Small victory for ailing G.I.s
New York Daily News
A Manhattan federal judge has ruled that a group of New York Army veterans who fell ill after inhaling depleted uranium dust from exploded U.S. shells can sue the federal government - but only for medical malpractice after their discharge.
A 1950 Supreme Court decision - commonly known as the Feres Doctrine - has long prohibited suits against the federal government by soldiers, U.S. District Judge John Koeltl ruled last week.
"To the extent that the injuries asserted in the plaintiffs' complaint arise out of their military service ... the court is without jurisdiction to hear those claims," Koeltl stated in his 29-page opinion.
George Zelma, the plaintiffs' lead lawyer, had argued during a Sept. 6 hearing that despite the broad prohibition of the Feres Doctrine, Congress had never intended "our government to betray its own troops."
Koeltl rejected Zelma's argument, but he did allow the eight former National Guardsmen to sue the government for medical malpractice they allege was committed by Veterans Administration doctors after they were discharged back into civilian life.
"I'm satisfied that we got something," said Ray Ramos, one of the plaintiffs and a former NYPD cop who served as a sergeant in the 442nd Military Police Company in Iraq during 2003.
"Because of the Feres Doctrine, I was afraid the judge would rule against us on everything," Ramos said. "This gives us a day in court."
In April 2004, the Daily News revealed in a series of articles that several soldiers from the 442nd Military Police Company had been exposed to depleted uranium, a low-level radioactive heavy metal that has been used by the Pentagon since the 1991 Persian Gulf War in artillery penetrators and in the plating for M-1 tanks.
Several soldiers from the 442nd - most of them cops, firefighters and correction officers in civilian life - had been sent home from Iraq in late 2003 with a variety of ailments that included constant headaches, blood in their urine, blurred vision, numbness in their hands and persistent rashes.
The Army doctors could not account for any of the ailments.
The men claimed they were never warned about possible uranium exposure while in Iraq, and when they returned home military doctors either refused to test them for exposure to the radioactive metal or in some cases lost their test results.
Independent exams and analyses of urine samples arranged by The News for nine of the sick soldiers showed that at least four had inhaled depleted uranium dust, according to a nuclear medicine expert who conducted the tests.
Another test sponsored by The News on a soldier from another National Guard unit, Gerard Matthew, revealed in September 2004 that he also had signs of depleted uranium exposure. In May 2004, Matthew's wife gave birth to a girl who was missing three fingers on one hand.
Critics of the military's use of depleted uranium say the microscopic dust released by exploding shells can lodge in a person's lungs for years and cause physical or genetic damage from either the low-level radiation it emits or from its chemical toxicity. Pentagon officials have repeatedly defended its use as safe.
The government says there have been virtually no illnesses documented among soldiers exposed to depleted uranium, even among those wounded with fragments from depleted uranium shells.
The News' articles created a national firestorm, one that led the Pentagon to tighten testing procedures for all soldiers, and they sparked efforts in more than a dozen state legislatures to require testing of all returning National Guard troops.
But the debate over depleted uranium continues to rage. Pentagon officials insist that depleted uranium shells, because of their incredible penetrating power, are an essential weapon that saves lives in combat. Opponents, on the other hand, say our military is spreading radioactive contamination.
As for the former soldiers who dared to sue their government, they want a judge and jury and ordinary Americans to hear what happened to them as a result of depleted uranium exposure - and what our government did or didn't do about it.
And Koeltl's decision may still make that possible.
A Manhattan federal judge has ruled that a group of New York Army veterans who fell ill after inhaling depleted uranium dust from exploded U.S. shells can sue the federal government - but only for medical malpractice after their discharge.
A 1950 Supreme Court decision - commonly known as the Feres Doctrine - has long prohibited suits against the federal government by soldiers, U.S. District Judge John Koeltl ruled last week.
"To the extent that the injuries asserted in the plaintiffs' complaint arise out of their military service ... the court is without jurisdiction to hear those claims," Koeltl stated in his 29-page opinion.
George Zelma, the plaintiffs' lead lawyer, had argued during a Sept. 6 hearing that despite the broad prohibition of the Feres Doctrine, Congress had never intended "our government to betray its own troops."
Koeltl rejected Zelma's argument, but he did allow the eight former National Guardsmen to sue the government for medical malpractice they allege was committed by Veterans Administration doctors after they were discharged back into civilian life.
"I'm satisfied that we got something," said Ray Ramos, one of the plaintiffs and a former NYPD cop who served as a sergeant in the 442nd Military Police Company in Iraq during 2003.
"Because of the Feres Doctrine, I was afraid the judge would rule against us on everything," Ramos said. "This gives us a day in court."
In April 2004, the Daily News revealed in a series of articles that several soldiers from the 442nd Military Police Company had been exposed to depleted uranium, a low-level radioactive heavy metal that has been used by the Pentagon since the 1991 Persian Gulf War in artillery penetrators and in the plating for M-1 tanks.
Several soldiers from the 442nd - most of them cops, firefighters and correction officers in civilian life - had been sent home from Iraq in late 2003 with a variety of ailments that included constant headaches, blood in their urine, blurred vision, numbness in their hands and persistent rashes.
The Army doctors could not account for any of the ailments.
The men claimed they were never warned about possible uranium exposure while in Iraq, and when they returned home military doctors either refused to test them for exposure to the radioactive metal or in some cases lost their test results.
Independent exams and analyses of urine samples arranged by The News for nine of the sick soldiers showed that at least four had inhaled depleted uranium dust, according to a nuclear medicine expert who conducted the tests.
Another test sponsored by The News on a soldier from another National Guard unit, Gerard Matthew, revealed in September 2004 that he also had signs of depleted uranium exposure. In May 2004, Matthew's wife gave birth to a girl who was missing three fingers on one hand.
Critics of the military's use of depleted uranium say the microscopic dust released by exploding shells can lodge in a person's lungs for years and cause physical or genetic damage from either the low-level radiation it emits or from its chemical toxicity. Pentagon officials have repeatedly defended its use as safe.
The government says there have been virtually no illnesses documented among soldiers exposed to depleted uranium, even among those wounded with fragments from depleted uranium shells.
The News' articles created a national firestorm, one that led the Pentagon to tighten testing procedures for all soldiers, and they sparked efforts in more than a dozen state legislatures to require testing of all returning National Guard troops.
But the debate over depleted uranium continues to rage. Pentagon officials insist that depleted uranium shells, because of their incredible penetrating power, are an essential weapon that saves lives in combat. Opponents, on the other hand, say our military is spreading radioactive contamination.
As for the former soldiers who dared to sue their government, they want a judge and jury and ordinary Americans to hear what happened to them as a result of depleted uranium exposure - and what our government did or didn't do about it.
And Koeltl's decision may still make that possible.
