749 F.2d 934 (1st Cir. 1984), 83-1917, Marrapese v. State of R.I.

Docket Nº:83-1917.
Citation:749 F.2d 934
Party Name:Frank MARRAPESE, Plaintiff, Appellee, v. The STATE OF RHODE ISLAND, et al., Defendants, Appellants.
Case Date:December 05, 1984
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 934

749 F.2d 934 (1st Cir. 1984)

Frank MARRAPESE, Plaintiff, Appellee,

v.

The STATE OF RHODE ISLAND, et al., Defendants, Appellants.

No. 83-1917.

United States Court of Appeals, First Circuit

December 5, 1984

Heard Aug. 6, 1984.

Rehearing and Rehearing En Banc Denied Feb. 19, 1985.

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Richard B. Woolley, Asst. Atty. Gen., Providence, R.I., with whom Dennis J. Roberts, II, Atty. Gen., Providence, R.I., was on brief, for defendants, appellants.

Gerrick Van Deusen, North Providence, for plaintiff, appellee.

Before CAMPBELL, Chief Judge, BOWNES, Circuit Judge, and PEREZ-GIMENEZ, [*] District Judge.

LEVIN H. CAMPBELL, Chief Judge.

This is an appeal from a judgment of the United States District Court for the District of Rhode Island following a jury trial on plaintiff Frank Marrapese's claims against the State of Rhode Island and certain state officials. Marrapese's cause of action stems from an incident that occurred on March 16, 1975. The state police on that date, in connection with a murder investigation, forced Marrapese to undergo a benzidine test designed to indicate the presence of blood on the skin. The police did not have a search or arrest warrant at the time; and they administered the test over the objections of Marrapese and his attorney, after which they released him. The test involved applying a solution composed of benzidine, sodium perborate, and glatial acetic acid over a large portion of Marrapese's body. According to Marrapese's testimony, the exposure to the solution caused an immediate burning sensation and resulted in a rash for some time thereafter.

In spite of these side effects and his strong objections to the test, Marrapese did not seek any medical attention, nor did he and his attorney investigate the properties of benzidine, which they were informed at the time was one of the substances that was applied to the skin. Only in 1980, when he read a newspaper account of a lawsuit by a prison inmate against certain Rhode Island state officials for application of benzidine, did he learn that benzidine is a carcinogen. 1 According to Marrapese's testimony, this knowledge of his prior exposure to a carcinogen caused him great mental distress. He brought suit under 42 U.S.C. Sec. 1983 and also under state law in the United States District Court for the District of Rhode Island on April 15, 1980 against the State of Rhode Island; Officers Lionel Benjamin, Edward Pare, and Richard Quinn of the Rhode Island State Police; and Dr. David DeFanti, Director of the Criminalistics Laboratory of the University of Rhode Island. Marrapese claimed that the application of a carcinogen to his skin violated his rights under the fourth, sixth, ninth and fourteenth amendments and constituted negligence and a battery under Rhode Island law. The jury found that officers Benjamin and Pare were liable for violating Marrapese's fourteenth amendment substantive due process rights and for negligence under Rhode Island law. The jury found that Dr. DeFanti, who had supplied the chemicals for the test, allegedly without a warning label, had also been negligent under state law. The jury awarded plaintiff $25,000 in compensatory damages against these three defendants.

Defendants moved for judgment notwithstanding the verdict on the ground, inter alia, that Marrapese's causes of action were time barred. The district court denied the motion 2 and defendants appealed.

The parties agree that the relevant limitations period is three years, as R.I.Gen.Laws Sec. 9-1-14 applies to section 1983 actions. See Walden III, Inc. v. State of Rhode Island, 576 F.2d 945 (1st Cir.1978). They differ, however, over the time of accrual of plaintiff's cause of action.

Defendants contend that the action accrued on March 16, 1975, when the test was administered. They argue that at that time, Marrapese knew of his injury because he had knowledge of the unpermitted application

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of the chemical, the name of the chemical, and the burning sensation and rash allegedly caused by his exposure to it. According to defendants, Marrapese's ignorance of the carcinogenic quality of benzidine did not prevent his cause of action from accruing then because that information would have been available to him in 1975 had he made sufficient inquiry. Marrapese, "armed with the facts about the harm done him, [could] protect himself by seeking advice in the medical and legal community. To excuse him from promptly doing so by postponing accrual of his claim would undermine the purpose of the limitations statute." See United States v. Kubrick, 444 U.S. 111, 123, 100 S.Ct. 352, 360, 62 L.Ed.2d 259 (1979) (medical malpractice claim under Federal Tort Claims Act accrued when plaintiff learned of his injury and its cause, not at later date when he discovered that injury resulted from negligence). Defendants therefore maintain that Marrapese's suit is time barred because he did not file until five years after accrual of his claims.

The district court rejected defendants' position. It held that any of Marrapese's claims based on "the skin irritation, offensive touching, or the procedural due process aspects of being taken down to the station house without probable cause" were time barred because Marrapese could have pressed suit on these claims in 1975. With respect to claims "based on the carcinogenic properties of benzidine," however, the district court found that the discovery rule, under which the limitations period does not begin to run until the plaintiff knows or should know of his injury, applies to delay accrual of the claims until 1980, when Marrapese learned of benzidine's carcinogenic properties. Thus, the court held that Marrapese's state law negligence claims based on benzidine's carcinogenic properties and three of Marrapese's constitutional claims were not time barred: (1) his fourth amendment claim that the search was unreasonable in the manner in which it was conducted because of benzidine's carcinogenic properties; (2) his claim that the testing infringed his substantive due process rights because application of the carcinogen to his skin was "shocking to the conscience"; and (3) his claim that his right to privacy was invaded by application of a carcinogen to his skin.

We agree with the district court that accrual of Marrapese's causes of action 3 turns on when he knew or should have known of his injury. 4 We disagree, however, with the district court's application of the discovery rule in this case.

The district court's treatment of the accrual issue leads us, as an initial matter, to consider whether the policy against claim splitting bears on this case. The present trend, accepted by the Restatement (Second) of Judgments Sec. 24 (1982), is

to see ["claim"] in factual terms and to make it coterminous with the transaction regardless of the number of substantive theories, or variant forms of relief flowing from those theories, that may be available to the plaintiff; regardless of the number of primary rights that may have been invaded; and regardless of the variations in the evidence needed to support the theories or rights. The transaction is the basis of the litigative unit or entity which may not be split.

Id. comment (a), at 197. If this approach were applied to Marrapese's constitutional causes of action, his claims based on benzidine's carcinogenic properties would have to be viewed as one with his time-barred constitutional claims because of their common

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transactional basis. 5 Courts have recognized, however, an exception to the general rule against claim splitting where the plaintiff's "blameless ignorance" of his injury or its cause resulted in his not bringing suit until after the limitations period had elapsed. See Bridgford v. United States, 550 F.2d 978, 981-82 (4th Cir.1977); Portis v. United States, 483 F.2d 670 (4th Cir.1973); see also Cox v. Stanton, 529 F.2d 47, 49 n. 3 (4th Cir.1975) (by implication). Thus, the claim splitting issue and the issue of whether Marrapese was unreasonably dilatory in discovering the carcinogenic properties of benzidine are best treated together. Both questions require a determination of whether Marrapese possessed knowledge of the facts underlying his cause of action sufficient to put him on inquiry notice as to the carcinogenic properties of benzidine. Because we find that Marrapese had sufficient knowledge, we hold that delaying accrual under the discovery rule and creating an exception to the rule against claim splitting are not warranted.

I. THE SECTION 1983 CAUSE OF ACTION

The injury forming the basis of Marrapese's section 1983 complaint was not a medical injury flowing from an act of malpractice but rather was an injury to his constitutional rights based upon the officers' forcing him to undergo a benzidine test against his will. Most of the facts constituting this injury were fully known to Marrapese on March 16, 1975, the date that he was forced to undergo the test. He knew then that he was taken into police custody without a warrant, that he was forcibly medicated with benzidine, and that a burning sensation and a rash resulted. During the March 16 events his attorney, who was present, repeatedly challenged their legality. 6

To be sure, Marrapese did not learn until several years later that benzidine was a carcinogen. But we think that the facts in Marrapese's possession after the incident were such as to make it reasonable for him to have made further inquiry as to the basis for any and all claims against the defendants arising from that incident. Had he done so, he could have discovered that benzidine was a carcinogen since, as Marrapese's own evidence demonstrated, it was then known in medical circles that benzidine was a carcinogen.

It is important to note that Marrapese...

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