Appeal from an order of the United States District Court for the Southern District of New York, Constance Baker Motley, Judge, denying the State of New York's motion to dismiss the third-party complaint of the United States of America on the ground of eleventh amendment immunity from suit in federal court. The United States, as defendant in a Federal Tort Claims Act suit commenced by a private citizen, impleaded the State of New York as a third-party defendant on a claim for contribution. The decision of the district court with respect to the appealable issue of eleventh amendment immunity is affirmed; the exercise of pendent appellate jurisdiction with respect to other issues is declined.
Timbers, Kearse and Mahoney, Circuit Judges.
The State of New York appeals from an order of the United States District Court for the Southern District of New York, Constance Baker Motley, Judge, denying its motion to vacate a prior order of that court permitting impleader or, in the alternative, to dismiss the third-party complaint of the United States against New York for contribution in a Federal Tort Claims Act suit brought by plaintiff Elizabeth Barrett against the United States. The district court denied New York's motion on the ground, inter alia, that the eleventh amendment did not bar jurisdiction of a third-party action for contribution by the United States against New York in federal court.
On October 6, 1987, the United States moved to dismiss this interlocutory appeal on the ground that the eleventh amendment claim was frivolous. A different panel of this court denied that motion. We have appellate jurisdiction of this interlocutory appeal under 28 U.S.C. § 1291 (1982) because the district court's denial of New York's motion on eleventh amendment immunity grounds constituted a reviewable collateral order. Minotti v. Lensink, 798 F.2d 607, 608 (2d Cir. 1986), cert. denied, 482 U.S. 906, 107 S. Ct. 2484, 96 L. Ed. 2d 376 (1987). But see Libby v. Marshall, 833 F.2d 402, 405 (1st Cir. 1987) (rejecting Minotti v. Lensink).
The facts concerning this litigation are set out in greater detail in previous opinions of this court, see Barrett v. United States, 798 F.2d 565 (2d Cir. 1986); Barrett v. United States, 689 F.2d 324 (2d Cir. 1982), cert. denied, 462 U.S. 1131, 77 L. Ed. 2d 1366, 103 S. Ct. 3111 (1983), and of the United States District Court for the Southern District of New York (summarized in Barrett v. United States, 660 F. Supp. 1291, 1295 n. 2 (S.D.N.Y. 1987)). They will not be repeated here, except as necessary to frame the issues now before this court.
Elizabeth Barrett is the administratrix of the estate of her father, Harold Blauer, who died in 1953 when the New York State Psychiatric Institute administered a drug to him in the course of a chemical warfare experiment which it was conducting in cooperation with the United States Army. Blauer had no knowledge of, and therefore did not consent to participate in, this experiment. Nor were these facts disclosed to Barrett when Blauer's estate initially reached a settlement in 1955 with New York State and the (unidentified) supplier of the drug administered to him in the amount of $18,000. This settlement was ratified by the New York Court of Claims, as required by New York law. The United States paid $9,000 of the $18,000 payment, but this was not disclosed to the payee, or apparently to the Court of Claims.
In August, 1975, however, the Secretary of the Army revealed the dismaying truth of the matter. Barrett thereupon commenced three suits in federal court, which have been consolidated. After a bench trial of Barrett's wrongful death claim against the United States under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b) and 2671-2680 (1982), the district court held that Blauer's death was proximately caused by the negligence of the United States in inadequately testing the fatal drug before providing it to the New York State Psychiatric Institute for human experimentation. On June 4, 1987, the Court entered judgment against the United States in the amount of $702,044.00. See Barrett v. United States, 660 F. Supp. 1291 (S.D.N.Y. 1987).
New York had originally been named as a defendant by Barrett, but had been dismissed from the action early in the litigation on the ground that New York was immune to direct suit by Barrett in federal court. Prior to the trial of Barrett's FTCA claim, however, the United States sought to implead New York as a third-party defendant. On June 27, 1986, the district court granted the United States leave to file the third-party complaint, which asserted claims for contribution and indemnity. After the main FTCA trial was concluded and judgment was entered against the United States, New York moved to vacate the prior order granting impleader or, alternatively, to dismiss the third-party complaint on several grounds, including eleventh amendment immunity from suit in federal court.
In an opinion issued on September 8, 1987, see Barrett v. United States, 668 F. Supp. 339 (S.D.N.Y. 1987), the district court held that, although the United States no longer had a claim against New York for indemnity, see Barrett v. United States, 668 F. Supp. at 340, its claim for contribution against New York as a joint tortfeasor was not barred by the eleventh amendment. The court also rejected contentions by New York that the United States' claim for contribution was barred by a release executed by the estate of Harold Blauer as part of the 1955 settlement with New York, and that the contribution claim was precluded, as a matter of res judicata, by the Court of Claims judgment approving the 1955 settlement and a subsequent 1976 Court of Claims dismissal of Barrett's petition for pre-suit discovery pursuant to N.Y. Civ. Prac. L. & R. 3102(e) (McKinney 1970).
For the reasons hereinafter stated, we affirm the district court's decision with respect to the eleventh amendment issue, and decline to exercise pendent appellate jurisdiction with respect to the release and res judicata issues.
A. Eleventh Amendment ...