Heinrich v. Sweet, Civ.A. 97-12134-WGY.

• Decision Date: 20 April 1999
• Docket Number: No. Civ.A. 97-12134-WGY.,Civ.A. 97-12134-WGY.
• Citation: 44 F.Supp.2d 408
• Parties: Evelyn HEINRICH, Henry M. Sienkewicz, Jr., Rosemary Gualtieri, Walter Carl Van Dyke, and others similarly situated, Plaintiffs, v. William H. SWEET, M.D., The Estate of Lee Edward Farr, M.D., Trustee of the Lee Edward Farr Trust Dated 1/11/71, Associated Universities, Inc., Massachusetts General Hospital, Massachusetts Institute of Technology, and the United States, Defendants.
• Court: U.S. District Court — District of Massachusetts

44 F.Supp.2d 408

Evelyn HEINRICH, Henry M. Sienkewicz, Jr., Rosemary Gualtieri, Walter Carl Van Dyke, and others similarly situated, Plaintiffs, v.William H. SWEET, M.D., TheEstate of Lee Edward Farr, M.D., Trustee of the Lee Edward Farr Trust Dated 1/11/71, Associated Universities, Inc., Massachusetts General Hospital, Massachusetts Institute of Technology, and the United States, Defendants.

No. Civ.A. 97-12134-WGY.

United States District Court, D. Massachusetts.

April 20, 1999.

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, for Evelyn Heinrich, on behalf of her husband, George Heinrich, plaintiff.

John K. McGuire, Jr., McGuire & McGuire, Worcester, MA, Raymond J. Heslin, Anthony Z. Roisman, Cohen, Milstein, Hausfeld & Toll, Washington, DC, for Henry M. Sienkewicz, Jr., on behalf of his mother, Eileen Rose Sienkewicz, plaintiff.

Raymond J. Heslin, old, Farrell & Marks, New York City, for Rosemary Gualtieri, on behalf of her fatherJoseph Mayne and all others similarly situated, plaintiff.

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, defendants.

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., Associated Universities, Inc., defendants.

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

Burke M. Wong, U.S. Department of Justice, Torts Branch, Civil Division, 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

YOUNG, Chief Judge.

I.Introduction

Evelyn Heinrich, Henry M. Sienkewicz, Jr., Rosemary Gualtieri, and Walter Carl Van Dyke¹ bring this putative class action on behalf of their decedents against Dr. William H. Sweet, the estate of Dr. Lee Edward Farr, the Trustee of the Lee Edward Farr Trust dated 1/11/71, Associated Universities, Inc., Massachusetts General Hospital, Massachusetts Institute of Technology, and the United States.²The gravamen of the Second Amended Complaint (the "Complaint") is that during the 1950s and 1960s, the defendants conducted boron radiation experiments on the decedents — who suffered from terminal brain cancer — with the knowledge that such experiments offered no therapeutic value to the decedents.

The United States moves to dismiss the Complaint for failure to present administrative claims to the appropriate government agency within two years of the date on which the claims accrued.See28 U.S.C. § 2401(b).³

II.Background

The Court derives the following facts from the plaintiffs' complaint:

Evelyn Heinrich("Mrs.Heinrich"), a resident of Massachusetts, is the executrix of the estate of her late husband, George Heinrich("Mr.Heinrich").SeeComp. ¶ 7.In October 1960, Mr. Heinrich, then thirty-five years old, was admitted to Massachusetts General Hospital ("Mass General"), where doctors diagnosed him with a brain tumor.Seeid.at ¶ 8.On December 15, 1960, Dr. William H. Sweet("Dr.Sweet"), a neurosurgeon at Mass General, performed a craniotomy on Mr. Heinrich.Seeid.During the craniotomy, Dr. Sweet twice injected Mr. Heinrich with a boron compound and then took samples from the tumor and from normal tissue.Seeid.Mrs. Heinrich alleges that Dr. Sweet injected the boron without Mr. Heinrich's consent and that the injections had no conceivable therapeutic value.Seeid.On December 24, 1960, Dr. Sweet discharged Mr. Heinrich and recommended that Mr. Heinrich return to Mass General for further treatment.Seeid.Dr. Sweet told Mrs. Heinrich that her husband had an excellent chance of recovery with Boron Neutron Capture Therapy ("BNCT").Seeid.

Mr. Heinrich returned to Mass General on January 2, 1961 because of an infection.Seeid.¶ 9.On January 16, 1961, Mr. Heinrich's treating physician recommended that Mr. Heinrich not undergo further operation.Seeid.Despite this recommendation, Dr. Sweet administered BNCT to Mr. Heinrich on January 18, 1961 at the Massachusetts Institute of Technology ("MIT") without the consent of Mr. Heinrich or Mrs. Heinrich.During the treatment, Dr. Sweet opened Mr. Heinrich's skull, injected him with a boron compound, and irradiated his exposed skull.Seeid.Mr. Heinrich's condition worsened after the BNCT.Seeid.On May 15, 1961, Mr. Heinrich — in a comatose state — was removed to a nursing home, where he died on May 27, 1961.Seeid.According to the Complaint, the unauthorized and nontherapeutic administration of BNCT caused Mr. Heinrich to suffer excruciating pain and ultimately killed him.Seeid.

Henry M. Sienkewicz, Jr.("Mr.Sienkewicz"), a resident of Massachusetts, is the son of the late Eileen Rose Sienkewicz("Mrs.Siekewicz").Seeid.at ¶ 10.On June 10, 1960, doctors at Mass General diagnosed Mrs. Siekewicz, then thirty-nine years old, with a brain tumor.Seeid.at ¶ 11.Dr. Sweet performed surgery on Mrs. Sienkewicz to remove the tumor and recommended her for BNCT.Seeid.Mrs. Sienkewicz returned to Mass General on November 13, 1960.Seeid.She was taken to MIT on November 15, 1960 for BNCT, which was performed without the consent of Mrs. Sienkewicz or her family.Seeid.Mrs. Sienkewicz returned to Mass General four times between December 8, 1960 and September 27, 1961.She died on October 31, 1961 at Mass General after falling into a coma.Seeid.According to the Complaint, Mrs. Siekewicz died from "extensive radiation necrosis" of the brain caused by BNCT.Seeid.at ¶ 12.The BNCT also caused Mrs. Sienkewicz excruciating pain throughout the last year of her life, pain that she would not have suffered without BNCT.Seeid.

Rosemary Gualtieri("Ms.Gualtieri"), a resident of Massachusetts, is the daughter of the late Joseph Mayne("Mr.Mayne").Seeid.at ¶ 13.In February 1951, Dr. Sweet diagnosed Mr. Mayne with a brain tumor and performed surgery on Mr. Mayne at Mass General.Seeid.at ¶ 14.Dr. Sweet then transferred Mr. Mayne to Brookhaven National Laboratory ("Brookhaven"), an Upton, New York nuclear research center operated by Associated Universities, Inc.("Associated"), and owned by the United States Atomic Energy Commission("the Commission").Seeid.at ¶ 1(b).Mr. Mayne was admitted to Brookhaven under the care of Dr. Lee Edward Farr("Dr.Farr"), chairman of the medical department at Brookhaven.Seeid.at ¶ 14.Mr. Mayne underwent BNCT at Brookhaven on June 14, 1951.Seeid.Mr. Mayne left Brookhaven after his condition worsened, and died on November 3, 1951 at the Chelsea Old Soldiers Home in Chelsea, Massachusetts.Seeid.

Mrs. Heinrich, Mr. Sienkewicz, and Ms. Gualtieri allege that they first learned about the true nature of BNCT in 1995 when the President's Advisory Committee on Human Radiation Experiments("the President's Advisory Committee") uncovered and made public documents that disclosed for the first time that (1) the experiments were conducted on unwitting patients; (2) the experiments either had no therapeutic value or were of such unlikely therapeutic value that no reasonable medical professional would conduct them; (3) the patients or their families had never been fully advised by the defendants of the true nature of the experiments or the lack of scientific or medical basis for the experiments; (4)the defendants never obtained the consent of the decedents or the plaintiffs; and (e)the people principally responsible for the misconduct are the named defendants in this case.Seeid.at ¶ 4.

Mrs. Heinrich and Mr. Sienkewicz filed administrative claims for damages with the Commission on September 29, 1995.See Def.Mem., Ex. A.Ms. Gualtieri filed an administrative claim on December 6, 1995.Seeid.The United States now moves to dismiss the Complaint pursuant to Rule 12(b)(1) for failure to present the administrative claims within two years of the date on which their claims accrued.See28 U.S.C. § 2401(b).

III.Proper Characterization of Motion

The United States frames this motion to dismiss as one under Rule 12(b)(1) for lack of subject matter jurisdiction on the basis that compliance with 28 U.S.C. § 2401(b) is a jurisdictional prerequisite to a claim under the Act.Heinrich argues that the alleged failure to comply with the two-year statute of limitations merely provides the United States with an affirmative defense, which courts generally entertain on motions to dismiss under Fed.R.Civ.P. 12(b)(6).See5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure§ 1357, at 351-52 (2d ed.1984).

This distinction is important for four reasons.First, a defendant can waive an affirmative defense of statute of limitations, seeNational Labor Relations Bd. v. Crafts Precision Indus., Inc.,16 F.3d 24, 26(1st Cir.1994), but a litigant can never waive subject matter jurisdiction, seeUnited States v. Horn,29 F.3d 754, 767(1st Cir.1994).Second, Rule 12(b)(6) expressly permits a court to treat a motion to dismiss as one for summary judgment if it chooses to consider materials outside the pleadings.SeeFed.R.Civ.P. 12(b)(6).Rule 12(b)(1) contains no parallel provision.SeeFed.R.Civ.P. 12(b)(1);Health Care Review Inc. v. Shalala,926 F.Supp. 274, 279-80(D.R.I.1996).Third, a plaintiff bears the burden of proving jurisdiction on a 12(b)(1) motion, seeViqueira v. First Bank,140 F.3d 12, 16(1st Cir.1998), while the defendant bears the burden of proving an affirmative defense, seeBowling Green, Inc. v. State Street Bank...