Barrett v. U.S.

• Citation: 689 F.2d 324
• Decision Date: 13 September 1982
• Docket Number: 863 and 864,Nos. 748,D,s. 748
• Parties: Elizabeth BARRETT, as Administratrix of the Estate of Harold Blauer, Deceased, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. Elizabeth BARRETT, Plaintiff-Appellant, v. David MARCUS, Newton Bigelow, James Cattell, George Leonard, Van Sim, William Creasey, John Derrick, Harris North, Herbert Greer and the Estate of Amedeo Marazzi, Defendants-Appellees. Elizabeth BARRETT, as an individual and as Administratrix DBN of the Estate of Harold Blauer, Deceased, Plaintiff-Appellant, v. Frederick LOUGH, Defendant-Appellee. ockets 81-6192, 81-7690 and 81-7700.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 324

689 F.2d 324

Elizabeth BARRETT, as Administratrix of the Estate of Harold

Blauer, Deceased, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

Elizabeth BARRETT, Plaintiff-Appellant, v. David MARCUS, Newton Bigelow, James Cattell, George Leonard,

Van Sim, William Creasey, John Derrick, Harris

North, Herbert Greer and the Estate of

Amedeo Marazzi, Defendants-Appellees.

Elizabeth BARRETT, as an individual and as Administratrix DBN of the Estate of Harold Blauer, Deceased, Plaintiff-Appellant, v. Frederick LOUGH, Defendant-Appellee.

Nos. 748, 863 and 864, Dockets 81-6192, 81-7690 and 81-7700.

United States Court of Appeals Second Circuit.

Argued March 10, 1982.

Decided Sept. 13, 1982.

Stuart L. Land, Washington, D.C. (Stephen M. Sacks, Richard P. Schifter, Arnold & Porter, Washington, D.C., Herbert K. Lippman, New York City, Richard A. Matasar, Ames, Iowa, of counsel), for plaintiffs-appellants.

Susan Millington Campbell, Asst. U.S. Atty., New York City (John S. Martin, Jr., U.S. Atty. for the Southern District of New York, Richard N. Papper, Asst. U.S. Atty., New York City, of counsel), for defendant-appellee United States of America.

Frederick H. Block, New York City, for defendant-appellee David Marcus.

Paul L. Pileckas, Rome, N.Y. (Pileckas & Pileckas, Rome, N.Y., of counsel), for defendant-appellee Newton Bigelow.

Steven J. Ahmuty, Jr., New York City (Bower & Gardner, New York City, of counsel), for defendant-appellee James Cattell.

Before NEWMAN and CARDAMONE, Circuit Judges, and BURNS, ^* District Judge.

CARDAMONE, Circuit Judge:

Today's average citizen would doubtless be appalled, but probably not surprised, to learn that in the early 1950s, while conducting a chemical warfare experiment, the United States Army used certain individuals as test subjects. The experiment is shocking not because of its existence, but because the chemical tests were performed on these human guinea pigs without their consent. The individuals involved were not told that they were the subjects of an experimental and highly dangerous chemical warfare program. The case before us concerns one such subject who died after having a test drug administered to him.

In August 1975 the Secretary of the Army revealed that twenty-two years earlier Harold Blauer, a male civilian voluntarily undergoing treatment at the New York State Psychiatric Institute, died from the injection of a mescaline derivative administered to him while he unknowingly served as a test subject in an Army chemical warfare experiment. Following this startling disclosure Blauer's daughter, Elizabeth Barrett, commenced a number of actions both individually and as the administratrix of Blauer's estate, alleging negligence in the creation and administration of the drug testing program and conspiracy to cover up the facts surrounding her father's death. She sought relief primarily under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq. (FTCA), and the civil rights provisions of 42 U.S.C. § 1983. The defendants moved to dismiss on numerous grounds, including failure to state a claim, lack of personal jurisdiction, res judicata, statute of limitations, immunity, release and lack of standing. After permitting four years of discovery and considering voluminous submissions the district court concluded that "there are no genuine issues of 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); it thereupon dismissed the claims as time-barred.

We are mindful that in our determination of this appeal we must restrain our personal abhorrence of the deplorable conduct displayed by the Army. With such constraint firmly applied, we find, nevertheless, that a number of disputed factual issues relating to accrual of these causes of action have been raised which compel us to conclude that plaintiffs must be afforded their day in court. We express no opinion as to the appropriate disposition of these issues at trial.

For the sake of brevity and in deference to the well written opinion below we assume familiarity with the background facts, procedural history and legal analysis outlined by the district court in Barrett v. Hoffman, supra.

I

We begin, therefore, by turning to the question of when plaintiffs' cause of action under the Federal Tort Claims Act accrued. Title 28 U.S.C. § 2401(b) (1976) provides that "(a) tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues ...." It has generally been held that under the FTCA a tort claim accrues at the time of the plaintiff's injury, although in certain instances, particularly in medical malpractice cases, accrual may be postponed until the plaintiff has or with reasonable diligence should have discovered the critical facts of both his injury and its cause. United States v. Kubrick, 444 U.S. 111, 120 n. 7, 100 S.Ct. 352, 358 n. 7, 62 L.Ed.2d 259 (1979); Stoleson v. United States, 629 F.2d 1265, 1268 (7th Cir. 1980); Waits v. United States, 611 F.2d 550, 552 (5th Cir. 1980); Steele v. United States, 599 F.2d 823, 827-28 (7th Cir. 1979); Lee v. United States, 485 F.Supp. 883, 885-86 (E.D.N.Y. 1980); Liuzzo v. United States, 485 F.Supp. 1274, 1280 (E.D. Mich. 1980).

The diligence-discovery rule of accrual is not often applied outside the medical malpractice area, see, e.g., Steele, 599 F.2d at 828, but may be appropriate in non-malpractice cases, Liuzzo, 485 F.Supp. at 1281, where plaintiffs face comparable problems in discerning the fact and cause of their injuries, Stoleson, 629 F.2d at 1269. Thus, any plaintiff who is blamelessly ignorant of the existence or cause of his injury should be accorded the benefits of the more liberal accrual standard. Id.

For example, the diligence-discovery rule has been applied where a plaintiff demonstrates that his injury was inherently unknowable at the time he was injured, Quinton v. United States, 304 F.2d 234 (5th Cir. 1962), and where the Government conceals its negligent acts so that the plaintiff is unaware of their existence, Peck v. United States, 470 F.Supp. 1003, 1018 (S.D.N.Y. 1979). In regard to the latter situation, "(r)ead into every federal statute of limitations ... is the equitable doctrine that in case of defendant's fraud or deliberate concealment of material facts relating to his wrongdoing, time does not begin to run until plaintiff discovers, or by reasonable diligence could have discovered, the basis of the lawsuit." Fitzgerald v. Seamans, 553 F.2d 220, 228 (D.C. Cir. 1977).

Although the existence of Blauer's injury (death) was clearly evident in the 1950s, we are faced with plaintiffs' allegations that the Army Chemical Corps actively covered up both its involvement in the affair and the nature of its misdeeds. If true, the substance of these allegations would constitute deliberate concealment of material facts relating to the Government's wrongdoing and would trigger application of the diligence-discovery accrual standard. Plaintiffs presented evidence to support these assertions which was disputed, though not substantially controverted, by the Government.

For example, internal agency memoranda indicate that even after the Army agreed to declassify (from the previously "Secret" category) the nature of the drug which killed Blauer it insisted that, if revealed, the source of the drug should be identified as the Army Medical Corps rather than the Army Chemical Corps. In addition, the warfare research purpose for developing the compound and for administering it to Blauer was to remain classified defense information. Thus, there would only remain the deliberate false impression that the drug used on Blauer was administered for therapeutic purposes. When Blauer's estate brought a tort action in the New York State Court of Claims in 1953, Marcus, the Assistant Attorney General of New York responsible for defense of the suit, was "forcibly informed" that the legal proceedings should be limited to the "medical aspects" of the case; he was urged to postpone indefinitely the previously scheduled depositions of Institute doctors because, "due to security classification," they "would probably not be able to answer the questions which would be propounded." Marcus was further informed that nobody would be permitted to testify or disclose information "under threat of prosecution under the Espionage Act." The Army repeatedly urged that certain Institute documents connecting the Government with these events be turned over to the Army while litigation was pending so that, according to an Army memorandum, they could be placed "beyond the subpoena power of the plaintiff." Finally, when the suit was settled for $18,000 in 1955 the Government agreed to pay half of the settlement on the condition that its role and purpose for supplying the drug would be kept secret.

When this evidence of intentional concealment of material facts relating to the Army's responsibility in the matter of Blauer's death is considered, it appears that application of the diligence-discovery rule is warranted in this case. Consequently, plaintiffs' cause of action accrued when they discovered or should have discovered the critical facts of Blauer's injury and its cause. Kubrick, supra. Since the injury was immediately known, the crucial question is when Blauer's family should have discovered the critical facts relating to the cause of his death.

The Supreme Court recently discussed the extent of knowledge which a plaintiff must possess in order for his claim to accrue under the FTCA. Id. In Kubrick the plaintiff argued that his FTCA claim did not accrue when he knew that he had suffered a hearing loss which probably resulted from treatment with an antibiotic. He insisted that the claim accrued when he was first informed that the antibiotic...