Andrulonis v. U.S.
| Citation | 924 F.2d 1210 |
| Decision Date | 28 January 1991 |
| Docket Number | Nos. 61,62 and 506,D,s. 61 |
| Parties | Joanna ANDRULONIS, Individually and as Conservator of the Property of Jerome Andrulonis, Plaintiffs-Appellees/Cross-Appellants, v. UNITED STATES of America, Glatt Air Techniques, Inc.; Glatt GmbH; Wisconsin Alumni Research Foundation, Inc.; Warf Institute, Inc.; Raltech Scientific Services, Inc., Ralston Purina Company; Eli Lilly and Company; and John L. Thompson and Sons and Company, Defendants, United States of America, Defendant-Appellant/Cross-Appellee. UNITED STATES of America, Third-Party Plaintiff-Appellee, v. NEW YORK STATE DEPARTMENT OF HEALTH, Third-Party Defendant-Appellant. ockets 89-6274, 90-6016 and 90-6028. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Michael S. Buskus, Albany, N.Y., Asst. Atty. Gen. of the State of N.Y. , Albany, N.Y., for third-party defendant-appellant NYS Dept. of Health.
William G. Cole, Washington, D.C., Appellate Staff Atty., Civil Div., Dept. of Justice (Stuart M. Gerson, Asst. Atty. Gen., Dept. of Justice, Robert M. Greenspan, Staff Atty., Civil Div., Frederick J. Scullin, U.S. Atty. for the N.D.N.Y., of counsel), Washington, D.C., for U.S.
James D. Featherstonhaugh, Albany, N.Y. (Roemer & Featherstonhaugh, John R. Mineaux, of counsel), Albany, N.Y., for plaintiffs-appellees/cross-appellants.
Before PRATT, MAHONEY and WALKER, Circuit Judges.
Jerome Andrulonis contracted the disease of rabies while conducting a laboratory experiment with a rabies viral strain. He became tragically ill and eventually suffered serious and permanent brain damage, leaving him with the mental capacity of a four-year-old. He also suffered marked personality and behavioral changes as a result of dementia secondary to rabies encephalitis. Andrulonis's mental incapacity and emotional instability are permanent. The experiment, which was conducted under the supervision of Dr. John G. Debbie, a scientist employed by the New York State Department of Health ("NYSDOH"), and observed by Dr. George M. Baer, a federal government scientist, took place in the state-operated Griffin Laboratories just outside Albany, New York.
Joanna Andrulonis, individually, and as conservator of the property of Jerome Andrulonis, her husband, brought this action against the United States of America and a number of nongovernmental defendants to recover damages for the severe injuries they have suffered because of the rabies. The claim against the United States was, of course, brought under the Federal Tort Claims Act, 28 U.S.C. Secs. 1346, 2671-2680 ("FTCA" or "the act"). The United States cross-claimed against the nongovernmental defendants and filed a third-party complaint for contribution against the State of New York. See N.Y. Civ.Prac.L. & R. Secs. 1401-1404. Before trial, the district court dismissed Joanna Andrulonis's individual claims against the United States for failure to timely file the administrative claim required by the FTCA. Andrulonis v. United States, No. 79-CV-847, slip op. at 7 (N.D.N.Y. March 8, 1984); see 28 U.S.C. Sec. 2675(a) and Sec. 2401(b).
Before the end of trial, plaintiffs, through a series of agreements, had settled with all of the nongovernmental parties for a total of $1,300,000. The settling parties agreed that $225,000 would be paid in satisfaction of the primary claims of Jerome Andrulonis and that $1,075,000 would be paid in satisfaction of the derivative claims of Joanna Andrulonis.
After a nonjury trial of the remaining unresolved FTCA claims of plaintiff Jerome Andrulonis against the United States and the contribution claims of the United States against NYSDOH, Judge Munson found the government liable in negligence for Jerome Andrulonis's injuries and also found NYSDOH liable to the government on its contribution claim. In addition, considering the relative culpabilities of the settling private defendants, he found Eli Lilly and Company and John L. Thompson & Sons and Company responsible to the extent of 5 percent and exonerated the other settling defendants. The court assessed damages in the amount of $6,424,641, including $2,417,238 for the future custodial care of Jerome Andrulonis, and apportioned them 30 percent to the United States, 65 percent to NYSDOH, and 5 percent to Lilly/Thompson. Andrulonis v. United States, 724 F.Supp. 1421 (N.D.N.Y.1989).
Under section 15-108 of New York's General Obligations Law, the United States was entitled, with respect to each settlement, to a setoff for the greater of "(a) the amount stipulated in the settlement agreement, (b) the consideration paid for the release, or (c) the amount of the settling defendant's equitable share of the damages." N.Y.Gen.Oblig.Law Sec. 15-108. As noted earlier, Jerome Andrulonis had been allocated $225,000 of the proceeds of a settlement agreement with the private defendants. Of this amount, Lilly/Thompson paid $100,000 and the other settling private defendants paid $125,000. Since defendants Lilly/Thompson had settled for an amount that was less than their equitable share, the district court reduced the award by 5 percent or $321,232, representing the proportionate culpability found against Lilly/Thompson. Since the district court found no culpable conduct attributable to the other settling defendants, it reduced Jerome Andrulonis's award by the actual dollar amount paid to him by those defendants--$125,000. This left the United States primarily responsible to Jerome Andrulonis for $5,978,409, subject to recovering from the state 68.42 percent ( 65/95ths) of that amount, or $4,090,427, on its third-party contribution claim. N.Y.Civ.Prac.L. & R. Sec. 1402.
Given the complexity of this case, we must delve with considerable detail into the circumstances surrounding Andrulonis's illness and the experiment that caused it. It is unfortunate that such a long and technical narrative must follow, but a full understanding of the district court's decision cannot be reached without careful consideration of the virus used, the disease it causes, and the methods of researching rabies used at the time the tragedy occurred. The following facts include those that the district court found rabies experts reasonably should have known about the disease. Since the district court's findings are not clearly erroneous, we must accept them as true. Fed.R.Civ.P. 52(a).
Jerome Andrulonis was a 34-year-old senior bacteriologist employed to conduct rabies research in NYSDOH's Griffin Laboratory under the supervision of Dr. John G. Debbie, a research scientist employed by NYSDOH as head of the rabies labs at Griffin. Dr. Debbie was persuaded to conduct rabies research by Dr. George M. Baer, Chief of the Viral Zoonosis Branch and Rabies Laboratory at the Center for Disease Control ("CDC"), a division of the United States Department of Health and Human Services. The research being done by Dr. Debbie and Andrulonis was part of a joint effort by the NYSDOH and the CDC to develop a technique for mass immunization of wildlife in the hope of eradicating the incidence of rabies transmitted to man.
To realize this goal, Dr. Debbie was working on an oral vaccine that could be distributed to wildlife. Because the initial virus strains tested by Dr. Debbie could not withstand the destructive stomach acids of some species, he decided, upon the advice of Dr. Baer, to try a method called "enteric coating." Under this method, a pill, or nonpareil, would be coated first with the rabies virus, then a protective coating, and finally, a shell that could withstand stomach acids but would disintegrate in the animal's intestines, allowing the virus to be absorbed there. The virus would not cause development of the disease, but would cause the body to produce antibodies that would protect the animal against subsequent exposures to the rabies virus.
Dr. Debbie contacted the coating department at defendant WARF Institute, Inc. ("WARF"), which on March 30, 1976, sent a representative to demonstrate a coating technique using a Uni-Glatt machine, manufactured by defendant Glatt GmbH and distributed by defendant Glatt Air Techniques, Inc. ("the Glatt defendants"). The Uni-Glatt machine operated by suspending nonpareils in a column of upflowing air confined in a tube. The suspended nonpareils would then be coated with aerosolized virus.
When the machine operated, the aerosol itself could be seen inside the tube, although Funding for the Uni-Glatt rabies experiments was provided by the federal CDC. In exchange, Dr. Debbie was to provide the CDC with some of the coated nonpareils prepared in the course of the Uni-Glatt experiments. Beyond providing the funding, CDC officials made no attempt to direct the day-to-day operations of the project, to devise any protocol, or otherwise to control the research efforts at Griffin.
any leakage into the atmosphere was not visible to the unaided eye and left no trace outside the machine. However, nonpareils would occasionally leak out of the machine into the lab environment, and the final coating process created a visible reddish dust that escaped from the machine leaving the entire laboratory coated with the reddish dust after each run. During the initial demonstration run, it became apparent to everyone in the laboratory that the machine was not airtight. Despite this, the only precautions required of the lab workers were the wearing of a mask and gloves, and the maintenance of a high level of rabies antibodies in their blood systems through periodic inoculations with a rabies vaccine manufactured by defendant Eli Lilly and Company and distributed by defendant John L. Thompson & Sons and Company ("Lilly/Thompson").
Dr. Debbie used the Uni-Glatt in two more experiments in July and September of 1976, both times using a rabies viral strain...
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