798 F.2d 565 (2nd Cir. 1986), 1007, Barrett v. United States

Docket Nº:1007, 1246, Dockets 86-6014, 86-6028.
Citation:798 F.2d 565
Party Name:Elizabeth BARRETT, Individually and as Administratrix of the Estate of Harold Blauer, Deceased, Plaintiff-Appellee, v. UNITED STATES of America, James Cattell, Newton Bigelow, David Marcus, Estate of Amedeo S. Marazzi, Van M. Sim, Herbert K. Greer, Frederick C. Lough, Harris J. North, William M. Creasy, John H. Derrick and George S. Leonard, Defend
Case Date:July 31, 1986
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 565

798 F.2d 565 (2nd Cir. 1986)

Elizabeth BARRETT, Individually and as Administratrix of the

Estate of Harold Blauer, Deceased, Plaintiff-Appellee,

v.

UNITED STATES of America, James Cattell, Newton Bigelow,

David Marcus, Estate of Amedeo S. Marazzi, Van M. Sim,

Herbert K. Greer, Frederick C. Lough, Harris J. North,

William M. Creasy, John H. Derrick and George S. Leonard, Defendants,

Appeal of UNITED STATES of America, Estate of Amedeo S.

Marazzi, Van M. Sim, Herbert K. Greer, Frederick

C. Lough, Harris J. North, William M.

Creasy and George S. Leonard,

Defendants-Appellants.

Elizabeth BARRETT, Individually and as Administratrix of the

Estate of Harold Blauer, Deceased, Plaintiff,

Elizabeth Barrett, Plaintiff-Appellant,

v.

UNITED STATES of America, James Cattell, Newton Bigelow,

David Marcus, Estate of Amedeo S. Marazzi, Van M. Sim,

Herbert K. Greer, Frederick C. Lough, Harris J. North,

William M. Creasy, John H. Derrick and George S. Leonard, Defendants,

David Marcus, Defendant-Appellee.

Nos. 1007, 1246, Dockets 86-6014, 86-6028.

United States Court of Appeals, Second Circuit

July 31, 1986

Argued April 15, 1986.

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Beth A. Kaswan, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty. for the S.D. of N.Y., Susan Millington Campbell, Jane E. Booth, Asst. U.S. Attys., New York City, of counsel), for Federal appellants.

Deborah R. Linfield, New York City, (Eugene R. Scheiman, Baer Marks & Upham,

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New York City, of counsel), for appellee Elizabeth Barrett.

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

Jane Levine, Asst. Atty. Gen., State of N.Y. (Robert Abrams, Atty. Gen. of the State of N.Y., Robert Hermann, Sol. Gen., New York City, of counsel), for amicus curiae State of N.Y.

Before MANSFIELD, KEARSE and CARDAMONE, Circuit Judges.

MANSFIELD, Circuit Judge:

Four defendants who were at all relevant times federal attorneys (Herbert K. Greer, Frederick C. Lough, Harris J. North and George S. Leonard) appeal from an order of the Southern District of New York, Chief Judge Constance Baker Motley, denying their motion to dismiss on grounds of absolute and qualified immunity an action against them by Elizabeth Barrett, Administratrix of the estate of Harold Blauer, deceased. Blauer died in 1953 as the result of injections administered to him by a New York State hospital of a synthetic mescaline compound furnished by the United States Army Chemical Corps as part of an experimental program. His estate seeks damages in the present action on the ground that following Blauer's death appellants and defendant David Marcus, then Assistant Attorney General of the State of New York, actively concealed the federal government's participation in causing the death and conspired to violate the estate's rights in a New York Court of Claims action which the estate brought in 1955 against the State of New York seeking damages for Blauer's wrongful death. Plaintiff cross-appeals from the district court's order insofar as it dismissed on grounds of absolute immunity her claim against defendant Marcus. We affirm.

The events that are the subject of this litigation date back to 1952 and are described in earlier opinions of this court, Barrett v. United States, 689 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), familiarity with which is assumed. In December 1952, Blauer, 42 years old, was admitted voluntarily to the New York State Psychiatric Institute (NYSPI) for psychotherapeutic treatment for depression. Shock therapy at another hospital had been unsuccessful in treating the illness. On January 8, 1953, after being injected by NYSPI personnel with a synthetic mescaline derivative, which was one of a series of injections administered to him during his stay at NYSPI, he died. The mescaline derivative had been supplied by the United States Army Chemical Corps pursuant to contracts between its procurement agency and NYSPI. NYSPI undertook to test the psychiatric effect of the compound on human subjects so that the Chemical Corps could determine its suitability as a chemical warfare agent. The contracts prohibited NYSPI from disclosing any information developed by it in the performance of its obligations thereunder.

The New York City Medical Examiner's death certificate listed the cause of Blauer's death as "Coronary arteriosclerosis; sudden death after intravenous injection of a mescaline derivative, January 8, 1953." A NYSPI medical record, which was disclosed to Blauer's estate, stated that the drug administered to Blauer was "for diagnostic and therapeutic purposes," and resulted in an "unexpected and totally atypical response". This information as to the cause of death was conveyed shortly after Blauer's death to his estranged wife, Amy Blauer, and to the law firm which she retained for the purpose of investigating the matter and taking appropriate legal action. In this action the estate claims that in fact the injections of the synthetic mescaline derivative were not for a therapeutic purpose but were performed pursuant to the experimental program conducted under NYSPI's contracts with the Army Chemical Corps to determine the clinical effect of the agent on Blauer's behavior. It is also asserted that, if the Medical Examiner had

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been apprised of the true facts, his autopsy report would have read, "Convulsive seizures, hypotension and cardiorespiratory arrest immediately following and due to intravenous injection of a mescaline compound for investigative purposes."

In April 1953 Amy Blauer, then Administratrix of Blauer's estate, brought an action for damages against the State of New York in the New York Court of Claims, alleging that Blauer's death was caused by negligence of the NYSPI in injecting him with a toxic and dangerous compound. Defendant David Marcus, then Assistant Attorney General of the State of New York, was assigned to defend the case. His investigation uncovered the Army Chemical Corps' involvement in furnishing the mescaline derivative and arranging for its administration. On January 4, 1954, the Court of Claims authorized production of the NYSPI hospital records bearing on the treatment of Blauer and examination of the doctors involved (which was scheduled for January 12, 1954, but was postponed). Marcus, recognizing that some of the information sought was classified as "secret" by the Army, conferred with the Army's litigation division on January 13-14, 1954, about possible settlement of the case under an agreement whereby the federal government would pay part of any figure to be agreed upon between Marcus and the Blauer estate.

After the matter was brought to the attention of the Department of Justice a conference of federal counsel and medical personnel was held in early July 1954. According to records relied on by the estate, at this meeting apprehension was expressed by Dr. Marazzi of the Chemical Corps and Dr. Paul Hoch, the NYSPI medical official in charge of administering the mescaline compound to Blauer, about claims of malpractice that might be anticipated. The parties concluded that the security category of the compound should be declassified, that the Department of the Army would explore the availability of federal funds to settle the suit against the State of New York, and that if it became necessary to reveal the source of the compound Dr. Hoch would be expected to testify as an expert, indicating that the Army Medical Corps was the supplier. Another conference was held on July 12, 1954, in Washington, attended by various government officials including Marcus and appellant Harris J. North, then an attorney with the U.S. Army Judge Advocate General Corps; appellant Herbert K. Greer, then Legal Advisor to the Chief Chemical Officer, Army Chemical Corps; and appellant George S. Leonard, then first assistant to the Assistant Attorney General for the Civil Division, United States Department of Justice.

According to a "Chronological Statement of Facts" prepared by the Army's Office of the Judge Advocate General, at the July 12, 1954 meeting Marcus sought to determine the extent to which the Army would contribute toward the settlement of the case. The principal concern of the federal representatives was protection against disclosure of the Army's involvement and of the purpose of the Army's classified experimentation program. However, Mr. Leonard, although not objecting to declassification by the Army of the compounds used (which was shortly thereafter done by the Army), specified that if the source of the compound must be revealed it should be attributed to the Army Medical Corps, not to its Chemical Corps, but that the latter's laboratory reports could be revealed. Dr. Hoch stated that he would not have used the new compound for experimental purposes but for the NYSPI's contract with the Army and that the experimental nature of the treatment made it a departure from accepted medical practice, which, if disclosed, would support a finding of negligence and an award of damages. According to the report of the meeting by the Judge Advocate General, Mr. Leonard "forcibly informed Mr. Marcus that the pretrial procedures and any further proceedings should be limited to the medical aspects of the case" and that disclosure of the Army-NYSPI contract, its purpose and the results of the experiments would be objectionable. He further

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"stated to Army representatives it was his opinion that the case would be worth between $60,000 and $75,000 in the event the full attendant...

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