More than four years after the mysterious death of Karen Silkwood, a nuclear-plant employee, and two years after a lawsuit was filed against the Kerr-McGee Corporation, the Silkwood case finally is getting its day in an Oklahoma City federal court. Opponents of nuclear power view the trial, expected to start in early April, as an unprecedented test of the nuclear industry's accountability.
Silkwood, a lab technician at Kerr-McGee's plutonium plant outside Oklahoma City, was killed in a November 1974 car crash while on her way to meet with a union representative. She was supposedly delivering a manila folder of documents about problems at the plant. Investigators hired by the union – Oil, Chemical and Atomic Workers International (Ocaw) – found skid marks at the scene and dents on her car that they said indicated foul play.
Silkwood had spent the previous six weeks as an Ocaw spy, attempting to document allegations that the Kerr-McGee operation was sloppy, dangerous and fraudulent. The manila folder, reportedly filled with the results of her espionage, disappeared the night of her death.
The car crash was Silkwood's second unexplained accident. Only a week before, a microscopic amount of plutonium, a fiercely toxic substance, had been sprinkled on some bologna and cheese in her refrigerator. Silkwood handled the food, contaminating herself. Though it was not enough to kill her, she was briefly hospitalized and the incident deeply scared her.
The lawsuit, filed by Silkwood's family, focuses on this contamination. It accuses Kerr-McGee of negligence and asks for $11.5 million in damages. Though there is disagreement as to how the plutonium found its way into Silkwood's apartment, Kerr-McGee does not dispute that the plutonium came from its plant; and the suit technically argues only that the company, as legal custodian of the radioactive material, is responsible for it.
The jury's verdict, however, probably will hinge on which side has the most believable scenario of the events that led to Silkwood's death. For both sides, the evidence is circumstantial.
The Silkwood lawyers believe a Kerr-McGee operator contaminated food in her kitchen to discourage Silkwood from her undercover work. When that failed, they say, someone forced her car off the road to recover the manila folder. (Murder presumably was not the intention. Silkwood hit a culvert that was hidden from view and the collision apparently took her and her alleged pursuer by surprise.)
Kerr-McGee claims that Silkwood dusted her own refrigerator with plutonium to dramatize her concern over plant safety. The company also contends that Silkwood never had a folder of documents; instead, she allegedly rammed her car into the culvert in a suicidal frenzy, hoping the company would be blamed for her murder. Kerr-McGee lawyers have said they plan to produce testimony at the trial that Silkwood had a history of suicide attempts.
The Silkwood lawyers suggest that Kerr-McGee was afraid of her sleuthing. Pretrial testimony disclosed that the company did not report more than 100 contamination incidents at the plant and could not account for up to 60 pounds of missing plutonium. One investigator, part of a congressional inquiry into practices at the plant, had tried to locate the lost material, enough for five atomic bombs. He now believes it was smuggled into a foreign country.
A former employee also testified that a Kerr-McGee supervisor had once attempted to steal uranium from a government stockpile. And in testimony given during the congressional investigation, Dr. Karl Z. Morgan, director of a federal health-physics program in Tennessee for 25 years, rated the plant's safety problems as the second worst he had ever encountered. (The plant was closed in 1975 after the company refused to comply with new federal safety standards.)
Kerr-McGee has contended that Silkwood had not uncovered any wrongdoing. That issue has remained moot for four years, largely because no one could prove how substantive her undercover investigation really was. But now it seems that the mystery of the phantom manila folder has been solved.
A Kerr-McGee official, Roy King, who was cross-examined in a pretrial deposition, admitted that state trooper Rick Fagan told him of picking up Kerr-McGee official documents at the accident scene and placing them in Silkwood's car. King said Fagan agreed to meet him the next day at a garage where the car had been towed. But shortly after midnight, according to FBI reports and the owner of the garage, two other company men went with Fagan to open up the garage. The next morning, said King, Fagan met with him and told him the papers had already been removed.
King said he did not know what the folder contained or whether it still existed, but his testimony confirmed Silkwood supporters' longstanding suspicion, and it fits with another piece of new evidence.
Silkwood investigators recently talked to Justice Department sources who say that Kerr-McGee allegedly had Silkwood under surveillance during the week before her death. If true, Kerr-McGee officials could have known of Silkwood's scheduled rendezvous and could have tried to stop it. The Silkwood lawyers are understandably eager to get this information to the jury. But first, they will have to get the reluctant sources to come forward and then must convince U.S. Judge Frank Theis that it is admissible in a negligence suit. More likely, this evidence will have to wait for a possible second trial that the lawyers hope will confront the hit-and-run issue more directly.
A separate part of the negligence lawsuit, which accuses Kerr-McGee of violating Silkwood's civil rights, was severed from the case in the fall of 1978. Judge Theis ruled that the Federal Civil Rights Act, the legal basis for the accusation, did not apply to Silkwood's circumstances. Her family's lawyers are now appealing that decision to the United States Court of Appeals for the Tenth Circuit in Denver and expect it to reach the Supreme Court. The appellate courts will have to overturn Judge Theis' ruling for the second trial to proceed.
The odds, as they have been throughout the case, are not in favor of Silkwood supporters. Kerr-McGee is an awesome foe for the small band of volunteers who launched the lawsuit after the congressional investigation foundered. The company has extensive influence on Oklahoma politics and economics. And in the Silkwood case, it has had the support of the Atomic Industrial Forum, the nuclear industry's political arm.
In addition, a series of curious misfortunes have haunted the Silkwood side. Two key witnesses fled the country before they could be served with subpoenas. Two others died shortly before they were to be questioned. And when a car in which Chief Counselor Danny Sheehan was a passenger was stopped for a moving violation, Sheehan was jailed and put out of action for three days at a critical juncture in the deposition taking. All charges were hastily dropped.
Pretrial jockeying by both sides has kept the case in judicial limbo for two years. The Silkwood lawyers forced presiding judges off the case twice because they seemed to favor Kerr-McGee, a feat that is rare when it happens once in a federal court. As a result, the Court of Appeals appointed Judge Theis of Kansas as a special out-of-state magistrate.
Kerr-McGee did its best to get the suit dismissed, challenging it on jurisdictional grounds and other points of law. But Judge Theis denied the last of the company's objections in mid-December and ordered the case to trial. The Silkwood lawyers considered that ruling a substantial victory. "All we've ever wanted was to get the case in front of a jury," says Sheehan. "We think the facts will do the rest." Even if the suit does not answer all the questions about Silkwood's death, Sheehan is hoping the jury's decision will vindicate Silkwood's investigation.
The suit's outcome may well have implications beyond Kerr-McGee and Karen Silkwood. The jurors will be laymen in a rare position, sitting in judgment of an industry that has long enjoyed protection from the federal bureaucracy and the scientific establishment. Both pronuclear and antinuclear activists have been making plans to be in Oklahoma City for the verdict. By May they should have one.