Ernestine Carter Hughes v. Vanderbilt Univ., 99-5499

Citation215 F.3d 543
Decision Date06 March 2000
Docket NumberNo. 99-5499,99-5499
Parties(6th Cir. 2000) Ernestine Carter Hughes, Plaintiff-Appellant, v. Vanderbilt University, William J. Darby, M.D., The Metropolitan Government of Nashville and Davidson County, Tennessee, The Nutrition Foundation, Inc., and The Rockefeller Foundation, Defendants-Appellees, The State of Tennessee, Defendant. Argued:
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Appeal from the United States District Court for the Middle District of Tennessee at Nashville; No. 98-00770--Thomas A. Higgins, District Judge.

Phillip L. Davidson, Nashville, Tennessee, for Appellant.

John S. Bryant, BASS, BERRY & SIMS, Nashville, Tennessee, Francis H. Young, METROPOLITAN DEPARTMENT OF LAW, Nashville, Tennessee, Kimberly M. Frayn, Metropolitan Government of Nashville & Davidson County, Nashville, TN, John L. Chambers, STOKES & BARTHOLOMEW, Nashville, Tennessee, John W. Wagster, HOLLINS, WAGSTER & YARBROUGH, Nashville, Tennessee, Philip R. Forlenza, Robert P. LoBue, PATTERSON, BELKNAP, WEBB & TYLER, New York, New York, for Appellees.

Before: SILER and GILMAN, Circuit Judges; O'MALLEY, District Judge.*

GILMAN, J., delivered the opinion of the court, in which SILER, J., joined. O'MALLEY, D. J. (p. 550), delivered a separate opinion concurring in the result only.

OPINION

RONALD LEE GILMAN, Circuit Judge.

Ernestine Carter Hughes contends that the defendants unlawfully subjected her to dangerous medical tests in 1945 when she was a child. The district court concluded that Hughes's 1998 action was barred by the statute of limitations. Hughes now challenges that decision. For the reasons set forth below, we AFFIRM the judgment of the district court.

I. BACKGROUND
A. Factual background

In 1945, Vanderbilt University conducted a three-month study to further understand how iron is absorbed in the human body. The study, which was funded by the Nutrition Foundation, Inc. (NFI), the International Health Division of the Rockefeller Foundation (Rockefeller), and the Tennessee Department of Health, involved nearly 200 children from the Caldwell and Ransom elementary schools in Nashville, Tennessee. William J. Darby, M.D., was one of the principal researchers. The students, most of whom were between the ages of seven and ten, were given lemonade that had been laced with radioactive iron. Darby and his colleagues analyzed before-and-after blood samples drawn from the children, and then published the results of their work in the Journal of Nutrition.

At all times relevant to this case, Hughes resided in Nashville. In 1945, she was eight years old and a student at the Caldwell elementary school. Vanderbilt records reflect that Hughes, then known as Ernestine Carter, was one of Darby's subjects.

The 1945 study failed to draw any significant public attention until January 13, 1994, when a Nashville newspaper, The Tennessean, ran a front-page story recounting the nature of the testing involved. Titled "Students Given Radioactive Drink," the article was based on a Vanderbilt press release to be issued the following day. The Nashville Banner printed a similar piece on the cover of its January 14, 1994 issue.

On January 17, 1995, Katherine Henley, who alleged that she was one of the students subjected to the study, filed a class action against the defendants in the United States District Court for the Middle District of Tennessee. That case garnered its own share of media attention. On January 18, 1995, The Tennessean again ran a front-page story on the matter and, on January 19, 1995, CBS's Nashville television affiliate reported on the suit during three different broadcasts. In August of 1997, however, Henley admitted that at the time of the study she was not enrolled in either the Caldwell or Ransom elementary schools. This revelation was also reported by The Tennessean. Her case was dismissed on or about July 8, 1998.

B. Procedural history

On August 24, 1998, Hughes, on behalf of herself and all others similarly situated, filed suit against Vanderbilt, Darby, the Metropolitan Government of Nashville and Davidson County, NFI, Rockefeller, and the State of Tennessee. In addition to a request for class action certification, her complaint alleged violations of 42 U.S.C. §§ 1983 and 1985, and set forth claims of negligence, battery, and strict liability (based on ultrahazardous activity). The factual allegations made by Hughes included the assertion that "Vanderbilt and Darby . . . intentionally forced plaintiff to ingest radioactive iron by forcibly holding her mouth open and instilling the radioactive substance into her mouth against her will, ignoring her protests." She further alleged that, as a result of the ingestion, "she has suffered loss of weight, blood problems, tumors, and other severe, physical problems." Hughes also addressed the timing of her suit:

On July 8, 1998, the plaintiff was first informed that she was a subject of this radiation experiment by way of learning that a lawsuit [that] was filed by Katherine Henley on or about late April 1997 had been dismissed. In late 1993 and early 1994, the first disclosures of many human radiation experiments came out in the press, including other experiments conducted by . . . Vanderbilt. However, plaintiff was not aware of these disclosures until she learned that the Henley lawsuit . . . had been dismissed. . . .

The plaintiff and class members, in the exercise of reasonable diligence, did not know or have reason to know the true nature and dangers of the radioactive experimentation to which they were subjected to in the past, and plaintiff and class members did not know or have reason to know of their claims for relief against the defendants in regard to the Caldwell and Ransom Schools radioactive iron experiment until about January 14, 1994, and later. A great many members of the class still do not know about the experiment.

(Emphasis added.)

In October and November of 1998, all of the defendants filed dispositive motions based on the assertion that Hughes's action was barred by the statute of limitations. Several affidavits and exhibits were submitted by the parties in support of, and in response to, these motions.

On November 19, 1998, Hughes moved to amend her complaint by changing the date cited in the excerpt above--that is, the portion of her complaint alleging that she and the class members did not know or have reason to know of the existence of their claims "until about January 14, 1994, and later." Hughes stated in an affidavit filed on December 1, 1998 that she did not know about the study "until July 8, 1998." Her request to amend, however, was denied. The docket entry of the district court's decision states that "this motion is unsupported other than [by] the assertion of counsel as to a 'typographical' error which is contradicted by his having signed the pleading in the Henley action . . . ."

All of the defendants' motions were referred to a magistrate judge for a ruling. On January 19, 1999, the magistrate judge issued his report and recommendation. At the outset, the magistrate judge noted that he would consider the evidentiary materials filed by the parties and, in turn, treat the motions to dismiss as requests for summary judgment. Then, after setting forth the facts and the applicable standard of review, the magistrate judge addressed the apparent conflict between the January 14, 1994 date set forth in Hughes's complaint and the July 8, 1998 date alleged in her affidavit. Citing the denial of Hughes's motion to amend her complaint, the magistrate judge stated that he "does not deem [her] subsequent affidavit to create a material factual dispute . . . ." The magistrate judge then discussed the applicable law regarding the statute of limitations and concluded as follows:

[B]y her own admission in her complaint, plaintiff cites that she was aware or reasonably should have been aware of her claims in [January], 1994 . . . . Plaintiff also states that there were public studies on the Caldwell project that were published in 1994, although she states that she was not aware of them until July 8, 1998. . . . Moreover, the manner in which Hughes described her ingestion of this liquid as "forced by the defendants against her will" . . . also suggests Hughes['s] longstanding awareness of the cited facts underlying her claims.

After citing the media reports concerning the Vanderbilt study and Henley's suit, the magistrate judge reiterated his view that "[t]he existence of litigation on the same project and the attendant publicity would have placed a reasonable person on knowledge [sic] of her federal claims by July, 1994 and no later than July, 1995 when the Hensley action was filed and its prominent publicity was widespread." The magistrate judge then recommended that all of the defendants' motions be granted.

On March 9, 1999, the district court, without further analysis, adopted the magistrate judge's recommendation and dismissed Hughes's complaint on the basis of the statute of limitations. In this appeal, Hughes does not take issue with the district court's denial of her motion to amend her complaint. Rather, Hughes asserts that (1) she was not aware that she had been a subject of Darby's tests until July 8, 1998, and (2) the issue of whether she had exercised reasonable care and diligence in discovering her cause of action should have been submitted to a jury.

II. ANALYSIS

A. The nature of the motions being reviewed Although not raised as an issue of contention between the parties, it is important to clarify the nature of the motions being reviewed. Pursuant to the Federal Rules of Civil Procedure,

[i]f, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and...

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