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July 23, 1986

LEON CAIN, Plaintiff,

The opinion of the court was delivered by: SWEET



 Plaintiff Leon Cain ("Cain") filed the action on December 26, 1984 alleging that the federal government and the State of New York violated his constitutional and civil rights by subjecting him to medical experimentation while incarcerated in New York State. Defendant United States of America ("the "government") has moved for an order dismissing this action pursuant to Rule 12(c) Fed.R.Civ.P. for lack of subject matter jurisdiction or alternatively pursuant to Rule 56 for summary judgment on the grounds that the action is time-barred. For the reasons set forth below, the motion is denied.


 From 1952 to 1955 Cain was incarcerated in Sing Sing Prison ("Sing Sing") in Ossining, New York, and was the subject of a syphilis experiment at the prison. The experiment was conducted by the New York State Health Department under the auspices of the United States Public Health Service, and consisted of the purposeful infection of subjects with treponema pallidum or syphilis spirochete bacteria, and subsequent treatment, in Cain's case with penicillin injections. The parties vigorously dispute the nature of this participation. Cain contends that he never consented to participate as a subject but merely consented to receive penicillin injections as treatment for the congenital syphilis with which he was infected when he entered Sing Sing in 1952.

 In 1957 Cain was under the care of Dr. David Marcus for his syphilitic condition, and told Dr. Marcus that he might have been involved in a syphilis experiment while at Sing Sing. When Dr. Marcus contacted the Department of Correction of the State of New York, he received a letter from Dr. A. L. Cimildora, dated April 23, 1963, denying the existence of a syphilis experiment and denying Cain's participation in such a study. The letter stated in relevant part: "Nowhere in any of his medical records pertaining to Sing Sing or any other institution in the Department of Correction is there any reference that he participated as a volunteer in any type of experiment where he received injections of spirachital matter or any other injections of any type." The letter stated that he had a positive serological titer (or measurement of the concentration of syphilis antibodies in solution) of 18 when he entered Sing Sing in 1952, that it rose to 170 in 1953 and declined to 30 when he was transferred to Auburn Prison in Auburn, New York, and that his titer level at discharge from prison on March 14, 1957 was 45.

 In 1976, Cain wrote to the office of then Governor Hugh Carey concerning the Sing Sing experiments, and received a response from the New York State Commissioner of Health, Robert P. Whalen, who answered that Cain had been a subject in a syphilis experiment at Sing Sing. The portion of the letter relevant to the government's statute of limitations defense provides:

As I am sure you are aware, you were a voluntary participant in an experiment study conducted while you were a prisoner in a New York State correction institution. The study involved the purposeful infection with treponema pallidum and subsequent adequate treatment. I have been informed that this study was performed under the supervision of Doctor Thomas under the authority of the United States Public Health service.

 In response to this information that a federal agency supervised the study, Cain went to the Public Health Service of the United States Department of Health, Education and Welfare in Manhattan and asked to receive treatment at the Public Health Service hospital on Staten Island. According to Cain, he spoke with Mr. Scott who advised him that the federal government had nothing to do with syphilis experiments, and that he could not be treated at Staten Island Hospital. This information was summarized in a letter from Dr. Nicholas J. Galluzzi, the Regional Health Administrator for the Public Health Service to Cain on January 26, 1976:

I have spoken with Mr. Scott regarding your particular situation. I can only reiterate what you have already been told. The U.S. Public Health Service Regional Office has no direct jurisdiction over the hospital on Staten Island nor any other health facility which could offer you the service you request.
. . .
Although I understand that you have explored most avenues, I suggest that you recontact the New York State Department of Health since the alleged incident occurred within a state institution.

 Dr. Galluzzi also explained that the federal hospital on Staten Island was authorized to deliver services only to statutory beneficiaries such as members of uniformed services and federal employees.

 Cain took no further action with respect to his claims until the fall of 1981, when he watched a television program which described a syphilis experiment conducted in Tuskegee, Alabama with the participation of the Public Health Service. Prompted by this program, Cain again visited the Public Health Service office in Manhattan and brought along the letter which he had received on January 23, 1976 from Robert Whalen stating that the United States Public Health Service had conducted these experiments at Sing Sing as proof of federal involvement.

 Cain wrote to Assistant Secretary Edward Brandt of the Department of Health and Human Services at approximately the same time, and also enclosed Robert Whalen's letter and the 1963 letter from Auburn Prison denying the government's role in the experiment. Cain's handwritten letter sets out his belief that he was one of the "human guinea pigs" in a syphilis experiment at Sing Sing, and requests information on compensation available to him.

 Cain received a response dated December 11, 1981 from Dr. William H. Foege of the Centers for Disease Control in Atlanta, who stated that Cain's records indicate that he had been a "voluntary participant" in a syphilis experiment at Sing Sing, concluded that there is no connection between his current medical problems and the experiment, and advised Cain that he could pursue the matter under the Federal Tort Claims Act at an address provided. On January 12, 1982, Cain wrote to Dr. Foege requesting copies of the records to which Dr. Foege referred in his letter of December 11, 1981. The records provided were (1) a sample release form used in the study; (2) the study publication entitled "Inoculation Syphilis in Human Volunteers"; (3) a case history summary, and (4) study participant record. The government could not produce a consent form signed by Cain. On February 5, 1982 Dr. Foege, in response to a letter from the New York Regional Office of Health and Human Services concerning Cain's request that the government substantiate its claim that his participation was voluntary, referred Cain to a portion of the study publication entitled "selection of patients" and the copy of the standard release form. The relevant portion of the study described these methods:

Prisoners confined at Sing Sing are all males, 21 years of age or older. They come primarily from urban centers in lower New York State, a factor of importance for two reasons. First, the only promise of reward that could be made to any of the volunteers was that they would not be transferred from the Sing Sing Prison until the study had been completed. Because Sing Sing is one of the more desireable prisons in the New York prison system, and because remaining there would permit more frequent visitation by relatives and friends, this promise proved a potent one in soliciting volunteers. The second factor of importance was that a large number of the men had ...

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