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Challenger: Why U.S. Settled With Some Astronauts And Not Others

March 13, 1988

WASHINGTON (AP) _ Ellison Onizuka and Michael Smith both were military officers. They trained together for two years to be astronauts. And they died together when the space shuttle Challenger blew up above the Florida coast.

Though both were servicemen, the government contributed to a money award for Air Force Lt. Col. Onizuka’s relatives but went to court to avoid paying damages in Navy Cmdr. Smith’s case.

Dick Scobee, Judith Resnik and Ronald McNair were civilian NASA astronauts who died in the Jan. 28, 1986, explosion. The government contributed to a settlement with Scobee’s dependents, but refused to contribute to settlements reached with the Resnik and McNair families by rocket maker Morton Thiokol.

″I’m hoping some of this inequity will lead to legislation to address the problems of the government’s negligence,″ says lawyer Michael D. Oldak, Resnik’s ex-husband.

Why did the government settle with some astronaut families and not with others?

One crucial difference: the families of Resnik, Smith, and McNair hired lawyers to negotiate for them. Their lawyers objected to Justice Department positions in the case, and these three families are not likely to see any money from the government.

The government did settle - along with Thiokol - with the four families who hired no lawyers: the Scobees, the Onizukas and the survivors of the two non- government crew members, teacher Christa McAuliffe and Hughes Aircraft engineer Gregory Jarvis.

These four spouses and six children shared in cash and annuities that cost $7,735,000. The government paid 40 percent; Thiokol, 60 percent.

They had relied on informal advice from the law partner of McAuliffe’s husband, Steven, and they talked only with the government, never directly with the company.

Another difference is that once those four cases were settled Dec. 29, 1986, Justice Department lawyers took an our-way-or-no-way approach to negotiating with the other families.

The government sought to apply the same formula for financial benefits to each family. At the same time, it tried to negotiate a legal minefield bounded by two key Supreme Court decisions.

In one decision, the high court gave the government immunity from being sued for damages for its military and civilian employees who are killed on the job. Justice Department lawyers did not want to see that doctrine weakened.

In the other decision, the Supreme Court said a contractor who pays damages for the death of a federal worker can try to get some of that money back from the government, if federal employees shared in the blame.

The government did not want to be dragged into court by Thiokol for a replay of the errors by government officials who spurned the protests of company engineers that it was too cold to launch Challenger.

The two decisions left the government with direct liability for two Challenger astronauts and only indirect liability for the five federal workers aboard. The Justice Department’s solution: settle only when the company also was a party.

The split between the families had its roots in the government’s financial benefit formula, based on the number and age of dependents and their needs and goals.

Justice spokeswoman Amy Brown said ″generous offers based on the same formula″ were made to all seven families. But the families with lawyers rejected them.

The formula left out an element common to most court-awarded damages - a calculation of lost wages.

Legal experts say this benefited the McAuliffe family, because the earning potential of public school teacher Christa McAuliffe was dwarfed by that of her fellow crew members, who were engineers and physicists, all but one with advanced degrees.

One lawyer involved in the negotiations said Steven McAuliffe helped devise the formula and pressed other families to accept it because the government wanted a package settlement.

A single settlement covering military, civilian federal and non-government crew members would ease the government’s legal problem of having direct liability for some and indirect liability for others, this source said.

But the benefit formula did not offer enough money to satisfy Michael Oldak, lawyer for Resnik’s divorced father, Marvin, and her niece and nephew. A 36-year-old, Ph.D. engineer, Resnik was the only astronaut with neither spouse nor children.

Oldak said the formula only provided several hundred thousand dollars for the Resniks - between a quarter and a half of what the government and company were offering the other families.

After rejecting two government-company offers, Oldak went to Thiokol.

The company was agreeable to a joint government-company settlement with the Resniks for an amount roughly equal to that of Jarvis’ widow, Marcia. Hers was the lowest of the four settlements because the Jarvises had no children.

Thiokol would even make up the difference between this figure and the government-company offer that Oldak had rejected.

Checking with Marcia Jarvis and other relatives, Oldak found none who objected to bending the formula this much.

But Justice officials heard differently. ″It’s not accurate that it would not offend other families,″ said Justice’s Brown. ″One might have said OK. Two might have, but all of them would not subscribe to that. Concern was voiced that an offer might not be in line with the formula used for the others, and we couldn’t do that.″

Last July, Thiokol lawyer John W. Adler wrote the government, ″I don’t believe that the department’s position with respect to the Resnik claim has been fair either to the Resnik claimants or to Morton Thiokol.″

Ulimately, Thiokol settled alone with the Resniks; the astronaut’s father said it came to $2 million to $3.5 million.

Thiokol also settled with McNair’s widow and two infants. Their lawyer, Ronald Krist of Houston, says he would not let the family accept a joint government-company offer as low that accepted by the other families.

He offered to settle separately with the government for whatever it calculated its share was, and he would take on Thiokol independently. But the government refused.

Justice’s Brown explained, ″We couldn’t settle on behalf of the government alone, because there was no direct government liability. Our settlement offers were all on behalf of both the government and the company.″

But the joint settlements left the question of liability too murky for Smith’s widow, Jane. ″She didn’t feel justice was being served,″ her lawyer, William F. Maready said. ″She feels now that the people whose negligence caused the accident should be accountable for their actions.″

She sued Thiokol, the government and Lawrence Mulloy, the NASA engineer responsible for the booster rocket that was blamed for the accident.

But last year, the Supreme Court expanded its 35-year-old doctrine that military survivors may not sue the government. It extended the government’s immunity to a case like the Challenger disaster, where a military pilot was killed while supervised by federal civilian employees.

Government lawyers appeared in court and got both the government and Mulloy dismissed as defendants.

Maready has filed notice he intends to appeal.

″That ruling says, in effect, that a military person is a second class citizen, that no matter how negligent our government was in this situation that the people in the agencies involved aren’t accountable,″ Maready said. ″It’s a dangerous thing for the space program to be run by people who aren’t fully accountable.″

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