Orlikow v. U.S.
Cite as 682 F.S. 77 (D.D.C.
1988)
87
component of psychic driving and cannot be severed from the CIA funded
research which occurred. Therefore, because each plaintiff was administered at
least one form of Dr. Cameron's depatterning technique, there will be no
dismissal simply because psychic driving may not have been
administered.''
16 Defendant also argues for dismissal under the Foreign
Country Exception, 28 U.S.C. 2680(k). The injuries undeniably occurred in
Canada. The FTCA, for purposes of imposing liability, however, focuses on the
place of the government employee's act or emission. Sami v. United States, 617
F.2d at 761-762 This Circuit has stated that: "No case to our knowledge has held
the United States exempt from liability for acts or omissions occurring here
which have their operative effects in another country." Id. at 762. Plaintiffs
allege negligence by the CIA in supervising employees and funding Dr. Cameron.
The Court concludes, at least based on the present record, that the claim does
not "arise in a foreign country" and thereby does not fall within the ambit of
section 2680(k).
[171 It must be noted that plaintiffs do not raise any
claim based on vicarious liability. See Plaintiffs' Opposition at 51.
Defendant's arguments on this point are misdirected. The issue raised concerning
the government's liability for acts of an independent contractor are likewise
extraneous. Where the government negligently selects a third party to carry out
its policy there is a duty to do so reasonably. Melton v. United States, supra.
The plaintiffs allege negligent funding of an extra hazardous activity and
negligent funding of malpractice. Although the Court believes that these two
counts contain essentially the same theme," they are certainly valid claims of
negligence.
V. CONCLUSION
The extensive briefs and
discovery subniitted reflect the complex nature of this case, both legally and
factually. After carefully considering the papers, the Court concludes that
there are geniune issues of material fact in dispute which preclude a decision
on many of the legal arguments presented. Only the issue involving Dr. Morrow's
claim, where the statute of limitations bars her suit, can he resolved at this
time, Therefore, defendant's motion for summary judgment must be denied in part,
and granted in part. Resolution of certain legal arguments must await
plaintiffs' opportunity to have their day in court.
An appropriate order
has issued granting the motion in part, as it relates to Dr. Morrow, and denying
the motion in part, as it relates to the remaining plaintiffs . The case is set
for a status call, at which time the parties shall be prepared to schedule
pretrial and trial dates.
footnote 10. Dr. Morrow filed a lawsuit against
Dr. Cameron's estate in Canada. The Court did not find that Dr. Cameron was
negligent and Dr. Morrow did not receive a judgment. Defendants Exhibit 5
attached to Defendant's Statement.
11. Defendant also stresses
that certain plaintiffs did not receive LSD or psychic driving during the
research funding. Defendants Statement pars. 119 and 120. Although this is
significant insofar as each plaintiff receivcd some form of alleged experimental
technique during the CIA involvement, the issue of causation must still be left
for resolution at the trial.