Barrett v. United States

• Decision Date: 08 October 1985
• Parties: Elizabeth BARRETT, Individually and as Administratrix of the Estate of Harold Blauer, Deceased, Plaintiff, 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.
• Court: U.S. District Court — Southern District of New York

622 F. Supp. 574

Elizabeth BARRETT, Individually and as Administratrix of the Estate of Harold Blauer, Deceased, Plaintiff, 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.

76 Civ. 381 (CBM).

United States District Court, S.D. New York.

October 8, 1985.

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Bower & Gardner by Michael M. Futterman, Laurie A. Kamaiko, Angela Delfino-Vitali, New York City, for defendant Dr. James P. Cattell.

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

Pileckas & Pileckas by Paul L. Pileckas, Rome, N.Y., for defendant Newton Bigelow.

Baer, Marks & Upham by Eugene R. Scheiman, Deborah R. Linfield, New York City, for plaintiff.

Rudolph W. Giuliani, U.S. Atty., S.D.N.Y. by Susan Millington Campbell, New York City, for defendants U.S., 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.

OPINION

MOTLEY, Chief Judge.

Plaintiff Elizabeth Barrett has commenced this civil rights action both individually and as Administratrix of the Estate of Harold Blauer. Her causes of action against the various defendants arise out of the death of Mr. Blauer in January, 1953 after his fifth injection of a mescaline derivative drug. Twenty years after settling a wrongful death action brought against the State of New York in 1955, plaintiff was advised for the first time that the drug was supplied and administered as part of a drug experimentation program undertaken by the United States. Following this disclosure in 1975, plaintiff commenced three separate actions against various defendants which have now been consolidated. This case is now before this court on motions to dismiss and for summary judgment by the various defendants.

FACTS

In December, 1952, Harold Blauer, a forty-two year old professional tennis player and instructor, had been admitted voluntarily to the New York State Institute "the Institute", following shock therapy at Bellevue Hospital. On January 8, 1953, he died. He was survived by two daughters, Belinda and Elizabeth, and by his ex-wife, Amy Blauer. Shortly after Mr. Blauer's death, Mrs. Blauer retained the services of Kaye, Scholer, Fierman and Hayes to investigate her former husband's death and to take any appropriate legal action. The firm obtained copies of Mr. Blauer's death certificate which indicated that the cause of death was "Coronary arteriosclerosis; sudden death after intervenous injection of a mescaline derivative, January 8, 1953."

On April 2, 1953, Amy Blauer, as Administratrix of the Estate of Harold Blauer, commenced an action in the New York Court of Claims against the State of New York.¹ She asserted two causes of action. The first claim alleged negligence in the care and treatment of decedent while he was a patient at the Institute. The second cause of action was for wrongful death based on the same allegation. The Estate moved for and was granted "inspection of the records pertaining to Harold Blauer" and examination of Blauer's treating physicians, Drs. G. Schnack and James Cattell. Pursuant to the order, the records were to be produced and the Doctors deposed at the Institute on January 12, 1954. While the State of New York never complied with this order, the attorneys for the Estate never undertook steps to enforce the court order.

On May 17, 1955, Amy Blauer settled the claim against the State of New York for the sum of $18,000.00. Mrs. Blauer was then represented by the law firm of O'Dwyer & Bernstein. A two day hearing was held before Judge Fred A. Young of the New York State Court of Claims. Prior to this hearing, David Marcus, who was then the Assistant Attorney General of the State of New York and represented the State, informed the Judge in an ex parte chambers conference that the United States supplied the drugs administered to Harold Blauer. He also advised the Judge that many of the documents involved in the action were classified.

During the settlement hearing, Mrs. Blauer testified that she was aware that her ex-husband had received a course of drug treatment for the purpose of making drug studies of his mental condition. In addition, she stated that to the best of her knowledge decedent did not suffer from a coronary condition and that she was settling the action voluntarily, free from duress and pressure. She also noted that she knew that the settlement sum of $18,000.00 was the only award that she would receive.

In addition to Mrs. Blauer, testimony was received at the hearing from the principal research psychiatrist at the Institute, Paul Hoch. Questioned only by David Marcus, Dr. Hoch testified that the drugs were administered to Mr. Blauer as part of a chemical therapy research project and that decedent died as a direct result of these drug injections. Furthermore, Dr. Hoch indicated that the drug study failed to comport with acceptable standards of clinical practice at that time.

Proposed findings of facts and conclusions of law were then submitted by Mr. Marcus with the acquiescence of Mrs. Blauer's counsel. The court approved of the settlement and release after the hearing.²

The general release executed by Mrs. Blauer provided in relevant part that:

AMY BLAUER, as Administratrix of the Goods, Chattels and Credits of HAROLD BLAUER ... in consideration of the sum of EIGHTEEN THOUSAND ($18,000.00/100) DOLLARS ... paid by The State of New York, New York State Psychiatric Institute, all doctors, agents and employees thereof and the organization, group, governmental body or agency which furnished the drug used in the drug studies which resulted in the death of HAROLD BLAUER ... remise, release, and forever discharge the said State of New York, New York State Psychiatric Institute, all doctors, agents and employees thereof and the organization, group, governmental body or agency which furnished the drug used in the drug studies which resulted in the death of HAROLD BLAUER ... from all and all manner of action and actions, cause and causes of action, suits, debts, dues ... which against them I ever had, now have, or which I or my heirs, executors, or administrators hereafter can, shall or may have....

In his findings of facts and conclusions of law, Mr. Marcus also emphasized that the release ran to the State of New York, the Institute and all of the doctors, employees and agents of the Institute. In addition, he indicated that the release ran to "the organization, group, governmental body or agency which furnished the drugs used in the drug study."

Amy Blauer died in 1974. In August, 1975, a press release was issued by the Secretary of the Army announcing that a file had been discovered which revealed the death of a forty-two year old male civilian, Harold Blauer. The file indicated that Mr. Blauer died during the course of chemical compound test programs which were administered by the Army to determine the clinical effects of psychochemical agents on the psychiatric behavior of human subjects.

After subsequently reviewing the file, Elizabeth Blauer Barrett, Harold Blauer's daughter, learned that in 1954 an agreement was reached between the State of New York and the United States whereby the latter would pay half of any settlement agreement reached by the State of New York in the Court of Claims action provided that the purpose and role of the federal government in providing the drugs were not revealed. In September, 1975, Mrs. Barrett, as "daughter of Harold Blauer", filed an administrative claim with the United States in accordance with the requirements of the Federal Tort Claims Act, 28 U.S.C. section 2675. She sought damages for the wrongful death and the pain and suffering of Harold Blauer. No determination as to the merits of the claim was made by the United States.

Seeking discovery and inspection prior to commencing an action, Elizabeth Barrett commenced an additional proceeding in the New York Court of Claims late in 1975. On January 9, 1976, her application for discovery was denied by the Court of Claims. It analyzed plaintiff's alleged cause of action against the state of New York and found it to be baseless.³ The state court also held that the 1955 settlement and judgment barred further claims arising from the death of Harold Blauer in that court.

Elizabeth Barrett, failing to obtain the relief she sought in the state court, next commenced an action in her individual capacity in this court, Barrett v. Hoffman, et al, 76 Civ. 381. In the complaint filed on January 22, 1976, Mrs. Barrett charged that defendants, officials of the Department of the Army and the Department of Justice, and physicians at the Institute, conspired together to conduct the experimental drug program upon human subjects and to "cover-up" the existence of such program. In addition, defendants were alleged to have conspired "to deprive plaintiff, Blauer and others of life, liberty and property without due process of law and of the equal protection of the laws," and "to inflict cruel and unusual punishment upon Blauer." Mrs. Barrett instituted this action pursuant to 42 U.S.C. sections 1983, 1985(3) and 1986, and the Fifth, Ninth and Fourteenth Amendments. The causes of action predicated on sections 1985(3) and 1986 were dismissed by Judge Pierce. Currently, the only remaining defendants from that action are David Marcus, the Assistant Attorney General of the State of New York who represented the State in the 1953 action in the State Court of Claims; Van Sim, a physician employed by the Department of the Army; George Leonard, a Department of Justice employee; Newton Bigelow, former Commissioner of the New York State Department of Mental Hygiene; James Cattell, Blauer's treating physician; the Estate of Amedeo Marazzi, former Chief...