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McCracken v. Brookhaven Science Assocs.

UNITED STATES DISTRICT COURT NOT FOR PUBLICATION EASTERN DISTRICT OF NEW YORK


March 13, 2009

TED A. MCCRACKEN, PLAINTIFF,
v.
BROOKHAVEN SCIENCE ASSOCS., LLC, ET AL., DEFENDANTS.

The opinion of the court was delivered by: John Gleeson, United States District Judge

MEMORANDUM AND ORDER

On June 23, 2008, Ted McCracken filed a complaint alleging numerous causes of action for damages inflicted on him by particle accelerators and "nuclear sites" linked in various ways to the defendants in this action.*fn1 For the following reasons, I dismiss McCracken's claims against the United States, the U.S. Department of Energy, the U.S. Department of Defense, and the U.S. Nuclear Regulatory Commission (collectively, the "federal defendants") on sovereign immunity grounds and dismiss his claims against the remaining defendants (collectively, the "private defendants") as untimely.*fn2

The federal defendants argue (1) that McCracken's claims against them are brought pursuant to the Federal Tort Claims Act ("FTCA"); (2) that only the United States, rather than its individual agencies, is a proper party in FTCA actions; and (3) that the FTCA does not apply to McCracken's claims because the facilities allegedly responsible for McCracken's injuries are owned by the government but operated by independent contractors. McCracken does not dispute any of these contentions, and I find them persuasive. Accordingly, McCracken's claims do not fall within the limited waiver of sovereign immunity represented by the FTCA, and must be dismissed on those grounds.

The private defendants argue that McCracken's various claims against them are untimely. McCracken does not dispute that his injuries arose, at the latest, on June 21, 2005, when he alleges that he was diagnosed with thyroid cancer. The instant action was filed on June 23, 2005, over three years later.*fn3

With regard to McCracken's claims that he was damaged by radiation from various particle accelerators, it is unclear whether his action against the non-federal defendants arises under state tort law or the Price-Anderson Act, which provides an exclusive federal right of action for damage arising from a "nuclear incident." 42 U.S.C. § 2014(q). However, I need not resolve this ambiguity. Whether McCracken's claims arise under state law or the Price-Anderson Act, the longest applicable limitations period is three years, see 42 U.S.C. § 2210(n)(1)(F); N.Y.C.P.L.R. § 214-c(2) (three-year limitations period for negligence and nuisance actions). Because McCracken admittedly discovered his injuries more than three years before filing this complaint, his claims against the non-federal defendants are untimely.

McCracken argues that N.Y.C.P.R.L. § 214-c(4) provides the relevant limitations period. Section 214-c(4) permits a claimant to file certain actions "within one year of such discovery of the cause of the injury." That is, the cause of action runs from the discovery of the cause of the injury, rather than the discovery of the injury itself. However, to avail himself of this provision, McCracken must "allege and prove that technical scientific or medical knowledge and information sufficient to ascertain the cause of his injury had not been discovered, identified or determined" prior to the expiration of the otherwise-applicable three-year period of Section 214-c(2). Id. at § 214-c(4). McCracken's opposition papers suggest that defendants have tried to conceal the harmful nature of their activities, Pl. Opp. Mem. 5, but these allegations do not appear in the complaint and are in any event insufficient to establish the applicability of the one-year "discovery of cause" limitation period. McCracken has also moved to, through papers received in chambers via overnight express on March 13, 2009, to file an amended complaint purporting to demonstrate the applicability of Section 214-c(4). Not only is this motion untimely, it is without merit, as I conclude that the proposed amendments fail to demonstrate the applicability of Section 214-c(4). Accordingly, I find McCracken has failed to rebut the private defendants' assertion that his complaint is untimely.

For the foregoing reasons, McCracken's complaint is dismissed and his motion to amend is denied.

So ordered.

John Gleeson, U.S.D.J.


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