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STADT v. THE UNIV. OF ROCHESTER

April 16, 1996

MILTON C. STADT, as executor of the Estate of JANET STADT, deceased, Plaintiff,
v.
THE UNIVERSITY OF ROCHESTER, The Estate of STAFFORD L. WARREN, deceased, HYMER FRIEDELL, CHRISTINE WATERHOUSE, ROBERT E. ROWLAND, and the UNITED STATES OF AMERICA, Defendants.



The opinion of the court was delivered by: TELESCA

 INTRODUCTION

 Plaintiff Milton C. Stadt, as executor of the Estate of his mother Janet Stadt, ("Stadt"), brings this action pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671 et. seq., claiming that the defendants violated decedent's Fifth Amendment right to life, liberty, privacy, and bodily integrity. Plaintiff also asserts state law claims of fraud, conspiracy, and medical malpractice. Defendant Hymer L. Friedell ("Friedell") and the Estate of Stafford L. Warren ("Warren") move pursuant to Rule 12(b) of the Federal Rules of Civil Procedure to dismiss all claims against them on grounds that: 1) they are absolutely immune from suit on plaintiff's state law claims, 2) the court lacks personal jurisdiction over them, 3) the defendants are entitled to qualified immunity from suit on plaintiff's federal claim, and (4) the Estate of Warren lacks the capacity to be sued. In the alternative, defendants Friedell and Warren move for summary judgment.

 Counsel for both the plaintiff and the Estate of Stafford Warren stipulated to dismissal of plaintiff's claims against Dr. Warren in his individual capacity. *fn1" The parties also stipulated to dismissal of plaintiff's state law causes of action for conspiracy, fraud, and medical malpractice against both Friedell and Warren. Thus, the only issue remaining is whether or not the constitutional claims against defendant Friedell should be dismissed. For the reasons set forth below, Friedell's motion to dismiss plaintiff's constitutional claim is denied.

 BACKGROUND

 In 1945, as part of the United States Government's effort to develop nuclear weapons, a number of medical officers working in conjunction with the Army Corp of Engineers engaged in research concerning the effects exposure to radioactive substances had on the human body. As part of this study, Dr. Stafford L. Warren, the Chief Medical Officer of the United States Army Corp of Engineer's "Manhattan Engineer District," and Dr. Hymer L. Friedell, Warren's deputy, allegedly ordered that human subjects be injected with plutonium so that the effects of the radiation on them could be evaluated.

 As part of this study, plaintiff's decedent Janet Stadt, who was 41 at the time, was admitted to the University of Rochester Hospital in February of 1946. Stadt was allegedly told that she was being treated for scleroderma, a serious, but not life-threatening disease. On March 9, 1946, after spending approximately 20 days in the hospital, Stadt was allegedly injected with 6.5 micrograms of plutonium and studied for 65 days thereafter while remaining as a patient in the hospital. Plaintiff alleges that Stadt never gave her doctors permission to inject her with plutonium. On May 13, 1946, plaintiff was discharged, and throughout 1946 and 1947, she was subjected to additional blood, urine, and feces testing. Finally, Stadt underwent additional testing in 1972 by University of Rochester researcher Dr. Christine Waterhouse, again, without being told that she was part of an experiment to evaluate the effects of plutonium on her body. Plaintiff claims that as a result of the plutonium injections, Stadt suffered intense pain caused by severe bone degeneration and laryngeal cancer. Stadt passed away on November 22, 1975.

 DISCUSSION

 I. Defendant's Motion to Dismiss

 Defendant Friedell moves pursuant to Rule 12(b) (6) of the Federal Rules of Civil Procedure to dismiss plaintiff's federal claim against him on grounds that he is not subject to personal jurisdiction by this court, and is entitled to qualified immunity. A Rule 12(b) (6) motion may be granted only where "'it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)). For the reasons set forth below, I hereby deny defendant Friedell's motion to dismiss plaintiff's federal claim.

 II. Plaintiff's Federal Claim.

 Plaintiff claims that Friedell violated Stadt's Fifth Amendment right to life, liberty, privacy and "bodily integrity" by injecting her with plutonium without her consent. Friedell argues, however, that he may not be held liable to the plaintiff on grounds that this court does not have jurisdiction over him, or in the alternative, that he is entitled to qualified immunity from suit.

 A. The Court has Personal Jurisdiction ...


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