Drug Testing of Veterans Case Heads to 9th Circuit

(CN) - Veterans subjected to Cold War-era drug experiments asked the 9th Circuit on Tuesday to grant them more relief than ordered last week by a federal judge.

The notice of appeal comes four years after Vietnam Veterans of America led a class action against various government entities, claiming that at least 7,800 soldiers had been used as guinea pigs in Project Paperclip.

Soldiers were allegedly administered at least 250 and perhaps as many as 400 types of drugs, among them Sarin, one of the most deadly drugs known, amphetamines, barbiturates, mustard gas, phosgene gas and LSD.

Using tactics it often attributed to the Soviet enemy, the U.S. government sought drugs to control human behavior, cause confusion, promote weakness or temporary loss of hearing and vision, induce hypnosis, and enhance a person's ability to withstand torture, according to the complaint.

U.S. District Judge Claudia Wilken certified the plaintiffs as a class last year, a status that could make thousands of veterans eligible for relief.

Though the defendants succeeded in tossing claims against Attorney General Eric Holder and the CIA, the Department of Defense and Department of the Army remained on the hook.

The crux of the veterans' argument is that Administrative Procedure Act obligates the defendants to provide notice to test subjects and to provide them medical care.

They also cite a 1962 Army regulation involving the use of volunteers as research subjects. Updated in 1990, that regulation allegedly requires the Army to notify test subjects about possible side effects "even after the individual volunteer has completed his or her participation in research."

Judge Wilken gave both sides some relief on Nov. 19, granting the DoD, Army and CIA summary judgment on certain claims, and giving the plaintiffs summary judgment only as to one claim against the Army.

Based on interpretation of the disputed Army regulation, Wilken agreed "that the duty to warn is properly interpreted as applying on an on-going basis, not just as part of the pre-experiment consent process, and is owed to service members who became test subjects before 1988."

"The court concludes that defendants' duty to warn test subjects of possible health effects is not limited to the time that these individuals provide consent to participate in the experiments," Wilken wrote.

"Instead, defendants have an ongoing duty to warn about newly acquired information that may affect the well-being of test subjects after they completed their participation in research."

The plaintiffs did not convince the court that the Department of Veterans' Affairs "systematically fails to offer them care."

"Although there may be general dissatisfaction and individual erroneous results, plaintiffs and the class members can seek medical care through the DVA and challenge denial of care through the statutory scheme prescribed by Congress," Wilken wrote.

The judge also found for the defendants on the plaintiffs' constitutional claims, finding the plaintiffs could not prove that it was a violation of due process when the Army did not follow its own regulations.

Wilken vacated the final pretrial conference and the trial dates in this case.

The notice of appeal filed Tuesday cites that opinion as well as any "any and all adverse orders and rulings."

Eugene Illovsky with Morrison & Foerster filed the notice.

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