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BARRETT v. HOFFMAN

August 27, 1981

Elizabeth BARRETT, Plaintiff,
v.
Martin HOFFMAN, et al., Defendants. Elizabeth BARRETT, Plaintiff, v. UNITED STATES of America, et al., Defendants. Elizabeth BARRETT, Plaintiff, v. Frank M. ARTHUR, et al., Defendants



The opinion of the court was delivered by: PIERCE

OPINION AND ORDER

These actions arise from the tragic death of Harold Blauer on January 8, 1953 at the New York State Psychiatric Institute ("the Institute"). The 42 year old Blauer had been voluntarily admitted to the Institute for psychiatric treatment following shock therapy at Bellevue Hospital. Shortly after his death Blauer's ex-wife commenced an action on behalf of the Estate against the State of New York in the New York State Court of Claims for wrongful death and negligence in administering to Blauer injections of allegedly toxic substances. The Estate settled the claims against the State in 1955 for $ 18,000.

 Reasserting claims similar to those stated in the former state action, the complaints herein allege that while Blauer was a patient at the Institute he was involuntarily treated with unknown drugs "solely for experimental purposes, without any proper diagnostic or therapeutic purposes thereof and without proper information as to the nature, composition and effects of those drugs." (Barrett v. Hoffman, Complaint P 33). An additional allegation is made that the drugs were supplied to the Institute pursuant to "a 1951 secret contract" between the Chemical Corps Procurement Agency of the Department of the Army and the New York State Psychiatric Institute (Barrett v. Hoffman, Complaint P 44) *fn1" and were given to Blauer "solely to test their efficacy as chemical warfare weapons." (Plaintiffs' Rule 9(g) Statement). The gravamen of plaintiffs' *fn2" present claim in the current three civil rights actions is that salient facts surrounding Harold Blauer's death were withheld from the Estate at the time of the settlement in the state court action. Defendants move to dismiss the complaints herein based upon a variety of legal theories. For the reasons discussed below, the motions are granted on the grounds that actions are time barred.

 INTRODUCTION

 It is not disputed that the federal government, the Institute and their representatives secretly conducted drug tests on Blauer. Nor is it disputed that the Estate was represented by counsel *fn3" and settled its claims with incomplete knowledge of the full panoply of facts surrounding the decedent's death. At issue here is whether decedent's Estate, injured by grossly offensive acts of government may obtain additional redress in federal court a quarter of a century after the injuries were sustained, based upon relatively recent revelations by the federal government of its involvement in the events which led to Blauer's death.

 After careful consideration of the facts and history of plaintiffs' claims, and of the applicable law, the Court concludes that these actions are time-barred by the relevant statutes of limitations and that these bars cannot be lifted by application of equitable tolling principles. Although the Court holds for defendants herein on the affirmative defense asserted, the Court's decision should not be construed as countenancing the government's actions in testing drugs on human subjects or in failing to timely reveal the full extent of its involvement in Blauer's death. As discussed hereinbelow, the failure of plaintiff's predecessor to timely and diligently press her rights in the prior action leads this Court to conclude that the current suits present no legally cognizable claim for relief in the federal courts. *fn4"

 Before turning to the issues presented herein, a review of the history of this controversy is warranted.

 FACTS

 Harold Blauer was survived by his daughters, Belinda and Elizabeth (the plaintiff herein), and by his ex-wife, Amy Blauer. The Blauers had been divorced in August of 1952. Soon after Harold Blauer's death, Amy Blauer retained an attorney from a large Manhattan law firm to investigate her ex-husband's death and to take appropriate legal action. The autopsy report which the firm obtained revealed the cause of death to be: "Coronary arteriosclerosis; sudden death after intravenous injection of a mescaline derivative, January 8, 1953." Members of the firm also interviewed Mrs. Blauer, obtained copies of the death certificate, and contacted at least one physician to discuss the drug mescaline.

 Thereafter, on April 2, 1953, Amy Blauer, acting as Administratrix of the Estate of Harold Blauer, commenced an action against the State of New York in the New York State Court of Claims. The complaint charged:

 
"The State of New York, by its agents, servants or employees, negligently, carelessly and improperly caused and permitted a substance to be administered to said decedent by injection; that although the State of New York prior to such date, administered such substance to decedent by injection and although, on such prior occasions, said decedent had reacted adversely and was made violently ill from the effects thereof and although the State of New York had knowledge of such adverse reaction and violent illness on the part of the decedent, it nevertheless negligently, carelessly and improperly administered said substance on the date in question to decedent; that the said substance so administered by the State of New York as aforesaid to decedent was toxic and dangerous; that The State of New York negligently, carelessly and improperly caused and permitted the same to be so administered by an inexperienced, incompetent and improper person; that The State of New York negligently, carelessly and improperly caused and permitted an overdose of the same to be so administered to decedent; that The State of New York, after the administration of said substance as aforesaid, and upon the said decedent thereupon reacting adversely, further negligently and carelessly failed to apply the proper remedies to revive decedent from the effects of said substance so administered to decedent."
 
(Ct. of Claims Complaint P 13)

 The complaint further charged: "(As) a result of the foregoing said decedent died on January 3, 1953." (Ct. of Claims Complaint P 14). The Estate commenced no action against either the physicians at the Institute or the Institute itself.

 By Order dated January 4, 1954 Judge George Sylvester of the New York State Court of Claims granted the Estate's motion "for inspection of the records pertaining to Harold Blauer ..." and for an examination of Drs. G. Schnack and James Cattell, the treating physicians. By the terms of that order relevant records were to be produced, and the Doctors examined at the Institute on January 12, 1954. Plaintiffs aver that this order was "apparently deliberately ignored." (Barrett v. Hoffman Complaint P 40).

 On May 17, 1955, with benefit of counsel but apparently without having pursued discovery from the defendant, Amy Blauer settled the Estate's claim against the State of New York for the sum of $ 18,000 and executed a general release. The settlement and release were approved after a two-day hearing in May of 1955 before Judge Fred A. Young of the New York State Court of Claims. The transcript of that hearing has been submitted by several of the parties herein. During that hearing Mrs. Blauer testified that she was aware that the hospital had administered a course of drug treatment for the purpose of making drug studies of her ex-husband's mental condition to which he had reacted negatively. She also revealed that to the best of her knowledge Harold Blauer had never suffered from a coronary condition. Mrs. Blauer indicated that she was accepting the settlement without duress or pressure and that she understood that the settlement sum of $ 18,000 would be the only award she would receive on her claim.

 Testimony was also received during the State Court of Claims hearings from Dr. Paul Hoch, the principal research psychiatrist at the Institute. Hoch testified that Blauer was injected with drugs as a part of a chemical therapy research project, that the drug study did not comport with standards acceptable in clinical practice at the time, and that Blauer had died directly as a result of the injection of the drug. Dr. Hoch was only questioned by David Marcus, Assistant Attorney General for the State of New York; Amy Blauer's attorney conducted no examination.

 Proposed findings of fact and conclusions of law were apparently submitted by Marcus with the acquiescence of Amy Blauer's attorney. Marcus emphasized on the record that, if the Court approved the settlement, the releases to be executed ran to "the State of New York, the New York Psychiatric Institute and all the doctors, agents and employees thereof; and to the organization, group, governmental body or agency which furnished the drugs used in the drug study which resulted in the death of Harold Blauer." The release executed by Amy Blauer on May 17, 1955 contained similar language. *fn5"

 Twenty years later, in August of 1975, approximately one year after Amy Blauer's death, the Secretary of the Army issued a press release announcing the discovery of a file revealing the death of a 42 year old male civilian during the course of chemical compound test programs administered by the Army to determine the clinical effects of psychochemical agents on the psychiatric behavior of human subjects. Harold Blauer was that male civilian.

 From the Army file Elizabeth Barrett, Blauer's daughter, allegedly discovered that the State of New York and the federal government had reached an agreement in 1954 whereby the United States would pay half of any settlement agreement reached by the State of New York in the Blauer State Court of Claims action if the purpose and role of the federal government in providing the drugs were not revealed. *fn6" It is undisputed that the federal government paid $ 9,000 of the $ 18,000 settlement amount received by the Estate.

 In September 1975, Elizabeth Barrett, filed an administrative claim with the United States pursuant to the requirements of the Federal Tort Claims Act (28 U.S.C. § 2675) alleging negligence by employees of the federal government in the death of Harold Blauer. The United States made no determination of the merits of the claim. Late in 1975, Elizabeth Barrett instituted an additional proceeding in the New York State Court of Claims to grant discovery and inspection prior to commencing an action. (NYCPLR § 3102(c)). On January 9, 1976 the Court of Claims denied her application for discovery and held that the 1955 settlement and judgment in the State Court of Claims barred further claims in that Court arising from the death of Harold Blauer. Referring to the circumstances surrounding the earlier settlement, the Court noted: "(It) is apparent to the Court that the Claimant had sufficient information to pursue her claim. The only thing that the Claimant in that action did not have was information pertaining to the involvement of the United States government, through the Department of the Army. The Court must properly question what difference this information would have had with regard to that claim." Barrett v. New York, 85 Misc.2d 456, 461, 378 N.Y.S.2d 946, 951 (Ct.Cl.1976).

 On January 22, 1976 having failed to obtain the relief she sought in the State Court of Claims, Elizabeth Barrett, individually, commenced an action in this Court pursuant to 42 U.S.C. §§ 1983, 1985(3) and 1986 and the Fifth, Ninth and Fourteenth Amendments. *fn7" The complaint charged that defendants officials of the Department of the Army and the Department of Justice, and physicians at the Institute conspired "to conduct a wide-scale experimental drug program upon human subjects" (Complaint P 32) and "to cover up the existence of the aforementioned wide-scale experimental drug program upon human subjects" (Complaint P 34) and "to inflict cruel and unusual punishment upon Blauer ... and to deprive plaintiff, Blauer and others of life, liberty and property without due process of law and of the equal protection of the laws." (Complaint P 36).

 On March 4, 1976 Elizabeth Barrett, individually and as Administratrix of the Estate of Harold Blauer, commenced an action against the United States of America, the Institute, the State of New York and several named state officials and doctors at the Institute. *fn8" Predicating her claims for relief on the Federal Tort Claims Act (28 U.S.C. §§ 1346(b), 2671, et seq.) and principles of pendent jurisdiction, Barrett charged that defendants wrongfully administered drugs to Blauer without his consent "solely for experimental purposes" which resulted in his enduring "pain, suffering, ... inconvenience ... (and) death." (Complaint PP 19, 20). The complaint also alleged that the drugs were administered as a part of a secret contract between the Army and the Institute, the existence of which Amy Blauer was unaware when she instituted her action in the New York State Court of Claims in 1953. (Complaint PP 22-24).

 On August 14, 1978 Elizabeth Barrett, individually and as Administratrix of the Estate of Harold Blauer, commenced a third action in this Court against officials of the Department of Justice, the Department of the Army and the Institute. *fn9" The averments of the complaint, brought pursuant to 42 U.S.C. § 1983 and the Fifth, Ninth and Fourteenth Amendments to the Constitution, were virtually identical to those set forth in Barrett v. Hoffman, 76 Civ. 381.

 The defendants in each of these actions moved to dismiss based upon a variety of legal theories including, inter alia, failure to state a claim, lack of personal jurisdiction, immunity, statute of limitations and res judicata. (See, Opinions and Orders of this Court dated, March 30, 1976, September 8, 1976, October 26, 1976, March 15, 1977, and March 18, 1980). By Orders dated March 30, 1976 and March 15, 1977, this Court stayed determination of defendants' motions to ...


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