James Noel arrived at the Federal courthouse in Oklahoma City on March 19th bearing a handwritten log of his experiences at a plutonium factory thirty miles away. The datebook had been in a desk drawer in his home since he left his job at the plant in 1974. Lawyers for the estate of the late Karen Silkwood, a former factory employee, had asked Noel to submit it as evidence in a landmark $11.5 million lawsuit against the nuclear-fuel-plant owner, the Kerr-McGee Corporation of Oklahoma.
Now a high-school science teacher, the bearded, tawny-haired Noel took the witness stand. Before him were jury members and an assembly of lawyers, reporters and political activists, many of them from New York and Washington D.C., who had gathered for the initial stage of the trial to hear the plaintiff’s opening presentation. The questioning began, and soon turned to a diary entry on October 22nd, 1974, three weeks before Silkwood’s mysterious death.
“Karen called me on the phone,” Noel testified. “She told me she was conducting a secret investigation at the plant, and she mentioned three particular items.” The first two, as he explained it, involved alleged safety violations and the falsifying of quality-control records. The third item sent a current of surprise through the audience.
Silkwood, he said, had discovered that approximately forty pounds of plutonium were missing from Kerr-McGee’s inventory.
Plutonium is the key ingredient in nuclear weapons, and that amount, enough for four bombs, could command $10 million or more on the international black market. Noel’s testimony was the first sworn corroboration that the twenty-eight-year-old Silkwood knew of possible smuggling at the plant, and his datebook seemed to point to her former employer as the chief suspect in the “unsolved crimes” her death left behind.
Karen Silkwood trusted Kerr-McGee, the country’s largest uranium producer and a pioneer in the plutonium field, when she was hired as a lab technician in 1972. But her opinion changed slowly over the next two years. Although she was not a scientist, she felt the plant’s operation was unsafe and, at times, illegal. Leaky gaskets and other faulty equipment caused the 150 workers to breathe in plutonium dust, and in September 1974, when Silkwood learned that as little as one-millionth of a gram could lead to cancer, she decided to take action.
Silkwood confided in two of her union’s national officials, Tony Mazzocchi and Steve Wodka of the Oil, Chemical and Atomic Workers International (OCAW), and, at their request, agreed to get documentation of the problems. It was a clandestine effort, and the information was supposed to end up on the front page of the New York Times.
A week before Silkwood was to meet with a Times reporter, microscopic traces of plutonium were sprinkled on the contents of her refrigerator. Silkwood ate the food, and shortly thereafter suffered from radiation poisoning and was briefly hospitalized. The incident left her visibly frightened; “I’m afraid I’m going to die,” she told friends, choking back tears. Nonetheless, she summoned her remaining nerve and proceeded with planning the Times rendezvous on November 13th, 1974.
She was on her way to deliver the results of her sleuthing — a russet-colored notebook and a manila folder reportedly filled with company documents — when her car veered off Highway 74 near Oklahoma City and hit a concrete culvert. The folder and notebook subsequently disappeared. Oklahoma police decided her death was an asleep-at-the-wheel accident, but a private investigator hired by the union found dents in the rear of her car that he attributed to a wheeled assailant.
In November 1976, after Justice Department and congressional inquiries foundered, Silkwood’s father filed a lawsuit in a final attempt to prove that his daughter was a victim of more than bad luck. Part of the suit, which accuses Kerr-McGee of civil-rights violations, has been severed from the case pending an appellate review. So the current trial is generally restricted to the bizarre contamination of her apartment. That part of the suit holds that Kerr-McGee, as legal custodian of the plutonium, is responsible for it leaving the plant and therefore the food contamination.
The primary issue in the trial is negligence. But antinuclear forces view the Oklahoma City courtroom as an epicenter of their fierce nationwide struggle.
The trial opened on March 6th in a modern chamber with twenty-foot-high ceilings and walnut walls. The four Silkwood lawyers jauntily took their seats while the six Kerr-McGee lawyers, who had fought for two years to prevent this day, seemed equally assured.
Many of the dozen or so reporters expressed skepticism about the trial living up to its promise. That worry has faded. Not only has the testimony seemed to clear up some four-year-old mysteries, but it has also laid the foundation for a legal precedent that could make nuclear plants liable for a broad range of health problems caused by radiation. Visitors to the courtroom, including representatives of the nuclear industry, have started to call this the “Scopes trial of the Seventies.”
John Scopes was a Tennessee schoolteacher fired for instructing students in the theories of evolution, and his 1925 case pitted Bible fundamentalists against vanguard scientists in a famous test of civil liberties. As with Scopes, the ramifications of the Silkwood trial may eventually overpower the details.
The Silkwood lawyers are trying to prove that the plutonium she ingested would have led to a certain death from cancer, if she had not been killed in the car wreck. Dr. John Gofman, a former government scientist and the first to isolate the plutonium isotope, testified that Silkwood was “married to lung cancer — it was an inevitable process.” If the jury agrees, Silkwood would become the first officially recognized victim of radiation in the U.S., and if the case eventually reaches the Supreme Court and the decision is upheld, radiation would be officially classified as a “public health hazard.”
Other lawsuits would certainly follow. Neighbors of a nuclear facility near Denver, where a 1969 fire spewed radioactivity from smokestacks, and residents of Middletown, Pennsylvania, where a plant recently developed serious radiation leaks, are among those who would qualify as plaintiffs. The eventual cost to the nuclear industry could be in the hundreds of millions of dollars.
At its current pace, the trial should end in a verdict about mid-May. Until then, the outcome is uncertain. But among local attorneys who have been watching from spectators’ seats, there is a consensus that the trial took an early turn against Kerr-McGee on March 15th.
Ron Hammock, another of Kerr-McGee’s ex-workers, was on the stand as a result of a subpoena from the Silkwood lawyers. Hammock is now employed as a state trooper. On the front-row bench he saw Robyn Petty, an assistant with the Silkwood team. She had chained herself to a bulldozer last October to protest the building of a nuclear plant near Tulsa, and Hammock had been the officer who arrested her.
Hammock wears honesty on his face like a uniform. Under the gentle prodding of Silkwood lawyer Gerry Spence, he explained that Kerr-McGee frequently did not inform new employees about the menace of plutonium before sending them directly into production work. The median age in the plant work force was twenty-three, and many workers were teenagers off nearby dairy farms and ranches. Hammock said he had never been given the training courses required under federal law.
On cross-examination, Kerr-McGee lawyer Elliott Fenton challenged Hammock’s memory, showing him an attendance list from a personnel file indicating that he had gone to the classes.
Like a boxer bounding out of his corner, Spence was immediately on his feet with an objection. He argued that the personnel file should have been turned over at a pretrial hearing and therefore was not admissible. The judge excused the jury and moved the disagreement into a private room behind his bench.
While the lawyers wrangled, one of the Silkwood associates, Art Angel, examined Hammock’s signature on the attendance list and noticed it was spelled “Hamhock.” Angel tugged at Spence’s sleeve and suggested he withdraw the objection.
Back in front of the jury, the unwitting Kerr-McGee lawyer thrust the sheet of paper at Hammock and demanded: “Doesn’t this refresh your memory? Don’t you recognize your signature?”
The state trooper studied the document. His answer was a hushed detonation. “No, sir, that’s not my handwriting.”
Spence later made sure the jury had not missed the meaning. “Putting it in plain old-fashioned language, would you call this a forgery?” he asked.
The faces at the Kerr-McGee table flushed crimson at the word. Hammock’s voice grew even quieter. “Yes, sir,” he replied.
The next witness, sandy-haired Randy Snodgrass, had worked three years at the plant, but he testified that he had first learned about plutonium’s carcinogenic nature only two weeks earlier while reading a newspaper report of the trial. This time it was Spence who brought out a personnel file, having secured it from his unhappy opposition. Snodgrass inspected signatures on an attendance list and on a receipt indicating he’d been given a safety manual. Without hesitation, he pronounced them fraudulent.
The alleged forgeries are of only modest significance as evidence, but they have become symbols of Kerr-McGee’s credibility, or lack thereof, and they do fit into the pattern of apparent deceit Silkwood was trying to document.
Much of the other testimony so far has been devoted to the three items of concern that Silkwood mentioned to James Noel. The Silkwood side has introduced government records to confirm that the company could not account for forty pounds of plutonium at the time of Silkwood’s death and that the material was still missing when the plant was closed in 1975 after Kerr-McGee refused to comply with new federal safety standards. Twenty-four pounds, according to the company, are lodged in the plant piping system, and sixteen were allegedly lost to statistical error. But former plant official James Smith told the jury that he supervised the flushing of the pipes with hot nitric acid, and they were barren.
If suspicions of smuggling prove true, Kerr-McGee could be prosecuted on criminal charges. The company could also face fines and other civil penalties, and if the allegations of falsified quality-control records are correct, the population of Hanford, Washington, could be exposed to a deadly nuclear meltdown. Hanford is the location of an experimental nuclear reactor to which Kerr-McGee shipped the long, pencil-thin fuel rods produced at its factory. Silkwood had claimed that welding at each end of the rods, needed to seal in a dangerous cargo of tiny plutonium pellets, was often defective and that x-rays were touched up to hide imperfections.
State trooper Hammock testified that Kerr-McGee officials also finessed Hanford’s quality-control inspections by ordering the welds sanded down, a procedure that further weakened them. Hammock said that whenever production fell behind, the Hanford plant received batches of inferior rods. Up to ninety percent of some batches, according to other testimony, was rejected.
Hanford technicians did only spot-checks on the welds, however, and some enfeebled rods may be unknowingly used in the reactor when experiments finally begin this summer. If so, they could potentially break open and expose the reactor core, the superheated fuel causing the catastrophe known as the China Syndrome. The fuel melts right through the bottom of the plant, and when it hits ground water, it explodes into the atmosphere creating clouds of radioactivity.
Kerr-McGee’s zeal for production deadlines was also cited as the culprit in a number of safety violations Silkwood’s former coworkers cataloged. Rather than shut down “hot” production areas, Kerr-McGee officials outfitted workers in respirators that only screened out varying fractions of the radioactive dust. Kenneth Plowman, who got his nuclear training in the navy, said he quit his job as a Kerr-McGee health physics technician because “it seemed like things were going from one emergency to another — contamination was everywhere, and there was no real effort to control it.” He said workers often went home with plutonium on their skin that could not be washed off.
Snodgrass told of having surgery when a contaminated metal sliver was embedded in his hand. Smith likened the situation to a “pigpen,” and blamed the contaminations, which he estimated “in the hundreds,” on lack of training and cheap, shoddy equipment.
Dr. Karl Z. Morgan, considered the “father of health physics” for his role in establishing the federal nuclear safety code, testified that Kerr-McGee had demonstrated a “callous, almost cruel disregard” for its workers. He categorized the plant as one of the two worst in the country, the now-closed West Valley plant in New York being the other.
On several occasions, witnesses said, radioactive toxins slipped past the plant’s security and safety system, described as an “all-around joke,” and wound up in the village of Crescent a few miles away: for instance, a company truck covered with plutonium was said to be a regular customer at a Crescent carwash, and at least three workers reportedly ate lunch at Crescent cafes while similarly contaminated. Because Kerr-McGee made no follow-up inspections, there is no way to measure the effects on the people of Crescent, but, in yet another incident, runoff from one of the company’s nuclear waste ponds allegedly left scores of fish floating belly-up in the nearby Cimarron River.
In each of these cases, Kerr-McGee officials are believed to have disguised or withheld information from the public and from federal authorities. It was the company’s continuing cover-up, Silkwood lawyers contend, that led to the plutonium in her apartment and, ultimately, to the fatal car accident on Highway 74.
Kerr-McGee’s position, as outlined in unofficial briefings during the past four years, is that Silkwood contrived the apartment contamination and either fell asleep at the wheel or killed herself in a suicidal frenzy because she had no evidence of wrongdoing to give the New York Times.
The trial’s remaining weeks will focus on Kerr-McGee’s explanation of that theory and on the Silkwood side’s rebuttal that company operatives poisoned her and, when that failed, engineered her death and stole the documents.
Even before the jury’s verdict, the showdown in Oklahoma City represents a triumph for the small legion of Silkwood supporters who refused to abandon their cause. For them, the lawsuit has been two years of frustration, skimpy budgets and long hours of work, almost all of it volunteer. They had so little money that for a long time they could not afford photocopies of pretrial depositions and had to treat each original as if it were the Magna Charta.
Three young lawyers prepared the case. Art Angel, the Federal Trade Commission prosecutor in a 1977 funeral home scandal, and local counselor Jim Ikard researched the suit’s legal basis and thwarted Kerr-McGee’s repeated attempts to get it dismissed. Danny Sheehan, a one-time apprentice with F. Lee Bailey, filed the suit, mapped the basic strategy and recruited the eclectic group that has held the case together behind the scenes.
In that group are two Catholic priests, Bill Davis and Wally Kasuboski, who without any prior experience have served as the legal investigators. The legal assistants are Pat Austin and Robyn Petty, two young Colorado women who ran out of gas in Oklahoma en route to Texas in 1977 and were subsequently persuaded to give up their Christmas holiday and the next sixteen months. They and scores of others have made for a surprisingly effective team, but their efforts hardly seem competitive with a $1.2 billion corporation like Kerr-McGee. The Oklahoma company also has an advantage as a prairie powerbroker, able to call on friends in the local legal establishment.
But at the fashionable Quail Creek Country Club, according to a young member of the city’s elite, the lawsuit stirred almost no interest, even among those willing to place wagers on any contest. “The odds were too steep,” he explained. “If you wanted to bet on Kerr-McGee, you had to give 100 to 1, maybe 200 to 1.”
One of the region’s bigger skeptics was Gerry Spence, a Wyoming trial lawyer with a reputation as big as his tobacco-brown Stetson. When Silkwood lawyer Sheehan first tried to recruit him, Spence shook his head: “There’s no way I’m gonna get mixed up in some jack-in-the-box no-nukes trial.” He viewed the case as long on political rhetoric and short on clout. But Sheehan, joined by Angel and Ikard, badgered Spence until he succumbed. And when he did, the Quail Creek Country Club odds began to plummet.
Spence is a lawyer of enormous talent (he has an essentially undefeated record in big murder and corporate cases), a master at stagecraft (he always selects the counsel table closest to the jurors and orchestrates testimony to seem like tete-à-tetes with them) and a practitioner of country charm (“I speak Western,” he said with a boyish smile during his opening statement).
The Kerr-McGee chief counselor, Bill Paul, is the immediate past president of the Oklahoma Bar Association, and his associates come from the state’s most prestigious firms, but by comparison they look stiff and outclassed. Indeed, Spence’s simplest maneuvers can put them on the defensive. On the first morning of the trial, the man in the cowboy hat noted his opponents’ conservative attire and declared them the “men in gray.” Paul got up and tried lamely to joke about his wardrobe. The colors at the Kerr-McGee table the next day were camel, olive and blue.
The appointment of U.S. District Judge Frank Theis to the case a year ago also lowered the betting odds. Theis, a special out-of-state magistrate from Kansas, is the third judge to preside over the case. The first two, both members of Oklahoma’s old-boy network, were forced off the case because of bias toward Kerr-McGee. Had either judge been allowed to stay on, the suit probably would not have reached trial.
In his search for the truth, Theis is permitting both sides to probe for testimony that might otherwise be off-limits. As a result, Kerr-McGee’s lawyers have sometimes appeared unprepared or, as in the revelation of the alleged forgeries, unaware of the extent of their client’s culpability.
At perhaps a dozen junctures, where new evidence against Kerr-McGee has been submitted, Bill Paul has lobbied futilely for a mistrial. On April 2nd he renewed the request, basing it on the potential prejudice stirred by the recent nuclear accident in Pennsylvania. Judge Theis asked the jurors to avoid news accounts of the crisis, and he made it clear that Kerr-McGee’s major troubles lie in events that had taken place in Oklahoma.
On a recent Friday night, the entire Silkwood legal team went to a local theater to see the film Norma Rae, the story of a young woman (played by Sally Field) who beats the odds in her struggle to unionize a textile mill. Afterward, the group celebrated the week’s end at a nearby ice-cream parlor. Spence finished off two double-dip pistachio cones and, with a contented smile, recalled his earlier reservations about the case: “I don’t think I really understood what was at stake until the second or third day of the trial. Then wham!”
He laughed puckishly. “What was the Scopes trial all about? Monkeys, that’s all! Now this case. … ” Spence suddenly turned serious. “It’s absolutely the most important thing I’ve ever done.”
He paused again. “Damnit, I’m glad we’re doing this. It may be one of the most important cases ever when you think about what’s really at stake.”