up for just such an emergency.

The way you save up them Brownie Points – you know, I could write a legal article on Brownie Points and the law.

The way you get Brownie Points saved up is this: When the opposing counsel is raising hell about immaterial issues, you don’t give the Judge any trouble.  And when they are raising hell and objecting and asking for a lot of things that they are entitled to, you don’t oppose it.  You sit in Court week after week listening to their inane cross examination, if you please, and you never get up and object.

When it finally comes time for you to say something, you have got some Brownie Points.  I said, “please, Judge, I want you to hear me this one time.  The jury has put its finger on the exact question that needs to be solved in this case and the exact question that the people at Three Mile Island will want me to answer when they invite me to that seminar to speak to them – “What is physical injury?”

Now Dr. Gofman and others have said this – and let’s listen to this because this is important, this question of injury as we see all of those alpha particles flopping around in the Hershey bars everywhere that nobody wants to talk about, that are flopping down on the hay that all the cows are chomping on.  All those little alpha particles are emitting – there are thousands of them, millions of them, billions of them.

I even had one of the scientists get up on the stand and tell me how many alpha particles there were in Karen Silkwood’s lungs which only had five nanocuries – whatever that is.  It is so small an amount that nobody in this world could tell you how small it is.  But she had millions of alpha particles in her lungs.

You can’t see them.  You can’t smell them.  You can’t taste them.  But they are there.  You can’t demonstrate them, and so, how do you demonstrate injury?  Well, Dr. Gofman said this – and this is an oversimplification, but why get complex about it, ladies and gentlemen.  Why get so academic about it?  “You know,” he said, “that the human body is built up of billions of cells.”  We all knew that.  And he says, “There is something about the cells.”  He told the ladies and gentlemen of the jury that they each have a beautiful little library.

Did you ever stop to think about it, what a beautiful little library there is in each cell in our body?  It tells the cell when to divide and when not, when to grow and when to stop growing.  Why, if it weren’t that way, you know our noses would keep growing and growing, and our ears would grow on.  We would grow bigger and bigger and pretty soon we would cover the whole countryside if the cells didn’t stop growing.

What makes them stop?  How do they know how to grow in relationship to other cells?  It is a marvelous thing that goes on there, and it has to do with that little library called DNA and RNA and all of those fancy words.

Now what does that have to do with all these little bitty alpha particles that are popping around out here around the countryside that you folks have?  Well, the alpha particle is as powerful in the relationship to other rays as a bulldozer to a jack rabbit that is how powerful they are.  It is like taking a machine gun and shooting through a television set.  If you don’t blow up the whole set, but you just blow out the transistor tube, you know the set keeps on burning.  If it is a cell and the little library is knocked out, the cell isn’t killed.  It is okay if the cell is killed, because it can build a new cell.  But if the cell isn’t killed, it just keeps bubbling and boiling away and replacing itself and growing and replacing itself.

It is crazy and wild and goes on and on until that little boy of yours, now 20 years or 25 years later, comes home and starts to tell you with a pale face and a frightened soul about the little shadow that the doctor saw in his x-ray called cancer.

So the Judge says – and he was entitled to say it under that evidence because that evidence stood essentially uncontradicted by the world’s experts, that that is what happens to the cell in your body when an alpha particle hits it, particularly in the lungs which are so vulnerable.  And that is the cause and the source, as these gentlemen believe, of cancer.  That is why Dr. Gofman says there is probably no real practical cure for cancer so induced.

Now what does this have to do with the question that the jury asked?  His Honor said, as he answered the jury, he answered them this way:  “Physical injury may include injury to the tissues, to the bones, and to the cells.  It need not be felt.  It need not be demonstrated by physical or empirical evidence.  It is sufficient if you find it in accordance with the preponderance of the evidence of the case, and if you believe such physical injury to have occurred.”

Now that opens up a brand new vista for cogitation and thought in Three Mile Island.  One that I don’t need to discuss much further with you because you are all brighter than I and understand the ramifications of that instruction.

Now how do you get punitive damages?  Would all of you be happy just to have the five hundred thousand dollars, or would you like to go on for the ten million dollars because it will take a little longer – just a little longer.

You know when you get these government agents into Court without their press agents – do you know that when the NRC comes along and they drag in all those people behind them.  There is this great big long string of people watching everywhere they go.  Part of those people are their press corps.

Now if the man is going to tell the truth, he doesn’t need any damn press corps.  If you are going to tell the truth to the people, you don’t have to have somebody out there to figure out how to say it; do you?  Isn’t it alright if you just plain say it?

Tell the truth, I say, to these people on the witness stand.  There isn’t any press corps answering the questions, and they are under the oath.

You will be surprised if you ever look at the transcript in the Silkwood case about the things that came out in this microcosmic laboratory about how corporate America is handling its responsibilities with respect to the safety of the American public.  I daresay it isn’t any different at Three Mile Island, nor will it be any different at Four Mile Island when we meet next year under the shade of the then current fallout.

Those people are required to tell the truth in court.  And from that comes an outrage to the jury and will come an outrage to your jury when they say how that responsibility has been taken care of.

Let me tell you what the facts of that case were just a little bit.  It will perhaps spark your imagination.

Karen Silkwood was a simple, ordinary woman like any ordinary woman that you know.  The nice thing about her is she stood for some nice things that Americans all like.

She was a member of the working class.  She was afraid.  She was weak.  She was powerless.  She couldn’t do anything.  She represented all the people in the world who feel weak and powerless and helpless and can’t do anything.

She had a little old kind of a scholarship to go to college that somebody gave her because she was a good student.

She went to college for a few semesters.  The first thing you know, she got married because she fell in love.  Now academicians never fall in love.

And she got interested in what was happening there at the Cimarron Facility.  What was happening there was this: There in the Oklahoma Hills, not nearly as pretty as the hills here – this is gorgeous county, but there in the springtime, those Oakie kids who loved their countryside had bought themselves little farmsteads.  They were young people trying to make a living there.  They couldn’t make a living on the farmstead.  Farm prices are hard, and labor comes high and all the rest.  They didn’t have very much land, so they would look for outside employment.  And they went to work at the Cimarron Facility.

Now I want to tell you what the government said to them.  I want to tell you want Papa McGee said to them, Papa McGee of Kerr-McGee.

Papa McGee of Kerr-McGee in a letter – which I blew up about eight feet tall and four feet wide, and it was three pages and covered the whole side of the courtroom – said to the ladies and gentlemen of the jury and to those little people out there, that the plutonium industry and the radiation industry was the safest industry in America.

Karen Silkwood didn’t believe that.  She saw these open faced farm boys who were being polluted everyday, who were being contaminated with drippy pipes and escape from all kinds of containments.  She saw tragic exposures daily with these people not knowing what it was about.  She saw them playing with pellets of uranium – throwing them around and shooting them with little slingshots.  She saw them taking out enriched uranium and using it as if it were some kind of curiosity as paperweights on their desks.

I heard her plaintiff voice over a tape recorder when she talked to Steve Wodka.  The matter had been taped and was played to the jury, in which she said in a very quiet way, in a very frightened way, she said, “Steve, these are only 19 and 20 year old boys, and they don’t know what is going on.”

How do you feel about that?  How do you feel about it when these boys – these 19 and 20 year old boys three or four years later come into the courtroom, and brothers and sisters, for the first time they get up on the stand and say we didn’t know that plutonium inhalation would cause cancer until we read it in newspaper accounts of this case.  What do you think about that?  Do you think that Kerr-McGee, corporate America and the government, has done its job?  And how would you like to know that these people who are supposed to take care of the health and safety, the so-called “health physicists” – that is a big word, you might want to write it down, madam, “health physicists” – authored little pamphlets for these people to take home under their arm and take into the kitchen and sit down with their families and to read about their health and safety, that these pamphlets were full of nothing but garbage and hogwash.

And so I said, “How come this pamphlet is full of garbage and hogwash?  The jury and I would like a little better answer to that question.”  Well, he took offense to that.

I said, “Did you have any kind of basis?”  Now watch these interesting questions, the skillful cross examination, zooming in on the opponent, I said, “Do you have any basis for that?”  He proved that he did.  He said, “Yes, I have got a 1954 article.”

I said, “That is beautiful.  I bet you don’t have it with you; do you?”  He said, “I have got it right here in my briefcase.”  I said, “That is nice; let me see it.”

And here was a 1954 article, old as the hills.  And guess what it said?  It told the whole world about those poor workers in Yugoslavia in the pitch-blend mines who die by the thousands.  It said that we have long known that alpha particles cause cancer.  It told clear back in 1954 about the poor women who didn’t know anymore about the dangers of radiation than the poor workers at the Cimarron Facility, the poor women who were the radium dial painters who put the paintbrush to their lips like this and curled up the end of the paintbrush to put the number on in radium to make our watches so that we could wake up in the night and see what time it was – and they died by the scores and the hundreds.

The article told about cancer to dogs and how every one of the dogs injected with plutonium died, most late in life all of them of cancer with a few exceptions.  They all died of cancer of various kinds – bone cancer, cancer of different kinds of organs and many of them in their late years.

And the bottom line was that we know that radiation from alpha particles causes cancer.

And so, ladies and gentlemen, how is it that the government knows that, that industry knows that, that health physicists know that, that anybody reasonably informed knows that, that everybody in the world knows it excepting those poor open-faced boys and girls?  How is that?  And why is it?

I asked the question of the ladies and gentlemen of the jury.  And I asked the witness.  I said, “Is that because, Mr. Health Physicist, if you had told the truth in your little pamphlets that they take home to their children and sit and read around the table while they drink coffee in the morning – if you would have told them the truth, you couldn’t have got a single individual to come to work for you; could you?  Not one?”

Mr. Paul said, “Why, Your Honor, that is ridiculous.”  Facts came out like that, that Karen Silkwood knew about.  She knew about the doctored microphotographs or photomicrographs – or the x-rays.  She knew about that fine customer service that Kerr-McGee was providing.  She knew about the fact that there was 40 pounds of plutonium missing from the plant.

And that got an objection from Mr. Paul who said, “It isn’t missing, it isn’t missing, Your Honor, and I object.  It is unaccounted for.”

And I had a heck of a time in that trial keeping that straight in my mind.  I kept fumbling around because I couldn’t remember the distinction between “missing” and “unaccounted for”.

But you know you get such things as the statement of Dr. Gofman that one pound of – now listen to this.  You listen to this, too.

Dr. John Gofman said that there are 21 billion lung cancer doses in a pound of plutonium if it is evenly distributed in the lungs, if it is evenly distributed in the lungs of people.

Their own experts, under cross examination, had to admit to huge figures of this kind that included such statements by our people that a half a gram – now note that I don’t know how much a half a gram is, but I am told it is about that much (indicating).  It is a little tiny bit, Madam Reporter.  A half a gram of plutonium evenly distributed among the population of smokers in this country will cause 32 million cancers.  There were 40 pounds, not missing, but unaccounted for, at that plant.  That is enough some say and some claim to make four bombs of the kind that were dropped on Hiroshima and Nagasaki.

The security at that plant, given the best security that Kerr-McGee would admit to, the best they could come up with, they admitted openly, without any shame, would permit a half a gram of plutonium to be taken out of that plant day or night by any worker without detection.

Did you hear that?  Thirty-two million lung cancers could be taken out of that plant day or night by any one of the employees at any time.  And prior to 1974, as much plutonium as they wanted under any circumstances could be taken out because there was no security at all.

Karen Silkwood knew these things.  Does any of that anger you, or does it just bore you?

Karen Silkwood knew these things and was on her way to talk to the people at the press.  And as she walked away from the plant that night, she had a little packet under her arm.  It was a packet of papers about that thick and about that long in a brown case, the testimony was, and the witness could see things that looked like photographs and x-rays kinds of things in the packet.  There were Kerr-McGee papers with Kerr-McGee emblems on them.

She walked out with those under her arm, and she said, “I have got the goods on these people, and I am about to meet with Mr. Burnham of the New York Times.  They are waiting for me at Oklahoma City.  And fifteen minutes later, she was dead in a ditch.

And people say – some reconstruction accident experts say that she was run off the road and struck from the rear.  The papers which she had were never found.

The next day, they came to the garage and the papers were gone, all gone.  And there were two Kerr-McGee employees at least who had visited the garage during that period of time.  None of that information was permitted to go to the jury by Judge Theis who thought it was irrelevant to the case, so I want you to know that that is not the way we prove exemplary and punitive damages.

But there were some things that we did talk about.  For example – well, it must be time to quit.  It really hurts my feelings to see you fellows leaving.  I hope they all represent the utility companies.

There were these kinds of things, ladies and gentlemen, I asked Mr. Kerr-McGee when he took the stand, I said, now Mr. Kerr-McGee, before you entered into such an important and dangerous undertaking as playing around with plutonium, certainly you got some expert advice from people that know.  And he said, “Why yes, I talked to Mr. Dunn,” he said.  I said, “That must be the Mr. Dunn that the jury and I have heard from already.”  He said, “Yes.”

I said, “That is Mr. Dunn of Potash.”  “Yes,” he said.

Now Mr. Dunn had already testified to the ladies and gentlemen of the jury and said he had come along as kind of a freebee along with Potash.  They bought American Potash or some such company and got Mr. Dunn free in the deal.  That is a big bargain.  You buy Potash, you get Mr. Dunn.

Mr. Dunn had never seen a plutonium plant – never designed one, never ran one.  But he was in charge of the whole deal, Mr. Dunn of Potash.

So we got to looking a little further, and we found out that the man in charge of the whole nuclear spread was a man by the name of Mr. Zitting who had never seen a plutonium plant, never run one, hadn’t any idea about how to construct one.  He had been up in Wyoming, Mr. Zitting, along with the rest of us country boys.

Then we got to looking for the people that ran it.  It was a man by the name of Morgan Moore who had been in petroleum.  I am talking about punitive damages; do you remember?  Gross, reckless disregard for the safety of people.

Mr. Morgan Moore was a petroleum plant operator.  Now all these people, Mr. McGee, said were good money people.  He said, they are fine men.  I said, “Mr. McGee, I bet they are good managers; aren’t they?”  He said, “Yes.”  I said, “And they are good money people; aren’t they?”  He said, “They are excellent managers.”

I was impressed except for the fact that Mr. Moore had never run a plutonium plant, and there he was in charge of this one.  And the man who was in charge of the health of the workers of the plant – of course, he was not a certified health physicist, but he had a lot of good background.  I have to give him credit for that.

Now ladies and gentlemen, you have to give credit where credit is due.  I had his personnel file for cross examination.  I kind of walked up to him when it came time to ask some of my kind of questions.  And I said, “Now, I sure have been looking at what you did here in school.  You did a good job.”  He said, “Yes, sir.”  I said, “You sure got good grades.  I see all these A’s and B’s.  This sure is a mighty impressive record you have got there.”  He said, “That is right.”

I said, “You must have graduated right there at the top of your class; is that right?”  He said, “Yes, I did, as a matter of fact.”  He had one of them kind of crooked smiles that always comes up on the side of his face.  When you really get to him, it would come up on the other side of his face.  If you would watch that carefully, he would give you a clue.

And it started coming up on the other side of his face when I asked what was it that you did when you got out of school and put to work your education?  He kind of hesitated a minute.  I said, “Why don’t you just turn to the ladies and gentlemen and tell the ladies and gentlemen of the jury what your degree is in?”  And he says, “Poultry farming and turkey raising.”

Now that, of course, qualified him to take care of health physics – of course, to be fair, he had some other experience but his degree was in poultry.

I found that there was a fellow from a company that did all kinds of things.  They manufactured paint.  He was the man who designed the whole shebang at Cimarron.

This man had never designed a plutonium plant before.  He had gone over and seen other plutonium plants which had been failures, somewhat, and designed this after those other plants because it was now the state of the art; don’t you know?

And I said, “What kind of experience have you had?”  He got to telling me how they made Durkee’s dressing.  You know, he was in charge of it.  Well, that is impressive now.  You have got to hear that.  A man is in charge of Durkee’s dressing on one side, making Durkee’s dressing, is in charge of the safety of the workers in those Durkee’s Dressing plants that was owned by the paint plant.  They make paint and Durkee’s dressing in the same company, which hadn’t anything to do with the Silkwood case.

But on the other hand, we have the turkey farmer, and I got to thinking about turkey sandwiches with Durkee’s dressing.  I got so sidetracked and so hungry one day when I got to thinking about that that I asked the Court for a recess.

This was the basis in part, of the expertise, brothers and sisters, of the putting together of that plutonium plant.

Now, I don’t know what will be revealed when you start to look at the operation of the Three Mile Island proposition and the kind of training that these people have had and the records that are involved that show the training.  Don’t take them on face value, please.  Look behind the records.  Talk to the people.  But get the records.

How about the security?  Do you know who the security was there, the man in charge of this stuff, this plutonium that is so potent that half a gram in the New York water system would require the entire water system in New York to be dug up?  Do you know who was in charge of that system?  A man retired from the Air Force whose work in the Air Force had been in maintenance.

There was all kinds of evidence about how the fish were killed in the Cimarron River, and men out in their suits and ties burying the fish and trucks were washed in town, and the pollution from those trucks was going down the Crescent water system.  And there was a café that was contaminated; there was this one café, at least, with people who were contaminated themselves who came in and, contaminated nobody knows how many other people.  It was never reported to the NRC because they didn’t want anybody to worry.

There, of course, was the continuing lie to the workers, and finally, there was what I have already called a kind of sadomasochistic relationship between the government and industry.  Now what is a sadomasochistic relationship?

Government and industry have to admit that.  They know they hate each other with a passion.  It is just as if industry feels like it is chained, and the government is whipping it, but there is a sort of gleeful grin on its face as it gets the whip.  There is a little slobber of joy that comes down the corner of the mouth of the industry, but when the chips are down, they are there together hands clasped together.

A doctor was to be their last witness.  He was the top man in government-funded project.

Here we had been in this trial for three months, and they called this doctor.  He had looked at Karen Silkwood while she was alive and put her in a machine to see if she had any lung burden.  He said, you don’t have any lung burden.  He couldn’t find any lung burden.

On cross examination, examination, we find out that her autopsy showed she only had five nanocuries, which Dr. Gofman said absolutely married her to cancer.  That is his language – five nanocuries married her to cancer.”

The doctor said she didn’t have any problem and told her so.  On cross examination, we found out that there were some people with as high as 240 nanocuries – even higher than 240 nanocuries in their bodies whose burden could not be detected by the machines that they used.  So the tests were meaningless.  They didn’t know if she had five nanocuries, no nanocuries, 240 nanocuries.  There was no way they could know because the machine didn’t register as low as 240 nanocuries.

She asked the doctor things like whether or not she could have babies.  He said, “Yes.”  Then she said, “Will they be deformed?”  He said, “Why, of course not.”  There was a doctor patient relationship between them based upon that evidence.

And later on, we find him testifying there in Court as the paid consultant for Kerr-McGee.  This man who was the highest man under that government supported programs who was the man at the top of the totem pole, who was in charge of the environmental studies, the health studies of some 12 major studies involving thousands of personnel he was the top man, Kerr-Mcgee plucked him off and brought him into Court and had him testify against Karen Silkwood as the paid consultant of the Defendant, not only of Kerr-McGee, but of such people as Mobil Oil.

The numbers games are frightful.  It was he, this Doctor who under cross examination said such things as “yes, yes, we are nothing but “numbers crunchers.”  They are numbers games.

Dr. Morgan, who was the father of health physics, who has trained the trainers of the health physicists of this country, who is the man who was on the committee who established the world’s safest standards in the international organizations came into Court and humbly said, “although I was on the committee many years ago which established the standard of safety, it is meaningless.  It is as many as four hundred times too high.  Did you hear me?  It is four hundred times too lax.

Dr. Martel – he was a straightlaced, red necked, short-haired, silver topped, old daddy out of Annapolis, an old Navy officer who came stiff and straight into Court and sat down, and he had done the work at Rocky Flats testing the environment when the government and industry told the American people that there was nothing wrong there, he came into Court and said those numbers games are meaningless.  They are a thousand times too lax.

Dr. Gofman in his very picturesque but straight language called the standards “A license to kill.”


I am going to conclude this by telling you that the Silkwood case stands for the fact that the American system is still alive, that lawyers like you and like me can still go into our Courts.  We don’t have to be very bright.  All we have to know are a few facts.  All we have to do is to tell the truth and tell it straight.  This case stands for the proposition that the jury, not the government, is going to set the standards.

The jury has the right to determine whether those standards are real or meaningless.  The jury is going to determine if the government standards are safe, and whether there is or isn’t an injury based on facts, not what some government agency says is safe.

Mr. Kepler was the high man on the totem pole in the NRC for his district.  He had checked and investigated the plutonium plant at Kerr-McGee.  He had found 554 contaminations of individuals there on the records that they keep themselves.  I don’t know how many there were that they did not tell us about.

He found that there were at least 75 violations of regulations by Kerr-McGee.  I am still talking about exemplary and punitive damages, ladies and gentlemen.

I said to him, “It is kind of like getting stopped by a traffic cop, isn’t it, and he gives you a citation?”  He said, “Yes.”  I said, “For like speeding?  And he said, “Yes.”  I said, “After you speed the second time, they kind of give you another citation?”  And he said, “Yes.”

“And then after they give you 76, they surely give you a fine; don’t they – after you have gotten 75 citations?”  He finally said, “We didn’t ever fine Kerr-McGee, never in their history.”

The case stands for the proposition that truth is a lot cheaper than fiction.  It would be a lot cheaper to go into Court and tell the truth – the straight, plain, unadulterated truth, to make an honest defense, tell the ladies and gentlemen of the jury what you have done and deal with the facts straight, and it stands for the fact that workers have to be told the truth.

It stands for what I call the harvester ant syndrome.  If you will permit me, in closing, I will tell you a Wyoming true story.  By the way, I see a Wyoming man here.  It is a small world.

In Wyoming, we have what are known as the harvester ants.  I don’t know if you have harvester ants out here or not.  In Wyoming, they are a plumb nuisance.  They cover half the landscape.

A third of the counties, they say, are taken out of grazing in Wyoming because the harvester ant comes and builds his big house.  Then those little ants tromp around the big house like your kids do around your house until they cover an area of 20 or 30 feet in diameter.  Those anthills are all over.  It takes all kinds of land.  And if we could just wipe the countryside free of the harvester ants, we would be so happy.

While I was practicing in Riverton, Wyoming, one of my next door neighbors was a member of the Game and Fish Department.  We were a little community there, about five thousand people.  And he was trying to figure out how to kill the harvester ants.

He was a great scientist.  He figured out some poisons.  And the poisons, you see, when they were eaten by the ants, they killed them immediately.  But the ants soon found out where the poison was coming from and quit eating it.

You and I both know that that isn’t intelligence because intelligence is reserved only for human beings.

All other creatures in the world are not intelligent.  They are instinctive; isn’t that right?  The harvester ant is one of those non-intelligent creatures who just quit eating the poison.  We intelligent people continue to eat poison everyday; although we know it kills us, but not the harvester ant.

So they found a new kind of poison they can put on the feet of the harvester ant.  It would be absorbed up through the body when the harvester ant walked into his house.  So they put the poison all around the anthill so surely that would get them.  It did until they found out where the death was coming from, and they built a bridge across it.

Finally, this man said I fixed a poison that would get them good.  It is a poison that they eat today, but nobody dies in the anthill for 25 days.  And then guess what happens?  They all die at once.  And they killed the harvester ants.

The Karen Silkwood case, brothers and sisters, stands for the proposition that we know the truth.  We know that the harvester ant syndrome doesn’t apply to us, that plutonium will kill us 20 or 30 years from now; we know what radiation and alpha particles will do in this generation and the generations to come.

We are in an extraordinary era in our life.  We are part of a great and extraordinary part of history.

Those of you who have the presence of where we are and what is happening to us know that.  The cases that you and I are going to deal with today and tomorrow have to do with how we as a species will survive.

Godspeed in your undertaking.  Thank you very much for permitting me to be a part of your program and to be with you today.

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

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