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