Government lawyers argued Tuesday that plaintiffs who were sickened while working on a chemical weapons incinerator failed to prove chemical agents stored nearby were the cause.
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Lawyers for the 49 plaintiffs contended there is no other way to explain symptoms incurred at the Umatilla Chemical Depot in Eastern Oregon on Sept. 15, 1999.
U.S. District Judge Dennis Hubel heard closing arguments in the second phase of the trial after determining in February that the Army was negligent in its response level and in not getting workers quickly to the hospital.
If Hubel decides there was a nerve gas leak and government actions further harmed the workers, a third phase would be held to determine any damages.
In nearly two weeks of testimony, government lawyers suggested it was chemicals from welders or a two-part epoxy being used in the incinerator, and that the plaintiffs, who blame sarin nerve gas stored in the depot's bunkers, had failed in their burden of proof to show otherwise.
They said those sickened never showed signs of miosis, or pinpoint pupils, the first symptom of sarin to appear and the last to go away.
"Not one technician or nurse who examined patients on Sept. 15 observed miosis," said government lawyer Henry Miller, noting that they had been trained to look for it.
Miller said the plaintiffs "bear the burden of proof to show that injury was caused by an alleged wrongful act."
Hubel did not say when he might rule.
The depot near Hermiston stores more than 3,700 tons of mustard and nerve gas weapons, about 12 percent of the national supply. The government began storing them there in 1962. The incinerator is to burn the agents by international agreement and could start by August.
Plaintiff's lawyer James McCandlish faulted the Army for not quickly sending in a nearby mobile decontamination unit. He said as much as 90 percent of the alleged contact with the agent could have been avoided if the construction workers had their clothes removed in the field.
Chemical agents in clothing, he said, "leads to an increased persistence of the symptoms" and makes them worse with time.
He accused the government of pretending that nothing really happened on the morning in question and called the Army investigation into the incident "a laugh."
McCandlish said there have been repeated reports of leaks from storage "igloos" in K Bloc of the depot and that the vents were not sealed until the state ordered it after Sept. 15.
"The symptoms could not have affected so many rooms (in the incinerator) if they had not come from an outside source," he said.
"No industrial chemical case implicates as many symptoms" as those suffered by the construction workers, he said.
One K-Bloc igloo, No. 1881, has recorded some 30 leaks, said plaintiff's lawyer Keith Dozier.
Miller, however, said there were people between K Bloc and the incinerator and they suffered no symptoms, proving a gas leak was not to blame.
He said for sarin to have escaped through the vents would have required a "major event" (massive leak) in one of the igloos and that none was recorded.
He said plaintiffs were suggesting possibilities, but were required to prove probabilities.
"These people did not match up with what you would expect at the dose level (of nerve agent)," he said, adding that they might be dead if they had.
He said that while paramedics for the civilian contractor Raytheon Demilitarization (now Washington Demilitarization Co.) did not strip the workers of their clothing, Army specialists likely would not have done so either absent what they considered symptoms of nerve agent contamination.
The workers settled with Raytheon earlier.