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BARRETT v. UNITED STATES

November 8, 1985

ELIZABETH BARRETT, Individually and as Adminstratrix of the Estate of HAROLD BLAUER, Deceased, Plaintiff, against UNITED STATES OF AMERICA, JAMES CATTELL, NEWTON BIGELOW, DAVID MARCUS, ESTATE OF AMEDEO S. MARAZZI, VAN M. SIM, HERBERT K. GREER, FREDERICK C. LOUGH, HARRIS J. NORTH, WILLIAM M. CREASY, JOHN H. DERRICK and GEORGE S. LEONARD, Defendants


The opinion of the court was delivered by: MOTLEY

MOTLEY, CH.J.,

Plaintiff Elizabeth Barrett has commenced this civil rights action both individually and as Administratrix of the Estate of Harold Blauer. Her causes of action against the various defendants arise out of the death of Mr. Blauer in January, 1953 after his fifth injection of a mescaline derivative drug. Twenty years after settling a wrongful death action brought against the State of New York in 1955, plaintiff was advised for the first time that the drug was supplied and administered as part of a drug experimentation program undertaken by the United States. Following this disclosure in 1975, plaintiff commenced three separate actions against various defendants which have now been consolidated. This case is now before this court on motions to dismiss and for summary judgment by the various defendants.

 FACTS

 In December, 1952, Harold Blauer, a forty-two year old professional tennis player and instructor, had been admitted voluntarily to the New York State Institute ["the Institute"], following shock therapy at Bellevue Hospital. On January 8, 1953, he died. He was survived by two daughters, Belinda and Elizabeth, and by his ex-wife, Amy Blauer. Shortly after Mr. Blauer's death, Mrs. Blauer retained the services of Kaye, Scholer, Fierman and Hayes to investigate her former husband's death and to take any appropriate legal action. The firm obtained copies of Mr. Blauer's death certificate which indicated that the cause of death was "Coronary arteriosclerosis; sudden death after intervenous injection of a mescaline derivative, January 8, 1953."

 On April 2, 1953, Amy Blauer, as Administratrix of the Estate of Harold Blauer, commenced an action in the New York Court of Claims against the State of New York. *fn1" She asserted two causes of action. The first claim alleged negligence in the care and treatment of decedent while he was a patient at the Institute. The second cause of action was for wrongful death based on the same allegation. The Estate moved for and was granted "inspection of the records pertaining to Harold Blauer" and examination of Blauer's treating physicians, Drs. G. Schnack and James Cattell. Pursuant to the order, the records were to be produced and the Doctors deposed at the Institute on January 12, 1954. While the State of New York never complied with this order, the attorneys for the Estate never undertook steps to enforce the court order.

 On May 17, 1955, Amy Blauer settled the claim against the State of New York for the sum of $18,000.00. Mrs. Blauer was then represented by the law firm of O'Dwyer & Bernstein. A two day hearing was held before Judge Fred A. Young of the New York State Court of Claims. Prior to this hearing, David Marcus, who

 was then the Assistant Attorney General of the State of New York and represented the State, informed the Judge in an ex parte chambers conference that the United States supplied the drugs administered to Harold Blauer. He also advised the Judge that many of the documents involved in the action were classified. *fn2"

 During the settlement hearing, Mrs. Blauer testified that she was aware that her ex-husband had received a course of drug treatment for the purpose of making drug studies of his mental condition. In addition, she stated that to the best of her knowledge decedent did not suffer from a coronary condition and that she was settling the action voluntarily, free from duress and pressure. She also noted that she knew that the settlement sum of $18,000.00 was the only award that she would receive.

 In addition to Mrs. Blauer, testimony was received at the hearing from the principal research psychiatrist at the Institute, Paul Hoch. Questioned only by David Marcus, Dr. Hoch testified that the drugs were administered to Mr. Blauer as part of a chemical therapy research project and that decedent died as a direct result of these drug injections. Furthermore, Dr. Hoch indicated that the drug study failed to comport with acceptable standards of clinical practice at that time.

 Proposed findings of facts and conclusions of law were then submitted by Mr. Marcus with the acquiescence of Mrs. Blauer's counsel. The court approved of the settlement and release after the hearing.

 The general release executed by Mrs. Blauer provided in relevant part that:

 
AMY BLAUER, as Administratrix of the Goods, Chattels and Credits of HAROLD BLAUER . . . in consideration of the sum of EIGHTEEN THOUSAND ($18,000.00/100) DOLLARS . . . paid by The State of New York, New York State Psychiatric Institute, all doctors, agents and employees thereof and the organization, group, governmental body or agency which furnished the drug used in the drug studies which resulted in the death of HAROLD BLAUER remise, release, and forever discharge the said State of New York, New York State Psychiatric Institute, all doctors, agents and employees thereof and the organization, group, governmental body or agency which furnished the drug used in the drug studies which resulted in the death of HAROLD BLAUER . . . from all and all manner of action and actions, cause and causes of action, suits, debts, dues . . . which against them I ever had, now have, or which I or my heirs, executors, or administrators hereafter can, shall or may have
 
. . . .

 In his findings of facts and conclusions of law, Mr. Marcus also emphasized that the release ran to the State of New York, the Institute and all of the doctors, employees and agents of the Institute. In addition, he indicated that the release ran to ,,the organization, group, governmental body or agency which furnished the drugs used in the drug study."

 Amy Blauer died in 1974. In August, 1975, a press release was issued by the Secretary of the Army announcing that a file had been discovered which revealed the death of a forty-two year old male civilian, Harold Blauer. The file indicated that Mr. Blauer died during the course of chemical compound test programs which were administered by the Army to determine the clinical effects of psychochemical agents on the psychiatric behavior of human subjects.

 After subsequently reviewing the file, Elizabeth Blauer Barrett, Harold Blauer's daughter, learned that in 1954 an agreement was reached between the State of New York and the United States whereby the latter would pay half of any settlement agreement reached by the State of New York in the Court of Claims action provided that the purpose and role of the federal government in providing the drugs were not revealed. In September, 1975, Mrs. Barrett, as "daughter of Harold Blauer", filed an administrative claim with the United States in accordance with the requirements of the Federal Tort Claims Act, 28 U.S.C. section 2675. She sought damages for the wrongful death and the pain and suffering of Harold Blauer. No determination as to the merits of the claim was made by the United States.

 Seeking discovery and inspection prior to commencing an action, Elizabeth Barrett commenced an additional proceeding in the New York Court of Claims late in 1975. On January 9, 1976, her application for discovery was denied by the Court of Claims. It analyzed plaintiff's alleged cause of action against the state of New York and found it to be baseless. *fn3" The state court also held that the 1955 settlement and judgment barred further claims arising from the death of Harold Blauer in that court.

 Elizabeth Barrett, failing to obtain the relief she sought in the state court, next commenced an action in her individual capacity in this court, Barrett v. Hoffman, et al, 76 Civ. 381. In the complaint filed on January 22, 1976, Mrs. Barrett charged that defendants, officials of the Department of the Army and the Department of Justice, and physicians at the Institute, conspired together to conduct the expermental drug program upon human subjects and to "cover-up" the existence of such program. In addition, defendants were alleged to have conspired "to deprive plaintiff, Blauer and others of life, liberty and property without due process of law and of the equal protection of the laws," and "to inflict cruel and unusual punishment upon Blauer." Mrs. Barrett instituted this action pursuant to 42 U.S.C. sections 1983, 1985(3) and 1986, and the Fifth, Ninth and Fourteenth Amendments. The causes of action predicated on sections 1985(3) and 1986 were dismissed by Judge Pierce. Currently, the only remaining defendants from that action are David Marcus, the Assistant Attorney General of the State of New York who represented the State in the 1953 action in the State Court of Claims; Van Sim, a physician employed by the Department of the Army; George Leonard, a Department of Justice employee; Newton Bigelow, former Commissioner of the New York State Department of Mental Hygiene; James Cattell, Blauer's treating physician; the Estate of Amadeo Marrazzi, former Chief of the Clinical Research Division, Chemical Corps Medical Labrotories of the Department of the Army; William Creasey, a General in the Department of the Army; and John Derrick, Harris North and Herbert Greer, Colonels in the Department of the Army.

 A second action was commenced by Elizabeth Barrett on March 4, 1976, Barrett v. United States, et al., 76 Civ. 1061. Plaintiff sued the United States, the Institute, the State of New York and several named state officials and doctors at the Institute. Plaintiff commenced this suit pursuant to the Federal Tort Claims Act, 28 U.S.C sections 1346(b), 2671, et. seq. In this action, plaintiff alleged that defendants had wrongfully administered the drugs to decedent without his consent and solely for experimental purposes. As a result of defendants' alleged wrongful acts, Blauer is alleged to have endured "pain, suffering, . . . inconvenience . . . [and] death." The complaint also included charges that the drugs were administered pursuant to a secret contract between the Institute and the Army, and that Amy Blauer was never advised of this fact when she instituted the Court of Claims action in 1953. The United States Government is the only remaining defendant.

 A third action was commenced in this court by Mrs. Barrett on August 14, 1978, Barrett v. Arthur, et al., 78 Civ. 3762. This time Mrs. Barrett sued in both her individual capacity and as Administratrix of the Estate of Harold Blauer. Officials of the Department of Justice, the Department of the Army and of the Institute were sued. The only remaining defendant from that action is Frederick Lough, legal advisor to the Chief Chemical Officer of the Army. Mrs. Barrett again relied on 42 U.S.C. section 1983 and the Fifth, Ninth and Fourteenth Amendments, and charged vitrually the same allegations as set forth in her complaint in Barrett v. Hoffman, 76 Civ. 381.

 After the defendants in these actions moved to dismiss, Judge Pierce, the District Court Judge to whom these cases originally were assigned, authorized discovery limited to the issues of res judicata, release, and statute of limitations. Voluminous records, affidavits and briefs were submitted to Judge Pierce after approximately four years of discovery. The motions to dismiss were converted to motions for summary judgment pursuant to Fed.R.Civ.P. 56. Judge Pierce, "[c]onstruing the pleadings and evidentary submissions of the parties in the light most favorable to the plaintiffs," found that there were "no genuine issues of material fact which must be determined at trial relevant to the issue of when plaintiffs' cause of action accrued." Barrett v. Hoffman, 521 F. Supp. 307, 314 (S.D.N.Y. 1981). In addition, he found that a cause of action under section 1983 did not lie for plaintiff's claim of fraudulent concealment. Id. at 314-15. *fn6"

 In Barrett v. United States, 689 F.2d 324 (2d Cir. 1982), the Second Circuit reversed Judge Pierce. The Circuit Court indicated that a three year statute of limitations governed the plaintiff's section 1983 causes of action but ruled that an issue of fact existed as to when the statute of limitations began to run. The diligence-discovery accrual standard was held applicable to both the Federal Tort Claims Act and section 1983. The court noted that:

 
[T]here exist factual disputes both as to whether diligence was employed by the estate without success and whether the role of the Army Chemical Corps would in any event have been revealed. Thus, the instant situation is unusual because even if the plaintiffs knew what caused Blauer's death, the path to unmasking who was responsible may well have been blocked. It is illogical to require a party to sue the government for negligence at a time when the Government's responsibility in the matter is suppressed in a manner designed to prevent the party, even with reasonable effort, from finding out about it.

 Id. at 330. The date on which the statute of limitations began to run constituted a genuine issue of material of fact which was to be resolved at trial.

 The Circuit Court also held that plaintiff had presented at least disputed factual issues as to whether defendants had deprived her of due process by concealing the involvement of the United States in the drug experimentation program during the discovery and settlement negotiations of the 1955 Court of Claims action. This claim, according to the appellate court, was cognizable under section 1983 since plaintiffs had a federally protected right not to be deprived of their property interest in the FTCA action without due process. Id. at 332. This action was then remanded for trial in accordance with the Court of Appeal's opinion. Id. at 333.

 Since Judge Pierce had been appointed to the Second Circuit prior to the remand, this case was reassigned to this court. Plaintiff was granted leave to file an amended complaint after obtaining new counsel for the fifth time in this action. In her amended complaint, plaintiff has added Bivens claims against several defendants and raises all claims in both her individual and representative capacity.

 The various defendants have moved either to dismiss the amended complaint or for summary judgment. A discussion on the motions follows below. Defendants' motions are granted in part and denied in part.

 DISCUSSION

 MOTIONS TO WHICH PLAINTIFF CONCEDES

 The United States contends that the administrative claim filed by Elizabeth Barrett in September, 1975 (Exhibit "E" of Fed. Rule 3(g) Statement of Federal Defendants), a prerequisite to an FTCA suit against the United States, 28 U.S.C. section 2675, failed to set forth facts alleging an individual claim by her. Plaintiff concedes that she did not file the requisite Notice of Claim. Accordingly, the FTCA claims brought by Elizabeth Barrett individually against the United States are dismissed.

 Plaintiff's amended complaint includes a third cause of action against defendants Marazzi, Sim, Greer, Lough, North, Creasy and Derrick, which alleges that they "acted to and did inflict cruel and unusual punishment upon Mr. Blauer and deprived him of life, liberty and property without due process of law and of the equal protection of the laws." (Amended Complaint, paragraph 47.) Plaintiff, in her fourth cause of action against defendants Cattell, Bigelow, Marazzi, Sim, Greer, Lough, North, Creasy and Derrick asserts the same claim. See Amended Complaint, paragraph 52. Defendants argue that the plaintiff may not sue under the Eighth Amendment. Plaintiff asserts that she never sought to bring suit under the Eighth Amendment. Therefore, any Eighth Amendment claims plaintiffs may have raised in their amended complaint are dismissed.

 Plaintiff's first claim for relief is against the United States and seeks damages for the wrongful death of Harold Blauer and for "the resulting pecuniary losses suffered by plaintiff." In setting forth her allegations, plaintiff asserts that representatives of the United States and the State of New York conspired to conceal information from Amy Blauer and the New York Court of Claims regarding Blauer's death, and supplied false information to the New York City Medical Examiner. See Amended Complaint, Paragraph "38". Additionally, plaintiff alleges that the alleged conspirators obtained a fraudulent release and settlement from Mrs. Blauer by "providing her with false and misleading information concerning Blauer's death," and concealed the involvement of the United States. Id.

 Defendant United States asserts that this claim is precluded by 28 U.S.C. section 2680(h), which provides that claims predicated on "misrepresentation" or "deceit" are not actionable under the FTCA. Plaintiff, during oral argument, indicated that she was not suing the United States for misrepresentation but she only alleged those facts in response to the Government's allegations that the statute of ...


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