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Published: Thursday, 3/21/2013

U.S. can't be sued over worker illness

Government is protected from beryllium action

BLADE STAFF AND NEWS REPORTS

A federal judge has ruled that the U.S. government cannot be held liable for injuries to workers at the Oak Ridge nuclear weapon complex as a result of their exposure to beryllium.

U.S. District Judge James Jarvis ruled Wednesday that the government fell under a legal exception known as the "discretionary function exception," which shields the government from injury claims. He explained that the exception applies to "policy decisions" where the government has to make a judgment call.

In other words, the government was required to provide a safe workplace for employees, but it set the standards at its discretion "based on policy considerations such as economics and the needs of national defense to keep a strong nuclear weapons arsenal."

The ruling dismissed seven lawsuits brought against the United States by former workers at the government-owned Oak Ridge weapon complex. The workers said they had beryllium disease, an incurable lung illness caused by the metal's dust.

In addition, the ruling dismissed the United States as a defendant in five other worker lawsuits where it was listed along with companies that manufactured beryllium for use in the nation's nuclear arsenal. The lawsuits against at least 12 companies remain intact.

The decision would not affect lawsuits recently filed against beryllium producer Brush Wellman on behalf of Toledo-area workers, said Louise Roselle, an attorney for the workers. She said she is involved in 14 suits against Brush, which operates a beryllium plant near Elmore. Dozens of current or former workers have contracted beryllium disease there.

James Heckbert, a Colorado attorney representing about 50 beryllium victims, but not in the Oak Ridge cases, said: "The judge was not ruling on whether the government did anything wrong but whether the government could be sued in this instance.

"In general principle," he said, "you can't sue the U.S. government unless it gives you permission to sue" under the limited circumstances permitted under the Federal Tort Claims Act. This has roots, he said, in English law, "where you couldn't sue the king because the king could do no wrong."

Judge Jarvis hinted in a footnote to his ruling that perhaps he was not entirely happy with the law. "The court is aware that many of the plaintiffs may have suffered very severe injuries as a result of performing dangerous and even heroic work essential to our national defense," he wrote.

He noted that President Clinton is backing legislation to provide help with medical costs, lost wages, and rehabilitation for workers suffering from the illness.

The Oak Ridge lawsuits were filed between 1994 and 1999, contending that the U.S. Department of Energy and its Oak Ridge contractors knew that exposure to beryllium was dangerous but failed to adequately protect its workers.

Last year, The Blade published a six-part series exposing a 50-year pattern of misconduct by the U.S. government and the American beryllium industry - wrongdoing that caused the injuries and deaths of dozens of workers.

The series reported that beryllium air monitoring at Oak Ridge had been so poor that no one knew how much toxic dust individual workers were being exposed to.



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