Ninth Circuit Victory for Veteran ‘Guinea Pigs’

SAN FRANCISCO (CN) - After subjecting soldiers to chemical and biological weapons experiments during the Cold War, the U.S. Army has an ongoing duty to provide these veterans with medical care, the Ninth Circuit ruled Tuesday.

When Vietnam Veterans of America originally filed the case in 2009, the group claimed that thousands of its members suffer from various medical problems after the Army and CIA experimented on soldiers with the help of Nazi scientists recruited through "Project Paperclip."

U.S. District Judge Claudia Wilken certified the class in 2012 and awarded those veterans some relief a year later, ordering the Army to warn its former experiment subjects about potential health concerns as it becomes aware of them.

Both sides pushed for more at oral arguments before the Ninth Circuit this past September, but a divided three-judge panel sided with the veterans Tuesday.

The 29-page majority opinion focuses on Army Regulation 70-25 (AR 70-25), which entitles test subjects to medical treatment for illnesses resulting from experiments.

"We hold that the injunction is appropriately tailored to direct the Army to carry out its duty to warn," Judge William Fletcher wrote for the court.

"In requiring the Army to tell former test subjects about 'newly acquired information that may affect their well-being,' the injunction merely reiterates the plain language of AR 70-25's duty to warn," Fletcher added.

The injunction gives the Army discretion to develop its own policies and "does not even specify the means by which the Army must give that notice," the court added.

Going a bit further than Wilken had, the appellate majority found that the Army must cannot use the possibility of duplicative care from agencies like the Veterans Administration to deny relief to its test subjects.

"In the absence of mootness, we cannot agree that the Army's duty to provide care is excused by the availability of medical care from another government agency, even if that care that would overlap to some degree and in some manner with the care that the Army is required to provide," Fletcher wrote.

Attorneys for the veterans at Morrison & Foerster applauded the decision.

"We're gratified the court of appeals affirmed the district court's decision that the test subject veterans are entitled to medical care," attorney Eugene Illovsky said in a statement. "And we're very pleased the case has been remanded so the district court can now formulate an injunction that will get the Army to provide medical care to those veterans who so desperately need it."

Wilken's underlying decision had also required the Army to submit a report of its efforts to find new information, and its plan to get that information to affected people.

She slammed the Army's first stab at that report as "unduly time-consuming and vague." In a revised plan released last year, the government's lawyers reiterated that the Army could not find any newly acquired information related to the test subjects.

The Army said it contacted its medical research institutes that deal with infectious diseases and chemical defense, and the Defense Department's Office of Force Health Protection and Readiness, and found no new information that has not already been distributed.

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