Orlikow v. U.S.
Cite as 682 F.S. 77 .(D.D.C.
1988)
Mrs. David Orlikow, et al.,
Plaintiffs,
V.
UNITED STATES of
America,
Defendant.
Civ. A. No. 80-3163.
United States
District Court,
District of Columbia.
Jan. 19,
1988.
Suit was filed under the Federal Tort Claims Act alleging
negligence by the Central Intelligence Agency in supervision and control over
its employees, reckless funding of hazardous experiments on human subjects, and
funding of medical malpractice. On motion of the United States for summary
judgment, the District Court, John Garrett Penn, J., held that: (1) alleged
conduct of the CIA in connection with alleged funding of research experiments by
plaintiffs' psychiatrist was not within the discretionary function exception to
the Tort Claims Act; (2) there were issues of fact precluding summary judgment
as to whether certain publications concerning CIA activities provided notice
sufficient to trigger statute of limitations under discovery to (3) with respect
to a particular plaintiff; there was a question of fact as to whether, because
of disorder allegedly caused by psychiatrist's "experiment," such plaintiff was
actually able to "know" of CIA involvement when he first heard thereof; (4) one
plaintiff's claim was barred by limitations; (5) claims did not "arise in a
foreign country" so as to be barred under the Tort Claims Act, though plaintiffs
were injured in Canada; and (6) valid claims of negligence were
asserted.
Motion granted in part and denied in part.
1.
United States 78(12)
Alleged conduct of the CIA in negligently funding human
experimentation and medical malpractice was beyond the authority of the agency
and not within the discretionary function of the Federal Tort Claims
Act.
1346, 2680(a).
2. United States 78(12)
When decision is
made to conduct intelligence operations by methods which are unconstitutional or
egregious, it is lacking statutory or regulatory authority and thus not within
the discretionary function exception to the Federal Tort Claims Act, but
allegation that employee has ignored any agency practice does not automatically
take activity outside of the discretionary function exception. 28 U.S.C.A. 1346,
2680(a).
3. United States 78(12)
Claim that CIA negligently supervised
employees who chose to fund research of psychiatrist who allegedly harmed
plaintiffs was distinguishable from any policy decision in implementing plan to
do brainwashing research, and alleged pure and simple acts of negligence not
within the discretionary function exception to the Federal Tort Claims Act. 28
U.S.C.A. 1346, 2680(a).
4. United States 78(8)
Where claim alleges
negligence by government official in failing to properly control or supervise
another government employee, who in turn commits an intentional tort, negligence
claim is barred under the Federal Tort Claims Act because it arises out of the
intentional tort. 28 U.S.C.
A. 1346, 2671 et seq.
5. Limitation of
Actions 95(l)
The diligence discovery rule which delays running of
statute of limitations applicable to the Federal Tort Claims Act applies not
only to concealment cases but also where a plaintiff demonstrates that his
injury was inherently unknowable at the time he was injured. 28 U.S.C.A.
1346,
2401(b).
6. Limitation of Actions
95(l)
Psychiatrist's knowledge of patients' injury did not constitute
accrual date of patients' claims where they were suing the United States for
negligence by the CIA in secretly funding doctor who allegedly carried out
experiments on unwitting human subjects, and not on a vicarious liability
theory.. 28 U.S.C.A. 1.946, 2401(b)
28 U.S . C.A.