Sexton v. United States, Civ. A. No. 85-1728.

• Decision Date: 17 September 1986
• Docket Number: Civ. A. No. 85-1728.
• Citation: 644 F. Supp. 755
• Parties: Mary Sue SEXTON, Talmon Sexton and the Estate of Talmon Dwayne Sexton, Plaintiffs, v. The UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Columbia

644 F. Supp. 755

Mary Sue SEXTON, Talmon Sexton and the Estate of Talmon Dwayne Sexton, Plaintiffs, v. The UNITED STATES of America, Defendant.

Civ. A. No. 85-1728.

United States District Court, District of Columbia.

September 17, 1986.

Arthur H. Bryant, Trial Lawyers for Public Justice, Washington, D.C., for plaintiffs.

Evelyn Sahr, Civil Div., Torts Branch, Dept. of Justice, Washington, D.C., for defendant.

MEMORANDUM AND ORDER

JACKSON, District Judge.

This hybrid wrongful death case is presently before the Court on defendant's motion for summary judgment. The facts material to the disposition made hereby are not in dispute.

Plaintiffs Mary Sue and Talmon Sexton seek damages from the United States under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq. (1965), for allegedly improper medical care provided to their infant son, Dwayne, by the Oak Ridge Associated Universities clinic ("ORAU") in the mid-1960's. ORAU, a non-profit Tennessee corporation owned by a consortium of educational institutions, operated a cancer research program in Oak Ridge, Tennessee, which was funded by the Atomic Energy Commission ("AEC"), a federal agency, pursuant to contract. In July, 1965, Dwayne Sexton entered the ORAU clinic with a diagnosis of acute lymphatic leukemia. His treatment included experimental immunotherapy, to which his parents consented, in ignorance, they say, of conventional alternatives which might have proved more beneficial had they been employed.¹ Dwayne died at age six on December 29, 1968, three and one-half years after his disease was diagnosed. Plaintiffs claim that their son was used as an "unwitting human guinea pig" for research in nuclear radiation, a tragic misadventure for which the government was responsible. Specifically, plaintiffs allege that the Division of Biology and Medicine of the AEC negligently implemented the funding, supervision and conduct of the research, by failing to take adequate precautions to assure the rights and safety of potential human research subjects.

The United States moves for summary judgment of dismissal on several grounds: (1) the statute of limitations under the FTCA has run on the cause of action; (2) the AEC's actions fall within the discretionary function exception to the FTCA's waiver of sovereign immunity; (3) the culpable conduct, if any, was that of ORAU which comes within the independent contractor exception to FTCA liability; and (4) the plaintiffs' amended complaint does not state a cognizable cause of action in tort upon which relief could be granted. Because the Court concludes that the FTCA's two-year statute of limitations bars this action, defendant's motion for summary judgment will be granted without reaching the remaining issues.

Section 2401(b) of Title 28 provides that tort claims against the United States must be brought "within two years after such claim accrues." 28 U.S.C. § 2401(b) (1976). The parties are agreed that application of the statute to the circumstances of this case is controlled by Kubrick v. United States, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979), in which the Supreme...