Court Allows Widow to Sue U.S. on Nuclear Exposure

The widow of a San Diego oceanographer who was exposed to radiation during U.S. nuclear bomb tests has won the right to sue the United States for the wrongful death of her husband on grounds that the government failed to warn him that he could develop cancer.

The decision Monday by a three-judge panel of the U.S. 9th Circuit Court of Appeals conflicts with rulings of the nation’s other federal appellate courts and could be appealed by the government to the U.S. Supreme Court.

The 9th Circuit panel reversed an earlier finding by a federal judge in San Diego that the government could not be sued because an administrative death claim filed with the Coast Guard in 1978 failed to raise the issue of the government’s responsibility to issue cancer warnings.

Carl Shipek, exposed to radiation during atomic bomb blasts in 1946 in the Bikini Islands and in 1952 in Nevada while serving in the Coast Guard, was an oceanographer with the Scripps Institution of Oceanography in La Jolla when he died in 1969 of cancer of the pancreas.

His widow, Florence Shipek, now a school teacher in Wisconsin, first filed a $2.5-million wrongful death suit against the government for exposing him to the radiation. When that was dismissed in 1983, she filed a lawsuit focusing on the government’s failure to warn him of the health hazards of such exposure.

U.S. District Judge William B. Enright of San Diego rejected the wrongful death suit, ruling that Florence Shipek had not raised the warning issue when she first filed a wrongful death claim with the Coast Guard, an administrative prerequisite in suing the United States.

Urging the 9th Circuit panel to uphold Enright’s ruling, Joan Bernott, a special counsel to the Justice Department, told the judges that any ruling against the government could open the way to similar claims by other former U.S. servicemen exposed to nuclear radiation.

“We believe this is an important case,” she argued during a December hearing in Pasadena. “It will have precedential value.”

In ruling against the government, however, the 9th Circuit panel, composed of Judge Harry Pregerson of Los Angeles, Senior Judge Richard H. Chambers of Tucson and U.S. District Judge Edward C. Reed Jr. of Nevada, held that the federal administrative claims process was not designed to screen out potentially valid lawsuits.

Congress was attempting only to ease court congestion, avoid “unnecessary litigation” and provide fairer treatment for individual citizens who present damage claims against the government, Pregerson noted in the panel’s unanimous opinion.

“Appellant’s wrongful death claim, based on the government’s alleged failure to warn Shipek after his discharge from the service of health hazards caused by radiation exposure, should be heard on the merits,” Pregerson wrote.

San Diego attorney Jerome J. Schiefelbein, who represented Florence Shipek, said there is a strong possibility that the Justice Department will appeal the decision.

“There’s definitely a conflict in the circuits,” he said. “The theory of a post-discharge duty to warn him which I argued has only been accepted by the 9th Circuit.

“Post-discharge duty has been rejected by other circuits.”

Schiefelbein added that because the one-year federal statute of limitations on wrongful death claims expired long ago, he will also have to prove that the government actively concealed the health hazard of radiation exposure from Shipek if he is to be granted a district court trial on the issue.