339 F.3d 942, *; 2003 U.S. App. LEXIS 15620, **;
2003 Cal. Daily Op. Service 6974; 2003 Daily Journal DAR 8727

HAROLD BIBEAU; MELANIE ANN DOOYEN BIBEAU, on their own behalf and as representatives of classes of similarly situated persons, Plaintiffs-Appellants, v. PACIFIC NORTHWEST RESEARCH FOUNDATION, INC., a Washington corporation; BATTELLE PACIFIC NORTHWEST LABORATORIES, an Ohio corporation; BATTELLE MEMORIAL INSTITUTE, an Ohio corporation; MAVIS ROWLEY; DANIEL DIIACONI, Doctor, in his individual and former official capacity; FERNANDO LEON, Doctor, in his individual and former official capacity; ROBERT E. WILDMAN, in his individual and former official capacity; JOHN RANDOLPH TOTTER, in his individual and former official capacity; JAMES LESLIE LIVERMAN; UNITED STATES OF AMERICA, Defendants-Appellees.

No. 01-36147

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

339 F.3d 942; 2003 U.S. App. LEXIS 15620; 2003 Cal. Daily Op. Service 6974; 2003 Daily Journal DAR 8727

May 9, 2003, Argued and Submitted, Portland, Oregon
August 5, 2003, Filed

OPINION


[*944] PER CURIAM:

Harold and Melanie Bibeau appeal the district court's judgment in favor of the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680 (1994) ("FTCA"). We affirm.

I.

Harold Bibeau, a former prison inmate at the Oregon Department of Corrections, and his wife, Melanie Ann Dooyen Bibeau, brought claims under the FTCA based on personal injury suffered by Mr. Bibeau, who participated in prison based research. While incarcerated from 1963-1969, Mr. Bibeau participated in government funded research experiments that exposed his [**2] testes to high levels of radiation. These experiments, known as the "Heller Experiments," were designed to produce information regarding the effects of radiation on the male reproductive system. For voluntarily participating in the Heller Experiments, Bibeau was paid $ 5 per month for agreeing to radiation exposure, $ 10 per biopsy, and $ 100 for undergoing a vasectomy.

Bibeau alleges that, as a result of the experiments, he suffers from intermittent pain and rashes on his scrotum and groin, pain from the biopsies, as well as severe emotional distress. He also alleges that he suffers from a significantly increased risk of developing cancer and other serious illnesses. As a result, he requires medical monitoring.

After the district court dismissed the action, we affirmed in part and reversed and remanded in part. Bibeau v. Pacific Northwest Research Foundation Inc., 188 F.3d 1105 (9th Cir. 1999), modified, 208 F.3d 831 (9th Cir. 2000).

After the initial remand, the private defendants settled with Plaintiffs. The United States then moved to dismiss the case for lack of subject matter jurisdiction on the basis that the FTCA's discretionary function [**3] exception, 28 U.S.C. § 2680(a), barred the Bibeaus' suit. In January 2001, the district court granted the United States' Motion to Dismiss on the negligent supervision claims, holding that those claims were barred by the discretionary function exception. On subsequent motion, the district court held that the claim for intentional infliction of emotional distress ("IIED") was only partially barred by the discretionary function exception. The court ultimately dismissed this claim on a motion for summary judgment in October 2001, holding that the Bibeaus failed to establish two essential elements of their IIED claim: (1) an intent to inflict severe emotional distress on Mr. Bibeau, and (2) the causation of Mr. Bibeau's alleged emotional distress.

II.

We review a district court's decision to dismiss an action based on lack of subject matter jurisdiction under the discretionary function exception de novo. GATX/Airlog Co. v. United States, 286 F.3d 1168, 1173 (9th Cir. 2002). We accept as true the factual allegations in the complaint. Id.

[*945] A. The Discretionary Function Exception

The FTCA is a limited waiver of sovereign immunity, [**4] authorizing suit against the United States for tortious performance of governmental functions in limited cases. 28 U.S.C. §§ 1346(b), 2671-2680. See also GATX/Airlog, 286 F.3d at 1173. The Act is subject to some exceptions, including the "discretionary function" exception. These exceptions are to be strictly construed. FDIC v. Craft, 157 F.3d 697, 707 (9th Cir. 1998). If the asserted liability falls within an exception to the FTCA, then the claims must be dismissed for lack of subject matter jurisdiction. See Mundy v. United States, 983 F.2d 950, 952 (9th Cir. 1993).

The discretionary function exception exempts from liability "[a]ny claim based upon . . . the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." 28 U.S.C. § 2680(a). The Supreme Court has established a two-prong test for determining the applicability of the discretionary function exception. See United States v. Gaubert, 499 U.S. 315, 324-25, 113 L. Ed. 2d 335, 111 S. Ct. 1267 (1991). [**5] First, we ask whether the alleged wrongful conduct violated a specific and mandatory regulation or statute. Id. If so, the con-duct is outside the realm of discretion. Id. If there is no mandatory regulation or statute involved, we then ask whether the conduct was susceptible to being based upon social, economic, or political policy. Id.; Berkovitz v. United States, 486 U.S. 531, 536, 100 L. Ed. 2d 531, 108 S. Ct. 1954 (1988); see also GATX/Airlog, 286 F.3d at 1173-74; Miller v. United States, 163 F.3d 591, 593 (9th Cir. 1998). In review, a court must be mindful that "[t]he basis for the discretionary function exception was Congress' desire to 'prevent judicial "second-guessing" of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.' " Berkovitz, 486 U.S. at 536-37 (quoting United States v. S. A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814, 81 L. Ed. 2d 660, 104 S. Ct. 2755 (1984)).

The Bibeaus' negligent supervision claim is based on their allegation that the United States breached its duty to supervise and oversee the Heller Experiments. They contend that [**6] the Government breached the following specific duties: development of the Heller Experiments' protocol; ensuring that risks to experiment participants were minimized; ensuring that selection of participants was fair; and, ensuring that all participants were fully informed such that their consent was freely given.

With respect to all of the challenged actions, the first prong of the discretionary function test is clearly met. We can find no mandatory or prescribed government regulation on the record that required the agencies to supervise the manner in which their independent contractors implemented the research contracts. Furthermore, the Director of the Division of Biology and Medicine was given broad discretion to enter into contracts with outside scientists and research firms.

The Bibeaus principally rely on the existence of various letters exchanged by the Atomic Energy Commission and the Division of Biology and Medicine to prove the Government was constrained by a mandatory regulation in its supervision of the Heller Experiments. The letters discuss various biomedical issues, including safety concerns. Whether these letters constitute a mandatory regulation is not a close question: [**7] these sporadic communications, made by individuals of varying levels of [*946] importance to the operation of the experiments, cannot constitute a blanket regulation constraining the Government's operations.

The First Circuit addressed an issue strikingly similar to the one we face here in Heinrich v. Sweet, 308 F.3d 48 (1st Cir. 2002). In Heinrich, the plaintiffs brought a claim under the FTCA stemming from experimental radiation treatment conducted through the Atomic Energy Commission ("AEC") on individuals who suffered from an aggressive form of brain cancer. AEC funded these medical research trials during the years 1960-1961 through a contract with an outside research physician. Id. at 54-55. The First Circuit affirmed the district court's dismissal of the FTCA claims under the independent contractor exception, as well as the discretionary function exception. Id. at 59. Like the Bibeaus, the Heinrich plaintiffs urged the court to consider four letters written by AEC officials to be a mandatory regulation. The First Circuit declined, as we do now, reasoning that there was "no clear evidence that these letters represented any specific [**8] or binding AEC pol-icy" because "[t]hey are individual communications, not necessarily disseminated to anyone but their individual addressees . . . contain[ing] only broadly-worded statements . . . ." Id. Therefore, without some mandate, the decision not to supervise the Heller Experiments was an act of discretion. See Reed ex rel. Allen v. United States Dep't of Interior, 231 F.3d 501, 504 (9th Cir. 2000); see also Gaubert, 499 U.S. at 322, 324.

We turn then to the second prong, which requires a determination as to whether the action at issue was susceptible to being based on social, economic, or political policy. See id. at 323-24. The Gaubert Court held that when statutes, policies, regulations, or guidelines allow a government official to exercise discretion, "it must be presumed that the agent's acts are grounded in policy when exercising that discretion." Id. at 324. A broad Congressional grant of discretion to contract with independent researchers 1 (such as the one in the instant case) carries with it the presumption that acts made in pursuit of that goal are grounded in policy. See id. at 324-25. [**9]

FOOTNOTES

1 See 42 U.S.C. § 2134.


The Bibeaus argue that the Heller Experiments were not susceptible to policy analysis because no competing policy consideration could justify the allegedly non-consensual, non-therapeutic Heller Experiments. We disagree. At the time the Heller Experiments were contracted, the Government was faced with the competing policy considerations of limited resources, research expertise in private institutions, and the Congressionally expressed desire for scientific research progress. The Supreme Court has indicated that in determining whether a decision is susceptible to policy analysis, the decision could involve balancing interests, allocating scarce resources, and setting priorities. See Varig Airlines, 467 U.S. at 820. See also Miller, 163 F.3d at 595. The policy considerations described above fall into these categories.

Looking again to Heinrich, we observe that the First Circuit found that the AEC policy language requiring [**10] a "reasonable basis" to expect "therapeutic benefit" was broad enough to require that the agency officials make multiple individualized judgments, each requiring the exercise of discretion and application of the agency's overarching policies. The court held that this was a "classic discretionary function" [*947] and as such was shielded from suit. Heinrich, 308 F.3d at 59. We agree and find that the analysis in Heinrich is also applicable to the case at bar.

For the foregoing reasons, we affirm the district court's dismissal of the Bibeaus' claims of negligent supervision against the United States for lack of jurisdiction under the FTCA.

B. Intentional Infliction of Emotional Distress

The Bibeaus claim that from the early 1970s until around December 1993, the United States intentionally concealed the nature of the Heller Experiments from the participants. They further allege that the Government intentionally failed to pro-vide medical monitoring, or to inform participants that medical monitoring was required.

The Bibeaus argue that the Government knew: (1) that the experiment participants needed medical monitoring; (2) that the participants would experience certain [**11] physical symptoms (rashes, itching, pain, sexual dysfunction, swelling, etc.); and (3) that these symptoms were certain to cause severe emotional distress. The Bibeaus claim that, as a result, they have suffered a severe degree of emotional distress. 2

FOOTNOTES

2 The Government did not specifically address the Bibeaus' IIED claims in its original motion to dismiss. As such, the district court did not analyze the discretionary function's application to the IIED claims in its order dismissing the negligent supervision claims for lack of FTCA jurisdiction (dated January 19, 2001). It did, however, address the application of the discretionary function to the IIED claims in an order dated May 10, 2001. In that order, the district court granted in part the United States' renewed motion to dismiss. The IIED claim involved three challenged acts. The district court dismissed the IIED claim as to one of these acts, holding that this part of the claim was barred by the discretionary function exception. It left in place two of the Bibeaus' challenged acts, holding that the United States' actions therein could not be shielded from scrutiny. Neither party directly challenges the district court's holding on the application of the discretionary function exception to the IIED claims.


[**12] We review a district court's summary judgment de novo, viewing the evidence in the light most favorable to the non-moving party. Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000).

To succeed on a claim for IIED in Oregon, a claimant must demonstrate: "(1) the defendant intended to inflict severe emotional distress on the plaintiff, (2) the defendant's acts were the cause of the plaintiff's severe emotional distress, and (3) the defendant's acts constituted an extraordinary transgression of the bounds of socially tolerable conduct." McGanty v. Staudenraus, 321 Ore. 532, 901 P.2d 841, 849 (Or. 1995) (citation omitted). The McGanty Court held that a defendant possesses the requisite intent for purposes of an IIED claim if he desires to cause consequences of his act, or he believes that the consequences are substantially certain to result from it. Id. at 853.

The Bibeaus concede that Defendants did not intend to inflict emotional distress, therefore in order to meet the intent requirement of McGanty they must show that Defendants believed that severe emotional distress was substantially certain to result from it. Id. The Bibeaus [**13] argue that the Defendants knew with substantial certainty that withholding information regarding the experiments would cause Mr. Bibeau to worry about getting cancer, relive prison experiences, or neglect his family in an effort to attend to a lawsuit.

However, it was not the Government's failure to disclose the information regarding the experiments that was the source of [*948] Plaintiffs' alleged emotional distress. Rather, the experiments themselves caused the injury. We agree with the district court that no reasonable trier of fact could conclude that the Defendants could be substantially certain that with-holding information from Mr. Bibeau could cause the severe emotional distress he alleges, because it was this very information which Mr. Bibeau alleges to have caused his distress.

In the absence of evidence of the Government's intent to inflict emotional distress or substantial belief that the experiments would cause Mr. Bibeau severe emotional distress, Plaintiffs fail to establish a prima facie claim for intentional infliction of emotional distress.

The judgment of the district court is AFFIRMED.

188 F.3d 1105 (9th Cir. 1999), modified, 208 F.3d 831 (9th Cir. 2000)

HAROLD BIBEAU; MELANIE ANN DOOYEN BIBEAU, on their own and as Representatives of Classes of Similarly Situated Persons, Plaintiffs-Appellants, v. PACIFIC NORTHWEST RESEARCH FOUNDATION INCORPORATED, a Washington corporation; BATTELLE PACIFIC NORTHWEST LABORATORIES; BATTELLE MEMORIAL INSTITUTE, INCORPORATED, an Ohio Corporation; MAVIS ROWLEY; DANIEL DIIACONI, Doctor in his Individual and Former Official Capacity; FERNANDO LEON, Doctor in his Individual and Former Official Capacity; ROBERT E. WILDMAN, in His Individual and Former Official Capacity; JOHN RANDOLPH TOTTER, in His Individual and Former Official Capacity; JAMES LESLIE LIVERMAN, in His Individual and Former Official Capacity; UNITED STATES OF AMERICA, Defendants-Appellees.

No. 97-35825

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

1999 U.S. App. LEXIS 38092

September 15, 1998, Argued; September 16, 1998, Submission Deferred; September 28, 1998, Submitted, Portland, Oregon
August 19, 1999, Filed

OPINION

KOZINSKI, Circuit Judge:

More than thirty years ago, plaintiff Harold Bibeau suffered the unkindest cut of all. Today, he seeks to bring suit against those he claims are responsible for injuring him. The defendants parry by raising the statute of limitations. The district court agreed and entered summary judgment in favor of all defendants. See Bibeau v. Pacific Northwest Research Found., Inc., 980 F. Supp. 349, 358 (D. Or. 1997). We must decide whether Bibeau was or should have been aware of his injuries, and is therefore barred from bringing suit as a matter of law.

I

In the 1960s, Bibeau was an inmate at the Oregon State Penitentiary (OSP). During that time, Dr. Carl Heller of the Pacific Northwest Research Foundation conducted a series of experiments, under the auspices of the Atomic Energy Commission, in order to determine the human body's responses to various experimental regimens, among them the effect of radiation on human testicular function. Inmates were paid for participating and proselytized other inmates to sign up for the experiments. As a result of this encouragement, Bibeau volunteered [*3] for the testicular irradiation experiments.

Bibeau's involvement with the Heller Experiments consisted of four steps: First, a biopsy was taken of his testicles prior to undergoing irradiation. Next, his testicles were exposed to approximately 18.5 rads of radiation. Biopsies were then periodically taken from his testicles in order to monitor the effects of the radiation. Finally, prior to his departure from the OSP, and in accordance with a consent form he had signed prior to his participation in the experiments, he underwent a vasectomy in order to prevent contamination of the genetic pool by mutated chromosomes.

Following his release from the OSP, Bibeau became a self-described drifter, moving from place to place and spending many years as a long-haul truck driver. After marrying and settling near Portland, Bibeau lived a relatively peaceful life, not thinking about his time in the OSP. One day in 1993, he came across a news report of a speech by Energy Secretary Hazel O'Leary, which contained an apology from the United States government for its use of human subjects during the Cold War era. Bibeau thought the events she described sounded suspiciously similar to the program he [*4] had been involved in, and so he began an "obsessive" search for the truth about the Heller Experiments. Just short of two years after the O'Leary speech, Bibeau filed this action in the District of Oregon as the putative representative of a class of persons similarly situated. After Bibeau's claims were narrowed on a motion to dismiss, the court found that all of his claims were barred by the statute of limitations and granted the defendants' motions for summary judgment. See Bibeau, 980 F. Supp. at 358.

II

Bibeau claims he was the victim of a conspiracy to fraudulently induce him to participate in the experiments, and that he was lied to about the possible side effects of the radiation and about the nature and purpose of the experiments. He also brings related state-law claims for fraud, battery, breach of fiduciary duty, strict liability for ultrahazardous activity and intentional infliction of emotional distress. These claims 1 have their roots in the events of over three decades ago, and the parties agree that the statute of limitations applicable to both the federal and the state claims is two years. See Wilson v. Garcia, 471 U.S. 261, 276, 85 L. Ed. 2d 254, 105 S. Ct. 1938 (1985) [*5] (holding that the appropriate state statute of limitations to borrow for section 1983 actions is that for recovery of damages for personal injuries); Or. Rev. Stat. § 12.110 (1997). The question remains: Two years from when?

FOOTNOTES

1 The precise nature of the injuries Bibeau claims to have suffered is not clear. However, at one point he refers to an increased risk of cancer as his "key physical injury." We do not address whether this or any other harm Bibeau claims to have suffered amounts to a cognizable injury under Bibeau's various state and federal law theories.


Because it is inequitable to bar someone who has no idea he has been harmed from seeking redress, the statute of limitations has generally been tolled by the "discovery rule." Under this rule, the statute only begins to run once a plaintiff has knowledge of the "critical facts" of his injury, which are "that he has been hurt and who has inflicted the injury." United States v. Kubrick, 444 U.S. 111, 122, 62 L. Ed. 2d 259, 100 S. Ct. 352 (1979). [*6] In addition to being a rule of Oregon law, see, e.g., Gaston v. Parsons, 318 Ore. 247, 864 P.2d 1319, 1323 (Or. 1994), the discovery rule has been observed as a matter of federal law, see Kubrick, 444 U.S. at 120. 2

FOOTNOTES

2 Oregon law recognizes a third element to the discovery rule: that of "knowledge of the possibility of defendants' 'tortious conduct.'" Doe v. American Red Cross, 322 Ore. 502, 910 P.2d 364, 370 (Or. 1996). In light of our resolution of Bibeau's claims, we need not consider what effect, if any, this third prong would have on his state law claims.


There is a twist to the discovery rule: The plaintiff must be diligent in discovering the critical facts. As a result, a plaintiff who did not actually know that his rights were violated will be barred from bringing his claim after the running of the statute of limitations, if he should have known in the exercise of due diligence. See Herrera-Diaz v. United States, 845 F.2d 1534, 1537 (9th Cir. 1988). [*7] But "what [a plaintiff] knew and when [he] knew it are questions of fact." Simmons v. United States, 805 F.2d 1363, 1368 (9th Cir. 1986). The district court held that Bibeau had failed to diligently investigate his symptoms; as a result he had run out of time to file suit. Notably, however, the district court did not specify when Bibeau was, or should have been, aware of the fact that he had been injured by the Heller Experiments. This is a telling point, for it highlights the fact-intensive nature of the issue the district court resolved in granting summary judgment.

In support of the district court's ruling, defendants contend that Bibeau's claims accrued when the pain he experienced during his biopsies was much more severe than he had been told to expect, which should have alerted him that Dr. Heller was lying. Although a jury might find that someone who experienced much greater pain than he had been told to expect should have begun to question the bona fides of the experiments, we cannot hold as a matter of law that a reasonable person would be put on notice of his claims by such an event. Pain is subjective and cannot be described in precise terms. [*8] Bibeau may well have believed that he was experiencing the degree of pain he had been told to expect, but had misunderstood how much that would be. Nor is it clear why pain during the biopsies should have alerted him to the long-term effects of the radiation, especially since the biopsies and the irradiation were distinct operations performed during the experiments.

Alternatively, defendants point to certain physical symptoms, which may or may not have had their roots in the Heller Experiments, that Bibeau experienced over the course of the many years since he left the OSP. These ailments consisted of recurrent, severe testicular pain, which Bibeau has experienced since the 1970s; a periodic groin rash he suffered from the early 1970s; a wart on the inside of his left upper leg, which he discovered in 1979; and certain lymph node lumps that appeared on his arm and back in 1979. Despite suffering from these symptoms over the course of decades, Bibeau never consulted a doctor, nor did it cross his mind that they could be associated with the Heller Experiments. He claims that he believed some of these symptoms were common male complaints. The district court held, however, that a reasonable [*9] person "would have associated the pain with the experiments, accurately or not, or at least would have made inquiries regarding a possible connection." Bibeau, 980 F. Supp. at 355.

We cannot agree with the district court. A trier of fact could find that a reasonable person would not necessarily have connected Bibeau's symptoms to the Heller Experiments. It is a closer question whether the symptoms created a duty to consult a doctor. Under both federal and Oregon law, the question of diligence in cases like this is twofold. Initially, we must ask "'whether the plaintiff could reasonably have been expected to [consult a doctor] in the first place.'" Rosales v. United States, 824 F.2d 799, 804 (9th Cir. 1987), quoting In re Swine Flu Prods. Liab. Litig., 764 F.2d 637, 642 n.2 (9th Cir. 1985). If we answer this question in the affirmative, we must next determine whether a medical examination would have disclosed the nature and cause of plaintiff's injury so as to put him on notice of his claim. See Schiele v. Hobart Corp., 284 Ore. 483, 587 P.2d 1010, 1014 (Or. 1978); see also Herrera-Diaz, 845 F.2d at 1537 [*10] (statute of limitations began to run when doctor identified cause of infant's cerebral palsy).

While we have held that the plaintiff has a duty of inquiry, see Rosales, 824 F.2d at 804, none of our cases deal with a situation where a plaintiff fails to seek medical attention that might have led him to discover his claim. In Schiele, however, the Oregon Supreme Court did deal with such a situation, and held that while "not everyone goes to a doctor with the same degree of alacrity," there is a point beyond which "delay in seeking medical attention is no longer reasonable," in which case plaintiff will be charged with "any knowledge which a medical examination would otherwise have disclosed." Schiele, 587 P.2d at 1014. Under Schiele, Bibeau may have hesitated too long in seeking medical attention, in which case he would be charged with whatever he would have learned from consulting a doctor. But it makes no difference in this case because the record fails to irrefutably demonstrate that, had Bibeau consulted a doctor, he would have discovered his claims. 3 In holding Bibeau's claim barred by the statute of limitations, the district court explained: [*11] "Given the plethora of information in the public domain regarding the risks of radiation exposure, generally, and the Heller experiments, specifically, had Bibeau explained his participation in the Experiments to a medical doctor, to the extent there is merit to his case, presumably he would have learned that there was a possibility that his symptoms were related to the Experiments." Bibeau, 980 F. Supp. at 355 (emphasis added). The district court's ruling presupposes that Bibeau not only would have seen a doctor about his symptoms, but also that he would have "explained [to him] his participation in the [Heller] Experiments." Id. But for Bibeau to have done so, he would have had to suspect a connection between the experiments and the symptoms, and we have already held that this is not necessarily the case. See p. 9434 supra. The question the district court should have addressed is whether, had Bibeau seen a doctor about his symptoms, the doctor would have discovered Bibeau's participation in the experiments and then made a connection between the two. The defendants did not submit any expert testimony or other evidence demonstrating that a normally [*12] competent doctor would have put Bibeau on the right track. With all that was in the public domain, it is possible that a competent doctor would have done so. But while we may determine what a "reasonable person" would do, we cannot, without any evidence in the record, say what a normally competent doctor would do in this situation. This genuine issue of material fact precluded summary judgment.

FOOTNOTES

3 While "the extent to which a plaintiff used reasonable diligence is tested by an objective standard," we have held that in a fraud case, a "district court may . . . grant a summary judgment motion if the uncontroverted evidence irrefutably demonstrates that a plaintiff discovered or should have discovered the fraud but failed to file a timely complaint." Volk v. D.A. Davidson & Co., 816 F.2d 1406, 1417 (9th Cir. 1987) (emphasis added). Not all of Bibeau's claims are for fraud, but his theory of the case is that the defendants fraudulently induced him to participate in the experiments. The "irrefutably demonstrates" standard therefore applies.


[*13] As a second justification for their insistence that Bibeau must have known he had been injured by the Heller Experiments, the defendants advance a litany of news reports and other public revelations regarding the OSP and the Heller Experiments. Indeed, the results of the experiments themselves were published in scientific journals, just as the inmates who participated in them were told they would be. Surely, the defendants contend, given the volume of public attention the experiments received, Bibeau cannot plausibly claim to have been unaware of the torts that he now alleges.

It is true that many news articles were published regarding the experiments, most notably around the time they ended and in the mid-1980s when the names of those involved were released. However, that doesn't mean that Bibeau must be lying about his ignorance, or that a reasonable man would necessarily have discovered the truth. The fact that Bibeau was employed as a long-haul trucker, and thus was often traveling around the country during the time that a rash of lawsuits over the Heller Experiments were filed in Oregon, would help explain why he didn't hear of the suits. He claims not to have been worried about [*14] the possible deleterious effects of radiation because his military experience led him to believe that radiation was safe. And, given his modest educational background, it is not entirely surprising that he wouldn't have come across any articles published in scientific journals. All of these factors and the inferences that can be drawn from them present questions of fact for a jury to resolve. Cf. Swine Flu, 764 F.2d at 641 (additional factfinding necessary to determine if general community awareness was sufficient to indicate that a plaintiff reasonably should have known of the cause of his wife's death).

We also reject the argument that Bibeau must be presumed to have known that he was injured as of 1987, when the Oregon legislature passed a bill providing for payment of medical expenses of inmates who participated in the Heller Experiments. Defendants rely on the adage that everyone is presumed to know the law, but that is actually a misstatement of the rule. What the law presumes is that everyone is aware of the obligations the law imposes on them. When a piece of legislation - usually of a criminal nature - adjusts the legal responsibilities of citizens, they [*15] cannot escape the effect of that law by claiming ignorance. Were the rule otherwise, citizens could frustrate the legislature's exercise of authority by an ostrich-like effort not to learn their legal obligations. 4 But that is very different from saying that every citizen is presumed to know every word of every law passed by the legislature. The 1987 Oregon statute imposed no obligations on Bibeau. On the contrary, the law imposed obligations on others to provide Bibeau with certain benefits. It was their responsibility to notify him of his rights, a responsibility they undertook only halfheartedly.

FOOTNOTES

4 Cases in which the Oregon Supreme Court has invoked this adage do, indeed, all involve situations where the law in question imposed a specific obligation on the individual. For example, Dungey v. Fairview Farms, Inc., 205 Ore. 615, 290 P.2d 181 (Or. 1955), dealt with a driver knowing what a "residence district" was for purposes of the motor vehicle laws. See 290 P.2d at 183-84. In Hood River County v. Dabney, 246 Ore. 14, 423 P.2d 954 (Or. 1967) (en banc), the court held that a statute of limitations that cut off the right to attack a foreclosure decree did not violate due process, even when the underlying foreclosure was defective. See 423 P.2d at 960-61. But the court specifically noted that it was "not here dealing with a statute of limitations which cuts off the rights of the owner without warning." Id. at 961. Instead, the statute "specifically impressed upon the owner" the duty to investigate the tax status of the land. Id. That case thus represents an instance where the legislature adjusted the legal responsibilities of its citizens. We are aware of no cases from Oregon, or anywhere else, where the rule has been applied to situations where the law did not impose an obligation on the individual, and defendants have cited none.


[*16] For much the same reasons, we cannot hold that Bibeau should be presumed to be aware of a 1986 report issued by the United States House of Representatives. It would stretch the rule that individuals are presumed to know their legal obligations to the breaking point to presume that they are aware of every report, white paper and floor statement delivered within the halls of the legislature. The legislative report, like the 1987 Oregon legislation, may have given Bibeau actual notice, in which case he would be barred. But Bibeau claims that he was unaware of either, and therefore his state of awareness is a contested question of fact that cannot be resolved on summary judgment.

In sum, although we sympathize with the view that there is a time when stale claims must come to rest and a defendant's right to repose outweighs a plaintiff's right to redress, we are unable to say that the time has come to declare Bibeau's claims to be barred as a matter of law.

III

Many of the defendants also assert that they are shielded from the federal claims by the doctrine of qualified immunity. We conclude that some of them are. 5

FOOTNOTES

5 Although the district court resolved the case on statute of limitations grounds and therefore didn't rule on qualified immunity, the issue was fully briefed below and in this court. As illustrated by the well established rule that we may affirm the district court's judgment on any basis supported by the record, see, e.g., Blunk v. Arizona Dept. of Transp., 177 F.3d 879, 881 (9th Cir. 1999), it is sometimes appropriate for an appellate court to pass on issues of law that the trial court did not consider. The qualified immunity question presented here seems peculiarly suited for immediate resolution. Because qualified immunity presents a pure question of law which we review de novo, any decision by the district court would be entitled to no deference. Moreover, were the district court to deny qualified immunity to any of the defendants, the decision would be subject to an interlocutory appeal - adding unnecessary cost and delay. While we value the input of the district court whenever it is feasible to obtain it, in this case judicial economy favors an immediate decision of the qualified immunity question.


[*17] Both the Pacific Northwest Research Foundation (PNRF) and Mavis Rowley (who was Dr. Heller's assistant) contend that as government contractors that did not violate any clearly established constitutional rights, they are entitled to qualified immunity. According to them, recent Supreme Court decisions, such as Richardson v. McKnight, 521 U.S. 399, 138 L. Ed. 2d 540, 117 S. Ct. 2100 (1997), and Wyatt v. Cole, 504 U.S. 158, 118 L. Ed. 2d 504, 112 S. Ct. 1827 (1992), "strongly imply" that private entities briefly associated with the government are entitled to share in governmental qualified immunity. It is true that in Richardson, the Supreme Court, although refusing to grant the defendant prison contractors qualified immunity, "answered the immunity question narrowly, in the context in which it arose," Richardson, 521 U.S. at 413, and also refused to rule on whether the defendants might assert "a special 'good faith' defense," id. However, circuit precedent suggests that the private defendants are not entitled to qualified immunity here. See Halvorsen v. Baird, 146 F.3d 680, 686 (9th Cir. 1998) (determining [*18] that "a firm systematically organized to assume a major lengthy administrative task" was not entitled to share in governmental qualified immunity). Our situation is little different from those in past cases that found qualified immunity absent. This isn't a firm that was "briefly associated with a government body," Richardson, 521 U.S. at 413, but rather a firm that conducted research at the OSP for a decade, from 1963 to 1973. We can find no principled distinction between private researchers such as the PNRF, the private prison guards involved in Richardson and the private detoxification facility in Halvorsen. Accordingly, PNRF and Rowley are not entitled to qualified immunity.

DiIaconi, who was the Chief Medical Officer at the OSP during the time in question, claims he is entitled to qualified immunity as a state employee who acted in good faith and did not violate any clearly established rights. Bibeau counters that DiIaconi violated his "clearly established constitutional right to be free from the non-consensual, non-therapeutic invasion of [his] bodily integrity." He claims to have met his burden of pointing to clearly established law existing at the [*19] time of the events by citing decisions such as Rochin v. California, 342 U.S. 165, 96 L. Ed. 183, 72 S. Ct. 205 (1952), and Skinner v. Oklahoma, 316 U.S. 535, 86 L. Ed. 1655, 62 S. Ct. 1110 (1942). This claim is problematic because those cases refer to the right at a high level of generality, and the Supreme Court has instructed that "the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987). A right to bodily integrity defined only by these cases could leave a reasonable governmental official in doubt whether any battery would lead to a constitutional violation. But we need not decide whether these cases clearly establish a right to bodily integrity, as we hold that DiIaconi's actions here did not violate any such right, even if it was clearly established. 6

FOOTNOTES

6 This case differs from In re Cincinnati Radiation Litig., 874 F. Supp. 796 (S.D. Ohio 1995), in a crucial way. The plaintiffs there alleged that the patients were never told they were part of an experiment but rather believed that they were receiving treatment for cancer. See id. at 802. Here, the inmates knew they were serving as experimental subjects rather than receiving treatment.


[*20] Once the relevant right is identified, the question becomes whether a reasonable officer could have believed that his actions affecting that right were lawful. See Sinaloa Lake Owners Ass'n v. City of Simi Valley, 70 F.3d 1095, 1099 (9th Cir. 1995). "An official is entitled to qualified immunity even where reasonable officers could disagree as to the lawfulness of the official's conduct, so long as that conclusion is objectively reasonable." Id. Even assuming that Bibeau had a clearly established right to bodily integrity requiring that he be fully informed of all known risks of the experiments he had agreed to undergo, DiIaconi denies he was involved in the allegedly flawed process of obtaining consent. Instead of coming forward with evidence to suggest otherwise, Bibeau points to DiIaconi's position as Chief Medical Officer at the prison and the fact that he performed biopsies and vasectomies on inmates, including on Bibeau himself. But DiIaconi performed those operations pursuant to signed consent forms obtained by the experimenters, which he could have reasonably taken to indicate that the inmates had been informed of all the risks of the experiments. [*21] Bibeau has alleged that DiIaconi was convinced of "the worth of the program" (according to a report he coauthored after the experiments were conducted), but a belief that the program was worthwhile implies nothing about his knowledge as to the adequacy of the notice given the inmates. Indeed, Bibeau admitted in his deposition that the reason he included DiIaconi in this suit was because he "assumed" and "believed" that DiIaconi was involved with Dr. Heller and attended many of Dr. Heller's meetings, and that there was no other reason that he was named in this litigation. A reasonable doctor could have believed that he was respecting the inmates' clearly established rights when he operated on them pursuant to seemingly valid consent forms.

Bibeau also complains that DiIaconi failed to advise former inmates that they should receive follow-up examinations as a result of the experiments, even though he considered his duty to his patients as a continuing one. Assuming such a failure would be actionable under state tort law - and we express no view on the subject - a violation of a tort duty certainly is not enough to show that DiIaconi violated clearly established constitutional rights. [*22] As the Supreme Court has said, qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341, 89 L. Ed. 2d 271, 106 S. Ct. 1092 (1986). A reasonable doctor could have believed that operating on seemingly consenting patients and allowing the experiments to be conducted in the prison in which he worked was consistent with clearly established constitutional rights; therefore, we hold that DiIaconi is entitled to qualified immunity.

To resolve the question of Totter and Liverman's entitlement to qualified immunity, we enter into a murky area on the border between qualified immunity and liability under section 1983. 7 Generally, the key question to be answered for purposes of qualified immunity is whether the law was clearly established at the time of the alleged acts. Claims, such as Totter and Liverman's, that a defendant was not involved in the events giving rise to liability are cut from a different cloth, because they present factual disputes rather than distinct legal questions. See, e.g., Velasquez v. Senko, 813 F.2d 1509, 1511 (9th Cir. 1987). Although an officer [*23] not present at the scene of a beating obviously couldn't have violated any clearly established rights, such factual defenses are treated differently than claims based on the state of the law. As an example, an interlocutory appeal will not lie for such claims if the district court determines that there are genuine issues of fact involved. See Johnson v. Jones, 515 U.S. 304, 319-20, 132 L. Ed. 2d 238, 115 S. Ct. 2151 (1995). We need not worry about such jurisdictional considerations in evaluating these claims, however, as this is an appeal from a final judgment, not an interlocutory appeal. Therefore, we apply normal summary judgment principles to determine whether defendants are entitled to qualified immunity.

FOOTNOTES

7 Although we speak only in terms of section 1983 here, the analysis is equally applicable to, and meant to include, analogous Bivens claims.


Like DiIaconi, Totter and Liverman don't dispute Bibeau's claim to a clearly established right to bodily integrity; rather, they argue that [*24] their actions did not violate Bibeau's rights. This resembles a claim that "a reasonable officer [could] have believed [his] conduct was lawful" in light of clearly established law, which is the second prong of our test for qualified immunity. Act Up!/ Portland v. Bagley, 988 F.2d 868, 871 (9th Cir. 1993). At the same time, Totter and Liverman's defense also looks like they claim that section 1983 liability will not lie for the actions performed as a matter of section 1983 doctrine. Thus, it could very well be that what we have here aren't claims to qualified immunity so much as claims that section 1983 supplies no remedy for the acts alleged. We see these as flip sides of the same coin. Whether we denominate these assertions as claims of qualified immunity or claims that they are not subject to liability under section 1983 for their actions, the result is the same: Totter and Liverman were entitled to summary judgment on this point.

Aside from the fact that Totter and Liverman headed the Division of Biology and Medicine (Totter from 1967 to 1972 and Liverman from 1972 to 1979), Bibeau adduced no substantial connection between them and the Heller Experiments. [*25] Indeed, he forthrightly admitted that Totter and Liverman relied on the reports of their staff that the experiments were being conducted satisfactorily, although in doing so he added the legal conclusion that "Totter and Liverman as Directors were ultimately responsible for the Heller Experiments." Another way of phrasing Bibeau's "ultimate responsibility" theory is "respondeat superior," and such liability does not lie in either Bivens or section 1983 actions. See, e.g., Terrell v. Brewer, 935 F.2d 1015, 1018 (9th Cir. 1991) (Bivens); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (section 1983).

Bibeau attempts to avoid this bar by alleging that Totter and Liverman had sufficient involvement in the Heller Experiments to render them liable because they attended various meetings and reviewed certain proposals, but failed to take any steps to ensure that the inmates were properly informed. Even setting aside the fact that Liverman became head of the Division of Biology and Medicine after Bibeau had been released from the OSP, Bibeau has not adduced enough evidence to raise a genuine issue of material fact as to whether Totterand [*26] Liverman were more than peripherally connected with the Heller Experiments due to their alleged awareness of the project. This is further pointed up by the fact that Bibeau complains not about their actions, but about their inaction. Without more involvement in the experiments, they did not violate any of Bibeau's clearly established rights, and therefore are entitled to qualified immunity.

The defendants assert various other defenses, but we decline to consider their arguments because the discovery schedule indicates that the summary judgment motions were set only for questions relating to the statute of limitations and qualified immunity. Therefore, we will allow the district court to rule on these other contentions in the first instance.

The judgment of the district court is REVERSED, and this case is REMANDED for further proceedings consistent with this opinion.

CONCUR BY: J. CLIFFORD WALLACE

CONCUR

WALLACE, Circuit Judge, concurring:

I concur in the majority's well-thought-out opinion, but I write separately because of the majority's determination to resolve the qualified immunity issues. I am inclined to agree with the substance of the majority's resolution, [*27] but I would not reach these issues for prudential reasons. Rather, I would remand to allow the district court to decide them in the first instance.

"It is the general rule, of course, that a federal appellate court does not consider an issue not passed upon below." Singleton v. Wulff, 428 U.S. 106, 120, 49 L. Ed. 2d 826, 96 S. Ct. 2868 (1976). "Certainly there are circumstances in which a federal appellate court is justified in resolving an issue not passed on below, as where the proper resolution is beyond any doubt . . . ." Id. at 121. It seems, however, that the appellate courts have sometimes forgotten that resolving issues not addressed by the district court is the exception, not the rule. Compare Weiser v. United States, 959 F.2d 146, 147 (9th Cir. 1992) (simply stating that "our review is not limited to a consideration of the grounds upon which the district court decided the issues"), with River City Markets, Inc. v. Fleming Foods West, Inc., 960 F.2d 1458, 1462 (9th Cir. 1992) (recognizing discretion and electing to decide issue). Here, the qualified immunity issues are complex, and it seems to me that, despite [*28] conjecture about possible efficiency gains, the "wiser course is to allow the district court to rule on [them] in the first instance." Barsten v. Department of the Interior, 896 F.2d 422, 424 (9th Cir. 1990); see also Schneider v. County of San Diego, 28 F.3d 89, 93 (9th Cir. 1994) (refusing to address qualified immunity arguments where district court granted summary judgment without reaching those issues).

980 F. Supp. 349, *; 1997 U.S. Dist. LEXIS 12903, **

HAROLD BIBEAU and MELANIE ANN DOOYEN BIBEAU on their own behalf and as Representatives of Classes of Similarly Situated Persons, Plaintiffs, v. PACIFIC NORTHWEST RESEARCH FOUNDATION, INC., a Washington Corporation; BATTELLE PACIFIC NORTHWEST LABORATORIES, a division of BATTELLE MEMORIAL INSTITUTE, INC., an Ohio Corporation; MAVIS ROWLEY; DR. DANIEL DiIACONI, in his individual and former official capacity; DR. FERNANDO LEON, in his individual and former official capacity; ROBERT D. WILDMAN, in his individual and former official capacity; DR. JOHN RANDOLPH TOTTER, in his individual capacity; DR. JAMES LESLIE LIVERMAN, in his individual capacity; ROBERT L. FERGUSON, in his individual capacity; and, the UNITED STATES OF AMERICA. Defendants.

Civil No. 95-06410-HO

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

980 F. Supp. 349; 1997 U.S. Dist. LEXIS 12903


July 25, 1997, Decided
July 28, 1997, Filed

[*351] ORDER

Before the court are defendants' motions for summary judgment (# s 143, 150, 154, 160). Defendants Pacific Northwest Research Foundation (PNRF), Mavis Rowley (Rowley), Battelle Pacific Northwest Laboratories Click for Enhanced Coverage Linking Searches(BPNL), and Dr. Daniel DiIaconi (DiIaconi) argue that summary judgment should be granted because plaintiffs' claims are barred by the statute of limitations, and they are shielded from liability by qualified immunity. PNRF and Rowley also argue that their motion for summary judgment should be granted because their research was conducted in good faith. Defendant DiIaconi also argues that his motion for summary judgment should be granted as to plaintiffs' federal claims because he is not subject to Bivens liability, and as to plaintiffs' state claims because plaintiffs never provided tort claims notice, and ORS 30.265(1) bars plaintiffs' state law claims against him. Having considered the briefs filed by the parties, and materials submitted therewith and in opposition to, the court finds as follows:

I. BACKGROUND FACTS

Plaintiffs, husband and wife, on their own behalf and as representatives [**3] of a class of similarly situated persons, claim that from 1963 to 1973 defendants conspired to fraudulently induce prisoners in custody of the Oregon Department of Corrections (DOC) to volunteer for a program of experiments, [*352] known as the Heller experiments (Experiments), testing the effects of radiation exposure to the testes. The Experiments involved irradiating inmates' testes with x-ray radiation, and, allegedly, injecting inmates with radioactive substances. Participation in the Experiments required subjects to undergo biopsies and to agree to a vasectomy as a condition of participation. Plaintiffs allege that they were not fully informed of all the potential risks of participation in the Experiments, and that they were deliberately mislead as to potential health consequences. Thus, they claim, although they consented to participation in the Experiments, the consent was not sufficiently well-informed to be valid.

Harold Bibeau, the only named plaintiff/subject in this action, was a subject in the Experiments from 1965 to 1969, while an inmate at the DOC. Bibeau contends that Dr. Heller mislead him as to the risks and potential long term health consequences of participation in [**4] the Experiments, including an alleged increased risk of cancer. 1

FOOTNOTES

1 As of 1997, over thirty years after Bibeau's participation in the Experiments, he has not been diagnosed with cancer, or any precancerous condition.


Dr. Heller informed Bibeau that the purpose of the Experiments was to study the effects of radiation on human testes. Dr. Heller also informed Bibeau that his participation in the Experiments would require periodic testicular biopsies and an x-ray exposure of his testes. He also was informed that he would be required to undergo a vasectomy at the conclusion of his participation, because of the chance that there could be chromosomal damage, which could produce mutated offspring. Heller also informed Bibeau that he might experience some reddening of the skin in his groin area, akin to a sunburn, that would last a few days, but no other long-term health consequences. Dr. Heller did not inform Bibeau that exposure to radiation might lead to an increased risk of cancer.

Bibeau consented in writing [**5] to participation in the Experiments. He agreed "to submit to x-ray radiation exposure of [his] scrotum and testes . . . to donate urine samples, semen samples, and blood samples periodically . . . to a surgical procedure known as a testicular biopsy, performed a number of times . . . to a vasectomy operation at the completion of the experimental procedures." Bibeau acknowledged "that sterility may result from these procedures," and "that there may be some skin burn from the radiation." Bibeau was paid for his participation in the Experiments.

Defendant Dr. Leon performed Bibeau's first biopsy related to the experiments in January, 1965. Bibeau experienced testicular swelling in the hours following the procedure, and sharp testicular pains over the next few days. Bibeau indicates that he had not been warned about these symptoms.

On September 29, 1965, Bibeau underwent his first and only x-ray session as a participant in the Experiments. He received 18.5 rads of radiation. After the procedure, Bibeau did not report any pain, only a warm feeling in his testicles which dissipated the next day.

Bibeau underwent several testicular biopsies after his single exposure to radiation. Bibeau [**6] experienced "excruciating pain" during "a couple" of the biopsies. He claimed that "it feels like you've hit yourself on the crossbar of a bicycle, where you have an excruciating pain that starts in your testicle and radiates clear up into your side, and you have the reflex to immediately dive into a fetal position." Bibeau allegedly was told that the post-biopsy pain was normal and temporary.

Bibeau underwent a vasectomy in late 1968 or early 1969 prior to his release from prison. His participation in the Experiments ended with his release from prison.

In the 1970s, Bibeau experienced recurring sharp testicular pain. Like the pain he suffered after biopsies were performed, he felt "a shooting pain that goes from the testicle up into the midsection of [his] body." Plaintiff continued to suffer from bouts of this pain until at least 1994. Bibeau claims that he did not associate his recurring, excruciating testicular pain with similar pain he suffered immediately after being biopsied. Rather, he attributed his recurring testicular pain, which he describes as a common male [*353] health problem, to sitting for too long in one position.

In the early 1970s, Bibeau also began to suffer from [**7] "an ongoing, periodic groin rash," which appeared on the very tops of the insides of [his] legs." Bibeau explains that "his skin turns brown and it gets itchy." Bibeau contends that his groin rash is merely "common male jock itch." In 1979, Bibeau also noticed a "lymph node lump" on his left arm and back, and a wart on the inside of his upper right leg.

Bibeau did not consult a medical doctor regarding his testicular pain, or tell any medical doctor about his participation in the Experiments, until 1997.

Dr. Heller, and his colleagues published the results of the Experiments in several scientific journals available to the public. A series of articles published from 1965 to 1974 by Heller and defendant Mavis Rowley in various scientific journals addressed the design, goals, methods and findings of the Experiments. Bibeau was informed at the outset of his involvement in the Experiments that the results would be published in scientific journals.

In addition, since the early 1970s, the Experiments have received media coverage in national newspapers and periodicals, such as the New York Times, the Washington Post, and Time Magazine, wire services, such as the Associated [**8] Press and United Press International, and regional and local newspapers, such as the Salem Statesmen-Journal, the Seattle Times, Willamette Week, and the Oregonian, and in tabloids such as the National Enquirer. In varying degrees of detail, the articles describe the purpose of the Experiments, the people and agencies involved, the methods employed, and the subjects who participated. Many articles, appearing as early as the 1970s, discuss the potential health consequences of the Experiments, including the possibility of increased risk of cancer. Other articles discuss whether inmates were fully informed of the risks of the Experiments. An article in 1985 in the Statesmen-Journal, identifies Bibeau by name, as a participant in OSP radiation research. Articles also provide coverage of legal and legislative activities relating to the Experiments, and other medical experimentation at OSP, such as the Oregon Corrections Department's 1973 decision to ban testing on prisoners, the series of federal lawsuits filed by ex-Heller research participants in 1976 and 1989, raising allegations of fraud, battery, and failure to warn of health risk, the public disclosures made by [**9] the Energy Research and Development Administration in 1976, regarding the role of its predecessor, the AEC, in the OSP research, the investigation in 1986 by a United States House of Representatives Subcommittee into government sponsored human experimentation, which resulted in the publication of a report entitled "American Nuclear Guinea Pigs: Three decades of Radiation Experiments on U.S. Citizens," (The "Markey" report), and the Oregon Legislature's passage of 1987 Or. Laws 486 § 1, which authorized free follow-up medical care for participants in OSP research.

In 1985, the Oregon Corrections Division attempted to contact Bibeau by letter at his last known address to inform him that OSP would provide his medical records to his physician should he want to seek a physical follow-up.

Bibeau claims that he did not read any articles regarding the Experiments until 1993. In 1993, he read an article in the Oregonian containing a summary of a speech given by then-Secretary of Energy Hazel O'Leary about the government's involvement in human radiation experiments. Bibeau indicates that until he read this article, and learned of O'Leary's speech, he believed the Experiments were "perfectly [**10] safe." O'Leary did not specifically refer to the Experiments in her speech.

LEGAL STANDARD

Summary judgment should be granted if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). If the moving party shows that there are no genuine issues of material fact, the non-moving party must go beyond the pleadings and designate facts showing an issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, [*354] 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). A scintilla of evidence, or evidence that is merely colorable or not significantly probative, does not present a genuine issue of material fact. United Steelworkers of America v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir. 1989, cert. denied, 493 U.S. 809, 110 S. Ct. 51, 107 L. Ed. 2d 20 (1989).

The substantive law governing a claim determines whether a fact is material. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). Reasonable doubts as to the existence of a material factual issue are resolved against the moving party. Id. at 631. Inferences drawn from the facts are viewed in the [**11] light most favorable to the non-moving party. Id. at 630-31.

DISCUSSION

The parties agree that the statute of limitations on both the state and federal claims in this case is two years, as provided by ORS 12.110(1). The parties further agree that state law controls when the limitations period begins to run as to state claims, and that federal law determines when the limitation period begins to run as to federal claims. However, the parties dispute when the statute of limitations began to run in this case. Defendants argue that the limitation period under both state and federal accrual law began to run, and expired, long before plaintiffs commenced this action.

1. Federal Claims

Under federal law, "a cause of action generally accrues when a plaintiff knows or has reason to know of the injury which is the basis of his action." Gibson v. United States, 781 F.2d 1334, 1344 (9th Cir. 1986) (quoting Cline v. Brusett, 661 F.2d 108, 110 (9th Cir. 1981). When plaintiffs knew "both the fact of injury and its immediate physical cause . . . [their] cause of action accrued." Dyniewicz v. United States, 742 F.2d 484 (9th Cir. 1984) The "'cause' is known when the immediate [**12] physical cause of the injury is discovered." Davis v. United States, 642 F.2d 328, 331 (9th Cir. 1981). A plaintiff need not realize or appreciate the full extent of his or her injury for the statute to accrue. Ashley v. United States, 413 F.2d 490, 493 (9th Cir. 1969).

As referenced by the court in its September 27, 1996, Order, an exception to the rule that a cause of action accrues at the time of injury applies to plaintiffs whose injuries are inherently unknowable or who are blamelessly ignorant of the existence of their injuries and/or their cause. In re Swine Flu, 764 F.2d 637, 638 (9th Cir. 1985). In such cases, the federal "discovery rule," also referred to as the "diligence-discovery" rule, applies, and the claim "accrues, and statute of limitations starts to run, when a 'plaintiff has discovered, or in the exercise of reasonable diligence should have discovered,' both his injury and its cause." Herrera-Diaz v. United States, 845 F.2d 1534, 1537 (9th Cir. 1988) (citations omitted); In re Swine Flu, 764 F.2d at 639-40.

a. Knowledge of Injury

Defendants argue that the discovery rule cannot apply to this case as plaintiff Bibeau was aware of his injury [**13] and its cause many years before he filed suit. Defendants argue that the purpose, nature, procedures, and risks associated with the Experiments were disclosed to plaintiff Bibeau at the time the Experiments occurred. Further, defendants argue that Bibeau's testimony in his deposition indicates that he understood the nature of the Experiments when he volunteered for them, and that over the years he experienced symptoms which did, or reasonably should have, put him on notice of his claims. With respect to physical symptoms, defendants argue that Bibeau's testicular pain, and other symptoms, which he experienced immediately after being biopsied, and which recurred from the 1970s until at least 1994, put Bibeau on notice of defendants' tortious conduct.

I agree with defendants that Bibeau's alleged injuries and their cause were not "inherently unknowable." Although he did not seek medical attention, clearly he was aware of his recurring testicular pain, and groin rash, as well as his participation in, and details regarding the Experiments. Even if it is true, as Bibeau suggests, that recurring [*355] testicular pain is a common male health problem, a reasonable person, who knowingly participated [**14] in an experiment that involved exposing his testes to radiation, and undergoing several biopsies and a vasectomy, and who experienced recurring testicular pain for nearly thirty years after his participation, which was similar to pain he suffered immediately after being biopsied, would have associated the pain with the experiments, accurately or not, or at least would have made inquiries regarding a possible connection. 2 See, e.g., Nemmers v. United States, 795 F.2d 628, 631 (7th Cir. 1986) (running of statute of limitations depends on reactions of the objective, reasonable person).

FOOTNOTES

2 Plaintiff does not explain what is "common" about recurrent testicular pain that is so severe that "it feels like you've hit yourself on the crossbar of a bicycle, where you have an excruciating pain that starts in your testicle and radiates clear up into your side, and you have the reflex to immediately dive into a fetal position."


b. Diligence requirement

Defendants also argue that, as a matter of law, the discovery rule [**15] cannot apply in this case because plaintiff Bibeau did not diligently investigate his alleged injury. Plainly, the discovery rule requires a plaintiff to diligently investigate his or her claims. Herrera-Diaz v. United States, 845 F.2d at 1537. The very purpose of the discovery rule is to excuse a plaintiff's "blameless ignorance" of his injury and its cause. Id. Yet, "a plaintiff who remains ignorant through lack of diligence cannot be characterized as blameless." Arvayo v. United States, 766 F.2d 1416, 1423 (10th Cir. 1985); Mendez v. United States, 732 F. Supp. 414, 422 (S.D.N.Y. 1990) ("It is necessary . . . that a plaintiff exercise 'diligence' in order to benefit from the blameless ignorance rule.").

Here, notwithstanding the fact that Bibeau experienced excruciating, radiating testicular pain, and other symptoms, immediately after being biopsied, and then repeatedly for thirty years after his participation in the Experiments, Bibeau did not investigate in any manner his apparent injury until, at the earliest, 1993. It is undisputed that Bibeau did not request a single document from any of the several defendants, all of whose identities he knew, regarding the [**16] Experiments until after the 1993 O'Leary press conference. C.f. Hartnett v. Schering Corp., 2 F.3d 90, 93 (4th Cir. 1993) ("We find, in cases involving medical issues, a reasonably diligent investigation must, at a minimum, include an attempt to obtain and review all available medical records."). Nor did Bibeau take the obviously fundamental step of seeing a doctor until 1997 about the pain which he now attributes, it appears, to the Experiments. Given the plethora of information in the public domain regarding the risks of radiation exposure, generally, and the Heller experiments, specifically, had Bibeau explained his participation in the Experiments to a medical doctor, to the extent there is merit to his case, presumably he would have learned that there was a possibility that his symptoms were related to the Experiments. Fernandez v. United States, 673 F.2d 269, 271 (9th Cir. 1982).

Plaintiffs complain that they did not have adequate information regarding Bibeau's injury and its cause to even know that he had been injured until 1993. Even if true that Bibeau was not actually aware of a possible connection between his symptoms and the Experiments, because of his complete [**17] failure to investigate, his lack of knowledge is not dispositive. See Chrysler Workers Ass'n v. Chrysler Corp., 834 F.2d 573, 579 (6th Cir. 1987) ("the asserted actual knowledge of the plaintiffs is not determinative if they did not act as reasonable persons, and, in effect, closed their eyes to evidence and objective facts concerning the accrual of their right to sue."). Essentially, Bibeau suggests that his claims cannot have accrued until he happened to read an article in the paper regarding the O'Leary press conference in 1993. Accrual of a claim does not depend, however, on fortuity. See Mendez v. United States, 732 F. Supp. 414, 428 (S.D.N.Y. 1990) (rejecting plaintiff's argument that claim accrued when she read article in paper regarding same subject, as "following the rationale of [plaintiff], this action would not have been brought had plaintiff not have read the New York Post article on October 20, 1982 -- which [*356] in fact could have been published at any point in time, or not at all.").

Plaintiffs offer several reasons why their lack of diligence should not preclude application of the discovery rule. Plaintiffs argue that they relied on the assurance of Dr. Heller [**18] that participation in the Experiments was safe, and, thus, their lack of diligence should be excused. See In re Swine Flu, 764 F.2d at 641 (where plaintiff relies on assurance of doctor that conditions are normal and not the result of wrongdoing or malpractice, plaintiff may not be found to have failed to exercise reasonable diligence in pursuing his claim). Of course, reliance on a doctor's assurances must be reasonable in order to suspend the due diligence requirement. See Allen v. A.H. Robins, 752 F.2d 1365, 1371 (9th Cir. 1985) (patient may reasonably rely on doctor's assurances). Here, Bibeau allegedly was told in the 1960s that the excruciating testicular pain, and swelling, as well as other symptoms that he experienced, were normal and temporary. Plaintiffs' continued reliance on these stale assurances notwithstanding the recurrence of severe testicular pain from the 1970s until at least 1994, was not reasonable. Moreover, it was hardly a secret through the Cold War years that radiation exposure was potentially dangerous. Plaintiffs' suggestion that they had no reason to suspect that the Experiments might not have been safe is, thus, dubious.

Plaintiffs also argue [**19] that defendants' alleged deliberate withholding, and fraudulent concealment of "critical facts" central to plaintiffs' claims, excuses their lack of diligence. See Barrett v. United States, 689 F.2d 324, 333 (deliberate withholding and fraudulent concealment of critical facts tolls accrual). Plaintiffs fail to create a genuine issue of fact as to the withholding of "critical facts." Even if, as alleged, certain facts were withheld, such as the exact dose of radiation administered to Bibeau's testes, an unsupportable contention, given that Bibeau never even requested any information regarding the Experiments until at the earliest 1993, there is no evidence that critical facts were withheld. See Gibson v. United States, 781 F.2d at 1344 (fact of injury and immediate physical cause are critical facts for purpose of claims accrual analysis).

Plaintiffs suggest that Barrett v. United States, 689 F.2d 324 (2d Cir. 1982) is "directly analogous." In Barrett, the plaintiff's decedent died from the injection of a mescaline derivative administered to him while he unknowingly served as a test subject in an Army Chemical Corps (ACC) chemical warfare experiment in the early [**20] 1950s. The ACC did not obtain the decedent's consent, or even inform him of his participation in the experiment. Id. at 326. Notwithstanding plaintiff's effort to obtain information regarding the matter, the ACC actively concealed its identity, its role, and the very existence of the drug research program from plaintiff and the New York state court system until 1975. For example, after the decedent's death, the ACC altered the decedent's records such that it appeared as if the drug was administered for therapeutic reasons by the Army Medical Corps. Id. at 327. Further, the existence of the drug program was classified as a defense secret, and defense counsel was informed that disclosure of information regarding the program was punishable under the Espionage Act. All of this information remained classified until 1975. Id. at 328. Based on these facts, the court held that there were factual disputes as to the extent of the Government's concealment of critical facts and the diligence exercised by plaintiffs. Id. at 330.

The case at bar stands in stark contrast to Barrett. Here, Bibeau was informed from the start of his participation in the Experiment. It is undisputed [**21] that he knowingly participated in the Experiments, and was aware of the various procedures he underwent. Further, there is no evidence that defendants concealed their identities, involvement, or roles in the Experiments from plaintiffs or others. Scientific journal articles specifically about the Experiments, published in the 1960s and 1970s, and references to the Experiments in the media, starting in the 1970s, belie any claim of concealment of critical facts.

Plaintiffs next argue that the latency and complexity of Bibeau's alleged injuries, including his alleged increased risk of cancer, [*357] delay accrual of the statute of limitations. Logically, latency and complexity only delay accrual where, as a result, a plaintiff was not aware, and could not become aware through the exercise of due diligence, of the critical facts of injury and its cause. This is not the case here. 3 Moreover, none of the cases cited by plaintiffs support the proposition advanced by them that latency and complexity excuse them from the diligence requirement. In fact, in [United States v. ] Kubrick, 444 U.S. [111] at 118, the Supreme Court specifically rejected this suggestion (rejecting proposition that in complex cases a "plaintiff [**22] . . . need not initiate a prompt inquiry and [is] free to sue at any time within two years from the time he receives or perhaps forms for himself as reasonable opinion that he has been wronged.").

FOOTNOTES

3 Bibeau suggests that his claim could not have accrued because he was not aware of his increased risk of cancer, a somewhat intangible, and likely incognizeable injury, until 1993. As indicated above, however, Bibeau was aware, or should have been aware, of other apparent consequences of his participation in the Experiments during the limitations period. This is sufficient to start the statute of limitations running. See Ashley v. United States, 413 F.2d 490 (9th Cir. 1969) (where plaintiff knows he has been injured, he may not "delay filing suit until the time, however long, when he becomes knowledgeable as the precise extent of the damage resulting from the tort.").


Finally, plaintiffs argue that the doctrine of fraudulent concealment tolls the statute of limitations in this case. 4 The law is clear that [**23] in order to establish fraudulent concealment, "the plaintiff must plead with particularity the circumstances surrounding the fraudulent concealment and state facts showing his due diligence in trying to uncover the facts." Conerly v. Westinghouse Elec. Corp., 623 F.2d 117, 120 (9th Cir. 1980) (emphasis added); Rutledge v. Boston Woven Hose and Rubber Co., 576 F.2d 248, 249-50 (9th Cir. 1978)(Plaintiff must "show[] that [defendants] actively mislead him [and] that he had neither actual nor constructive knowledge of the facts constituting his claim for relief despite his diligence in trying to discover the pertinent facts."). Plaintiff Bibeau's lack of diligence, thus, precludes application of the doctrine of fraudulent concealment. Further, plaintiffs fails to raise a material issue of fact regarding Bibeau's actual or constructive knowledge of the pertinent facts. Even if Bibeau did not have actual knowledge of his injury and its possible cause, he could have obtained such knowledge had he investigated. See Conmar, 858 F.2d at 505 ("When the claim is one of concealment and the very facts allegedly concealed are available in public records, the argument that plaintiffs [**24] should, as a matter of law, be held to constructive knowledge of the cause of action is much stronger."). Plaintiffs' fraudulent concealment argument, like the other arguments they invoke to avoid the statute of limitations bar, is unavailing. Plaintiffs' federal claims are barred by the statute of limitations. Thus, defendants' motions for summary judgment are GRANTED as to plaintiffs' federal claims.

FOOTNOTES

4 Unlike the discovery rule, which delays accrual of a claim, the doctrine of fraudulent concealment, also known as equitable tolling, is an equitable doctrine which tolls the statute once a claim has accrued.


2. State Claims

In Oregon, a claim accrues when a plaintiff is aware, or in the exercise of reasonable diligence, should have been aware, that he or she has suffered a "legally cognizable harm." Gaston v. Parsons, 318 Ore. 247, 259, 864 P.2d 1319 (1994). Such a harm consists of three elements, (1) harm; (2) causation; and, (3) tortious conduct. Id. at 255; Doe v. American Red Cross, 322 Ore. [**25] 502, 511, 910 P.2d 364 (1996). Accrual does not require "actual knowledge that each element is present. On the other hand, a mere suspicion is insufficient to begin the statute of limitations [running]." Gaston, 318 Ore. at 255-56. Further, a claim "accrues from the date the injury is, or should have been, discovered, not from the time the full extent of damages is ascertained." Raethke v. Oregon Health Sciences University, 115 Ore. App. 195, 198, 837 P.2d 977 (1992), rev. denied, 315 Ore. 442, 847 P.2d 410 (1993). Finally, as is true of the federal discovery rule, the analogous state rule is "an [*358] objective one." American Red Cross, 322 Ore. at 512.

For the reasons discussed above, it is evident that Bibeau was aware, or in the exercise of reasonable diligence should have been aware of harm and causation in this case. 5 Plaintiff also was aware, or should have been aware, of defendants' allegedly tortious conduct. Plaintiffs contend that Bibeau was fraudulently induced to participate in the Experiments, in that certain potential health risks were not disclosed to him. Based on this alleged conduct, plaintiffs assert claims for fraud, battery, intentional infliction of [**26] emotional distress, strict liability, and breach of fiduciary duty. The alleged invasion of plaintiffs' legal interests, however described, was known or should have been known at the time Bibeau suffered injuries or consequences about which he allegedly was not warned, or concerning which he allegedly was deceived. See, e.g., Gaston v. Parsons, 117 Ore. App. at 558 (discussing informed consent claims: claim accrues when plaintiff suffers harm about which he has not been warned.); Mathies v. Hoeck, 284 Ore. 539, 544, 588 P.2d 1 (1978) (discussing fraud claims: "the period of limitations for fraud begins to run when the plaintiff knows or should have known of the alleged fraud.").

FOOTNOTES

5 Unlike the state rule, the federal discovery rule does not require knowledge of tortious conduct. See Herrera-Diaz, 845 F.2d at 1536 ("When the injury and its cause are known, the claim accrues even though the plaintiff may not then be aware that the injury may have been negligently inflicted.").


Here, Bibeau was not warned [**27] of the possibility of recurring radiating testicular pain, and chronic groin rash, which he knowingly experienced as early as the late 1960s, and during the over thirty years since then. Further, the Oregon discovery rule and the doctrine of fraudulent concealment, like the analogous federal rules, require the exercise of due diligence, which, for the reasons discussed above, plaintiffs fail to satisfy. See Gaston, 318 Ore. at 256 ("The discovery rule does not protect those who sleep on their rights, but only those who, in exercising the diligence expected of a reasonable person, are unaware that they have suffered legally cognizable harm."); Chaney v. Fields Chevrolet Co., 264 Ore. 21, 27, 503 P.2d 1239 (1972) (fraudulent concealment delays accrual until facts discovered or should, with reasonable diligence, have been discovered.). Accordingly, plaintiffs' state law claims also are barred by the statute of limitations. 6 Defendants' motions for summary judgment, thus, are granted as to plaintiffs' state law claims.

FOOTNOTES

6 Because plaintiff Bibeau's claims are barred by the statute of limitations, plaintiffs' loss of consortium claim, as a matter of law, also must fail. See Lakin v. Senco Products, Inc., 144 Ore. App. 52, 81, 925 P.2d 107 (1996) ("[A] spouse's loss of consortium action 'is measured by and subject to' any defenses available in [the other spouse's] action for redress of the same harm.") (quoting Ross v. Cuthbert, 239 Ore. 429, 397 P.2d 529 (1965). In addition, because of the court's ruling as to the statute of limitations, the court need not address the other arguments raised by defendants in their motions for summary judgment.


[**28] CONCLUSION

Plaintiff Bibeau was a participant in what appears to have been an inappropriate series of experiments on inmates at the DOC. However, this court may not hear a case, however old, simply because its facts appear compelling. Statutes of limitations are designed to "protect defendants and the courts from having to deal with cases in which the search for truth may be seriously impaired by a loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents, or otherwise." Kubrick, 444 U.S. at 117. This is such a case. Though the Court is disturbed by plaintiffs' allegations concerning the Heller Experiments, the time has come for defendants' "right to be free of stale claims" to prevail over plaintiffs' "right to prosecute them." Railroad Telegraphers v. Railway Express Agency, 321 U.S. 342, 349, 88 L. Ed. 788, 64 S. Ct. 582 (1944) Plaintiffs' federal and state claims are barred by the applicable statutes of limitations. Defendants' motions for summary judgment (# s 143, 150, 154, 160) are GRANTED. This case is dismissed with prejudice. All other [*359] pending motions in this case are denied as MOOT.

Dated this 25th day [**29] of July, 1997.

Michael R. Hogan

UNITED STATES DISTRICT JUDGE