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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