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October 8, 1986

ELIZABETH BARRETT, Individually and as Administratrix of the Estate of Harold Blauer, Deceased, Plaintiff,

The opinion of the court was delivered by: MOTLEY


This action arises from the death of Harold Blauer on January 8, 1953 as the result of injections of synthetic mescaline compounds he was given at the New York State Psychiatric Institute. Shortly after Mr. Blauer's death, his ex-wife brought an action against the State of new York on behalf of the estate, which she eventually settled.

 In 1975 it was disclosed that the drug compounds injected into Mr. Blauer had been supplied by the United States Army as part of chemical warfare experiments. After this revelation, Mr. Blauer's daughter, Elizabeth Barrett, instituted tree law suits during the period from 1976 through 1978 against the United States government and against various employees of the United States and the State of New York.

 In essence, plaintiff requested damages for three alleged wrongs: conspiracy to use Mr. Blauer in three alleged wrongs: conspiracy to use Mr. Blauer in chemical warfare experiments without his knowledge or consent, negligent treatment with the drug compounds, and a post-death conspiracy to conceal the role of the federal government in the matter. From the time tree actions were commenced, defendants have moved to dismiss them on numerous grounds, including failure to state a claim, lack of personal jurisdiction, res judicata, statute of limitations, immunity, release, and lack of standing. This extensive motion practice and the final consolidation of the three cases into one has at last given birth to the current action, which is bout to go to trial.

 By Opinion and Order dated March 18, 1980, the court granted the motion of certain individual defendants *fn1" to dismiss the actions against them based on lack of personal jurisdiction. Plaintiff them moved for leave to reargue the motion in the future, after she had a chance to develop in discovery facts that would establish personal jurisdiction. In an order dated August 29, 1980, the court granted plaintiff's motion and vacated the prior order of dismissal.

 Now that discovery is complete, several federal defendants, some of whom are among those who moved for dismissal in 1980, have again moved to dismiss the action with respect to them for lack of personal jurisdiction. These defendants are the Estate of Amedeo S. Marrazzi, Van M. Sim, Herbert K. Greer, Frederick C. Lough, the Estate of Harris J. North, William M. Creasy, and George S. Leonard (the "moving defendants").


 In December of 1952, Harold Blauer, 42 years old, was admitted voluntarily to the New York State Psychiatric Institute (NYSPI) for psychotheraputic treatment for depression. During the course of his treatment, Mr. Blauer was injected on several occasions with synthetic masculane derivative. On January 8, 1953, after one of these injections, he died. The death certificate furnished by the New York City Medical Examiner listed the cause of death as "Corornary arteriosclerosis; sudden death after intravenous injection of a mescaline derivative, January 8, 1953."

 The synthetic compound that killed Mr. Blauer was supplied by the United States Army Chemcical Corp pursuant to a contract between the Corps and NYSPI. The contract provided for the testing on Human subjects of experimental mind-altering compounds developed for chemical warfare. The contract prohibited NYSPI from disclosing the Army's involvement. Thus Blauer was not aware of the Army's role until the Secretary of the Army disclosed this information in August of 1975.

 Upon learning of Blauer's death, Dr. Amedeo S. Marrazzi went to NYSPI in New York on January 10, 1953 to investigate. Dr. Marrazzi was the ARmy's Project Officer for the NYSPI drug testing contract at the time of Mr. Blauer's death. His estate is one of the moving defendants.

 At NYSPI, Marrazzi obtained records detailing the effects of the injections. According to Dr. Marrazzi's trip report, while in New York he also "prevailed on one of the New York City medical place all the records in a confidential file in the medical examiner's office." Marrazzi also attended a meeting at NYSPI on February 4, 1953, at which he discussed safety procedures for the drug testing program. Marrazzi discussed Blauer's death again on February 16, 1985 with General William Creasy, the Commander of the Chemical Corp. In April of 1953, Amy Blauer, Mr. Blauer's ex-wife and the administratrix of the estate, brought an action for damages against the State of New York in the New York Court of Claims. Mr. David Marcus, then Assistant Attorney General of the State of New York, was assigned to defend the case. In the course of the defense he uncovered the Army's role in Blauer's death. Marcus conferred with the Army's litigation division on January 13 and 14, 1954. He was told that information about the source of the chemical compound that had caused Blauer's death was classified and that the Army's role was to be kept secret.

 On July 6 and 12, 1954, moving defendants Leonard, Marrazzi, Greer, and North met with other officials at the Department of Justice to consider the Government's response to Blauer's death. At the time, Leonard was first assistant to them Assistant Attorney General Warren E. Burger, Civil Division, U.S. Department of Justice; Marrazzi was project officer for the drug-testing contract with NYSPI; Greer was Legal Advisor to the Chief Chemical Officer; and North was an attorney with the Army Advocate General Corps. Among the issues these men discussed were way to conceal the Army's involvement with the injections. David Marcus attended at least one of these meetings, and he did in fact work to conceal the Army's involvement throughout the litigation and settlement negotiations carried on in New York. Further discussion within the federal government about the need to keep the Army's role in Bluaer's death secret involved at various times moving defendants Greer, Creasy, Leonard, Marrazzi, and North.

 In October of 1954, North wrote a memorandum to Greer recommending that certain documents linking the Army with Blauer's death be removed from New York to the Chemical Corps Procerement Agency in Maryland, where he believed they would be beyond the subpoena power of New York court. Those documents were in fact never produced or revealed to the Estate in the 1950's and were later discovered in the safe of moving defendants Dr. Van M. Sim, who took over Dr. Marrazzi's responsibilities in January of 1956 at the Edgewood Arsenal in Maryland. Mr. Sim was also stationed at the Edwood Aresenal from November, 1952 to November, 1954, during which time he worked for the United State Navy and, he claims, was uninvolved with any chemical testing.

 In 1955, moving defendant Frederick Lough succeeded Herbert Greer as Legal Advisor to the Chief Chemical Officer. Lough recommended that his office considering paying one half of a settlement arrangement between New York State and Blauer's estate to protect the secrecy interest of the United States Government.

 Later in 1955, Blauer's estate agreed to settle its claim against the State of New York for $15,000. Under procedures in effect in 1955, the State of New York could not settle the case without presenting evidence of prima facie liability to the New York Court of Claims. Before making this showing in open court, Assistant Attorney General Marcus revealed the Army's involvement to the Claims Court judge in an ex parte conference. In response, the judge increased the settlement figure to $18,000.

 Amy Blauer, as administratrix of the estate, accepted the settlement and signed a broad release. The release covered not only the State of New York, its employees, and other persons involved, but also the "governmental body or agency which furnished the drug use din the drug study which resulted in the death of Harold Blauer." On June 9, 1955, the Department of the ARmy paid $9,000 to the State of New York to cover one half of the settlement.

 The ARmy's involvement in Harold Blauer's death and the fact that the mescaline derivatives were furnished as part of its chemical warfare testing program remained secret for 20 years and would have remained so were it not for the disclosure of the surrounding facts by the Secretary of the ARmy on August 12, 1975.


 I. Procedural Issues

 Plaintiff opposes the present motion to dismiss for lack of personal jurisdiction on both procedural and substantive grounds. Procedurally, plaintiff contends that defendants' motion to dismiss is improper at this time because the action has not yet come to trial. The court's 1980 order vacating a prior order of dismissal for lack of jurisdiction gave the defendants leave to challenge jurisdiction again "at trial." Barrett v. Hoffman, 76 Civ. 381 ...

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