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The Downwinders 

This independent full-feature film, called 'The Downwinders,' was written by Lance Brittan and produced by Shawnee Brittan, who is currently filmmaker-in-residence at the University of Oklahoma.  The film was shot in the summer of 2008 in the Oklahoma City area and is now in post-production. 

Visit the facebook page of 'The Downwinders'

'The Downwinders' is inspired by true events and takes place in two eras: the era of U.S. atomic testing in Nevada in the 1950s and a famous trial that took place in 1982 in Utah.'

Synopsis of 'The Downwinders' [found on the web]: 

'[The Downwinders] examines the consequences of the citizens living in the surrounding areas, or "downwind", of the Nevada Nuclear Test Site in the 1950s. During the Cold War, a time when patriotism is at an all-time high, Atomic Energy Commission spokesman Tom Fisher discovers a possible cover-up and lie to the American public while meeting the locals who, unbeknownst to them, are becoming victims of radioactive fallout. Part courtroom drama in the vein of "Erin Brockovich" and "A Civil Action", and part character drama, the film is set in two eras: the patriotic American 1950s, and the more hardened, jaded federal trial of 1982 that eventually led to the Radiation Exposure Compensation Act�a program that compensates victims of the Nevada Test Site...'  

The outcome of the trial

The decision made in May 1984 by Utah District Court Justice Bruce Jenkins in Irene Allen et. al., Plaintiffs, v. United States of America was notable in that for the first time a federal judge had ruled that, with regard to above-ground nuclear testing, the federal government had a special duty of care towards those citizens living downwind and had been negligent in the way it conducted its nuclear tests in Nevada.  Jenkins, in his decision, held that:

1. The government failed to adequately warn the plaintiffs of known or foreseeable long range biological consequences from exposure to fallout radiation from open-air testing; and that such a failure was negligent

2. The government failed to measure adequately and concurrently with open-air testing the actual amount in communities near the Nevada test site on a person-specific basis; and that such a failure was negligent

3. The government failed to adequately inform individuals and communities near the test site of well-known and inexpensive methods to prevent, minimize, or mitigate the known or foreseeable long range biological consequences of exposure to radioactive fallout; and that such failure was negligent

4.  As a direct and proximate result of such negligent failures, the government unreasonably placed the plaintiffs at risk of injury.  

Jenkin's decision was based on the 'contributory role' that radiation (as fallout) from the explosions played in causing cancers or leukemias among the plaintiffs.  He cited evidence including the fallout incident from Shot Harry in 1953 and testimony from Dr. John W. Gofman.  

Introduced in the trial proceedings and exhibits were a set of common-sense notions regarding 'radiation victim justice' that had Jenkins and his judicial colleagues acted upon could have radically altered the way we view, perceive and act with regards to the incidence of cancer and leukemia in America.  It could have drastically altered the progress of our nuclear age, for better, too.  

The combined notion that (1) all Americans since 1951 have been exposed to fallout from Nevada that carried or carries some risk of the onset of disease, (2) through scientifically-determined probability each American's cancer or leukemia therefore is caused 'fractionally' by these exposures, and (3) since the federal government conducted its testing program negligently and put all Americans at risk of injury then the government is liable, should mean (4) that each and every cancer or leukemia victim in the U.S. since the 1950s ought to receive from the U.S. Treasury the corresponding fraction of a full payment owed for the wrongful 'injury' or death that was likely caused by their exposures to Nevada fallout by the U.S. government.  The reason why is spelled out in our second book chapter here.  

Shamefully, Jenkins failed to fully embrace this notion, his colleagues in the 10th Circuit Court of Appeals who overturned his decision willfully ignored an important phrase in federal legislation ('due care') that led to their unjust verdict, and Congressional leaders finally settled upon a bill (RECA) that addresses the compensation issue for 'downwinders' in a way that ignores science, common sense and true justice.  Lastly, the entire downwinder community, the lawyers involved and federal justice and legislative entities before, during and after the Irene Allen Trial completely overlooked the public health harm that arose via the U.S.'s contribution via its 1940s through 1960s Pacific nuclear tests to global fallout, which was far more injurious - radiologically speaking - to the American populace than Nevada fallout.

Links

Read our full analysis on the trial and related issues: here

'Trial to Open Today in Lawsuit Over Nuclear Fallout,' September 14, 1982 

'Radiation-Cancer Link Key to Ruling,' New York Times May 12, 1984  

A famous quote from the trial occurred at its end.   After listening to the rebuttals, Jenkins turned to one of the plaintiffs and said: 'As I was sitting here, I remembered a line from My Fair Lady. "I've grown accustomed to your face." I appreciate your being here. I'm rather going to miss you. I'll do the best that I can within the time that it takes to turn out a determination on the matter.'  

Learn more about the efforts of Kimberley Joseph, television show host, photographer and most recently documentary filmmaker.  After taking interest in the radiation victims of fallout from Soviet nuclear testing, she has completed a 13-minute docufilm titled 'Where the Dust Settles' that is to be made into a full-length feature by the end of 2010.  Ms. Joseph is a native of Australia's Gold Coast.   

Jenkin's decision

Judge Jenkins' 489-page decision in the case of Irene ALLEN, et al., Plaintiffs, v. UNITED STATES of America, Defendant is available for perusal and download via WestLaw.  Below is the table of contents as it appears in Jenkins' May 10, 1984 opinion.  We provide short and long excerpts in our book's 2nd chapter. In footnotes 19 & 20 on this page here we link to & reproduce full sections of Jenkins' opinion.

I. INTRODUCTION AND STATEMENT OF THE CASE
II. BACKGROUND: BASIC PRINCIPLES OF RADIATION
AND NUCLEAR PHYSICS
III. NUCLEAR FALLOUT
IV. BACKGROUND: BASIC PRINCIPLES OF HEALTH
PHYSICS
d V. LEGAL ANALYSIS: DISCRETIONARY FUNCTION
VI. LEGAL ANALYSIS: STATUTE OF LIMITATIONS
VII. LEGAL ANALYSIS: THE DUTY ISSUE
VIII. LEGAL ANALYSIS: BREACH OF DUTY
IX. THE QUESTION OF CAUSATION
X. DAMAGES
XI. FINDINGS OF ULTIMATE FACT AND CONCLUSIONS
OF LAW
APPENDIX A
APPENDIX B
APPENDIX C
APPENDIX D