Heinrich ex rel. Heinrich v. Sweet

Decision Date16 August 1999
Docket NumberNo. Civ.A. 97-12134-WGY.,Civ.A. 97-12134-WGY.
Citation62 F.Supp.2d 282
PartiesEvelyn HEINRICH on behalf of her Husband George Heinrich, Henry M. Sienkewicz, Jr., on behalf of his Mother Eileen Rose Sienkewicz, Rosemary Gualtieri on behalf of her Father Joseph Mayne, Walter Carl Van Dyke on behalf of his Father Walter Carmen Van Dyke and All Others Similarly Situated, Plaintiffs, v. William H. SWEET, M.D., Trustee of the Lee Edward Farr Trust dated 1/11/71, as amended, The Estate of Lee Edward Farr, M.D., Associated Universities, Inc., Massachusetts General Hospital, Massachusetts Institute of Technology, and The United States of America, Defendants.
CourtU.S. District Court — District of Massachusetts

Raymond J. Heslin, Gold, Farrell & Marks, New York City, Anthony Z. Roisman, Cohen, Milstein, Hausfeld & Toll, Washington, DC, John K. McGuire, Jr., McGuire & McGuire, Worcester, MA, Anthony Z. Roisman, Lyme, NH, for plaintiffs.

Raymond J. Kenney, Christopher J. Maley, Gail A. Anderson, Martin, Magnuson, McCarthy & Kenney, Boston, MA, for William H. Sweet, M.D., Massachusetts Gen. Hosp., defendants.

William Shields, Sarah G. Hunt, Day, Berry & Howard, Boston, MA, Kevin T. Van Wart, Jerome A. Karnick, Marc J. Zwillinger, Jonathan Silverman, Kirkland & Ellis, Chicago, IL, for Lee Howard Farr, M.D., Associated Universities, Inc., defendants.

Francis C. Lynch, Lori B. Silver, Constantine Athanas, Palmer & Dodge, Boston, MA, Owen Gallagher, Garrett Harris, Sally A. VanderWeele, Gallagher & Gallagher, P.C., Charlestown, MA, for Massachusetts Institute of Technology, defendant.

Burke M. Wong, U.S. Department of Justice, Washington, DC, for USA, defendant.

Herbert E. Milstein, Cohen, Milstein, Hausfeld & Toll, Washington, DC, for Walter Carl Van Dyke, Representative of the Estate of Walter Carmen Van Dyke, plaintiff.

MEMORANDUM AND ORDER

YOUNG, Chief Judge.

I. Introduction.

This cause of action arises out of experiments conducted on individuals under the care of Massachusetts General Hospital and Brookhaven National Laboratory in the 1950's and 1960's. In the Second Amended Complaint (the "Complaint"), the plaintiffs (collectively, the "Plaintiffs") allege that various doctors, institutions, and the United States government conspired to conduct "extensive, unproven and dangerous medical experiments on over 140 terminally ill patients, without their knowledge or consent." Dkt. # 21 at ¶ 2. The Plaintiffs seek redress from Lee Farr, M.D., and Associated Universities, Inc. (together, "Associated Universities"); William H. Sweet, M.D., and Massachusetts General Hospital (together, "Mass General"); the Massachusetts Institute of Technology ("MIT"); and the United States.

This action has already been the subject of two written orders by this Court. See Heinrich v. Sweet, 44 F.Supp.2d 408 (D.Mass.1999) ("Heinrich I"); Heinrich v. Sweet, 49 F.Supp.2d 27 (D.Mass.1999) ("Heinrich II"). Before the Court now are a variety of dispositive motions filed by the various defendants:

(a) A motion for partial summary judgment brought by MIT regarding the applicability of the Price-Anderson Act;

(b) A motion to dismiss and a motion for judgment on the pleadings brought by Associated Universities and Mass General, respectively, arguing that the Plaintiffs' state law causes of action are time-barred under applicable statutes of limitations;

(c) Motions by each of the private defendants seeking either dismissal or judgment in its favor on the Bivens count of the Complaint, arguing that the Court cannot consider the private defendants to be federal actors for purposes of the Bivens claim or, alternatively that the Plaintiffs have not stated a constitutional violation sufficient to support a Bivens claim; and

(d) A motion to dismiss for lack of subject matter jurisdiction brought by the United States arguing that it cannot be held liable under the Federal Tort Claims Act due to the independent contractor and discretionary functions exceptions, see 28 U.S.C. §§ 2671, 2680(a).

Because these various motions are factually related and legally interdependent, the Court has reserved judgment on them until such time that they could all be addressed simultaneously. That time has arrived.

II. Factual Background.

A complete factual description of the case is provided in Heinrich I and Heinrich II. The following background will focus on those facts relevant to the instant motions.

A. The Formation of Associated Universities.

Associated Universities was incorporated as a private, non-stock, educational and research institution under the laws of the state of New York on July 18, 1946. See Dkt. # 81, Ex. 1. The corporation was formed "[t]o acquire, plan, construct and operate laboratories and other facilities, either under contract with the Government of the United States or its agencies or otherwise, for research, development and education in the physical and biological sciences, including all aspects of the field of nuclear energy and its engineering and other applications, and to educate and train technical, research and student personnel. ..." Id. at 1. Additionally, Associated Universities was intended to act as "an agency through which universities and other research organizations will be enabled to cooperate with one another, with the Government of the United States and with other organizations toward the support and use of laboratories and other research facilities and toward the development of scientific knowledge...." Id. Associated Universities was founded by Harvard, Yale, Columbia, Cornell, Princeton, MIT, Rochester University, Johns Hopkins, and the University of Pennsylvania. See Dkt. # 21 at ¶ 26. It is governed by a self-perpetuating Board of Trustees that consists of representatives from each of the member universities. See Dkt. # 81, Ex. 1; id., Ex. 4 at v.

B. The Establishment of Brookhaven National Laboratory.

On December 23, 1947, Associated Universities entered into a contract with the United States to administer Brookhaven National Laboratory ("Brookhaven") in Upton, New York. See id. at Ex. 3. Associated Universities was to "organize, operate and maintain Brookhaven ... for the conduct of studies, experimental investigations and tests," including "[t]he conduct of research and development in the atomic and related fields described in Section 3 of the Atomic Energy Act...." See id. at 2, 4. Section 3 of the Atomic Energy Act directed the Atomic Energy Commission (the "Commission") "to exercise its powers in such manner as to insure the continued conduct of research and development activities ... by private or public institutions or persons and to assist in the acquisition of an ever-expanding fund of theoretical and practical knowledge ...," including the "utilization of fissionable and radioactive materials for medical, biological, health, or military purposes...." Atomic Energy Act of 1946, Pub.L. 79-585, § 3, 60 Stat. 755 (1946). Section 3 also instructed the Commission that any research conducted "shall contain such provisions to protect health, to minimize danger from explosion and other hazards to life or property, and to require the reporting and to permit the inspection of work performed thereunder, as the Commission may determine...." Id.

C. The Relationship Between Associated Universities and the Commission.

Brookhaven itself is not a legally cognizable entity. The land, fixtures, equipment and other property constituting the physical manifestation of Brookhaven were directly owned by the United States. See Dkt. # 81, Ex. 3 at 3, 11. The operation and management of Brookhaven, as well as all of the research and experimentation performed there, was provided by Associated Universities on an independent contractor basis. See id. at 2. This organizational structure was necessitated by the fact that, under the Atomic Energy Act of 1946, only the Commission could own a nuclear reactor that was capable of "producing within a reasonable period of time a sufficient quantity of fissionable material to produce an atomic bomb or other atomic weapon" and only the Commission could own fissionable materials. Atomic Energy Act of 1946, §§ 4, 5.

The Director of Brookhaven was an employee of Associated Universities and reported to the Board of Trustees. See Dkt. # 81, Ex. 4 at Fig. 3. In return for providing its services, Associated Universities received a management fee plus the "costs and expenses" of work performed under the contract with the Commission. See id., Ex. 3 at 5. All rights to intellectual property arising out of the agreement, however, were to be disposed of completely at the discretion of the Commission. See id. at 21. Likewise, "[a]ll drawings, designs, specifications, data, and other memoranda of record value" prepared in connection with Brookhaven operations were the sole property of the United States. Id. at 22. All revenues generated by Brookhaven operations were credited against the cost of work, with the excess remitted to the Commission. See id. at 8. The Commission determined which research results would be published for public dissemination and which would remain classified. See id. at 4, 19-20.

Associated Universities was obligated to operate Brookhaven exclusively for the benefit of the Commission: "The Contractor [Associated Universities] shall perform such work and services as are in accordance with the general plans, programs and budgets, from time to time agreed upon by the Commission and the Contractor." Id. at 3; see also Dkt. # 85, Ex. 6 at 1 (then-Brookhaven Director Philip Morse noting that "this Laboratory was created by the Atomic Energy Commission to provide unique facilities for nuclear research ..."). Associated Universities needed the permission of the government to use any of the Brookhaven facilities...

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