## Facts

- Irene Allen and over 1,000 “downwind” residents (or survivors) from Utah, Nevada, and Arizona alleged cancers and other injuries from radioactive fallout from atmospheric nuclear tests at the Nevada Test Site (1951–1963).
- Plaintiffs sued the United States under the Federal Tort Claims Act (FTCA), alleging negligent test implementation and negligent failure to warn, protect, monitor, or accurately inform the public about fallout risks.
- The actions were consolidated in the District of Utah, and the court conducted a bench bellwether trial on 24 representative claims.
- Plaintiffs alleged the government knew or should have known fallout would reach populated areas, failed to use available precautions, and made reassuring public statements that discouraged protective measures.
- The district court issued detailed findings on radiation science, governmental knowledge during the testing era, and plaintiff-specific exposure, disease histories, and damages.

## Issues

1. Whether the FTCA discretionary-function exception, 28 U.S.C. § 2680(a), barred claims challenging test safety practices, monitoring, and public warnings as opposed to the policy decision to conduct tests.
2. Whether claims were untimely under the FTCA’s two-year limitations period, 28 U.S.C. § 2401(b), given decades between exposure and suit.
3. Whether the United States owed downwind residents a duty of reasonable care under applicable state tort law in conducting tests and communicating fallout risks.
4. Whether the United States breached any duty through inadequate safety criteria, monitoring, and warnings, including misinformation.
5. Whether plaintiffs proved general and specific causation linking fallout exposure to particular cancers and injuries.
6. What compensatory damages were recoverable for plaintiffs who proved liability and causation.

## Decision

- The district court held the discretionary-function exception did not bar claims framed as negligent implementation and negligent failure to warn, distinguishing them from protected high-level policy choices.
- The district court held many claims timely under a discovery-rule approach, concluding plaintiffs could not reasonably have known of the probable causal link until later disclosures and scientific developments.
- The district court found the United States owed a duty of reasonable care to foreseeable downwind populations given known risks of off-site fallout.
- The district court found breach based on inadequate safety and meteorological criteria, insufficient monitoring in populated areas, and failures to provide timely, accurate warnings (including about exposure pathways such as contaminated milk), coupled with misleading reassurances.
- The district court found causation established for certain plaintiffs and cancer types under a preponderance standard and awarded compensatory damages in those cases.
- On appeal, the Tenth Circuit reversed on discretionary-function grounds, holding the challenged conduct was sufficiently policy-laden to fall within § 2680(a), eliminating FTCA jurisdiction.

## Legal Principles

- Under the FTCA, claims “based upon” discretionary governmental functions are barred by § 2680(a), and the bar is jurisdictional.
- A court may distinguish protected policy decisions from allegedly negligent operational conduct in applying § 2680(a), but appellate review can treat technical and public-information judgments as policy-related in sensitive governmental programs.
- FTCA accrual for latent-injury claims may turn on when the claimant knew or reasonably should have known of the injury and its probable cause (discovery-rule analysis).
- Where state tort law recognizes foreseeability-based duties for hazardous activities, duty may extend to off-site populations if harm from the activity is reasonably foreseeable.
- In toxic exposure cases, plaintiffs typically must prove general causation (capability of the agent to cause the disease) and specific causation (the agent more likely than not caused or substantially contributed to the plaintiff’s illness) by a preponderance of the evidence.
- FTCA damages are compensatory and are measured by applicable state law, subject to FTCA constraints.

## Conclusion

The district court treated downwind fallout claims as actionable FTCA negligence based on test implementation and failure to warn, found many claims timely under a discovery rule, and awarded damages to plaintiffs who proved causation; the Tenth Circuit later reversed because the discretionary-function exception barred the suits and deprived the court of jurisdiction.


Allen v. United States, 588 F. Supp. 247 (D. Utah 1984), rev'd on other grounds, 816 F.2d 1417 (10th Cir. 1987)