Sweet v. U.S., 82-1041

• Decision Date: 26 August 1982
• Docket Number: No. 82-1041,82-1041
• Citation: 687 F.2d 246
• Parties: 11 Fed. R. Evid. Serv. 552 Calvin G. SWEET, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 246

687 F.2d 246

11 Fed. R. Evid. Serv. 552

Calvin G. SWEET, Appellant, v. UNITED STATES of America, Appellee.

No. 82-1041.

United States Court of Appeals Eighth Circuit.

Submitted June 16, 1982.

Decided Aug. 26, 1982.

Gregory A. Eiesland, Gary D. Jensen, Lynn, Jackson, Schultz & Lebrun, P. C., Rapid City, S. D., for appellant.

J. Paul McGrath, Asst. Atty. Gen., Washington, D. C., Terry L. Pechota, U. S. Atty., Rapid City, S. D., Robert S. Greenspan, Carlene V. McIntyre, Attys., Dept. of Justice, Civ. Div., Washington, D. C., for appellee.

Before LAY, Chief Judge, BRIGHT, Circuit Judge, and FAIRCHILD ^*, Senior Circuit Judge.

BRIGHT, Circuit Judge.

Calvin Sweet appeals from a judgment of the district court in favor of the United States. ¹ Sweet, a former serviceman, brought suit under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 (1976), seeking $3,905,710 in damages for injuries he allegedly sustained as a result of the Army's postdischarge negligence. Specifically, Sweet claims the Army: (1) failed to inform him that he had ingested lysergic acid diethylamide (LSD) as part of an Army experiment; and, (2) failed to provide him with postdischarge medical care. We affirm the judgment of the district court.

I. Background.

Calvin Sweet quit high school and joined the Army in 1955 at the age of seventeen. In 1957, Sweet volunteered to participate in a series of chemical warfare experiments conducted at the United States Army Chemical Center at Edgewood Arsenal in Maryland. There, on three separate occasions, Army personnel gave Sweet an unidentified, clear, odorless substance to drink. At trial, Sweet claimed this substance was LSD. The Army's records of the experiments do not indicate whether Sweet drank LSD or a harmless "control" substance used in the experiment. See Sweet v. United States, 528 F.Supp. 1068, 1071 n.2 (D.S.D.1981).

Sweet received an honorable discharge in 1959 and left the Army. In 1961, Sweet reenlisted and was sent to Germany. While stationed in Germany, Sweet created a disturbance in a cafe by suddenly overturning tables and chairs. Several military policemen restored order and took Sweet to an Army hospital. An Army physician diagnosed Sweet's condition as a "(p)assive-aggressive reaction, chronic, moderate, manifested by: episodes of antisocial behavior while under the influence of alcohol, chronic difficulty with authority figures and inability to adjust comfortably to assignments not of his liking." Sweet's commanding officer recommended that Sweet be discharged due to recurring nervous spells. In January 1962, Sweet received a voluntary general discharge.

On August 4, 1976, Sweet applied for veterans disability benefits, stating that among his ailments he suffered from a "(n)ervous condition, stomach condition (and a) dental condition * * * (which) are the result of a drug experiment I participated in * * * during my first enlistment * * *." After initially ruling against Sweet, the Veterans Administration awarded Sweet a fifty percent disability compensation.

In 1978, in conformity with provisions of the Federal Tort Claims Act, 28 U.S.C. § 2675(a) (1976), ² Sweet filed an administrative claim for $2 million in damages against the Department of the Army. Sweet stated that he suffered a "post-traumatic stress disorder" after the Army administered LSD to him in 1957. He claimed that the Army's postdischarge negligence in failing to notify him that he had been given LSD and in failing to provide him with postdischarge medical care aggravated his condition, causing it to become permanent and irreversible. The Army denied the claim and Sweet brought this suit in district court.

After a five-day bench trial, the district court entered judgment in favor of the United States. The district court held that (1) the Federal Tort Claims Act two-year statute of limitations, 28 U.S.C. § 2401(b) (1976), barred Sweet's action; (2) the doctrine of intramilitary immunity precluded recovery; and (3) Sweet failed to prove that the Government's failure to provide followup medical care after his discharge either caused his present mental condition or aggravated an earlier mental condition. Sweet v. United States, supra, 528 F.Supp. at 1070.

II. Discussion.

On appeal, Sweet argues that the district court (1) incorrectly ruled that the applicable statute of limitations barred his claim; (2) erroneously concluded that Sweet did not have a cause of action under the Federal Tort Claims Act; and (3) erroneously found that Sweet failed to prove that the failure of the United States to provide followup care caused his mental condition or aggravated an earlier mental condition. Sweet's legal arguments in support of contentions (1) and (2) present difficult questions. We do not reach them, however, because the district court's finding that Sweet did not establish a causal connection between the Government's allegedly wrongful conduct and Sweet's present mental condition is not clearly erroneous.

Sweet disputes the district court's determination on causation, arguing that the relevant underlying facts require an ultimate finding in his favor. He contends that the 1977 Veterans Administration fifty-percent disability award constituted an admission by the Government that the Army's 1957 experiment caused Sweet's disability. ³ Sweet argues that the district court should have given this determination substantial weight. We disagree.

Consistent with a policy of giving a generous interpretation of entitlement for veterans benefits, Veterans Administration proceedings resolve all reasonable doubt in favor of the applicants. ⁴ In the present case, Sweet must prove causation by a preponderance of the evidence. When Sweet applied for Veterans Administration benefits he bore a lesser burden of proving causation than he faces in his present suit. Thus, the district court properly refused to consider the Veterans Administration decision an admission by the Government.

Sweet also contends that the district court erred in according weight to the testimony of the Government's expert witnesses. Sweet argues that the Government's experts, Dr. Sidney Cohen and Dr. David Bean, were not qualified to offer opinions on the issue of causation. We do not agree, and, accordingly, hold that the trial court did not abuse its discretion, either in admitting the testimony of Drs. Cohen and Bean, or in according it weight.

An individual may testify as an expert if his knowledge of the subject matter qualifies him to offer an opinion that will most likely assist the trier of fact in arriving at the truth. Holmgren v. Massey-Ferguson, Inc., 516 F.2d 856, 858 (8th Cir. 1975). The determination of who may testify as an expert falls within the discretion of the trial court, and this court will not overturn it in the absence of an abuse of discretion or clear error of law. Gisriel v. Uniroyal, Inc., 517 F.2d 699, 702 (8th Cir. 1975). After reviewing the qualifications and backgrounds of the Government's experts, Drs. Cohen and Bean, we conclude that the trial court did not err in allowing them to testify as experts.

Dr. Cohen, a professor of psychiatry at the University of California at Los Angeles, has published two books and many articles on the subject of LSD. Dr. Cohen is widely recognized as one of the foremost experts in the field of LSD research. ⁵ Sweet argues that Dr. Cohen's credentials are "impressive...