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Feds Owe Ongoing Notice to Drug-Test Subjects

(CN) - The Army has a duty to warn any veterans subjected to Cold War-era drug experiments about potential health concerns as they become aware of them, a federal judge ruled.

The ruling comes in a class action Vietnam Veterans of America filed against various government defendants in 2009, 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 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 are still 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 an Army regulation involving the use of volunteers as research subjects.

The 1962 regulation states that participants "will be told as much of the nature, duration, and purpose of the experiment, the method and means by which it is to be conducted, and the inconveniences and hazards to be expected, as will not invalidate the results."

It also says subjects "will be fully informed of the effects upon [the test subject's] health or person which may possibly come from his participation in the experiment.'

The Army regulation was updated in 1990, and the veterans say the defendants have a duty to provide notice "even after the individual volunteer has completed his or her participation in research."

Judge Wilken gave both sides some relief Tuesday, 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.

As of now, the Defense Department has given the Department of Veterans' Affairs a list of more than 16,000 test subjects, and the veterans' department sent letters to more than 3,000 of them.

The government did not include the names of drugs tested on each subject, according to materials from the defendants.

DoD also placed information about the testing on its website, including information about a hotline test subjects can call.

In their motion for summary judgment, the defendants argued among other things that they did not have a legally enforceable duty to notify the past test subjects.

Wilken said this may not necessarily prove true.

"Defendants are correct that the wording of the regulations does not support the exact definition of 'notice' that plaintiffs have put forth here," the judge wrote in her 71-page order. "However, this does not mean that the regulations do not support the duty to provide some notice."

Based on interpretation of the disputed Army regulation, Wilken was more persuaded by the plaintiffs' argument "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."

Wilken found in favor of the Army to the extent the plaintiffs challenged its initial notice efforts to the test subjects.

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.

In an injunction accompanying the summary judgment order, Wilken directed the Army to "provide such test subjects with newly acquired information that may affect their well-being that it has learned since its original notification, now and in the future as it becomes available."

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