Orlikow v. U.S.
Cite as 682 F.S. 77 (D.D.C. 1988)
83
by reasonable diligence could have discovered, the basis of
the lawsuit.
The diligence-discovery rule applies not only to concealment
cases but also "where
a plaintiff demonstrates that his injury was inherently
unknowable at the time he was
injured." Barrett v. United States, 689 F.2d 324, 327 (2nd
Cir.1982), cert. denied
Catlett v. Barrett, 462 U.S. 1131, 103 S.Ct.
3111, 77 L.Ed.2d 1366 (1983).
61 The focus of the statute of limitations arguments in this case
must be discussed with careful consideration of what is being
alleged. This is not a medical malpractice case although there
are aspects which may implicate treating the case for limitations
purposes as negligence in promoting medical malpractice. This
case involves the alleged negligence by the CIA in secretly
funding a doctor who allegedly carried out experiments on
unwitting human subjects. This Court cannot agree with defendant
that knowledge of injury by
Dr. Cameron constitutes the accrual date of plaintiffs claims.
The CIA backing of Dr. Cameron is the focus of this case.
Although the case may turn on whether Dr. Cameron's actions, as
reflected in his research application were medically unsafe,
unethical or purely experimental; plaintiffs do not seek damages
from the government on a vicarious liability theory. Instead the
gravamen of the claim is that the reason the plaintiffs , were
injured was because the CIA funded a research experiment on hu-man
guinea pigs. The pivotal question is when plaintiffs' claim
accrued against the CIA not Dr. Cameron.
There are factual issues in dispute as to the extent of
concealment surrounding his case. Concealment can toll the
limitations but only as long as the plaintiff could not unearth
the critical facts by exercising due diligence. Defendant adrnits
that the MKULTRA programs were covert and that the identity of
the CIA as the funding source was to be kept secret. This is not
material, however, to the significant difficult question of
notice that is raised in this case.
Although the CIA funding was undisclosed for many years,
defendant argues that it came to light when a book by John Marks,
The Search for the Manchurian Candidate, was published in 1979
and various other articles were subsequently published in
newspapers and journals. For clarity in analyzing the
significance of this in relation to each plaintiff a list of each
plaintiff's filing date follows: 4
Name Date of actual notice Date of filing
Mr. Page February 9, 1979 March 14, 1980
Mr. Logie February 12, 1979 March 14, 1980
Mm. Huard March, 1980 Nov. 25, 1980
Mm. Stadler March 11, 1980 Nov. 25, 1980
Mrs. Zimmerman June 10, 1982 Feb. 4, 1983
Mrs. Langleben June 10, 1982 Feb. 4, 1983
Mr. Weinstein August,1980 Feb. 4, 1998
Dr. Morrow Summer,1977 March 25, 1981
Although the first six plaintiffs filed suit within two years of
their stated "actual notice", defendant contends that
the numerous articles and programs detailing the funding "should
have" put them on notice.7
6. The claim of Mrs. Orlikow is not be discussed because
defendant docs not contend that her claim should be dismissed on
statute of limitations ground. Motion for Summary Judgment at 35.
7. Defendant cites to publication of The Manchurian Candidate in
1979, Canada AM television program on February, 1,)79, Fith
Estate television program on March 11, 1980, Quebec Science
article on March 1980, Saturday Night article on June, 1979,
Maclean's Magazine article on February 12, 1979, Montreal Star
newspaper article on January 29, 1979, Montreal Gazette newspaper
article on July 26, 1979, September 11, 1979 and December 12,
1980. Defendant asserts that at least 25 articles , were written
about Dr. Cameron and his funding by the CIA prior to January 1,
1981. Defendant's Motion Exhibit 30