Heinrich ex rel. Heinrich v. Sweet, No. CIV. A. 97-12134-WGY.

• Decision Date: 09 February 2000
• Docket Number: No. CIV. A. 97-12134-WGY.
• Citation: 83 F.Supp.2d 214
• Parties: Evelyn 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.
• Court: U.S. District Court — District of Massachusetts

83 F.Supp.2d 214

Evelyn 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.

No. CIV. A. 97-12134-WGY.

United States District Court, D. Massachusetts.

February 9, 2000.

Anthony Z. Roisman, Cohen, Milstein, Hausfeld & Toll, Washington, DC, John K. McGuire, Jr., McGuire & McGuire, Worcester, MA, Anthony Z. Roisman, Lyme, NH, Martin H. Freeman, Mark A. Freeman, Freeman & Freeman, P.C., Rockville, MD, John M. Clifford, Billie P. Garde, Clifford, Lyons, & Garde, Washington, DC, Raymond J. Heslin, Rubin, Baum, Levin, Constant & Frienman, New York City, Herbert E. Milstein, Cohen, Milstein, Hausfeld & Toll, Washington, DC, for Plaintiffs.

Thomas P. Billings, Karen White Salon, Sally & Fitch, Boston, MA, Joseph L. Doherty, Jr., Raymond J. Kenney, Christopher J. Maley, Katharine S. Perry, Martin, Magnuson, McCarthy & Kenney, Gail A. Anderson, Martin, Magnuson, McCarthy & Kenney, William Shields, Sarah G. Hunt, Day, Berry & Howard, Boston, MA, Kevin T. VanWart, Jerome A. Karnick, Marc J. Zwillinger, Kirkland & Ellis, Kevin T. Van Wart, Jonathan Silverman, Kirkland & Ellis, Chicago, IL, 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, Burke M. Wong, U.S. Dept. of Justice, Torts Branch, Civil Division, Washington, DC, for Defendants.

MEMORANDUM

YOUNG, Chief Judge.

I. Introduction

Traditionally, the sovereign is immune from claims and suits by its subjects. The United States government is willing to come into its courts and defend against such claims but is unwilling to subject itself to trial by jury. See 28 U.S.C. § 2402. Therefore, so much of this case, as makes a claim against the United States under the Federal Tort Claims Act, has been tried to the Court concomitant with the trial by jury of the other defendants. Upon the conclusion of the jury trial,¹ the parties supplemented the record with additional documents pertinent to the involvement of the Atomic Energy Commission ("Commission") as well as certain deposition testimony. The United States now moves for judgment pursuant to Federal Rule of Civil Procedure 52(c), contending that the statute of limitations, 28 U.S.C. § 2401(b), the discretionary function exception, 28 U.S.C. § 2680(a), and the government contractor exception, 28 U.S.C. § 2671, bar the plaintiffs' claims. This Memorandum addresses only the third of these arguments.

II. Discussion

A. Heinrich III

In denying the United States' motion to dismiss based upon the government contractor exception, see Heinrich v. Sweet, 62 F.Supp.2d 282, 321-23 (D.Mass.1999) ("Heinrich III"), the Court offered the following discussion:

The [Federal Tort] Claims Act provides a cause of action against the United States for injury "caused by the negligent or wrongful act or omission of any employee of the Government ...." 28 U.S.C. § 1346(b)(1). The term "employee of the government" includes "persons acting on behalf of a federal agency ...," but specifically excludes "any contractor with the United States." 28 U.S.C. § 2671. Therefore, the United States is not liable for the negligence of an independent contractor's employee. See Brooks v. A.R. & S. Enters., Inc., 622 F.2d 8, 10 (1st Cir.1980). The United States asks this Court to dismiss the Plaintiffs' claims insofar as they relate to the alleged negligence of Associated Universities employees because Associated Universities was an independent contractor.

In determining whether a contractor acts on behalf of a federal agency, a court must examine "whether its day-to-day operations are supervised by the Federal Government." United States v. Joseph, 425 U.S. 807, 815, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976); accord Brooks, 622 F.2d at 11 ("[T]he critical question is ... whether the United States directs the manner in which the contractor carries out its obligations under the contract."). The focus of this inquiry is "the authority of the principal to control the detailed physical performance of the contractor." Logue v. United States, 412 U.S. 521, 527-28, 93 S.Ct. 2215, 37 L.Ed.2d 121 (1973). For instance, a contractor's use of government-owned property does not, by itself, transform that contractor into an agent of the government. See Brooks, 622 F.2d at 11. If, however, the government supervises or controls the manner in which the contractor uses government property, the contractor may in fact be acting on behalf of the government. See id. Likewise, while the United States' general right to inspect does not subject the government to liability for its contractors' torts, see id. at 12, evidence of the United States' "daily supervision and inspection of the activities of the [contractor may] satisfy the test of liability under Orleans," id. at 11.

Under the contract between Associated Universities and the government for the operation of Brookhaven National Laboratory, Associated Universities had the following duties: (1) making all necessary provisions (including the hiring of personnel) for the establishment, operation, and maintenance of Brookhaven National Laboratory; (2) the design, engineering, construction, and alteration of the buildings, facilities, and utilities; (3) the operation, management, and maintenance of the laboratory; (4) the conduct of research and development in the atomic and related fields described in Section 3 of the Atomic Energy Act of 1946; (5) providing the facilities to the personnel of public and private scientific institutions for the conduct of research and development; (6) maintenance of the necessary guard and fire-fighting forces for the laboratory; (7) training of scientific and technical personnel; and (8) dissemination and publication of unclassified scientific and technical data developed in the course of work. See Dkt. # 81, Ex. 3 at 3-4.

As already extensively described throughout this opinion, the record reveals that the Commission was intertwined with the execution of most of these duties. Moreover, the Task Force Report makes clear the hands-on relationship between the Commission and Associated Universities. According to the report, the Commission exercised its control in the following manner:

The primary instruments for determining and controlling the contractor's work are the program assumptions which are the basis for planning, the budget submissions, the approved financial plans, and directives authorizing specific projects. Continuing control to assure that the contractor adheres to established programs is exercised through such devices as monthly cost reports, regular progress reports, conferences with the contractor, review and observation of the work by [Commission] engineers and other specialists, inspection of finished products, and audits.

. . . . .

Inspection involves an overall and up-to-date familiarity with the nature and progress of the work which is gained by daily observation, close contact with contractor personnel, examination of the reports and cost statements, review of proposed procurement and sub-contract actions, and regular conferences with contractor top management regarding progress and difficulties .... Such inspection appears to us necessary for the discharge of inherent AEC responsibility ....

Dkt. # 85, Ex. 7 at 10, 17 (emphasis added). A Commission officer also explained at a symposium that the Commission and its contractors are "partners in the general sense of the word." Id. at Ex. 8 at 19. Indeed, the Commission even agreed to indemnify Associated Universities for all liability awards issued against it, including personal injury awards, barring bad faith or willful misconduct on the part of Associated Universities. See Dkt. # 81, Ex. 3 at 15.

The relationship between the Commission and Associated Universities went beyond the general supervisory relationship between a principle and an independent contractor. The Commission controlled almost every aspect of Brookhaven National Laboratory, from its expenses to its research goals to its output. The regular supervision and inspection involved the substance of Associated Universities' work, not just its compliance with the terms of the contract. For these reasons, this Court holds that Associated Universities was not an independent contractor but an entity acting on behalf of a government agency. See Costa v. United States, 845 F.Supp. 64, 68 (D.R.I.1994) (concluding that a clinic doctor who used a veteran hospital's equipment and was bound by its bylaws, policies, and procedures was an employee rather than an independent contractor for purposes of the Claims Act).

Heinrich III, 62 F.Supp.2d at 321-23.

B. The Present Factual Record

The United States now argues that the evidence in the record does not support the interpretation of the Commission's role that the Court accepted for purposes of the dismissal motion:

1. Statutory and Regulatory Role of the Commission

Congress established the Commission in April 1946 with an eye toward "improving the public welfare, increasing the standard of living, strengthening free competition in private enterprise, and promoting world peace." Atomic Energy Act of 1946 (the "Act"), Pub.L. No. 585, 60 Stat. 755. The Act provided that the Commission could interact with "private or public institutions" through contracts, agreements, and loans for the conduct of research relating to radioactive materials for medical, biological, and health purposes. See...