Full opinion text
MEMORANDUM AND DECISION PATRICK F. KELLY, District Judge. These consolidated lawsuits have been fully tried before the Court pursuant to 28 U.S.C. § 1346(b) (1976), and the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680 (1976). Venue of the action is proper pursuant to 28 U.S.C. § 1402(b) (1976). Simply said, the cases concern the claims of four employees of Aircraft Instrument and Development, Inc. (AID), of Wichita, Kansas, who personally, or through their representatives, contend that their respective cancers and resultant damages were caused by exposure to minute quantums of ionizing radiation that originated from luminous dials and instrument parts sent to the AID Plant. The United States, being the primary supplier of these products, is the sole remaining defendant. Essentially, this case deals with the science of health physics and the ramifications, if any, of exposure to ionizing radiation. The litigants offered the testimony of 53 witnesses, including that of some of the most eminent persons in the field. Massive documents from both sides were offered. The testimony of each witness has been carefully digested with perceptions of demeanor and expertise noted. Each of the exhibits has been carefully reviewed and studied. The Court’s detailed trial notes and much of the transcript (5,409 pages) have been reviewed and reread. Counsel have provided the Court with suggested findings of fact and conclusions of law and have fully argued their causes. This decision is intended to address and detail as fully and succinctly as possible the factual and legal reasons why the plaintiffs cannot recover in this suit. 1. Introduction of the Parties; Some History of the Litigation; and a Brief Resume of the Respective Claims and Defenses The estate of Earl E. Johnston claims damages for his wrongful death and conscious pain and suffering in that his exposure caused leukemia; the estate of Don C. Vessels similarly claims damages as a consequence of his lung cancer; Barbara J. Womack claims damages for pain and suffering, for a shortened life expectancy, and for related damages as a consequence of her thyroid cancer. She additionally claims damages for mental suffering from an expectancy of future cancers. Loyd B. Womack, husband of Barbara Womack, claims a loss of consortium and mental suffering from an expectancy of cancer; Lila M. Mewhinney and her husband, Richard, similarly claim damages as a consequence of her colon cancer. Plaintiffs Womack and Mewhinney have claimed damages for an expectancy of cancer in their children. It appears that these children had from time to time visited the AID facility and been exposed. These claims were stricken by the Court in its order dated February 24, 1984. The detailed history of each person’s involvement, as to time and extent of alleged exposure and the ramifications of their respective claims, are hereinafter discussed. From the outset, each has urged that radium-226, a radioisotope which produces ionized radiation, is ultrahazardous per se and inherently dangerous, as it is destructively powerful. They urge here, by example, that should radium-226 be inhaled and ingested into the human body, it gives off alpha particles that alter a cell formation and start the cancer process. Detailed ramifications of radium-226, radon gas, daughter products, etc., are also hereinafter defined and discussed. Plaintiffs claim that since there is no known safe threshold from such exposure, the United States was required to adequately warn of the dangerous properties by clearly labeling each radium-painted instrument, which instruments were then distributed into surplus markets. The plaintiffs further contend that through the recent years, the United States has released massive quantities of unmarked radioactive aircraft instrument parts into the surplus market; that while stored and used at such places as the plaintiffs’ employer’s plant,. AID, these parts accumulated in storage areas and about the employees’ work area, during which time the ionized radiation was permitted to build up to dangerous quantums, giving rise to injury. Shortly prior to this trial, these cases were also pending against numerous manufacturers and suppliers of these products, who, in turn, directly or indirectly, distributed the products, including those from the United States. This is mentioned here inasmuch as a goodly number of different types of instruments have been discussed, and for the following reasons: The plaintiffs have always maintained, in part, that the United States’ liability is absolute, following Rylands v. Fletcher, L.R. 3 H.L. 330 (1868). The Court ruled prior to trial (Memorandum and Order Feb. 24, 1984) that as it would appear that radium compounds and one’s exposure to such compounds are highly dangerous, then in such an event, the doctrine probably should be considered. The Court alternatively suggested a remedy under the concepts embodied in the Restatement (Second) of Torts § 519 (1979). A decision on these issues, however, was reserved pending receipt of the evidence. Coinciding with this theory, if applicable, however, was the Court’s additional finding that inasmuch as the plaintiffs’ claim asserts a fault concept at the hands of others, it should as a consequence be weighed pursuant to the comparative fault principles of Kansas (K.S.A. 60-258a). Thus, in the course of these cases, the respective comparative fault has been jointly considered. In this regard, the Court has heard the evidence as it may apply to the plaintiffs’ employer; perhaps the State of Kansas, whose duty it was to regulate, monitor and/or inspect the premises; and the plaintiffs’ acts themselves. In other words, each have been weighed consistent with the law of Kansas. For reasons shown, all of this has been an unnecessary exercise. For the most part, these cases, considered alternatively as negligence actions, test the traditional duties, if any, of the United States. They suggest that the product is highly dangerous, and that the United States has a high standard of care and is required to warn ultimate users such as the plaintiffs of the consequence or dangerous propensity of radiation exposure; that failure here has caused or contributed to the plaintiffs’ injuries. The United States has adamantly denied any liability to these plaintiffs for sundry reasons. Some of their defenses have been previously addressed, including those of the statute of limitations and the propriety of filing of the plaintiffs’ claims (Memorandum and Order Jan. 12, 1984). It is first contended that the United States is immune by reason of the discretionary clause found in 28 U.S.C. § 2680(a), and as a consequence this Court has no jurisdiction. Again, prior to trial, the Court took this issue under advisement awaiting some developments in the evidence. When the plaintiffs rested their cases, the Court ruled that the government’s decision to use and/or ultimately dispose of these instruments was indeed a discretionary function and no liability will flow from that decision. This issue is additionally addressed herein. As to immunities, if any, for the government’s alleged failure to label or warn of the propensities of the products, the Court, sensitive to the Tenth Circuit’s rationale in Miller v. United States, 710 F.2d 656 (1983), again took that issue under advisement. The Court, in this decision has also fully addressed its views and findings. Next, and what develops to be the central issue in these cases, is the United States’ insistence, that while there may not, as yet, be a scientifically established threshold of exposure from which these cancers could arise from exposure to ionized radiation, that nevertheless all of the scientific studies, tests, and experiments known to the health physics community suggest that there are no epidemiological studies or findings to support an occurrence of cancer from exposure at less than 50 rad. There probably is, at least, a safe or practical threshold from exposure at about five rem per year, as a maximum permissible low dose (LET). A rem is a unit for measuring a dose of radiation received by an individual. Even in this event, the kinds of cancers claimed by the plaintiffs would not occur. They have claimed here, under the circumstances shown, the plaintiffs’ exposure from the instruments is so minute that each would have to literally eat the paint, and even then only incur the unfortunate result of bone sarcoma or cancer of the paranasal sinuses. Admittedly, as these cases commenced, this Court, a layman in the truest sense, impressed with representations of the plaintiffs’ counsel from the outset, received the government’s claims with some skepticism. Indeed, the government’s counsel was chided from time to time, as these claims were then thought to border on the facetious. To give some contrasting perspective, which in great measure directs the course of the Court’s findings and reasonings, it is recalled in the course of a previous hearing that the shipment of the parts identified for testing was to have been delivered from plaintiffs’ counsel to one of the defendant counsel’s office. The plaintiffs’ counsel understandably exercised his concern as to the safety of his colleague and wanted to assure care in the delivery of these parts to counsel. Defendant’s counsel was not the least bit interested, but as a layman this judge most certainly was! Now, in the course of trial, an aircraft instrument coated with radium paint was placed on the Court’s exhibit stand. Again, plaintiffs’ counsel exclaimed some concern as to our safety. As of then, the Court had digested the teachings from a superb witness, Dr. John Auxier, and reasonably appreciated the quantums of radiation, i.e., 3.5 microcurie, which each instrument would emit. A microcurie represents Vi,m.m of a curie. Additionally, the Court had come to understand alpha emissions, which under the circumstance were harmless. In every event, on this occasion the Court was not so concerned, because as this decision attempts to show, such a notion, standing alone, is nonsense! Lastly, the government denies the factual foundation on which plaintiffs’ cases are premised. II. The Plaintiffs’ Case The plaintiffs’ cases describe a state of circumstances, much of which is entirely circumstantial. Since exposure to Mrs. Womack is alleged to have commenced as early as 1967, it is necessary to establish the environmental basis as of that time. There is, of course, no hard data to support this, and as a consequence we commence the cases with comparative studies. In 1968 the Bureau of Radiological Health carried out a national program designed to reduce the exposure of man to hazardous ionizing and non-ionizing radiation. Radium luminous dials had been used since 1919 in military aircraft, particularly during World War II and immediately thereafter. Many of those instruments, declared surplus by the United States Department of Defense, were being utilized by private industry for repair parts and original installation in light aircraft. Significant contamination had been observed in these facilities as they disassembled and repaired the instruments. Inasmuch as over 75% of the light aircraft produced in the United States are fabricated in Wichita, a total of 15 companies participated in a study. The findings of these studies are referred to as the Geiger-Schmidt Studies. (Ex. 9538 & 12,-190). These studies may have included AID. They did include Air Capitol Dial (ACD), which is referred to here as Plant C, an apparent comparable shop. Those findings are used as a basis of comparison from which the plaintiffs premise their foundation. Included in these findings is the fact that, on an average, approximately five percent of the instruments are considered as radioactive. The millirem (mrem) level, being Vi.ooo of a rem, averages less than 2 mrem. The two employees in the study shown to have been exposed to radiation reflected a finding in their body burdens, being a showing of radium residue in the bone. Simply said, the plaintiffs claim that if Plant C was bad then, the AID Plant was always in a worse condition. The plaintiffs also have the findings taken from time to time by representatives of the State of Kansas, Bureau of Radiation Control, as they have regularly and/or routinely monitored the AID Plant. (Ex. 12,280). A review of Exhibit 19,197, the state’s entire file, suggests that the conclusions drawn by these representatives did not present a health hazard, but rather the presence of excessive quantums of alpha contaminants. At the outset of this case, this struck the Court as a “distinction without a difference.” Through the years, AID’S management has left much to be desired. While a state-licensed entity and operating pursuant to certain radiation protection regulations (Ex. 9363), the employees have removed or stripped radiated paint from the products without license or authority. The employers have attempted to conceal their operations from the state and perhaps their employees, and they have' deserved strict sanctions and forfeitures from time to time. In February 1981, on representation of plaintiffs’ counsel, and with accompanying affidavits, this Court authorized an unannounced inspection of AID by the plaintiffs’ group, including Mr. Robert Gallaghar, an applied health physicist, and Dr. Carl Johnson, a medical health physician. This rather dramatic process is referred to as the “Raid on AID.” To no one’s surprise, the results of this inspection were remarkable — the place “reeks” with radiation. Admittedly, if asked as of then, the Court, per Rule 65, would probably have temporarily enjoined that operation, ordered a cleanup, and recalled all radioactive products. As often develops, following a full hearing such as that which has transpired here, the Court, however embarrassed, would have set the order aside! In every event, and while detailed more fully herein, the Gallaghar findings (Ex. 9595) become of paramount interest to the plaintiffs’ experts for the benefit of their ultimate opinions. The Geiger counter readings revealed certain alpha and/or beta gamma content. Mr. Gallaghar’s film badge revealed levels of 80 mrem per 14 hours, or approximately 6 mrem per hour. These findings were significant. An audioradiograph, simply an x-ray process, taken of certain air filters, was positive. (Ex. 9621). Again, this is suggested to be of significance. Since the raid on AID, additional state inspections and an OSHA inspection revealing findings of external alpha contaminations, the plant has been cleaned up by AID’s present management. Again, plaintiffs logically argue that if the circumstances are bad now, they were most assuredly worse then. The plaintiffs’ first witness and one of their principal experts was Dr. Karl Z. Morgan. This person is presented as a most eminent scientist. Indeed, without further resume, one would easily conclude that he has literally founded the science of health physics. The Court has been reminded, more than a few times, that he and his colleague, Dr. Gofman, come here as the “heroes” of the Silkwood litigation and others. In days past, having dealt with his proffered findings in the course of several hearings and dispositive motions by the government and others, and given appropriate credence to the same, all were overruled. Understandably, this witness was received with anticipation and interest. The witness’s testimony is quite lengthy (500-plus pages), and for the purpose- of these findings, the Court will not attempt to resume all of it. Rather, the Court will attempt to recite that which is considered of importance with regard to his opinions. During Dr. Morgan’s early periods, he prepared a paper on procedures to calculate permissible exposure and tolerance levels with regard to the risk of exposure. He has developed the mathematics for calculating this exposure. The witness has discussed formulas and procedures to analyze dosage. (Ex. 12,381). It is his thesis and conclusion that an overwhelming amount of data has been accumulated to show that there is no safe level of exposure. Now, it is not in issue in these cases that an excessive or large amount of radiation creates an increase in the naturally occurring rate of cancer. The National Cancer Institute would suggest that 16% of 100 people will die from naturally occurring cancers. Thus, if 100 people have beén irradiated with a large amount of radiation, the increase might be that of 16 to 20 naturally occurring cancers, to a total of perhaps 25 cases, or an excess of five. The witness claims that causation may only be adduced by statistical analysis. Dr. Morgan is clear that he does not hold himself out to be a medically trained person, yet their expertise is not in the field of how much dose will cause a cancer. A physician’s expertise is in analyzing cancers and their origin. Dr. Morgan’s expertise is in what dose will cause a certain form of cancer. He has taken the data on what he calls the “dose coefficient,” that is, the number of cancers per person rem in the numerator, divided by the same factor, plus the natural incidence of cancer. (T.Tr., Vol. 1, p. 146). With this understood, the witness reviews his superlinear chart (Ex. 19,008), which suggests that he can extrapolate from these known high doses to extremely low doses to confirm his view'. The witness has lectured the Court on the alteration of cell formation and the difference in humans by reason of age and metabolic conditions. He has established that ionization can provide enough damage to divide the cell and initiate a malignancy. He attributes most of the problems, to the existence .of radon gas (R222), as it builds up from the source of emission. (T.Tr. Vol. I, p. 176). He concludes that 97.6% of the plaintiffs’ exposure and injury is a result of this event. It is his thesis that while alpha particles create no problem to man, once inside the tissue they do create a problem. He suggests, by example, that once in the colon alpha rays will bombard the tissue in millicuries per second, and he tenders his publication in the Encyclopedia Brittanica (Ex. 13,299) to support the claim. He identifies beta particles as fast-moving electrons which, in turn, give off daughter products and penetrate human cells, such as the thyroid. These rays throw off approximately 37,000 beta particles per second per microcurie. . He tenders numerous articles, many of his own, to support his thesis. Additionally, radon gas gives off gamma rays. These will penetrate the human body and alter cell formation, i.e., external gamma. While, as indicated, there is more to his testimony than capsuled here, it suffices that the witness expressed his opinion in these cases. He is asked to assume as true all that is resumed above, including the Geiger findings and those reported by Gallaghar. Additionally, he is asked to assume that we deal here with an approximate 49,000 instruments (Ex. 12,477), of which 50% are radioactive (Ex. 8067). He has measured seven of the 10 instruments selected by Gallaghar and established that each emits approximately 26.7 microcurie. Inasmuch as ventilation and space are of interest, he has received an air study (Walker Report) of the AID facility, and as contrasted with Plant C (Ex. 12,366-67). These findings suggest an average air exchange at AID of one per day. This finding is necessary for the witness’ ultimate conclusions regarding the buildup of radon gas from the instruments, which he has established at 14 mrem per hour, by average, but constant, throughout the plant, over an approximate 15 years. Without objection, the witness concludes that each of the plaintiffs’ cancers are derived from this exposure. He further postulates that each would, or will likely, incur additional cancers. (Ex. 12,382A). The assumptions underlying his conclusions are, contained in his voluminous report (Ex. 9595), which is handed up without comment or further explanation. Dr. Morgan’s conclusions were enthusiastically endorsed by the next witness, Dr. John Gofman. This gentleman is readily perceived as a most intelligent, persuasive, and articulate spokesman for the plaintiffs’ cause. Indeed, he is an alarmist, truly, obsessed with the righteousness of his long espoused concerns regarding exposure to radiation in any setting. The witness is quite clear: the United States’ positions are “rubbish.” While he professes a sense of hesitancy for having taken up these cases, it is clear from the outset that this man enjoys the “limelight” (see also, his report, Ex. 18,954), and is no stranger to the courtroom. The witness enjoys professor emeritus status at the University of California at Berkeley, the Department of Biophysics and Medical Physics. He has worked with Dr. Glenn Seborg, who received the Nobel Prize for work on plutonium. The witness took on a study of a substance known as Element 91 and was able to prove the existence of Element 91, which was later to become uranium-233. He claims credit with having discovered it in collaboration with Dr. Seborg. He has degrees in nuclear physical chemistry; he has taught courses in dose and dose calculations; he has calculated hypothetical processes with regard to the separation of plutonium and drops J. Oppenheimer’s name, who organized the Los Alamos laboratory to produce the atomic bomb. The witness uses the word “we” quite liberally. He claims the patent for the discovery of fissionability of uranium-233, and was the first to separate a. milligram quantity of plutonium. After World War II, he returned to medical school. His training is in the field of internal medicine, and he treated cancer and leukemia victims at the outpatient clinic and as a resident. He became an assistant professor of medical physics at Berkeley. He then worked at the Donner Laboratory, which is funded from the Atomic Energy Commission, Division of Biology and Medicine. He then took up under Dr. Ernest Lawrence, who invented the cyclotron, and he represented him in his concern for radiation safety. He became the first director of the Livermore Laboratory and the Department of Health Physics and Health Chemistry, which did the measurements of the radiation safety. He returned to the Donner Laboratory in 1957, and back to Livermore in 1962, principally in light of recent atomic weapon tests in Nevada. He has been honored by the Livermore Laboratory and makes some point of this inasmuch as he is apparently now in controversy with them. Presently he is associated with no one and beholden to no one. His book, Radiation and Human Health, published by Sierra Book Club in 1981, has been introduced. In 1969, the witness claims that while working for the United States he made discoveries of a world nature in the field of ionized radiation. First, he suggests that the risk of cancer from ionized radiation was 1 to 10 times worse than anyone had thought, and second, there were three generalizations that could be made. These principles are called the laws of cancer induction by radiation. The first is essentially that all human cancers can be adduced by ionizing radiation; second, that a given amount of radiation increases by a certain percentage the number of cancers over what would have occurred anyway, i.e., if a certain cancer has a 100 cases occurring per year in a certain group, a given amount of radiation would increase that spontaneous cancer by 10%. This is called the relative risk method, and he was the one who assisted in the development of it. Third, children are much more sensitive than adults with respect to radiation-produced cancers. (T.Tr. Vol. 6, p. 542). He has found, and in days past has stated on behalf of the United States, that there is no safe threshold. Most clearly, they have seen no evidence of a safe threshold. He suggests that these cases present a new law for him, in that one must consider the particles of radiation; in other words, one for radiation like alpha as opposed to cancers from gamma radiation, i.e., a much shorter span for alpha and later for gamma. This is called high cap LET (“LET” stands for linear energy transfer). Alpha particles rage through tissue, destroying as they go, and transfer much energy for every unit path, whereas gamma rays produce eons at a bigger space, and we call that low LET. The time of appearance of cancer is totally different. The witness further lectures the Court on the effects of radiation and its cause of cancer by destruction of cells. He discusses the thesis of disruption of chromosomes, deletions, and/or translocations. He makes an interesting analysis regarding production of radon, in that radon is formed by radium regardless of the physical or chemical state of the radium at the rate of 2.1 microcurie of radon per second per gram of radium. To follow through, the so-called gamma rays of radium arise from these two transformations among the decay products that are not emitted by radium itself. This is why radon is so hazardous, because the short-lived products which really produce the heavy gammas are not from the radium itself — they are from radon and its daughters. It would appear that in light of the United States’ obstinancy as regards his claim, his outspoken criticism precipitated the formation of the Committee on the Biological Effects of Ionizing Radiation (BEIR Committee), in that as a result of communication from Senator Muskie to Robert Finch, then Secretary of HEW, the National Academy of Science appointed this committee to look into and update the general knowledge of radiation hazards. The witness traces massive articles regarding the subject, all contained in Gofman I and II. Many of these are related to the United States’ involvement in radiation, and some are geared to the United States’ duty to warn of the propensities of radiation. Comments and discussions as to the latter are reserved. These exhibits additionally support the witness’ thesis. As with the resume of Dr. Morgan’s testimony, the Court has not begun to trace all that has been said by this witness, but hopefully this resume suffices all that is important in reaching an opinion. When the pertinent questions are addressed with regard to probability of injury from exposure, the United States appropriately objects. Now, in light of his medical background, and on the condition that all requisite factual material with which he will be concerned is to be adduced, the Court permitted- the ' witness to testify. Dr. Gofman has no opinion as to plaintiff Vessels, but is prepared to state his opinions within the range of medical probabilities as to the other parties. (T.Tr. Vol. 10, p. 859). To form his opinions, he needs the medical records. He needs measurements of radon in the air since 1967; he prefers measurements of ongoing particulate radium in the air, but he doesn’t have it, and he supplants this with measurements from other facilities and hard data from British plants. He has the Gallaghar film badge measurements. Additionally, he considers the number of instruments, the size of the plant, ventilation factors, and measurements of the amount of radium in the plant. He draws upon his knowledge of the natural rate of radon escape, i.e., radon escaping into the air to provide gamma radiation. The alpha particle data is of interest to him in relation to its effect on the lungs. He has read Dr. Morgan’s report and opines that a reconstructed dose of 15 mrem per hour at the AID Plant is “very reasonable.” He has studied the Gallaghar report and reviewed the Kansas summaries. He accepts the Walker report on ventilation. The Geiger studies suggest that 5% of instruments are radioactive. He understands that a Mr. McKinney has also so estimated this, yet Gaughn has reported a 50% ratio of radioactive instruments in the AID Plant. Accordingly, he reealculates that 27% of the instruments are radioactive, this figure representing the difference between the two other estimates. Essentially, the factors necessary for his opinion are that the Air Capitol Dial Plant had no more than 500 instruments when the Geiger Study was taken; 5% of Air Capitol’s instruments were radioactive; the Walker comparative studies of Air Capitol and AID’s air exchange rates; the total surplus instruments and the percentage of radioactive surplus instruments at AID. On the strength of Dr. Gofman’s understanding of the evidence, of course, he testifies that each plaintiff’s cancer is causally related to the radiation in the plant. (T.Tr. Vol. 10, p. 899). In scrutinizing the plaintiffs’ medical conditions, we exhaust the field of leukemia, i.e., chronic myelocytic (CML). We distinguish whether it is Philadelphia positive or negative — it’s negative! We explore concepts of latency, classic signs and symptoms', and hematology. As to Mrs. Mewhinney, we explore the colon passage, the rectum, and whether her cancer is within the colon or rectum. Even the minute crypts of Lieberkuhn are explored as regards the passage of radiation. Indeed, as in the fields of radiation and health physics, here in the varied field of medicine the witness’s expertise seems to be without limits. The witness prognosticates as to future cancers. (T.Tr. Vol. 10, p. 923). He calculates that the plaintiffs have received a certain dose, and this dose is calculated from a vast range of human experiences (the known or valid exposures to radiation). He discusses the cancer coefficient, which is a formula for estimating the number of people who will die of cancer as a result of certain amounts of radiation injury, and he then calculates the increased likelihood of a certain person getting a cancer than it would have been had that person not been irradiated. In other words, though not clinically diagnosed,- these cancers have already occurred. The witness is convinced that these cancers can be diagnosed at this time on a microscopic level. Dr. Carl Johnson has also expressed his opinions as to medical probabilities of causation. Lastly, other local physicians, including Dr. Dennis Moore, an oncologist and hematologist, and Dr. William Padgett, a surgeon, are called. Each are given license to assume the plaintiffs’ hypothetical factual basis to be true. Dr. Moore has asserted a relationship between the exposure of Johnston, his patient, and Vessels, and their respective cancers. Dr. Padgett similarly testifies as regards Mrs. Mewhinney. Dr. Ernest Rieger, physician for Mrs. Womack, while called, has no opinion on causation. Dr. Moore is also impressed by the fact that each of these persons has been exposed to some radiation “above background,” which additionally supports his opinion. Now the Court has synopsized the nature and extent of the plaintiffs’ cases with respect to causations, if any. In other words, it is here as if to say that all of the plaintiffs’ evidence was in. The record is. quite clear that this Court has expressed considerable displeasure with both counsel for having permitted witness Morgan to testify as to his conclusions in response to hypothetical questions at a point at trial when there was absolutely no evidence admitted to support the factual assumptions underlying the hypothesized question. In the course of some banter, initiated by the Court, all of the foregoing was conditionally tendered. Surely, if the United States had timely objected to his testimony, these cases would probably have been over in the course of two days. As it stands, the Court has been required to patiently listen to all of the evidence, both sides, in the interest of ascertaining if, in fact, there is any evidence on which any of the foregoing -witnesses are permitted to testify, and if so, to test its reliability and weight. Before the Court addresses these and other issues, it is probably best now to articulate the scientific lessons learned in these cases from all the evidence as they apply here. It goes without saying that the Court is aware that considerable interest from the health physics scientists' is focused on this case, and doubtless this decision will be the subject of some discussion within their various circles. This decision is drafted with such an event in mind, ever sensitive to the Court’s own inadequacies, not only with respect to a thorough comprehension of the field of health physics, but also with respect to an ability to articulate the application of the science to the facts of these cases. For those persons the following will probably appear as a “primer”. III. Subject Matter Introduction and ' Scientific Background The Court has drawn from the findings of a collection of studies known as the BEIR Committee for the purpose of definitions and indeed for much of what is ultimately concluded by the Court as reasonably probable. This is a committee of the National Research Council that studied the biological effects of ionized radiation. The committee personnel read as a “Who’s Who” from the pertinent disciplines. The document, BEIR III (Ex. 19,626), i.e., The Effects on Population of Exposure to Low Levels of Ionized Radiation: 1980, is the result of a massive study. The Court finds the findings of the. study to be entirely persuasive and relevant in • these cases. Types of Radiation. For the purposes of this lawsuit, there are three basic types of ionizing radiation. An alpha particle is composed of two neutrons and two. protons, like the nucleus of a helium atom. (BEIR III, p. 515). A beta ray is a single electron. A gamma ray is a photon, or bundle of energy which contains some of the properties of both matter and light. None of these forms of radiation can be seen. Compared to the other two types of radiation, an alpha particle is relatively large and heavy. It is stopped by a single sheet of paper and can only travel the distance of a few human cells inside the human body. Yet, because they are large, alpha particles can do considerable “damage” along the short track they follow. The “damage” is referred to as an ionization event, which means that an electron has been taken away from an atom inside a human cell, making that atom an ion with a positive charge. These ionized atoms may then undergo chemical reactions inside the human cell which may damage the cell. Also, an alpha particle may damage a cell by disrupting the DNA inside the human gene. Alpha particles are considered to be high LET radiation which means that they have a high linear energy transfer. That simply is a way of saying that “large” alpha particles transmit a “high” amount of energy to surrounding tissue as they travel a short (linear) distance. (BEIR III, pp. 13, 519; T.Tr. Vol. 1, pp. 23-24). Gamma rays are very different. They are low LET radiation, meaning that they transmit low amounts of energy as they travel long distances. For example, an alpha particle will give up or transfer all of its energy in the first few dead skin cells of a human being while a gamma ray may pass through the whole human body without striking anything to which it could transmit any of its energy. More gamma rays are stopped as the rays penetrate material of higher density. For example, x-rays are essentially the same as gamma rays, and the increased density of human bone over human soft tissue makes medical diagnostic x-rays possible. If a gamma ray does strike a human cell as it passes through the human body, it could cause the same type of “damage” as an alpha particle. An atom in a cell could be ionized or the DNA inside a gene could be disrupted. Alpha particles will cause many more ionizations than gamma rays “per unit track,” i.e., .over the same linear distance. Thus, alpha radiation is high LET and gamma radiation is low LET. (T.Tr. Vol. 1, pp. 38-39, 43-48). Beta rays are actually particles like alpha rays but they are much smaller particles. They are electrons with a negative charge. Consequently, their physical properties fall betweén alphas and gammas although they are similar to alphas in that they are particles. They can penetrate several sheets of paper but not a book. Most beta particles will be stopped by normal clothing or by the thickness of human skin. (T.Tr. Vol. 1, pp. 48-50). . The relative power of these various types of ionizing radiation is measured in a unit called an electron volt. This is expressed, as ev or MeV for a million electron volts. (BEIR III, p. 518). There are actually many different kinds of alpha particles of different energies (MeVs). The same is true for beta rays and gamma rays although these various Me Vs still cluster around a certain range of values consistent with the properties of that particular type and source of ionizing radiation. Scientists generally refer to radiation of higher Me Vs as more powerful radiation, or radiation of higher energy. These three forms of ionizing radiation can harm a human cell in-three different ways. If these forms of radiation strike a female egg or a male sperm, they can rearrange the DNA which could cause genetic damage to the next generation. (BEIR III, pp. 96-97; T.Tr. Vol. 40, pp. 3151-3152). Since this case involves no allegation of genetic damage, this possibility will not be discussed further. The second type of harm to a cell could be a chemical or DNA change which kills the cell. This is an acute form of radiation damage, and if enough cells are killed it causes observable effects such as a loss of hair or nausea. At high enough doses, enough cells will be killed so that the human body cannot survive this impact. That is known as a lethal dose. Since this case does not involve the acute effects of radiation, they will not be discussed further. (BEIR III, p. 24; T.Tr. Vol. 40, p. 3151). The third way that ionizing radiation, whether alpha, beta, or gamma, can harm a cell is to cause a chemical or DNA change that will not kill that cell, but rather cause a change that the cell passes on to its daughter cells. At some future point in time, a granddaughter cell expresses this change as a lost ability to multiply in a controlled manner. Consequently, the cell multiplies wildly until there is an accumulation or a lump large enough to observe and to diagnose as a cancer. (BEIR III, p. 25). The time from the radiation-induced change in that original cell until the cancer is diagnosed is known as the latent or latency period. (BEIR III, p. 519).. A part of that latency period, from the time the granddaughter cell starts uncontrolled multiplication until the time the cancer is large enough to diagnose, is also known as the period of silent growth. (T.Tr. Vol. 63, p. 5092). The cancer is there and is growing at the same rate. It just seems silent because it cannot yet be diagnosed. The time span of this tumor growth is measured in units called doubling times. That is the time it takes for a tumor to double in three dimensional mass, not the time it takes to double in two dimensional size (diameter). (T.Tr. Vol. 63, pp. 5092-5095). Radium-226 and Its Daughters. This case is really founded upon one particular element, radium-226, and its natural decay products. Radium is a naturally occurring radionuclide. It is not man-made like a radioisotope. In fact, it is the element in pitchblend which Madame Curie first identified as a radioactive material. (T.Tr. Vol. 1, p. 38). Since it is a natural element which cannot be used to make weapons or build nuclear reactors, it is not regulated by the United States under the Atomic Energy Act. All radioactive elements spontaneously emit a type of radiation and then change into a different element. This process is termed a radioactive decay. (BEIR III, p. 516). When an element, such as radium, is followed as it emits radiation and changes from element to element until it becomes stable, one is observing what is known as a decay chain. A lump of radium will not decay and change all at once. Each atom decays in a random manner' over a period of time. Science can measure the length of time necessary for one lump of radium 226 to decay into half a lump of radium-226. This period of time is known as the half-life of radium-226. A simplified decay chain for radium-226 follows: HALF-LIFE TIME ELEMENT PRIMARY EMISSION 1602 yrs. Radium-226 4 Alpha 3.8 days Radon-222 4 Alpha 3 min. Polonium-218 4 Alpha 26 min. Lead-214 4 Beta, gamma 20 min. Bismuth-214 4 Beta, gamma 164 microseconds Polonium-214 4 Alpha 21 yrs. Lead-210 4 Beta 5 days Bismuth-210 4 Beta 138 days Polonium-210 4 Alpha Lead-206_ STABLE LEAD T.Tr. Vol. 47, pp. 3724-3730. The plaintiffs have placed great emphasis on the fact that the half-life of radium is 1602 years, as if to infer that radiation is bouncing about everywhere as its consequence. This notion in part premises their thesis for a finding of absolute liability. For purposes of this case, the 1602 year half-life means that whatever amounts of radium were placed on the instruments during World War II, essentially the same amount would still be there 20 years later when that instrument entered AID. Also, whatever amounts were measured on average instruments today would effectively reflect the amounts on the average instruments when the plaintiffs worked at AID. It would take 1602 years for half of the radium in AID to change to radon (a gas), but from what has been learned here, if AID had reasonably normal air exchanges, the radon gas would be removed about as fast as it was generated. In other words, a little ventilation would go a long way toward control of such a slow generation of radioactive gas. The decay chain shows five primary emissions of alpha particles. It is these alpha particles that constitute the primary concern of health physicists over the safe handling of radium-bearing items. Because of alpha’s inability to penetrate human skin, the main concern is to keep these alphas outside of the human body where they can cause no harm. (T.Tr. Vol. 47, p. 3730). The radon in the chain is radon gas. Like radium, it is commonly found in nature. (NCRP 77, p. 13). Since it has a short half-life of 3.8 days, any radon gas which is not removed on a daily basis will quickly change into polonium-218 and then into lead-214. These three decays will all give off alpha particles. Lead-214 will change in minutes into bismuth-214, which also changes in minutes into polonium-214. These two decays of radon daughters give off beta and gamma rays. It is these betas and gammas which can cause external radiation to the whole body from this radon in,the air even though none of the particles in the air actually get inside the human body. (T.Tr. Vol. 47, p. 3729). If the.radon gas or these daughter products are inhaled into the lungs, their decay in the human lung can cause damage to the cells in that lung. (T.Tr. Vol. 47, p. 3734). When certain witnesses in this case referred to “harm” from a “radon cloud” at AID, they were actually referring to these betas and gammas from radon daughters, lead-214 and bismuth-214. If a facility like AID has adequate air exchanges, a “radon cloud” will not exist and there will not be a significant dose from radon daughters in the air. With this decay chain and the basic facts about types of radiation in mind, it can be understood that a plant can protect its employees from radium and its daughter products by keeping the plant adequately ventilated, and by keeping the employees from ingesting radium paint. Alpha rays coming from the floor, the workbench, or an aircraft instrument dial can certainly make a suitable Geiger counter click, but they will not travel far enough to harm living human cells, i.e., it is external contamination. Beta and gamma rays generated by particles in the air can be greatly reduced to safe levels by simply opening doors and windows, or by using some other method of changing the air. The Court has toured the AID Plant and comment is noted hereafter. There is a third method of exposure to employees. If the radium in the paint decays to radon and that radon gas decays into the particle polonium-218 before the gas leaves the paint, then the subsequent radon daughters will give off their beta and gamma rays while still in the paint rather than while in the air. (T.Tr. Vol. 47, p. 3733). Consequently, an employee working with a radioactive instrument dial would be exposed to some beta and gamma rays coming from that dial. Approximately 30% of the radon generated by radium in the paint will escape to the room air while approximately 70% will remain in the paint. This 30% is the radon emanation rate. (T.Tr. Vol. 47, pp. 3787-3791). Although the five alphas of the radium decay chain would not get through the paint or the glass on the front of an instrument, the beta and gamma rays from retained (unemanated) radon daughters will pass through the glass and cause a Geiger counter to click over a foot away. In fact, this physical feature is the best way to separate radium-painted dials from nonradium-painted dials. Now, if we consider workers at AID, such as the four plaintiffs, we can see that they could receive radiation exposure through three different pathways. First, they could accidentally ingest or inhale paint particles of radium. Second, they could work in the midst of a radon cloud which sends gamma rays through their bodies. Third, they could work in close proximity to large numbers of radioactive dials which would also send gamma rays through their bodies. Much of the expert testimony in this case involved whether or not any of these pathways existed, and if so, whether or not they caused a significant dose to these four plaintiffs. The expert witnesses’ opinions on this point were as different as night and day. One group of experts is wrong! To determine the likelihood of each pathway’s existence, one needs to understand how that pathway works and whether or not it leaves any evidence of its existence. If radium is inhaled or ingested, there is an international scientific consensus that 20% of what is taken into the body will pass into the blood. (ICRP 30, Part 1, p. 98). Since radium acts like calcium once inside the body, it will be deposited in bone. (T.Tr. Vol. 47, pp. 3698-3708; Vol. 58, p. 4559). Since it has a 1602 year half-life and remains in the body for many decades, if a significant amount of radium finds its way into the human body, it will still be there when and after that person dies. (T.Tr. Vol. 40, pp. 3198-3199). There is a scientific device known as a “whole body counter”, that can measure such minute amounts of radium in the human body that it can find the trace amounts of radium all humans have from the radium found in our environment. (T.Tr. Vol. 58, pp. 4588-4592). The four plaintiffs in this ease have had numerous whole body counts, each reported as negative, and which conclusively prove that they have no radium in their bodies. (T.Tr. Vol. 58, pp. 4597-4603; Ex. 19,584). Therefore, the evidence before this Court conclusively proves that no significant amount of radium made its way into the bodies of these plaintiffs while they worked at AID. Consequently, whatever the contamination at AID, it is scientifically established that these four plaintiffs neither ingested nor inhaled any significant amount of radium while they worked at AID. (T.Tr. Vol. 47, pp. 3698-3708). However, the whole body counts would not show whether or not these plaintiffs received a significant external gamma dose from either radon in the air at AID or from large numbers of instruments in their immediate working area. If, however, these four plaintiffs had always worn film badges, devices used to measure gamma and beta rays, then clear evidence would exist as to whether or not they received a significant gamma or beta exposure through either of the two remaining pathways. Without this film badge evidence, the Court will have to look to other factors, explained later in this opinion, to determine whether plaintiffs have proven by a preponderance of the evidence either that a large “radon cloud” existed or that there were large numbers of radioactive instruments in the plaintiffs’ immediate work area. The “Hazardousness” of Radiation. As stated, plaintiffs have attempted to convince this Court that radiation, in general, and radium, in particular, are extremely hazardous. For example, Dr. John Gofman described radium as “this ultimate hazardous material.” (T.Tr. Vol. 7, p. 646). No attempt was made to separate high levels of radiation from drastically lower levels of radiation. In fact, Dr. Gofman constantly referred to certain handbook statements as setting safety standards for the- instruments in this lawsuit. However, he failed to inform this Court that the handbook statements referred to amounts of radium 3,000 to 100,000 times larger than the amount of radium on these aircraft instruments. (T.Tr. Vol. 63, pp. 5000-5002). While this numerical difference is astonishing, it is even more revealing to translate it into something in our common experience such as degrees Fahrenheit. Under such a comparison, where one microcurie is equal to 10 F, the average aircraft instrument in this case would be approximately 4 ° “hot”, whereas the “standards” referenced by Dr. Gofman spoke about items which were 10,-000 ° F “hot” to 300,000 ° F “hot”. (T.Tr. Vol. 63, pp. 5002-5003). This Court, hopefully using a sense of common sense, cannot accept the plaintiffs’ argument that all, or any, amounts of radiation are extremely hazardous. It follows that no person with common sense would argue that the standards for safety in handling a piece of steel which is at 10,000 ° F to 300,000 ° F must be equally applicable to handling a piece of steel which is only at 4° F. It also follows that if this Court was to consider all, or any, amounts of radium or radon hazardous, and following plaintiffs’ thesis, this Court would have to label our natural- environment as ultra-hazardous. This seems absurd. Radium and radon commonly occur in nature in quantities greater than the amounts found on an average aircraft instrument dial. For example, enough radium to make one aircraft instrument dial will be found in approximately every five pickup loads of Kansas dirt. (NCRP 77, p. 23; T.Tr. Vol. 41, pp. 3263-3264). Moreover, radium is found in brick, concrete, cement, plaster, and other common building materials. (NCRP 77, pp. 21-22; T.Tr. Vol. 41, pp. 3260-3261). In Kansas, one public water supply contains enough radium to make one aircraft instrument from about every 200,000 gallons of water. (NCRP 77, p. 49; T.Tr. Vol. 41, pp. 3265-3266). Moreover, radium is commonly found in most foods. (NCRP 77, p. 60; T.Tr. Vol. 41, pp. 3269-3270). Radium is also found in coal in such abundance that a model coal-fired power plant will release from its smokestack in one year enough radium to make 200,000 aircraft instrument dials. (NCRP 77, p. 18; T.Tr. Vol. 41, pp. 3259-3260). Radon gas is so common that average indoor household air contains 5% of the amount allowed occupationally. (NCRP 77, p. 6; T.Tr. Vol. 41, pp. 3253-3254). The main sources of this radon gas are soil and water. (NCRP 77, p. 13; T.Tr. Vol. 41, pp. 3257-3258). Plaintiffs argue that radium-painted surplus military instruments are very hazardous just because they contain radium which will release radon gas and its daughter products, thereby creating some radiation exposure to consumers or employees who handle or use these items. For this Court to now adopt such reasoning would require this Court to find that vast numbers of common consumer products are ultra-hazardous just because they are radioactive. NCRP Report No. 56 explains how many common items, such as television sets, smoke detectors, electron microscopes, airport x-ray machines, certain ceramic products, tobacco products, and radium wrist watches, are radioactive. (T.Tr. Vol. 39, pp. 3060-3076). In fact, the aircraft instruments in this case seem to fall into the same general class as luminous wrist watches, pocket watches, or clocks. (T.Tr. Vol. 39, pp. 3065-3068 & 3075-3076). This Court recalls a demonstration in Court which showed that a common “fiesta” or ceramic plate was twice as radioactive as the average of the ten instruments plaintiffs removed from AID, and that a common Coleman lantern mantle was one-half as radioactive as the average instrument plaintiffs removed from AID. (T.Tr. Vol. 40, pp. 3189-3195). It was about this time that the plaintiffs’ cases began to erode, for indeed, Gallaghar’s Geiger readings, or at least the emphasis given to them, appeared misleading when compared with other materials that are radioactive. Also, radiation scientists recognize the existence of natural background radiation. This is radiation all humans receive no matter where or how they live on this earth. It may vary somewhat from place to place to the degree that someone living in Denver, Colorado, gets approximately twice the background radiation as someone living in Washington, D.C. Although mankind has produced many sources of radiation, natural background remains the greatest contributor to the radiation exposure of the U.S. population today. Background radiation has three components: terrestrial radiation (external), resulting from the presence of naturally occurring radionuclides in the soil and earth; cosmic radiation (external), arising from outer space; and naturally occurring radionuclides (internal), deposited in the human body. BEIR III at p. 37. In arguing that radiation is hazardous without specifying the levels of exposure, plaintiffs have surely painted their case with a broad brush! For this Court to hold that something is hazardous just because it causes a Geiger counter to click is over-simplistic and would force this Court to logically conclude that nature itself is ultra-hazardous. This is not to say that the amount of radiation which can kill the average human within a few days, the lethal dose, is not hazardous. The important factor that must be known before a “hazardous” label can be attached with any degree of scientific validity is the amount of radiation with which one is dealing, and this is what the case is really about. Radiation Dose. Fortunately, radiation scientists have developed instruments capable of measuring very small amounts of radiation and a system of labeling which can express both very small and very large amounts of radiation. A basic understanding of these units of measurement is important to place the radiation involved in this case into a meaningful context. The number of rems or mrems a person gets during a specific unit of time, such as during employment at AID, is known as that person’s dose. (BEIR III, pp. 516— 517). The specialty of measuring or estimating a person’s dose is the science and art of dosimetry. (T.Tr. Vol. 39, p. 3087). In order to make these units of measurement more meaningful, it is of interest to note what doses some common experiences yield. The earth in Florida gives a person living there a dose of approximately 23 mrem per year. If a person lives there for 64 years, he will receive a dose of 64 x 23 mrem = 1472 mrem from Florida dirt in a lifetime. (BEIR III, p. 38). This is equal to 1.472 rem. If another person- lives in Colorado for 64 years, he will receive a dose of 64 X 90 mrem = 5760 mrem from Colorado dirt in a lifetime. (BEIR III, p. 38). This is equal to 5.76 rem. In 1970, approximately 129,000,000 Americans were exposed to x-rays for medical or dental purposes. (BEIR III, p. 45). X-rays are a form of ionizing radiation almost exactly the same as gamma rays except for their source. The average American by age 64 will receive about 6.5 rem of radiation from x-rays. (BEIR III, p. 47). Consequently, total doses of approximately 12 rem would be common for a Colorado resident who had normal exposure to dirt and x-rays. In addition, a person will receive some exposure from other sources, including consumer products. Television sets and radium wrist watches give users a dose of 1 mrem per year to their gonads. (BEIR III, p. 63, Table III — 20). Construction materials and radium clocks give whole body doses to people of approximately 7 to 9 mrem per year. (BEIR III, p. 63, Table III — 20). Measurements made of the ten instruments plaintiffs removed from AID yield an average of 3.5 to 3.76 microcuries of radium-226 per instrument. (Auxier Report, p. 11, Table 1; Maletskos Report, p. 4, Table 1). The Court finds these witnesses’ testimony, findings and reports are reliably calculated. Luminous dials on surplus instruments range from .06 microcurie to 4.4 microcurie. (NCRP 56, p. 52, Table 13). Alarm clocks typically contain 0.4 microcurie of radim-226 and pocket watchés contain 1 microcurie of radium-226. (NCRP 56, p. 52, Table 13). Wrist watches may contain 4.5 microcurie of radium-226, which is more than the average of the 10 aircraft instruments here. (NCRP 56, p. 19). Consequently, it is clear that the instruments at AID are in the range of radioactivity of luminous wrist watches, pocket watches, and clocks. BEIR III has told us that these luminoiis products create about as much dose as television sets and construction materials. Consequently, an understanding of dose shows us that it would be scientifically incorrect to label the aircraft instruments involved in this case as “ultra-hazardous” just because they do emit radiation. Further discussion in this area will follow. The question remains of the exact dosage these plaintiffs received while employed at AID, and whether that total dose should be considered hazardous. As will be explored later in this opinion, the answer depends upon just what assumptions are made by the expert witnesses who have attempted to “reconstruct” a precise dose for these plaintiffs. Defendant’s experts generally testified that the doses were 7 rem or less, while plaintiffs’ experts generally testified that the doses were hundreds or thousands of rems. (T.Tr. Vol. 2, pp. 208-215). Obviously, this is a huge, unbridgeable gap. If defendant’s experts are correct, the doses these plaintiffs received at AID are less than the doses the average person will get in his lifetime from dirt and x-rays. If plaintiffs’ experts are correct, then the doses these plaintiffs received at AID are so large that it is scientifically reasonable to consider them likely to cause harm and to label them “hazardous” or even lethal. The important point to understand at this time is that the label “hazardous” cannot be broadly attached to anything that is radioactive without an understanding of the doses involved. To this extent, plaintiffs’ experts’ attempts to describe all quantities of radium as “this ultimate hazardous material” must be rejected as unscientific if not outright misleading. (T.Tr. Vol. 7, p. 646). Establishment of Radiation Safety Standards. The dangers of radiation first became a concern to the medical profession when early radiologists used x-ray machines without shielding themselves from the beam. Safety recommendations were made by the Germans in 1913, the British in 1914, and by the U.S. in 1922. In 1928, a small group of eminent international scientists formed the first international scientific commission to discuss and recommend safety standards for the use of radiation. That group was the International Commission of Radiological Protection (ICRP). (BEIR III, p. 7). Dr. Lauriston Taylor,' probably this Court’s favorite witness, was one of the founding members of that group. Since 1928, the ICRP has translated the views and research of the most eminent radiation scientists world-wide into specific radiation protection recommendations. These recommendations have been in reports which have become the most authoritative sources of information in this developing science. For example, the international consensus that 20% of inhaled or ingested radium paint will be absorbed into the blood of- a human being is recorded in ICRP No. 30, Pa