‘Human Guinea Pigs’|Take Case to 9th Circuit

     SAN FRANCISCO (CN) – A 9th Circuit panel heard arguments Thursday about the government’s obligation to provide medical care and notice to veterans who were subject to Cold War-era “human guinea pig” drug experiments.
     The oral arguments stem from a 2009 class action by veterans who say they were guinea pigs for drug experiments.
     The case has been whittled down for five years, with claims against the CIA, Defense Department, and Attorney General Eric Holder tossed out.
     U.S. District Judge Claudia Wilken in November 2013 granted summary judgment to the veterans against the Army on one claim.
     “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 then.
     “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.”
     Both Vietnam Veterans of America and the government defendants appealed to the 9th Circuit, and attorneys presented their arguments before a three-judge panel Thursday.
     Much of the dispute centered on the Army’s duty to provide medical care for veterans that the Veterans Administration does not provide.
     Both parties focused on Army Regulation 70-25 (AR 70-25), which entitles test subjects to medical treatment for illnesses resulting from experiments.
     Representing the veterans, attorney Ben Patterson said the legal error in the lower court decision was “refusing to enjoin the Army to act.”
     “The regulation has to apply to someone, and it applies to this class of former test subjects, who were part of deliberate exposure experiments, exposed to substances like Sarin, VX and mustard gas,” Patterson said, referring to AR 70-25.
     Despite the Army’s admission that it is not providing medical care to those test subjects as a group, the lower court refused to enjoin them.
     Ninth Circuit Judge J. Clifford Wallace expressed skepticism about what the court could do to force the Army to provide care to those veterans.
     “I’m having a great deal of difficulty determining why it is that you believe we can find this discrete area where we could mandamus the Army to do something,” Wallace said.
     Patterson replied that veterans are not asking to restructure the Army’s regulations or for the court to interfere with its day-to-day operations.
     But he noted that the Army’s own regulations on medical care use words such as “obligation” and “duty.”
     “It does not have discretion not to exercise its discretion at all,” Patterson said.
     Next, attorney Charles Scarborough argued for the government, saying its obligations are discrete, and not “broad, programmatic things like providing medical care.”
     “What’s so hard about ‘broad, programmatic’ medical care?” Judge William Fletcher asked “You got to provide medical care. That’s not broad and programmatic.'”
     Fletcher posed a hypothetical scenario in which an active-duty service member volunteers to be a test subject and doesn’t need medical care until a year after the test is over.
     Scarborough said a “critical finding” in the district court was that it is unclear if the Army regulation applies retroactively.
     “It is a forward-looking thing,” Scarborough said. “The Army has been bulking up its regulations about testing subjects and prescribing with greater degrees of specificity and care.”
     Judge Wallace called it “bothersome” that the attorney viewed the regulation as applying only to the future.
     “If a person is discharged for less than honorable reasons, they can’t get anything from the Army or VA,” Wallace said.
     Judge Fletcher added: “I have trouble thinking that it’s commonsensical that the Army would say to these guys, ‘We will provide medical care for you as a result of these potentially highly dangerous experiments for which you were volunteering, but if for some reason you get a general discharge, forget it.’
     “That’s a pretty cruel thing for the Army to do,” Fletcher said. “And I don’t think the Army is a cruel institution.”
     Scarborough said that Congress clearly mandates that veterans obtain care through the VA, and the district court refused to order the Army to do something the VA already does.
     “That is a generic scheme,” Judge Mary M. Schroeder said. “It’s not set up with the purpose of fulfilling this particular duty.”
     In his two-minute rebuttal, attorney Patterson said that new VA legislation adopted this year refers veterans who are waiting for medical care to the Department of Defense.
     “This further undercuts the argument from the Army that Congress somehow made the VA the exclusive place that you have to go for treatment.”
     Scarborough then discussed the Army’s duty to inform test subjects about their rights, and reiterated that the regulation is “forward-looking.”
     “We are doing a whole lot to notify people,” Scarborough said. “There has been lots of research conducted and commissioned by the Army.”
     Judge Fletcher said: “I simply do not understand why the government is fighting this, because it seems to be such an elemental obligation of the Army,” referring to its duty to warn test subjects.
     “You’ve got patriotic volunteers to engage in dangerous experiments for the good of their country. Some of the dangers were understood at the time, some of them were not,” Fletcher said. “And the Army is now saying, ‘We are not going to do everything we can; we have no legal obligation to inform you of what we now know of the dangers of the tests you underwent.'”
     Scarborough said the Army objected to the district court’s ruling that it continue to look for information about past test subjects.
     “The question is simply, ‘Could the Army being doing more?'” Scarborough said. “And that is not the proper role for the court to be engaged in.”
     Judge Wallace said it seems “perfectly sensible” for the district court to order the Army to act based on the court’s order and said he did not understand why the Army was appealing the decision.
     Scarborough said it is not appropriate for the district court “to be sitting in as the programmatic manager of the Army’s ongoing notification efforts.”
     On rebuttal, attorney Patterson said that the district court’s injunction leaves discretion to the Army about how to provide notice, and the order “does not require the Army to go out and endlessly search and report back to the court.”
     Judge Fletcher thanked both attorneys for their “very good arguments.”

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