Orlikow v. U.S.
Cite as 682 F.S. 77 .(D.D.C. 1988)
84
The critical issues relate to causation and identity. Fraudulent
concealment claims play a part insofar as plaintiffs were kept
from the CIA's true identity and the extent of the CIA
involvement. The doctrine loses its substance, however, as soon
as a plaintiff receives actual knowledge of facts sufficient to
justify a claim. The problem for the Court is what constitutes
"due-diligence." It is a term that is hardly self-explanatory.
7, 8 In United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62
L.Ed.2d 259 (1979), a medical malpractice case, the Supreme Court
held that the plaintiff's ignorance of his legal rights did not
constitute the "blameless ignorance" for which tolling
is applied. Neither does ignorance of the law ordinarily toll the
statute of limitations. Richards v. Mileski, 662 F2d 65, 71, n.
10 (D.C.Cir.1981). But where the actual fact that he has been
injured is unknown or the facts about causation may be in the
control of the putative defendant, then the plaintiff is more at
the "mercy" of the defendant and tolling is justified.
Kubrick, 444 U.S. at 122, 100 S.Ct. at 359. Where the "what"
element and the "who" element is missing from the
puzzle, a claim against the government should be tolled if
plaintiff has expended due diligence to on-cover these facts.
Barrett v. United States, 689 F.2d at 330 (1982).
9, 10 It is defendant's burden to show that these plaintiffs
could have discovered the CIA involvement if they had exercised
due diligence. When analyzing this case, the Court is painfully
aware that plaintiffs all suffer from some mental disorder.
Whether this was a consequence of Dr. Cameron's actions or the
CIA negligence is a matter left for trial. Plaintiffs contend
that they are individuals who innocently sought legitimate help
for their varying degrees of mental disorders and were in stead
used as unwitting human subjects in
experiments funded by the CIA. Particularly troublesome is the
task of ascertaining when such individuals should or did know of
the facts when it is obvious these plaintiffs were diagnosed as
suffering from various types of mental dysfunctions even before
their "treatment" and allegedly were in varying degrees
of mental impairment thereafter. Curiously, often a classic
manifestation of people who are afflicted with certain psychotic
disorders is the irrational fear that the CIA and FBI is
conspiring to harm them. In this case, the CIA
involvement is real and the covert nature of the involvement is
not contested. Only that the fact of causation is disputed. Where
the alleged negligence caused the mental harm which
affects a plaintiff's ability to function normally in life, in
fairness to that plaintiff
the question of due diligence or when the claim accrues differs
from the case where
the injury was not related to the plaintiff's cognitive
functioning . Zeidler v. United States, 601 F.2d 527, 530-531 (10th
Cir. 116, n. 118
The Court is mindful that generalIv the principles of equity
cannot be invoked to toll the FTCA statute of limitations. The
limitations governing claims against the United States should be
strictly construed. Although insanity does not toll the running
of the statute of limitations in FTCA cases the conditions of the
plaintiffs claims more in this case can be considered when
evaluating whether they exercised due diligence once the degree
of concealment is resolved.
11, 12 After careful consideration of defendant's assertion that
the publications
footnote 8:. This is not to say that the traditional tolling
d@trines apply to the FTCA statute of lim:tations. "it is
clearly the law that disabilities due to insanity or mental
incompetency will not toll the running of the two year statute of
limita-tions of 2401(b)." Zeidler, 601 F.2d at $29. In one
case, where the government had ncgligently caused plaintiff's
coma and thereby, through this negligence prevented plaintiff
from knowing that he had been injured, the Court held that the
statute of limitations was tolled. W"hingion v. United
States 769 F.2d 1436, 1438 (9th Cir.1985). There was no claim for
actual fraudulent concealment in this case. It is likely,
therefore, that when there are issues of fact on the government's
concealment and there are allegations that the actions interfered
with the plaintiff's mental capacity to be aware there should be
special considerations of the plaintiff's condition.