Judge Throws Out Oregon Man’s Suit On Cold War Tests Rules He Waited Too Long; Local Case Still Active
A former Oregon prisoner whose testicles were bombarded with X-rays in a Cold War experiment isn’t entitled to a trial because he waited too long, a judge has ruled.
U.S. District Judge Michael Hogan in Portland dismissed the lawsuit of Harold Bibeau, 55, a Troutdale, Ore., resident who volunteered for the experiment while serving a term for manslaughter in the Oregon State Penitentiary in Salem.
The decision is unlikely to affect a similar suit in U.S. District Court in Spokane brought by former Washington State Penitentiary inmates who participated in similar experiments, said a Philadelphia attorney involved in both lawsuits.
“Judge Hogan’s ruling was very specific to Mr. Bibeau. It shouldn’t affect the Washington case,” said Eric Cramer of the Berger and Montague law firm.
In June, U.S. District Judge Thomas Zilly of Seattle ruled the Washington case qualified as a class action on behalf of 64 inmates. He also sent the case to Spokane for trial.
The law firm has been involved in several high-profile nuclear cases, including the 1979 Three Mile Island accident, the massive Hanford downwinders’ lawsuit, and the government’s plutonium injection experiments.
In his July 25 ruling, Judge Hogan said the prison experiments trouble him - but he is constrained by state and federal statutes that set deadlines for bringing lawsuits.
Bibeau “was a participant in what appears to have been an inappropriate series of experiments on inmates,” he said. “… However, this court may not hear a case, however old, simply because its facts appear compelling.”
After his release from prison in 1969, Bibeau suffered testicular pain for years and should have sought medical and legal advice sooner, the judge said.
The statute of limitations runs for two years after a person “reasonably believes” he’s been injured.
In his suit, Bibeau claimed he didn’t know how dangerous the experiments were until former U.S. Department of Energy Secretary Hazel O’Leary apologized for them in a nationally publicized news conference in 1993.
Bibeau was a young soldier when, in a moment of rage in his early 20s, he killed a man who tried to molest him. He served six years of a 12-year sentence and was released in 1969 for good behavior.
He never went back to prison. He built a career designing houses and small commercial buildings. He also married and had a son. In a June 1994 Spokesman-Review series on the prison experiments, Bibeau said his success after prison made him very reluctant to talk about his past.
That’s why he didn’t speak out about the experiments earlier, Bibeau said Wednesday.
“Judge Hogan is saying a reasonable person would have sought medical and legal help earlier,” he said. “But a reasonable person would not bring up a prison background, because people don’t want you as their next-door neighbor. You want to protect your family.”
Bibeau’s lawyers are considering an appeal of Hogan’s decision, Cramer said.
“We are disappointed in the decision,” he said. “Our view is the statute of limitations is a fact-based question for a jury, not a judge, to decide.”
The X-ray experiments on 67 Oregon inmates were conducted in the 1960s and early ‘70s by Dr. Carl Heller of Seattle, who has since passed away.
Similar experiments on 64 Washington inmates also were conducted at the Washington State Penitentiary in Walla Walla in the 1960s.
Bibeau filed suit in December 1995. Among those named in the suit were Heller’s former research associate, two Oregon prison doctors, and Battelle Pacific Northwest Laboratory, a Hanford contractor who provided some technical advice on calibrating the X-ray equipment.
The experiments were paid for by the U.S. Atomic Energy Commission, a weapons agency that was seeking more information about how radiation would affect the fertility of astronauts, soldiers and nuclear workers.
, DataTimes