188 F.3d 1105 (9th Cir. 1999), 97-35825, Bibeau v. Pacific N.W. Research Foundation

Docket Nº:97-35825
Citation:188 F.3d 1105
Case Date:August 19, 1999
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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188 F.3d 1105 (9th Cir. 1999)

HAROLD BIBEAU; MELANIE ANN DOOYEN BIBEAU, on their own and as Representatives of Classes of Similarly Situated Persons, Plaintiffs-Appellants,


PACIFIC NORTHWEST RESEARCH FOUNDATION INCORPORATED, a Washington corporation; BATTELLE PACIFIC NORTHWEST LABORATORIES; BATTELLE MEMORIAL INSTITUTE, INCORPORATED, an Ohio Corporation; MAVIS ROWLEY; DANIEL DIIACONI, Doctor in his Individual and Former Official Capacity; FERNANDO LEON, Doctor in his Individual and Former Official Capacity; ROBERT E. WILDMAN, in His Individual and Former Official Capacity; JOHN RANDOLPH TOTTER, in His Individual and Former Official Capacity; JAMES LESLIE LIVERMAN, in His Individual and Former Official Capacity; UNITED STATES OF AMERICA, Defendants-Appellees.

No. 97-35825

United States Court of Appeals, Ninth Circuit

August 19, 1999

        Submission Deferred September 16, 1998 Argued September 15, 1998

        Submission Deferred September 16, 1998

        Submitted September 28, 1998 Portland, Oregon

NOTE: SEE ORDER AT 208 F.3d 831.

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        Stanley B. Siegel and Eric L. Cramer, Berger & Montague, Philadelphia, Pennsylvania, for the plaintiffs-appellants.

        Robert L. Aldisert, Perkins Coie, Portland, Oregon, for defendants-appellees Pacific Northwest Research Foundation and Mavis Rowley.

        Richard Montague, United States Department of Justice, Washington D.C., for

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defendants-appellees United States, John Randolph Totter and James L. Liverman.

        Lisa E. Lear, Bullivant Houser Bailey, Portland, Oregon, for defendant-appellee Daniel DiIaconi.

        Appeal from the United States District Court for the District of Oregon; Michael R. Hogan, District Judge, Presiding. D.C. No. CV-95-06410-MRH.

        Before: J. Clifford Wallace and Alex Kozinski, Circuit Judges, and David Alan Ezra,[*] District Judge.

        Opinion by Judge Kozinski; Concurrence by Judge Wallace

        KOZINSKI, Circuit Judge:

        More than thirty years ago, plaintiff Harold Bibeau suffered the unkindest cut of all. Today, he seeks to bring suit against those he claims are responsible for injuring him. The defendants parry by raising the statute of limitations. The district court agreed and entered summary judgment in favor of all defendants. See Bibeau v. Pacific Northwest Research Found., Inc., 980 F.Supp. 349, 358 (D. Or. 1997). We must decide whether Bibeau was or should have been aware of his injuries, and is therefore barred from bringing suit as a matter of law.


         In the 1960s, Bibeau was an inmate at the Oregon State Penitentiary (OSP). During that time, Dr. Carl Heller of the Pacific Northwest Research Foundation conducted a series of experiments, under the auspices of the Atomic Energy Commission, in order to determine the human body's responses to various experimental regimens, among them the effect of radiation on human testicular function. Inmates were paid for participating and proselytized other inmates to sign up for the experiments. As a result of this encouragement, Bibeau volunteered for the testicular irradiation experiments.

         Bibeau's involvement with the Heller Experiments consisted of four steps: First, a biopsy was taken of his testicles prior to undergoing irradiation. Next, his testicles were exposed to approximately 18.5 rads of radiation. Biopsies were then periodically taken from his testicles in order to monitor the effects of the radiation. Finally, prior to his departure from the OSP, and in accordance with a consent form he had signed prior to his participation in the experiments, he underwent a vasectomy in order to prevent contamination of the genetic pool by mutated chromosomes.

         Following his release from the OSP, Bibeau became a self described drifter, moving from place to place and spending many years as a long-haul truck driver. After marrying and settling near Portland, Bibeau lived a relatively peaceful life, not thinking about his time in the OSP. One day in 1993, he came across a news report of a speech by Energy Secretary Hazel O'Leary, which contained an apology from the United States government for its use of human subjects during the Cold War era. Bibeau thought the events she described sounded suspiciously similar to the program he had been involved in, and so he began an "obsessive" search for the truth about the Heller Experiments. Just short of two years after the O'Leary speech, Bibeau filed this action in the District of Oregon as the putative representative of a class of persons similarly situated. After Bibeau's claims were narrowed on a motion to dismiss, the court found that all of his claims were barred by the statute of limitations and granted the defendants' motions for summary judgment. See Bibeau, 980 F.Supp. at 358.


        Bibeau claims he was the victim of a conspiracy to fraudulently induce him to participate in the experiments, and that he

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was lied to about the possible side effects of the radiation and about the nature and purpose of the experiments. He also brings related state-law claims for fraud, battery, breach of fiduciary duty, strict liability for ultra hazardous activity and intentional infliction of emotional distress. These claims1 have their roots in the events of over three decades ago, and the parties agree that the statute of limitations applicable to both the federal and the state claims is two years. See Wilson v. Garcia, 471 U.S. 261, 276 (1985) (holding that the appropriate state statute of limitations to borrow for section 1983 actions is that for recovery of damages for personal injuries); Or. Rev. Stat. S 12.110 (1997). The question remains: Two years from when?

        Because it is inequitable to bar someone who has no idea he has been harmed from seeking redress, the statute of limitations has generally been tolled by the "discovery rule." Under this rule, the statute only begins to run once a plaintiff has knowledge of the "critical facts" of his injury, which are "that he has been hurt and who has inflicted the injury." United States v. Kubrick, 444 U.S. 111, 122 (1979). In addition to being a rule of Oregon law, see, e.g. , Gaston v. Parsons, 864 P.2d 1319, 1323 (Or. 1994), the discovery rule has been observed as a matter of federal law, see Kubrick, 444 U.S. at 120.2

        There is a twist to the discovery rule: The plaintiff must be diligent in discovering the critical facts. As a result, a plaintiff who did not actually know that his rights were violated will be barred from bringing his claim after the running of the statute of limitations, if he should have known in the exercise of due diligence. See Herrera-Diaz v. United States, 845 F.2d 1534, 1537 (9th Cir. 1988). But "what [a plaintiff] knew and when [he] knew it are questions of fact." Simmons v. United States, 805 F.2d 1363, 1368 (9th Cir. 1986). The district court held that Bibeau had failed to diligently investigate his symptoms; as a result he had run out of time to file suit. Notably, however, the district court did not specify when Bibeau was, or should have been, aware of the fact that he had been injured by the Heller Experiments. This is a telling point, for it highlights the fact-intensive nature of the issue the district court resolved in granting summary judgment.

        In support of the district court's ruling, defendants contend that Bibeau's claims accrued when the pain he experienced during his biopsies was much more severe than he had been told to expect, which should have alerted him that Dr. Heller was lying. Although a jury might find that someone who experienced much greater pain than he had been told to expect should have begun to question the bona fides of the experiments, we cannot hold as a matter of law that a reasonable person would be put on notice of his claims by such an event. Pain is subjective and cannot be described in precise terms. Bibeau may well have believed that he was experiencing the degree of pain he had been told to expect, but had misunderstood how much that would be. Nor is it clear why pain during the biopsies should have alerted him to the long-term effects of the radiation, especially since the biopsies and the irradiation were distinct operations performed during the experiments.

         Alternatively, defendants point to certain physical symptoms, which may or may

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not have had their roots in the Heller Experiments, that Bibeau experienced over the course of the many years since he left the OSP. These ailments consisted of recurrent, severe testicular pain, which Bibeau has experienced since the 1970s; a periodic groin rash he suffered from the early 1970s; a wart on the inside of his left upper leg, which he discovered in 1979; and certain lymph node lumps that appeared on his arm and back in 1979. Despite suffering from these symptoms over the course of decades, Bibeau never consulted a doctor, nor did it cross his mind that they could be associated with the Heller Experiments. He claims that he believed some of these symptoms were common male complaints. The district court held, however, that a reasonable person "would have associated the pain with the experiments, accurately or not, or at least would have made inquiries regarding a possible connection." Bibeau, 980 F.Supp. at 355.

        We cannot agree with the district court. A trier of fact could find that a reasonable person would not necessarily have connected Bibeau's symptoms to the Heller Experiments. It is a closer question whether the symptoms created a duty to consult...

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