In re Cincinnati Radiation Litigation

• Decision Date: 11 January 1995
• Docket Number: No. C-1-94-126.,C-1-94-126.
• Citation: 874 F. Supp. 796
• Parties: In re CINCINNATI RADIATION LITIGATION.
• Court: U.S. District Court — Southern District of West Virginia

874 F. Supp. 796

In re CINCINNATI RADIATION LITIGATION.

No. C-1-94-126.

United States District Court, S.D. Ohio, Western Division.

January 11, 1995.

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David Kamp, Cincinnati, OH.

R. Joseph Parker, Cincinnati, OH.

OPINION and ORDER

BECKWITH, District Judge.

The Complaint in this much-publicized matter alleges that the Defendants engaged in the design and implementation of experiments from 1960 to 1972 to study the effects of massive doses of radiation on human beings in preparation for a possible nuclear war.The experiments utilized terminal cancer patients who were not informed of the consequences of their participation nor, indeed, informed of the existence or purpose of the experiments.The Complaint alleges that most of the patients selected were African-American and, in the vernacular of the time, charity patients.The Complaint further alleges that the various Defendants actively concealed the nature, purpose and consequences of the experiments.The allegations of the Complaint make out an outrageous tale of government perfidy in dealing with some of its most vulnerable citizens.The allegations are inflammatory and compelling, creating a milieu in which it is difficult to objectively examine the allegations for legal sufficiency or to apply a view of constitutional rights unilluminated by the legal evolution that has taken place since 1972 when the experiments at issue ended.The task is especially difficult in the constricted format afforded by Fed.R.Civ.P. 12(b)(1) and (6).The frequent lapses into factual disputes and arguments on all sides attest to the strong temptation to move beyond the four corners of Plaintiffs' Second Amended Complaint.

The Court has ignored all factual disputes in arriving at its respective conclusions.It has adhered to the foundational tenets provided by the case law as enunciated by the United States Supreme Court with little recourse to other precedents.The respective questions to be resolved are as follows: (1) Can the Plaintiffs prove any set of facts in support of their respective claims?(2) If so, as regards the Section 1983 claims, were the constitutional rights, which Plaintiffs allege were violated, clearly established at the time of the events at issue, so as to overcome the individual Defendants' claims of a qualified immunity defense.The answers to these questions determine the viability of Plaintiffs' various claims.

The discussion that follows will articulate the Court's analysis on each issue and subissue.In brief, however, the Court concludes that the Defendants have not established that the Plaintiffs can prove no set of facts that would support their claims under substantive due process, access to courts, procedural due process, equal protection, and Section 1985.Moreover, the Court is satisfied for the purposes of these motions that the contours of Plaintiffs' constitutional rights as regards those claims were sufficiently developed at the time of the events in question to afford a reasonable public official notice that the acts would likely violate Plaintiffs' constitutional rights.

The Court, therefore, will DENY the individual and BivensDefendants' motions to dismiss as regards substantive due process, access to courts, procedural due process, equal protection, and Section 1985.However, the Plaintiffs' claims under an implied right of action and the Price-Anderson Act are DISMISSED.As a result of this ruling, the Plaintiffs' state law claims will remain pending in this Court pursuant to its supplemental jurisdiction.

Currently pending before the Court are motions to dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b)(1) and (6) filed by all of the individual Defendants herein.¹Pursuant to those motions, Defendants challenge the legal sufficiency of the Complaint², which is premised upon 42 United States Code("U.S.C.") ? 1983, arguing that the allegations fail to state a claim upon which relief may be granted and that they are immune from suit by reason of the defense of qualified immunity.Also pursuant to motions to dismiss, the Defendants contend that the Plaintiffs' Complaint fails to properly allege the elements of a claim under 42 U.S.C. ? 1985 or the Price-Anderson Act, 42 U.S.C. ?2210(h)(2).Finally, the Defendants assert that because the federal claims pending against the individual Defendants must be dismissed, the resulting absence of federal claims mandates a dismissal of the remaining supplemental state claims against these individual Defendants pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure.

The Court's duty is to determine whether the Defendants are entitled to prevail on these motions based solely upon the factual allegations contained in the Complaint.These allegations, for purposes of the subject motions must, of course, be regarded as true.SeeAssociated General Contractors of California, Inc. v. California State Council of Carpenters,459 U.S. 519, 526, 103 S.Ct. 897, 902, 74 L.Ed.2d 723(1983);Lee v. Western Reserve Psychiatric Habilitation Center,747 F.2d 1062, 1065(6th Cir.1984).

Each of the claims contained in the Complaint is broadly pleaded.To properly rule on the motions now before the Court, it is necessary to discuss the claims of the Plaintiffs³ individually.Any attempt to resolve the issues raised by the motions demands an expansive discussion of those issues.

I.THE COMPLAINT

To follow the path of analysis prescribed by Fed.R.Civ.P. 12(b)(6), the Court must look first to the allegations contained in the Complaint.The Court will then examine each issue raised by the Defendants through the lens created by the allegations contained in the Complaint.

An overview of the Complaint reveals that the Plaintiffs allege that they were the unwitting subjects of Human Radiation Experiments conducted at Cincinnati General Hospital ("CGH") between 1960 and 1972.⁴The Complaint alleges that the experiments were conducted under the auspices of the University of Cincinnati College of Medicine with funding and authorization from the United States Department of Defense's Nuclear Agency.⁵

Plaintiffs allege that the Human Radiation Experiments were designed to study the effects of radiation on combat troops.Consequently, Plaintiffs allege they were exposed to doses of radiation at levels to be expected on a nuclear battlefield.

It is also alleged that the subjects of the radiation experiments all had inoperable cancer and were told that they were receiving treatment for their cancer.Plaintiffs allege that they were in fact never told that they were part of a medical experiment or that they were receiving radiation in doses ranging from 25 to 300 rads as a means of providing the Defense Department information about the effects of radiation on military personnel in the event of a nuclear attack.Thus, the principal thrust of the Complaint is that none of the subjects gave informed consent to participate in the Human Radiation Experiments.

The Plaintiffs claim they were denied substantive due process, procedural due process, equal protection, and access to courts under the Fourth, Fifth, and Fourteenth Amendments of the United States Constitution.The Plaintiffs also claim that the individual Defendants engaged in a conspiracy to deprive Plaintiffs of their constitutional rights and seek recovery under this theory pursuant to 42 U.S.C. ?? 1983 and 1985(3).

Finally, the Plaintiffs assert several Ohio common law claims including wrongful death, medical malpractice, negligence, intentional infliction of emotional distress, and negligent infliction of emotional distress.Plaintiffs also assert that the Price-Anderson Act, 42 U.S.C. ? 2210(h)(2) independently permits this Court to exercise jurisdiction over these state law claims.

The individual Defendants are denominated as follows: Eugene L. Saenger, M.D. was employed by the Department of Radiology of the University of Cincinnati College of Medicine and was the lead researcher conducting the Human Radiation Experiments at Cincinnati General Hospital.Dr. Saenger is alleged to have designed, supervised and conducted the experiments that are the subject of this Complaint.

Edward B. Silberstein, M.D.; Bernard S. Aron, M.D.; Harry Horwitz, M.D.; James G. Kereiakes, Ph.D.; Harold Perry, M.D.; Ben I. Friedman, M.D.; Thomas L. Wright, M.D.; I-Wen Chen, Ph.D.; Robert L. Kunkel, M.D.; Louis A. Gottschalk, M.D.; Theodore H. Wold, Ph.D.; and Goldine C. Gleser, Ph.D. also were employed by the University of Cincinnati and are alleged to have assisted Dr. Saenger in the Human Radiation Experiments.

Warren O. Kessler, M.D., and Myron I. Varon, M.D., were medical officers in the United States Navy and are alleged to have been the Project Officers charged with providing federal oversight of the Human Radiation Experiments.Because Drs. Kessler and Varon were federal officials, their conduct will be examined along with that of the other individual Defendants under the doctrine of qualified immunity and as regards Section 1985 and the Price-Anderson statute.However, the claims against Drs. Kessler and Varon will also be analyzed separately under the Bivens doctrine, which specifically permits claims against federal employees who violate constitutional law.⁶

The City, a municipality in Hamilton County, Ohio, is also a Defendant.The Complaint alleges that the City sanctioned, funded, and actively participated in the Human Radiation Experiments.

Finally, the University of Cincinnati ("University"), including its constituent College of Medicine and University Hospital (formerly Cincinnati General Hospital) is also named as a Defendant.The University, now a state-owned academic and research institution, is located in Cincinnati, Ohio.During the time of the Human Radiation Experiments, the Defendant University and its constituents were owned and operated by the Defendant...