Barrett v. Hoffman
| Citation | 521 F. Supp. 307 |
| Decision Date | 27 August 1981 |
| Docket Number | 76 Civ. 1061 (LWP) and 78 Civ. 3762 (LWP). |
| Parties | Elizabeth BARRETT, Plaintiff, v. Martin HOFFMAN, et al., Defendants. Elizabeth BARRETT, Plaintiff, v. UNITED STATES of America, et al., Defendants. Elizabeth BARRETT, Plaintiff, v. Frank M. ARTHUR, et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
COPYRIGHT MATERIAL OMITTED
Richard P. Schifter, Arnold & Porter, Washington, D. C., Herbert K. Lippman, New York City, for plaintiffs.
John S. Martin, Jr., U. S. Atty., S. D. N. Y., New York City by Susan M. Campbell, John M. O'Connor, Asst. U. S. Attys., New York City, for the United States and Federal defendants.
Michael Futterman, Bower & Gardner, New York City, for defendant James P. Cattell.
Frederick H. Block, New York City, for defendant David Marcus.
Paul L. Pileckas, Pileckas & Pileckas, Rome, N. Y., for defendant Newton Bigelow.
These actions arise from the tragic death of Harold Blauer on January 8, 1953 at the New York State Psychiatric Institute ("the Institute"). The 42 year old Blauer had been voluntarily admitted to the Institute for psychiatric treatment following shock therapy at Bellevue Hospital. Shortly after his death Blauer's ex-wife commenced an action on behalf of the Estate against the State of New York in the New York State Court of Claims for wrongful death and negligence in administering to Blauer injections of allegedly toxic substances. The Estate settled the claims against the State in 1955 for $18,000.
Reasserting claims similar to those stated in the former state action, the complaints herein allege that while Blauer was a patient at the Institute he was involuntarily treated with unknown drugs "solely for experimental purposes, without any proper diagnostic or therapeutic purposes thereof and without proper information as to the nature, composition and effects of those drugs." (Barrett v. Hoffman, Complaint ¶ 33). An additional allegation is made that the drugs were supplied to the Institute pursuant to "a 1951 secret contract" between the Chemical Corps Procurement Agency of the Department of the Army and the New York State Psychiatric Institute (Barrett v. Hoffman, Complaint ¶ 44)1 and were given to Blauer "solely to test their efficacy as chemical warfare weapons." (Plaintiffs' Rule 9(g) Statement). The gravamen of plaintiffs'2 present claim in the current three civil rights actions is that salient facts surrounding Harold Blauer's death were withheld from the Estate at the time of the settlement in the state court action. Defendants move to dismiss the complaints herein based upon a variety of legal theories. For the reasons discussed below, the motions are granted on the grounds that actions are time barred.
It is not disputed that the federal government, the Institute and their representatives secretly conducted drug tests on Blauer. Nor is it disputed that the Estate was represented by counsel3 and settled its claims with incomplete knowledge of the full panoply of facts surrounding the decedent's death. At issue here is whether decedent's Estate, injured by grossly offensive acts of government may obtain additional redress in federal court a quarter of a century after the injuries were sustained, based upon relatively recent revelations by the federal government of its involvement in the events which led to Blauer's death.
After careful consideration of the facts and history of plaintiffs' claims, and of the applicable law, the Court concludes that these actions are time-barred by the relevant statutes of limitations and that these bars cannot be lifted by application of equitable tolling principles. Although the Court holds for defendants herein on the affirmative defense asserted, the Court's decision should not be construed as countenancing the government's actions in testing drugs on human subjects or in failing to timely reveal the full extent of its involvement in Blauer's death. As discussed hereinbelow, the failure of plaintiff's predecessor to timely and diligently press her rights in the prior action leads this Court to conclude that the current suits present no legally cognizable claim for relief in the federal courts.4
Before turning to the issues presented herein, a review of the history of this controversy is warranted.
Harold Blauer was survived by his daughters, Belinda and Elizabeth (the plaintiff herein), and by his ex-wife, Amy Blauer. The Blauers had been divorced in August of 1952. Soon after Harold Blauer's death, Amy Blauer retained an attorney from a large Manhattan law firm to investigate her ex-husband's death and to take appropriate legal action. The autopsy report which the firm obtained revealed the cause of death to be: "Coronary arteriosclerosis; sudden death after intravenous injection of a mescaline derivative, January 8, 1953." Members of the firm also interviewed Mrs. Blauer, obtained copies of the death certificate, and contacted at least one physician to discuss the drug mescaline.
Thereafter, on April 2, 1953, Amy Blauer, acting as Administratrix of the Estate of Harold Blauer, commenced an action against the State of New York in the New York State Court of Claims. The complaint charged:
The complaint further charged: "As a result of the foregoing said decedent died on January 3, 1953." (Ct. of Claims Complaint ¶ 14). The Estate commenced no action against either the physicians at the Institute or the Institute itself.
By Order dated January 4, 1954 Judge George Sylvester of the New York State Court of Claims granted the Estate's motion "for inspection of the records pertaining to Harold Blauer ..." and for an examination of Drs. G. Schnack and James Cattell, the treating physicians. By the terms of that order relevant records were to be produced, and the Doctors examined at the Institute on January 12, 1954. Plaintiffs aver that this order was "apparently deliberately ignored." (Barrett v. Hoffman Complaint ¶ 40).
On May 17, 1955, with benefit of counsel but apparently without having pursued discovery from the defendant, Amy Blauer settled the Estate's claim against the State of New York for the sum of $18,000 and executed a general release. The settlement and release were approved after a two-day hearing in May of 1955 before Judge Fred A. Young of the New York State Court of Claims. The transcript of that hearing has been submitted by several of the parties herein. During that hearing Mrs. Blauer testified that she was aware that the hospital had administered a course of drug treatment for the purpose of making drug studies of her ex-husband's mental condition to which he had reacted negatively. She also revealed that to the best of her knowledge Harold Blauer had never suffered from a coronary condition. Mrs. Blauer indicated that she was accepting the settlement without duress or pressure and that she understood that the settlement sum of $18,000 would be the only award she would receive on her claim.
Testimony was also received during the State Court of Claims hearings from Dr. Paul Hoch, the principal research psychiatrist at the Institute. Hoch testified that Blauer was injected with drugs as a part of a chemical therapy research project, that the drug study did not comport with standards acceptable in clinical practice at the time, and that Blauer had died directly as a result of the injection of the drug. Dr. Hoch was only questioned by David Marcus, Assistant Attorney General for the State of New York; Amy Blauer's attorney conducted no examination.
Proposed findings of fact and conclusions of law were apparently submitted by Marcus with the acquiescence of Amy Blauer's attorney. Marcus emphasized on the record that, if the Court approved the settlement, the releases to be executed ran to "the State of New York, the New York Psychiatric Institute and all the doctors, agents and employees thereof; and to the organization, group, governmental body or agency which furnished the drugs used in the drug study which resulted in the death of Harold Blauer." The release executed by Amy Blauer on May 17, 1955 contained similar language.5
Twenty years later, in August of 1975, approximately one year after Amy Blauer's death, the Secretary of the Army issued a press release announcing the discovery of a file revealing the death of a 42 year old male civilian during the course of chemical compound test programs administered by the Army to determine the clinical effects of psychochemical...
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Barrett v. US, 76 Civ. 381 (CBM).
...v. United States, 646 F.Supp. 1345 (S.D. N.Y.1986); Barrett v. United States, 622 F.Supp. 574 (S.D.N.Y.1985); Barrett v. United States, 521 F.Supp. 307 (S.D.N.Y.1981). 3 Structurally, EA 1298, the chemical that killed Harold Blauer, was a hybrid between mescaline and 4 Of course, current st......
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Barrett v. U.S.
...F.2d 324 (2d Cir.1982), cert. denied, 462 U.S. 1131, 103 S.Ct. 3111, 77 L.Ed.2d 1366 (1983), and of the district court, Barrett v. Hoffman, 521 F.Supp. 307 (S.D.N.Y.1981), rev'd sub nom. Barrett v. United States, supra, and Barrett v. United States, 622 F.Supp. 574 (S.D.N.Y.1985), familiari......
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Barrett v. United States
...material fact which must be determined at trial relevant to the issue of when plaintiffs' cause of action accrued." Barrett v. Hoffman, 521 F.Supp. 307, 314 (S.D.N.Y.1981). In addition, he found that a cause of action under section 1983 did not lie for plaintiff's claim of fraudulent concea......
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Johnson v. Nyack Hosp., 94 Civ. 7464 (LAK).
...to forebear from asserting the plaintiff's rights. See Hoemke v. New York Blood Center, 720 F.Supp. 45 (S.D.N.Y.1989); Barrett v. Hoffman, 521 F.Supp. 307 (S.D.N.Y.1981); Simcuski v. Saeli, 44 N.Y.2d 442, 406 N.Y.S.2d 259, 377 N.E.2d 713 (1978). The limitation period, at least in New York a......