Schnurman v. United States

• Decision Date: 02 June 1980
• Docket Number: Civ. A. No. 79-0487-R.
• Citation: 490 F. Supp. 429
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Nathan J. SCHNURMAN, Plaintiff, v. UNITED STATES of America, Defendant.

490 F. Supp. 429

Nathan J. SCHNURMAN, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. A. No. 79-0487-R.

United States District Court, E. D. Virginia, Richmond Division.

June 2, 1980.

John A. Heilig, Rixey & Heilig, and John F. Rixey, Norfolk, Va., for plaintiff.

Raymond A. Carpenter, Eliot Norman, Asst. U. S. Attys., Richmond, Va., for defendant.

MEMORANDUM

MERHIGE, District Judge.

Plaintiff, Nathan J. Schnurman, seeks recovery from the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671 et seq., for injuries allegedly resulting from his exposure to toxic war gases during a United States Navy experiment in 1944.

Plaintiff's seven count complaint alleges that the United States, through the Department of the Navy, was negligent in failing to provide plaintiff with follow-up examination, treatment, supervision or to warn him of the risk of physical injury presented by his exposure to mustard gas in the 1944 experiment. In addition, plaintiff seeks damages for alleged violations of his constitutional rights committed in allegedly subjecting plaintiff to war gas experimentation without his knowledge or valid consent. A final claim alleges that the United States deliberately concealed from plaintiff the true nature of the gas to which he was exposed and the potential hazards of such exposure. Plaintiff seeks recovery of five million dollars in damages plus costs.

The Government moved for a dismissal of the complaint on two separate grounds. First, the Government contended that the action was barred by the applicable two year statute of limitation under 28 U.S.C. § 2401(b). Second, it claimed sovereign immunity from tort liability for service-related torts under the Feres doctrine, see Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). Finding the record in support of such motion incomplete, the Court denied the Government's motion to dismiss and set the case for trial on the merits. After a three-day trial, the Government renewed its motion to dismiss on the aforementioned grounds under Rule 41(b), Fed.R.Civ.P. Plaintiff relied upon his pretrial response, and the Court finds the matter ripe for disposition.

I. FACTUAL BACKGROUND

In January, 1944, plaintiff, then a Seaman Apprentice in the Navy, and others, volunteered for a naval experiment designed to test the effectiveness of certain protective clothing when exposed to sulphur mustard gas. The United States government anticipated the use by the Axis powers of such a toxic war gas during the latter stages of World War II and several branches of the Armed Services were testing clothing designed to neutralize the caustic effects of such gases. Due to the strategic importance of these experiments, the Navy deemed it inappropriate to inform potential volunteers as to the precise nature of the tests. Instead, plaintiff and the other volunteers were led to believe that they would be testing uniforms for use in tropical climates.

In January 1944, plaintiff was taken by bus from Bainbridge, Maryland, where he was stationed following boot camp training, to a Navy research laboratory in Anacostia, Maryland, the site of the experiment. There he and the other volunteers were given clothing, a bunk in a quonset hut, and a blanket. The experiments began the following day. Plaintiff was given an initial physical examination prior to testing. This examination consisted of a blood test, heart and blood pressure check, and routine inspection of eyes, ears, and lungs. He was then issued the protective clothing, consisting of specially treated pants, jacket with hood, underwear and socks, plus boots, gloves and a gas mask.

After proper fittings and testing of the gas masks, the volunteers, numbering ten, were led to the experimentation building. The building itself was a simple structure with an entrance platform and test chamber. A single door separated the platform from the chamber and an intercom allowed for communication between the subjects inside the chamber and the corpsmen on the platform. The subjects were told that, once inside, a vapor was to be introduced into the chamber and that they were to remain in the chamber for one hour. The subjects were not told what the vapor was, but were told that it might produce a slight irritation on the subjects' skin, similar to a sunburn. The subjects were admonished not to discuss the experiment with anyone.

Following a one hour exposure to the vapor, plaintiff and his fellow subjects were instructed to continue wearing the protective clothing for an additional four hours, during which time they would eat and pass the time in their quarters. Upon disrobing, the subjects were given a brief physical examination—primarily for the purpose of detecting any signs of erythema or burns on their skin.

The following morning, the subjects were given a physical and blood tests prior to that day's exposure to the gas. These blood tests were the last ones given to the men in connection with this experiment. The hour long gas exposures continued on a daily basis for the next four days without incident, save the departure of a few of the subjects due to painful burns. On one of those days, just prior to the morning's exposure, plaintiff was informed by a corpsman that they would be testing mustard and lewisite gas that day.

On the sixth test day, while inside the chambers, plaintiff's gas mask malfunctioned and plaintiff breathed the noxious vapor being tested. The inhalation of the gas produced extreme nausea and a burning in his eyes, nose and throat. Before being helped out of the chamber, plaintiff regurgitated in his mask. Once outside the chambers and free of his mask, plaintiff continued to experience nausea and dizziness, plus an intense pain in his chest. After further vomiting, plaintiff lost consciousness. No record was made of this incident.

Upon regaining consciousness, plaintiff was informed that he would no longer be needed for the experiment and that he could return to Bainbridge. He was not given any physical examination or treatment with the exception of local treatment for the minor burns on his skin. Plaintiff left the site of the experiment and traveled to his home in Roanoke, Virginia for a ten-day leave. In Roanoke, plaintiff received treatment by his family doctor for sores in his throat and nasal passages resulting from the inhalation of the mustard gas. While this condition improved several weeks later, plaintiff contends that he has suffered additional, more serious after-effects from the experiment. Plaintiff testified that he has experienced severe chest pains and shortness of breath ever since the incident in the test chamber. Although he complained frequently of these ailments during his service in the Navy, plaintiff received no medical treatment for his ailments.

The extent of plaintiff's physical misfortunes has not been limited to shortness of breath and chest pain. During the thirteen years immediately following his discharge from service in 1946, plaintiff was seen by general practitioners, a cardiologist and an internist for complaints of dizziness, nerves, and numbness in his hand, in addition to the aforementioned chest pain and respiratory difficulty. In 1961, and again in 1964, plaintiff was hospitalized for the recurring chest pain. He continued to see cardiologists for tests and treatments and discovered, among his other maladies, that he had an irregular heartbeat.

Plaintiff made no mention of the mustard gas experiment to any of these treating physicians, heeding instead the admonition from his former superiors not to discuss the tests with anyone.

Plaintiff's physical problems seemed to multiply with the passage of time. In 1969, plaintiff injured his hips and legs in a motor vehicle accident. The following year, he was hospitalized under the care of a urologist for kidney stones. In 1971, he was twice hospitalized as an emergency patient. The first of these visits was for thrombophlebitis of his left leg, arising out of a work-related accident. During his hospitalization for this injury, plaintiff experienced a pulmonary embolus in his left calf, requiring a venal ligation in that leg. As a result, plaintiff must wear stocking-like leg supports to facilitate the circulation of blood in his legs. Plaintiff's second emergency hospitalization in 1971 was for the chest pain complained of previously.

The following year proved no better for plaintiff. He was hospitalized for colon problems and again for chest pains and kidney stones, the latter being removed at that time. In 1974, plaintiff returned to the hospital to have a pelvic cyst of his left kidney surgically removed. Recurring head pains and losses of equilibrium following this hospitalization prompted plaintiff to seek the assistance of a neurosurgeon towards the end of 1974. Brain scans conducted by this physician revealed that plaintiff suffered from cerebral atrophy of the brain. The cumulative effect of the aforementioned ailments on plaintiff's work performance forced him to retire from his salesman's position in 1974 at the age of 48.

Finally, in 1975, plaintiff made the first mention to an examining physician, Dr. Alfred L. Smith, that he had been exposed to what he had been told was mustard and lewisite gas during a wartime experiment. Dr. Smith suggested that plaintiff's ailments could be related to this exposure and encouraged plaintiff to file a claim with the Veteran's Administration (hereinafter "V.A."). In order to substantiate his claim, plaintiff wrote to the Federal Records Center in St. Louis, Missouri, for information concerning his participation in this experiment. Although no mention of plaintiff's participation appears in his service records, the Federal Records Center did send him records reflecting that he had taken part in the testing of "Agent H." Unsure of the identity of Agent H, plaintiff wrote to the National Naval Medical Center in Bethesda,...