Interview with Gordon P. Erspamer – Transcript 5

Lisa: In 2009, you were awarded the American Bar Association’s Pro Bono Publico award. In addition, you’ve also been honored with Trial Lawyer of the Year awarded by the Trial Lawyer for Public Justice Foundation, the Justice Award from the National Association of Radiation Survivors, the Dean K. Phillips Memorial Award for Advocacy by The Vietnam Veteran’s of America, and last, but of course not least, the Contra Costa County Bar Association’s Presidents Award, among many other awards that are too many to mention.
You have been actively been involved in pro bono work and advocacy since law school. What inspired you, and what would you tell the next generation of lawyers who might ask, “Why should I get involved in pro bono work?”

Gordon: Well, as I mentioned earlier, I was the kind of person who went to law school thinking I would become a public interest lawyer, and that’s why I went. Very tough to get those jobs, especially if you have no experience whatsoever. So like a lot of lawyers, I did the next best thing, which is working for a firm that has a demonstrated commitment to pro bono and diversity and the kind of things that I felt strongly about my whole life.

It was through my father that I got into the particular veteran’s area, and I grew to really like the area, not only because I like the people I met. The people are really downhomesy people, very likeable people generally. But it also gave me a great breadth of the kinds of issues to tackle. Where can you get into poverty law, homelessness, federal constitutional law, statutory interpretation, and complex fact patterns like the radiation, all these huge, unannounced and announced nuclear tests before the Nuclear Test Ban Treaty? So there’s a lot of science in there, and a lot of my cases have had a lot of science or medicine.

They’re very challenging. But how do you get involved? The truth of the answer is for almost every lawyer, and I think it’s true of this generation more than any, it’s hard to find time. The pressures are so great. What I always said to myself is, “Look, there’s never going to be a good time.” If you’re a good lawyer, and you’re a young lawyer, you’re going to be really busy, particularly if you’re at a big firm. You’re going to be very, very busy, very much sought after.

So when the NARS case came in, I took that. I did it myself and I was an associate. I didn’t really have anybody working above me. I just decided, look if you’re going to do, you just have to take the cases and you have to make the room. I never thought about hours, the way a lot of people think about hours. If I’m going to take a case, it’s not going to be on the back of the law firm completely. I mean in part it’s going to be, but if I have to work longer hours for a few years, I’m going to do it. That’s the price that I’m paying for the cause of these people. That’s the way I’ve always done it. So I’ve had a few years where I billed more hours than I really wanted to or my family wanted me to, but that is the price you pay. Particularly in this veteran’s area, if you don’t do it, I found this out over time, if I don’t do it, it often never got done. The most difficult cases to tackle, like the $10 Attorney Fee Limitation.

Lisa: Right, that was amazing.

Gordon: That started out the NARS case. A veteran can’t play an attorney, at the time, more than $10 to represent him out of his own pocket. Yet, we have all these people that are getting their legal fees paid for by the government. It struck me as a big issue of veterans’ civil rights, and that’s the way I framed the issue. That’s the way the debate later got framed. Why are veterans second class citizens? The limitations on their rights were so great. No judicial review at that time. Every VA decision was final. You could not hire a lawyer.

The third prong, I used to call it the Iron Triangle, whereby the government insulated itself from liability to the veterans who, the metaphor I always used, the “little people” don’t get their rights. The third thing was the Feres Doctrine. The Feres Doctrine basically is a judicially created exception to liability for torts that the government commits, and it’s not in the statutes. It’s not in the Federal Torts Claims Acts. It came out of a 1950 Cold War Era decision of the Supreme Court, which basically immunized the government from damages for service people. Even in cases of clear malpractice, there’s actually a case before the Supreme Court on that right now that’s going to be argued very soon. It’s been around for a long time. The result was a total lack of accountability, and no one seemed to be ever able to do anything about it.

So over the last four decades, three and a half decades, judicial review got passed for the first time. Reversal rate? Sixty percent. Sixty percent plus every year. What does that tell you about all the injustice that had been done before judicial review? The attorney fee limitation has been relaxed, to some extent.

Lisa: They get $20?

Gordon: Actually, you can’t pay an attorney at all in the first phase of a case.

Lisa: Okay.

Gordon: If you lose and you demonstrate, I guess, that you need an attorney, you can hire an attorney to do an appeal or to try and reopen your case based upon new and material evidence. Still not very good, but that has been upheld.

But the big things about these cases are all the veterans, when the veterans would try to sue, they’d often would be in pauper or they would have some solo practitioner or small person doing a good deed, trying to help them out. But they didn’t have resources to really fight the government. So all these cases were just getting thrown out in mass. If you look across, you just look at the Veteran’s Administration or DVA across the federal court docket sheets in the computer system, you just find hundreds of cases where they just get thrown out of court. They also defend these cases the same way: no jurisdiction; has it been a waiver of sovereign immunity; all these arguments that have nothing to do with the merits. They just got tossed one after another after another, and they never saw their day in court.

Well, that took some heavy thinking. How do you deal with these issues? The government has a lot of things that it can exert, like failure to exhaust administrative remedies, everything every lawyer has heard a thousand times. I really reacted badly to having people thrown out of court in mass like that, where no one ever heard the merits of their claims. So some of these basic things that I learned years ago, about due process, the right to be heard at a meaningful time in a meaningful place with meaningful procedures, these are important rights. There’s a reason why they’re in the Constitution. The Constitution doesn’t say everyone except veterans has a right to due process. It seemed pretty basic to me. Yet it took over 30 years to get Cushman and the recent PTSD case, which went off constitutional grounds, due process grounds. Then the very recent case that’s probably going to the Supreme Court.

These are very basic principles. I always felt I understood due process pretty well, just because, as you grow up, you have experiences in life, and I just saw a lot of things. Procedures sometimes are the substance, because if you don’t give people the procedures, they never get over the hurdle to have their case heard on the merits. So there are a lot veterans out there even today, the most underrepresented segment in our population is veterans, by far. Almost all represent themselves. They don’t do a very good job because they’re not lawyers and they lose. People die. When the mother called me and said her son had hanged himself from the rafters of their garage, coming back from Iraq, with their garden hose, and he’d been turned away three times in the last week by the V.A., obviously in severe distress. He had a right to treatment. But there was no procedure. No procedure at the V.A. for contesting a denial of treatment. They can send you away and then they say, “Oh, we’re immune, Feres Doctrine. We’re immune.”

The thing about my new case, the chemical biological weapons testing program case, Edgewood Arsenal and Fort Detrick, they just basically ran hundreds of thousands of troops through a chemical weapons testing program where they injected people with nerve gas, drugs like LSD, horrible substances like BZ that you probably never heard of, but it was weaponized. It’s what they call a kind of a knock-out drug. It an incapacitating agent is what they technically call it, but the right dosage will knock you out for two weeks. You will be flat on the floor for two weeks, and you’ll probably die of thirst.

Lisa: Wow.

Gordon: They weaponized this incredibly powerfully drug. Not only were they injecting it into people into their blood vein, but it turns out through discovery in this case, and I don’t think any body knows this, they were injecting it through some private entities, researchers who were helping them at universities, intraspinally.

Lisa: Oh, gosh.

Gordon: Into your spine to see how more potent it was in your spine. If anybody has had a spinal tap, you know how painful that can be number one and number two, how dangerous it is to be messing with your spine. They did all kinds of things. They did mescalines intraspinally. All these different chemicals. Over 450 different toxic substances, including most of the organophosphates which are the pesticides, nerve gases, you name it, they got it. Anti-psychotic drugs. They would give people nerve gas almost to the brink of death so they could test antidotes for nerve gas. So they would bring you back. You would have probably died, but for receiving atropine or some kind of antidote to reverse the process. They were doing this for 25 to 30 years, 1943 until the late ’70s.

Lisa: And were they volunteers who thought they were going into something completely different?

Gordon: Yeah, they said, “Well, free, here’s a great program at Edgewood Arsenal. Work four days a week. No KP duty. Work in civilian clothes. The program is to test the new gas masks and other equipment to protect troops in the future.” Well, they get there and it wasn’t to test gas masks, I mean there were gas masks there, but they turned the tables on them. Once you had signed up, you couldn’t get out. You know how the military, all that little subtle, it’s not subtle, the control that they exercise over the people?

Lisa: Right.

Gordon: These were of course all enlisted men. All the men in the atomic bomb tests, who were in the trenches as you’ve seen from around Ground Zero at the Nevada test site, all enlisted men. Not a single officer of course. They put a non-commissioned in charge, and they would go on their maneuvers. It, again, comes back to the “little people.” I actually wrote a poem about the little people at one point.

Lisa: Can you remember it? Can you recite it?

Gordon: I can’t recite it, but I can send it to you if you want to read it. I’ll send it to you. But I know some of the lines. But it’s just a way of looking at the world where, I coined my own term to describe it, “upper snuffy.” Upper snuffy, looking down on the little people and they don’t really matter. It’s like the charge of the Light Brigade. If we lose a million troops or five hundred thousand, who cares because they’re just enlisted men?

It’s that mentality that permeates too much of our society. But bottom line, when you ask anyone, I’ve talked about my cases with innumerable people over the years. I have not found anyone, anyone that thinks I’m wrong or that the veterans are wrong. It’s just a huge disconnect between the government and the people.