Bibeau v. Pacific Northwest Research Foundation

• Decision Date: 28 July 1997
• Docket Number: No. CIV. 95-06410-HO.,CIV. 95-06410-HO.
• Parties: Harold BIBEAU and Melanie Ann Dooyen Bibeau on their own behalf and as Representatives of Classes of Similarly Situated Persons, Plaintiffs, v. PACIFIC NORTHWEST RESEARCH FOUNDATION, INC., a Washington Corporation; Battelle Pacific Northwest Laboratories, a division of Battelle Memorial Institute, Inc., an Ohio Corporation; Mavis Rowley; Dr. Daniel DiIaconi, in his individual and former official capacity; Dr. Fernando Leon, in his individual and former official capacity; Robert D. Wildman, in his individual and former official capacity; Dr. John Randolph Totter, in his individual capacity; Dr. James Leslie Liverman, in his individual capacity; Robert L. Ferguson, in his individual capacity; and, the United States of America, Defendants.
• Court: U.S. District Court — District of Oregon

980 F.Supp. 349

Harold BIBEAU and Melanie Ann Dooyen Bibeau on their own behalf and as Representatives of Classes of Similarly Situated Persons, Plaintiffs, v. PACIFIC NORTHWEST RESEARCH FOUNDATION, INC., a Washington Corporation; Battelle Pacific Northwest Laboratories, a division of Battelle Memorial Institute, Inc., an Ohio Corporation; Mavis Rowley; Dr. Daniel DiIaconi, in his individual and former official capacity; Dr. Fernando Leon, in his individual and former official capacity; Robert D. Wildman, in his individual and former official capacity; Dr. John Randolph Totter, in his individual capacity; Dr. James Leslie Liverman, in his individual capacity; Robert L. Ferguson, in his individual capacity; and, the United States of America, Defendants.

No. CIV. 95-06410-HO.

United States District Court, D. Oregon.

July 28, 1997.

COPYRIGHT MATERIAL OMITTED

Roy S. Haber, Eugene, OR, Stanley Siegel, Bernadette M. Rappold, Eric L. Cramer, Laura Stein, Kendall S. Zylstra, Berger & Montague, PC, Philadelphia, PA, H.W. Cummins, E. Cooper Brown, Berger & Montague, PC, Takoma Park, MD, for Harold Bibeau.

Milo Petranovich, Lane, Powell, Spears & Lubersky, Paul T. Fortino, Michael H. Simon, Perkins, Coie, Portland, OR, Paul R. Cressman, Sr., Seattle, WA, for Pacific Northwest Research Foundation Inc.

Kent B. Thurber, Davis Wright Tremaine, Portland, OR, William R. Squires, III, Seattle, WA, for Battelle Pacific Northwest Lab.

David A. Ernst, Jeremy E. Zuck, Scott A. Brooksby, Bullivant, Houser, Bailey, Pendergrass & Hoffman, Portland, OR, for Daniel Diiaconi.

Alan M. Spinrad, John D. Walch, Samuels, Yoelin, Wiener, Kantor & Seymour, Portland, OR, for Fernando Leon.

Kristine Olson, U.S. Attys. Office, Portland, OR, Frank W. Hunger, U.S. Dept. of Justice, Torts Branch, Civil Div., Washington, DC, James L. Sutherland, Asst. U.S. Atty., Eugene, OR, Richard Montague, Dept. Of Justice, Washington, DC, for John Randolph Totter.

ORDER

HOGAN, District Judge.

Before the court are defendants' motions for summary judgment (# s 143, 150, 154, 160). Defendants Pacific Northwest Research Foundation (PNRF), Mavis Rowley (Rowley), Battelle Pacific Northwest Laboratories (BPNL), and Dr. Daniel DiIaconi (DiIaconi) argue that summary judgment should be granted because plaintiffs' claims are barred by the statute of limitations, and they are shielded from liability by qualified immunity. PNRF and Rowley also argue that their motion for summary judgment should be granted because their research was conducted in good faith. Defendant DiIaconi also argues that his motion for summary judgment should be granted as to plaintiffs' federal claims because he is not subject to Bivens liability, and as to plaintiffs' state claims because plaintiffs never provided tort claims notice, and ORS 30.265(1) bars plaintiffs' state law claims against him. Having considered the briefs filed by the parties, and materials submitted therewith and in opposition to, the court finds as follows:

I. BACKGROUND FACTS

Plaintiffs, husband and wife, on their own behalf and as representatives of a class of similarly situated persons, claim that from 1963 to 1973 defendants conspired to fraudulently induce prisoners in custody of the Oregon Department of Corrections (DOC) to volunteer for a program of experiments known as the Heller experiments (Experiments), testing the effects of radiation exposure to the testes. The Experiments involved irradiating inmates' testes with x-ray radiation, and, allegedly, injecting inmates with radioactive substances. Participation in the Experiments required subjects to undergo biopsies and to agree to a vasectomy as a condition of participation. Plaintiffs allege that they were not fully informed of all the potential risks of participation in the Experiments, and that they were deliberately mislead as to potential health consequences. Thus, they claim, although they consented to participation in the Experiments, the consent was not sufficiently well-informed to be valid.

Harold Bibeau, the only named plaintiff/subject in this action, was a subject in the Experiments from 1965 to 1969, while an inmate at the DOC. Bibeau contends that Dr. Heller mislead him as to the risks and potential long term health consequences of participation in the Experiments, including an alleged increased risk of cancer.¹

Dr. Heller informed Bibeau that the purpose of the Experiments was to study the effects of radiation on human testes. Dr. Heller also informed Bibeau that his participation in the Experiments would require periodic testicular biopsies and an x-ray exposure of his testes. He also was informed that he would be required to undergo a vasectomy at the conclusion of his participation, because of the chance that there could be chromosomal damage, which could produce mutated offspring. Heller also informed Bibeau that he might experience some reddening of the skin in his groin area, akin to a sunburn, that would last a few days, but no other long-term health consequences. Dr. Heller did not inform Bibeau that exposure to radiation might lead to an increased risk of cancer.

Bibeau consented in writing to participation in the Experiments. He agreed "to submit to x-ray radiation exposure of [his] scrotum and testes ... to donate urine samples, semen samples, and blood samples periodically ... to a surgical procedure known as a testicular biopsy, performed a number of times ... to a vasectomy operation at the completion of the experimental procedures." Bibeau acknowledged "that sterility may result from these procedures," and "that there may be some skin burn from the radiation." Bibeau was paid for his participation in the Experiments.

Defendant Dr. Leon performed Bibeau's first biopsy related to the experiments in January, 1965. Bibeau experienced testicular swelling in the hours following the procedure, and sharp testicular pains over the next few days. Bibeau indicates that he had not been warned about these symptoms.

On September 29, 1965, Bibeau underwent his first and only x-ray session as a participant in the Experiments. He received 18.5 rads of radiation. After the procedure, Bibeau did not report any pain, only a warm feeling in his testicles which dissipated the next day.

Bibeau underwent several testicular biopsies after his single exposure to radiation. Bibeau experienced "excruciating pain" during "a couple" of the biopsies. He claimed that "[i]t feels like you've hit yourself on the crossbar of a bicycle, where you have an excruciating pain that starts in your testicle and radiates clear up into your side, and you have the reflex to immediately dive into a fetal position." Bibeau allegedly was told that the post-biopsy pain was normal and temporary.

Bibeau underwent a vasectomy in late 1968 or early 1969 prior to his release from prison. His participation in the Experiments ended with his release from prison.

In the 1970s, Bibeau experienced recurring sharp testicular pain. Like the pain he suffered after biopsies were performed, he felt "a shooting pain that goes from the testicle up into the midsection of [his] body." Plaintiff continued to suffer from bouts of this pain until at least 1994. Bibeau claims that he did not associate his recurring, excruciating testicular pain with similar pain he suffered immediately after being biopsied. Rather, he attributed his recurring testicular pain, which he describes as a common male health problem, to sitting for too long in one position.

In the early 1970s, Bibeau also began to suffer from "an ongoing, periodic groin rash," which appeared on the very tops of the insides of [his] legs." Bibeau explains that "his skin turns brown it gets itchy." Bibeau contends that his groin rash is merely "common male jock itch." In 1979, Bibeau also noticed a "lymph node lump" on his left arm and back, and a wart on the inside of his upper right leg.

Bibeau did not consult a medical doctor regarding his testicular pain, or tell any medical doctor about his participation in the Experiments, until 1997.

Dr. Heller, and his colleagues published the results of the Experiments in several scientific journals available to the public. A series of articles published from 1965 to 1974 by Heller and defendant Mavis Rowley in various scientific journals addressed the design, goals, methods and findings of the Experiments. Bibeau was informed at the outset of his involvement in the Experiments that the results would be published in scientific journals.

In addition, since the early 1970s, the Experiments have received media coverage in national newspapers and periodicals, such as the New York Times, the Washington Post, and Time Magazine, wire services, such as the Associated Press and United Press International, and regional and local newspapers, such as the Salem Statesmen-Journal, the Seattle Times, Willamette Week, and the Oregonian, and in tabloids such as the National Enquirer. In varying degrees of detail, the articles describe the purpose of the Experiments, the people and agencies involved, the methods employed, and the subjects who participated. Many articles, appearing as early as the 1970s, discuss the potential health consequences of the Experiments, including the possibility of increased risk of cancer. Other articles discuss whether inmates were fully informed of the risks of the Experiments. An article in 1985 in the Statesmen-Journal, identifies Bibeau by name, as a participant in OSP radiation research. Articles also provide coverage of legal and legislative activities relating to the Experiments, and other medical experimentation at OSP, such as the Oregon Corrections Department's 1973 decision to ban testing on prisoners, the series of federal lawsuits filed by ex-Heller research participants in 1976 and 1989, raising allegations of fraud, battery, and failure to warn of health risk, the public disclosures made by the Energy Research and Development Administration in 1976,...