Orlikow v. U.S.
Cite as 682 F.S. 77 .(D.D.C. 1988)
78
12. Limitation of Actions 96(i)
7. Limitation of Actions 95(i)
Ignorance of the law ordinarily does not toll statute of
limitations.
8. Limitation of Actions 95(i)
Tolling of statute of limitations is justified where actual fact
that potential plaintiff has been injured is unknown or the facts
about causation may be in the control of the Putative defendant.
9. Limitation of Actions 195(3) In arguing that discovery rule
did not
prevent running of statute of limitations against claim based on
alleged CIA funding of research experiment on unwitting human
subjects, it was burden of the United States to show that the
plaintiffs could have discovered CIA involvement if they had
exercised due diligence.
10. Limitation of Actions 74(t)
Though insanity does not toll running of statute of limitations
in Federal Tort Claims Act cases, the conditions of plaintiffs
could be considered when evaluating whether they exercised due
diligence once degree of concealment was resolved, and where
alleged negligence allegedly caused the mental harm which
affected plaintiffs' ability to function normally in life,
question of due diligence, and thus when claim accrued, differed
from case where injury is not related to plaintiff's cognitive
functioning. 28 U.S.C.A. 1346, 2401(b).
11. Federal Civil Procedure 2515 There were issues of fact
precluding
summary judgment for the United States on ground of limitations,
in Federal Tort Claims Act action based on alleged negligent CIA
funding of research experiments on unwitting human subjects, as
to whether certain publications concerning CIA activities
provided notice triggering statute of limitations, in light of
questions as to the Statute of limitations on claim against the
United States based on alleged CIA negligence in funding research
experiments on unwitting human subjects did not begin to run as
soon as articles were published concerning CIA activities,
without actual notice or plaintiffs having read the articles. 28
U.S.C.A. 1346, 2401(b).
13. Federal Civil Procedure 2515 In Federal Tort Claims Act
action against the United States based on alleged negligent CIA
funding of research experiments on unwitting human subjects,
there was question of fact, Precluding summary judgment, as to
whether psychiatrists "experiment" interfered with
particular plaintiff's ability to be fully aware of the facts and
thus whether such plaintiff had knowledge of CIA involvement
sufficient to trigger statute of limitations more than two Years
prior to filing suit. 28 U.S.C.A. 1346, 2401(b).
14 Limitation of Actions 95(i)
Cause of action on claim against the United States for alleged
negligent CIA funding of research experiments on unwitting human
subjects accrued, for limitations purposes, when particular
patient learned of the funding, such that her attorney began to
seek information from the CIA, even though she did not then
possess a CIA confession or uncontroverted cause of action, 28 U.S.C.A.
1346, 2401(b).
15. Federal Civil Procedure 2515 In suit alleging reckless
funding of hazardous experiments by the CIA on human subjects and
funding of medical malpractice, there were issues of fact
precluding summary judgment on question of whether the CIA should
have known that Psychiatrist's research was clearly beyond the
medical standard of care.
16. United States 78(14)
Claim against the United States based on alleged negligence of
the CIA in supervising employees and funding medical malpractice
and research experiments on unwitting human subjects did not
"arise in a foreign country" so as to be precluded
under the Federal Tort Claims Act, though the injuries occurred
in Canada where the alleged acts or omissions of government
employees occurred in the United States. 28 U.S.C.A. 1346, 2680(k)
17. United States 140
Complaint asserting claims against the United States under the
Federal Tort Claims Act based on alleged negligent funding by the
CIA of extrahazardous activity, through the funding of research
experiments on unwitting human subjects, and negligent funding of
malpractice stated valid claims of negligence. 28 U.S.C.A. 1346,
2671 et seq.
James C. Turner, Washington, D.C., for plaintiffs.
Asst. U.S. Ally. John C. Martin, Wash-ington, D.C., for defendant.
OPINION
JOHN GARRETT PENN, District Judge.
Plaintiffs filed this Federal Tort Claims Act (FTCA), 28 U.S.C.
2671, et seq., suit against the United States for injuries
they sustained from an alleged experimentation/research project
funded by the Central Intelligence Agency (CIA). Defendant
characterizes the actions of Dr. Ewen Cameron, the psychiatrist
who utilized the CIA funds for his research, as psychiatric
treatment which falls within the parameters of acceptable medical
standards. The case is before the Court on defendant's motion for
summary judgment. Defendant has propounded numerous arguments
supported by a plethora of documents to which plaintiffs have
parried with countervailing arguments and evidence.' Despite the
copious paper filed in this motion, the issues can be narrowed to:
(1) whether defendant's actions fall within the discretionary
functionexception to the FTCA, (2) whether the statute of
limitations precludes suit by plaintiffs, (3) whether the actions
fall with-in the foreign country exception and, (4) whether the
CIA can be liable for the ac-tions of an independent contractor.
A thor-ough analysis of the case must begin with sorting through
the admitted facts and those issues which remain in dispute.
against this framework the relevant law is applied.
footnote: 1. This case presented unusual discovery problems for
the plaintiffs. Normally, a party preparing a case for trial is
entitled to fairly broad discovery. But, this case involves
alleged actions by the Central Intelligence Agency (CIA), while
purportedly operating a research project, code-named MK-ULTRA,
that was established to counter Soviet and Chinese advances in
brain-washing between 1953 and 1966. Persons who have sought to
obtain information on the project, and who filed an action
pursuant to the Freedom of Information Act, 5 U.S.C. 6 552, also
have been denied certain information concerning the program. See
C.I.A. vs. Sims, 471 U.S. 159, 105 S.Ct. 1981, 85 L.Ed.2d 173 (1985).]
1. BACKGROUND
The facts submitted in this case are labyrinthine and generally
not disputed. The pivotal issue, however, pertaining to whether
Dr. Cameron's research was medically sound therapy or
experimentation, is plainly in dispute. In their Amended
Complaint the plaintiffs allege, (1) negligent failure of
supervision and control over CIA employees, (2) negligent and
reckless funding of hazardous experiments, (3) liability for CIA
funding of medical malpractice. Amended Complaint at 19-24. A
brief overview of the case will provide the context in which this
action arose.
In the 1950s, the CIA initiated an expansive covert research
project, known as MKULTRA, which was designed to investigate
chemical and biological warfare. The project was established to
counter Soviet and Chinese advances in brainwashing and
interrogation techniques. Various subprojects were contracted out
to research institutions. Because the Agency funded the research
indirectly, participating individuals often were unaware of the
CIA involvement. C.I.A. v. Sims, 471 U@S. 159, 105 S.Ct. 1881,
1884, 85 L.Ed.2d 173 (1985). An April 3, 1953 memorandum reads:
Aside from the offensive potential, the development of a
comprehensive capability in this field of covert chemical and
biological warfare gives us thorough
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