July 16, 2010 4:10 PM

Pro Bono 2010: A Scene from the Manchurian Candidate

Posted by Victor Li

When Gordon Erspamer first learned about the Edgewood Arsenal near Baltimore, he could scarcely believe what he was hearing. After all, would you believe that there was a facility where the federal government conducted mind-control experiments on several thousands of its own soldiers during the Cold War?

"It's like something out of The Manchurian Candidate," says Erspamer, senior litigation counsel in the San Francisco office of Morrison & Foerster and lead counsel for the plaintiffs. "The documents were chilling, and we still haven’t even gotten all of them. It wrenches your gut."

In January 2009, a group of six veterans, along with the Vietnam Veterans of America and Swords to Plowshares: Veterans Rights Organization, sued the CIA, the U.S. Department of Defense, and the U.S.  Army for declaratory and injunctive relief. The plaintiffs allege that the government tested various drugs, biological and chemical agents, and gases during the fifties, sixties, and seventies without their informed consent (some poison gas shells and grenades from the Chemical Warfare Service laboratory at Edgewood are pictured above). The plaintiffs want the defendants to notify all affected veterans and tell them what chemicals they were given, release them from their secrecy oaths, and provide them with health care and disability compensation. In June the plaintiffs filed a motion to add two additional veterans to the case and to add the U.S. Department of Veteran Affairs to the list of defendants.

Erspamer, an energy law litigator, has devoted much of his pro bono practice to helping veterans, most recently representing soldiers suffering from posttraumatic stress disorder. "The VA has only paid two disability claims for what happened at Edgewood out of several thousand affected veterans in this class. That's not a very good ratio," says Erspamer, who listed a figure of approximately 7,800 veterans involved in the Edgewood testing program in his complaint, a number the government does not dispute.

Frank Rochelle, one of the plaintiffs, alerted Erspamer to the case. Rochelle first joined the army in 1968 and was initially stationed at Edgewood Arsenal before being sent to Vietnam. According to the complaint, Rochelle "saw posted notices asking for servicemen to test military equipment, clothing, and gas masks" and was further enticed into joining the program by the promise of having Fridays off, no Kitchen Patrol duty, and winning a medal. "Frank never was told what he would be testing, nor was Frank warned of any hazards," read the complaint.

Based on his available records, says Erspamer, Rochelle was exposed to at least three different hallucinogenic drugs. "Today, Frank suffers from memory loss, anxiety, vision problems, difficulty breathing, and sleep apnea," Erspamer wrote in the Edgewood complaint while noting that Frank received 80 percent disability compensation from the Veterans Administration and had to leave his job of 28 years for health reasons. Three other plaintiffs have been classified as “disabled” by the VA, although none of these four were granted disability due to what happened to them at Edgewood. "Because he believed that his Edgewood service was top secret, and because he feared punishment for disclosure, Frank did not even tell his own doctor what he had been through until around 2006," wrote Erspamer, whose team of 15 lawyers has spent over 2,500 hours on the case since 2008.

For its part, the government has acknowledged the existence of the tests and claims that it is actively trying to help the affected veterans. However, the government maintains that the Edgewood veterans do not have a case because, among other things, the statute of limitations has expired, the veterans have not exhausted all administrative remedies, and sovereign immunity bars this suit. "Dismissal of this lawsuit will not deprive plaintiffs or other veterans of redress for any injuries that they suffered as a result of testing at Edgewood Arsenal," said the government in its response. "Congress and the executive branch continue to investigate, compile relevant documents and other information, and develop and implement appropriate responses and remedies for veterans who participated in the tests....These provisions, rather than litigation, are proper avenues for relief."

Ultimately, Erspamer is determined not to let the veterans slip through the cracks. "The truth needs to come out and the full extent of the program needs to be known," says Erspamer. "The vets need to be recognized before they're all dead."

THE STATS

Morrison & Foerster ranked twenty-first on this year's Pro Bono Report. Firm lawyers performed an average of 111.1 pro bono hours in 2009; 71.9% of the firm's U.S.-based lawyers contributed 20 or more hours.

CLICK HERE to access the Pro Bono Report 2010 from the July/August issue of The American Lawyer.

Photo: Time Life Pictures/Getty Images - Various types of poison gas shells & incendiary smoke canisters, grenades & shells displayed at Chemical Warfare Service laboratory at Edgewood Arsenal.

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