Heinrich v. Sweet

Decision Date30 April 1999
Docket NumberCivil Action No. 97-12134-WGY.
Citation49 F.Supp.2d 27
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, D.C., John K. McGuire, Jr., McGuire & McGuire, Worcester, MA, for Evelyn Heinrich.

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

Raymond J. Heslin, Gold, Farrell & Marks, New York City, for Rosemary Gualtieri.

Raymond J. Kenney, Mark Newcity, Christopher J. Maley, Martin, Magnuson, McCarthy & Kenney, Boston, MA, Gail A. Anderson, Martin, Magnuson, McCarthy & Kenney, Boston, MA, for William H. Sweet, MD., Massachusetts General Hospital.

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

William Shields, Sarah G. Hunt, Day, Berry & Howard, Boston, MA, Jerome A. Karnick, Marc J. Zwillinger, Kevin T. Van Wart, Jonathan Silverman, Kirkland & Ellis, Chicago, IL, Mark Newcity, Martin Magnuson, McCarthy & Kenney, Boston, MA, for Associated Universities, Inc.

Francis C. Lynch, Lori B. Silver, Palmer & Dodge, Boston, MA, for Massachusetts Institute of Technology.

Burke M. Wong, U.S. Department of Justice, Torts Branch, Civil Division, Washington, DC, for USA.

Herbert E. Milstein, Cohen, Milstein, Hausfeld & Toll, Washington, DC, for Walter Carl Van Dyke.

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 1950s and 1960s.1 The plaintiffs (collectively, the "Plaintiffs") in this action are comprised of two groups: Evelyn Heinrich and Henry Sienkewicz, who are Massachusetts residents suing on behalf of themselves and deceased family members who received treatment at Massachusetts General Hospital and the Massachusetts Institute of Technology, and Rosemary Gualtieri and Walter Carl Van Dyke, who are suing on behalf of themselves and deceased family members who received treatment at Brookhaven National Laboratory. 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." Am. Comp. ¶ 2. The experiments consisted primarily of boron neutron capture therapy ("BNCT"), most charitably described as a combination of traditional chemotherapy and radiation therapy. For the purposes of the present motion, the Plaintiffs seek redress from Lee Farr, M.D.,2 and Associated Universities, Inc.3 (together, "Associated Universities"); William H. Sweet, M.D.,4 and Massachusetts General Hospital (together, "Mass General"); and the Massachusetts Institute of Technology ("MIT"). The Plaintiffs allege eleven causes of action against these defendants: (i) violation of Constitutional and civil rights (a Bivens action), (ii) civil fraud, (iii) battery, (iv) intentional infliction of emotional distress, (v) strict liability for inherently dangerous activities, (vi) personal injury caused by exposure to toxic substances, (vii) absence of consent, (viii) wrongful death, (ix) civil responsibility for crimes against humanity, (x) negligence, and (xi) negligent misrepresentation. This action was originally filed in the Eastern District of New York and later transferred to this District.

II. The Instant Motions
A. Associated Universities' Motion to Dismiss

Associated Universities moves to dismiss the Second Amended Complaint on a variety of grounds. First, that the statute of limitations bars all of the Plaintiffs' claims. Second, that the Massachusetts Plaintiffs lack standing because they were not treated at Brookhaven National Laboratory. Third, that all of the Plaintiffs lack standing because they claim only derivative injuries. Fourth, that the Bivens action should be dismissed because Associated Universities is not a federal actor. Fifth, that the fraud and negligent misrepresentation counts should be dismissed because no false statements have been alleged by Associated Universities. Sixth, that the battery and intentional infliction of emotional distress counts should be dismissed because the Plaintiffs consented to the experiments. Seventh, that the strict liability for inherently dangerous activities counts should be dismissed because no invasion of land has been alleged. Eighth, that the personal injury for toxic substances and civil responsibility for crimes against humanity counts should be dismissed because no such causes of action exist. Finally, Associated Universities argues that the claim for punitive damages is barred by New York's Survival Statute and Wrongful Death Statute.

B. Mass General's Motion to Dismiss

Mass General seeks dismissal of several of the Plaintiffs' claims. First, that the claim for crimes against humanity should be dismissed because no such cause of action exists. Second, that all state law claims brought by decedent Walter Carmen Van Dyke and his representative ("Van Dyke") must be dismissed because Mass General did not owe a duty to Van Dyke. Finally, that all claims for emotional distress brought by all Plaintiffs should be dismissed because the alleged harm is too remotely related to the experiments.

C. Mass General's Motion for Judgment on the Pleadings

Mass General also seeks judgment on the pleadings pursuant to Rule 12(c), arguing that all claims brought by the Plaintiffs are barred under the respectively applicable statutes of limitations.

D. MIT's Motion to Dismiss

MIT seeks dismissal on a variety of grounds. First, that the Bivens action should be dismissed either because MIT was not a federal actor or because it was entitled to qualified immunity. Second, that the state law claims which rest on deceit or misrepresentation should be dismissed because the Plaintiffs have not alleged any such conduct by MIT. Third, that state law claims which rest on a requirement of informed consent should be dismissed because MIT did not owe a duty to provide information to the Plaintiffs. Fourth, that the state law claim of strict liability for inherently dangerous activities should be dismissed because no invasion of land has been alleged. Fifth, that the remaining state law claims should be dismissed because MIT did not owe a duty to the Plaintiffs. Sixth, that the civil action for crimes against humanity must be dismissed because no such cause of action exists. Finally, that Van Dyke's claims should be dismissed for additional reasons particular to his case.

III. Discussion

In reviewing a motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court must "take the allegations in the complaint as true and grant all reasonable inferences in favor of the plaintiff."5 Monahan v. Dorchester Counseling Ctr., Inc., 961 F.2d 987, 988 (1st Cir.1992). The Court may grant dismissal only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Clair Recreation Ctr., Inc. v. Flynn, 897 F.2d 623, 625 (1st Cir.1990) (quoting Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 2 L.Ed.2d 80 [1957]).

A. Statute of Limitations for State Law Claims

Associated Universities and Mass General argue that all of the Plaintiffs' claims are barred by the applicable statutes of limitations because the purported experiments and resulting injuries occurred decades ago. The Plaintiffs, on the other hand, contend that the claims survive despite the lapse of time because of the "discovery rule," the existence of fraudulent concealment by the various defendants, or the principle of equitable estoppel.

As an initial matter, this Court treats the assertion of the statute of limitations as an affirmative defense to be entertained as a motion to dismiss under Fed R.Civ.P. 12(b)(6). See 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1357, at 351-520 (2d ed.1990).6 Therefore, taking all facts and inferences drawn therefrom in the Plaintiffs' favor, this Court should only grant Associated Universities' and Mass General's motion "if it clearly appears according to the facts alleged, that the plaintiff cannot recover on any viable theory." Figueroa v. Rivera, 147 F.3d 77, 80 (1st Cir.1998). Despite this low threshold, the pleading requirement is "not entirely a toothless tiger." Doyle v. Hasbro, Inc., 103 F.3d 186, 190 (1st Cir.1996). In order to survive a motion to dismiss, the Plaintiffs must set forth "factual allegations, either direct or inferential, regarding each material element necessary to sustain recovery." Id. at 190. As such, the Court need not accept "bald assertions, unsupportable conclusions, periphrastic circumlocutions, and the like." Id.

Associated Universities asserts that New York state law controls the Court's analysis of the statute of limitations issue. Mass General and the Plaintiffs, on the other hand, analyze the issue on...

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