Hughes v. Vanderbilt University

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 ELECTRONIC CITATION: 2000 FED App. 0193P (6th Cir.) File Name: 00a0193p.06

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________

;  ERNESTINE CARTER HUGHES,  Plaintiff-Appellant,   No. 99-5499 v.  VANDERBILT UNIVERSITY, > WILLIAM J. DARBY, M.D.,   GOVERNMENT OF NASHVILLE  THE METROPOLITAN

  AND DAVIDSON COUNTY,

 TENNESSEE, THE NUTRITION FOUNDATION, INC., and THE   Defendants-Appellees,  ROCKEFELLER FOUNDATION,

  Defendant.  THE STATE OF TENNESSEE, 1 Appeal from the United States District Court for the Middle District of Tennessee at Nashville. No. 98-00770—Thomas A. Higgins, District Judge. Argued: March 6, 2000 Decided and Filed: June 7, 2000

2 Hughes v. Vanderbilt University, et al. No. 99-5499

Before: SILER and GILMAN, Circuit* Judges; O’MALLEY, District Judge. _________________ COUNSEL ARGUED: Phillip L. Davidson, Nashville, Tennessee, for Appellant. Robert P. LoBue, PATTERSON, BELKNAP, WEBB & TYLER, New York, New York, for Appellees. ON BRIEF: Phillip L. Davidson, Nashville, Tennessee, for Appellant. John S. Bryant, BASS, BERRY & SIMS, Nashville, Tennessee, Francis H. Young, METROPOLITAN DEPARTMENT OF LAW, Nashville, Tennessee, John L. Chambers, STOKES & BARTHOLOMEW, Nashville, Tennessee, John W. Wagster, HOLLINS, WAGSTER & YARBROUGH, Nashville, Tennessee, for Appellees. GILMAN, J., delivered the opinion of the court, in which SILER, J., joined. O’MALLEY, D. J. (p. 13), delivered a separate opinion concurring in the result only. _________________ OPINION _________________ RONALD LEE GILMAN, Circuit Judge. Ernestine Carter Hughes contends that the defendants unlawfully subjected her to dangerous medical tests in 1945 when she was a child. The district court concluded that Hughes’s 1998 action was barred by the statute of limitations. Hughes now challenges that decision. For the reasons set forth below, we AFFIRM the judgment of the district court.

* The Honorable Kathleen M. O’Malley, United States District Judge for the Northern District of Ohio, sitting by designation.

No. 99-5499 Hughes v. Vanderbilt University, et al. 3

I. BACKGROUND A. Factual background In 1945, Vanderbilt University conducted a three-month study to further understand how iron is absorbed in the human body. The study, which was funded by the Nutrition Foundation, Inc. (NFI), the International Health Division of the Rockefeller Foundation (Rockefeller), and the Tennessee Department of Health, involved nearly 200 children from the Caldwell and Ransom elementary schools in Nashville, Tennessee. William J. Darby, M.D., was one of the principal researchers. The students, most of whom were between the ages of seven and ten, were given lemonade that had been laced with radioactive iron. Darby and his colleagues analyzed before-and-after blood samples drawn from the children, and then published the results of their work in the Journal of Nutrition. At all times relevant to this case, Hughes resided in Nashville. In 1945, she was eight years old and a student at the Caldwell elementary school. Vanderbilt records reflect that Hughes, then known as Ernestine Carter, was one of Darby’s subjects. The 1945 study failed to draw any significant public attention until January 13, 1994, when a Nashville newspaper, The Tennessean, ran a front-page story recounting the nature of the testing involved. Titled “Students Given Radioactive Drink,” the article was based on a Vanderbilt press release to be issued the following day. The Nashville Banner printed a similar piece on the cover of its January 14, 1994 issue. On January 17, 1995, Katherine Henley, who alleged that she was one of the students subjected to the study, filed a class action against the defendants in the United States District Court for the Middle District of Tennessee. That case garnered its own share of media attention. On January 18, 1995, The Tennessean again ran a front-page story on the matter and, on January 19, 1995, CBS’s Nashville television affiliate reported on the suit during three different broadcasts.

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In August of 1997, however, Henley admitted that at the time _______________________ of the study she was not enrolled in either the Caldwell or Ransom elementary schools. This revelation was also CONCURRENCE reported by The Tennessean. Her case was dismissed on or _______________________ about July 8, 1998. B. Procedural history KATHLEEN McDONALD O’MALLEY, District Judge, concurring. I respectfully concur in the result only. I do not On August 24, 1998, Hughes, on behalf of herself and all agree that the allegations in Hughes’s complaint operate to others similarly situated, filed suit against Vanderbilt, Darby, bar her claim as a matter of law; the allegations to which the the Metropolitan Government of Nashville and Davidson majority and the district court cite are far too imprecise to be County, NFI, Rockefeller, and the State of Tennessee. In read as binding admissions on this important dispositive addition to a request for class action certification, her issue. I also cannot agree that, on the record presented, complaint alleged violations of 42 U.S.C. §§ 1983 and 1985, Hughes should be charged with the knowledge that what and set forth claims of negligence, battery, and strict liability happened to her as a child was wrongful, so as to bar her (based on ultrahazardous activity). The factual allegations claim at or near the time she reached majority. I concur solely made by Hughes included the assertion that “Vanderbilt and because I believe that, in the circumstances presented here – Darby . . . intentionally forced plaintiff to ingest radioactive where there were numerous newspaper articles and television iron by forcibly holding her mouth open and instilling the broadcasts regarding these events – Hughes should have radioactive substance into her mouth against her will, known of the injury which is the basis for her action. See ignoring her protests.” She further alleged that, as a result of Sevier v. Turner, 742 F.2d 262, 273 (6th Cir. 1984). the ingestion, “she has suffered loss of weight, blood problems, tumors, and other severe, physical problems.” I further note that I do not believe that advertising alone Hughes also addressed the timing of her suit: would necessarily, or even usually, be sufficient to begin the running of the statute of limitations. If the circumstances had On July 8, 1998, the plaintiff was first informed that she been marginally different – if the media had been less was a subject of this radiation experiment by way of comprehensive in its coverage, or if Hughes did not live in the learning that a lawsuit [that] was filed by Katherine city where the media coverage occurred – I likely would be Henley on or about late April 1997 had been dismissed. unwilling to conclude, at the summary judgment stage, that In late 1993 and early 1994, the first disclosures of many Hughes had constructive knowledge of the event. I am, human radiation experiments came out in the press, however, comfortable in the narrow circumstances presented including other experiments conducted by . . . Vanderbilt. here agreeing with the majority’s conclusion that the However, plaintiff was not aware of these disclosures “publicity was sufficient to charge Hughes with constructive until she learned that the Henley lawsuit . . . had been knowledge of the events underlying her cause of action. . .” dismissed. . . . See Op. at 9. The plaintiff and class members, in the exercise of reasonable diligence, did not know or have reason to know the true nature and dangers of the radioactive experimentation to which they were subjected to in the past, and plaintiff and class members did not know or

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in which the search for truth may be seriously impaired have reason to know of their claims for relief against the by the loss of evidence, whether by death or defendants in regard to the Caldwell and Ransom disappearance of witnesses, fading memories, Schools radioactive iron experiment until about January disappearance of documents, or otherwise. 14, 1994, and later. A great many members of the class still do not know about the experiment. United States v. Kubrick, 444 U.S. 111, 117 (1979) (citations and internal quotation marks omitted). (Emphasis added.) Our holding reflects these important principles. The In October and November of 1998, all of the defendants Vanderbilt study occurred more than fifty years prior to the filed dispositive motions based on the assertion that Hughes’s filing of this lawsuit. Darby, the only researcher still alive, is action was barred by the statute of limitations. Several allegedly in poor health and would be unable to testify. The affidavits and exhibits were submitted by the parties in Rockefeller representatives who were involved in funding the support of, and in response to, these motions. program are apparently all deceased. It would also be difficult, if not impossible, for a jury to fully understand the On November 19, 1998, Hughes moved to amend her scientific and ethical context in which these experiments took complaint by changing the date cited in the excerpt place. These circumstances illustrate why this court has above—that is, the portion of her complaint alleging that she observed as follows: “‘Statutes of limitations are vital to the and the class members did not know or have reason to know welfare of society and are favored in the law.’ Stale conflicts of the existence of their claims “until about January 14, 1994, should be allowed to rest undisturbed after the passage of and later.” Hughes stated in an affidavit filed on December time has made their origins obscure and the evidence 1, 1998 that she did not know about the study “until July 8, uncertain.” Dayco Corp. v. Goodyear Tire & Rubber Co., 1998.” Her request to amend, however, was denied. The 523 F.2d 389, 394 (6th Cir. 1975) (quoting Wood v. docket entry of the district court’s decision states that “this Carpenter, 101 U.S. 135, 139 (1879)). motion is unsupported other than [by] the assertion of counsel as to a ‘typographical’ error which is contradicted by his III. CONCLUSION having signed the pleading in the Henley action . . . .” For all of the reasons set forth above, we AFFIRM the All of the defendants’ motions were referred to a magistrate judgment of the district court. judge for a ruling. On January 19, 1999, the magistrate judge issued his report and recommendation. At the outset, the magistrate judge noted that he would consider the evidentiary materials filed by the parties and, in turn, treat the motions to dismiss as requests for summary judgment. Then, after setting forth the facts and the applicable standard of review, the magistrate judge addressed the apparent conflict between the January 14, 1994 date set forth in Hughes’s complaint and the July 8, 1998 date alleged in her affidavit. Citing the denial of Hughes’s motion to amend her complaint, the magistrate judge stated that he “does not deem [her] subsequent affidavit to create a material factual dispute . . . .”

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The magistrate judge then discussed the applicable law it does constitute an admission that a reasonable person regarding the statute of limitations and concluded as follows: should have been aware of the claims at issue by that date. This admission, moreover, was not an “accidental” inclusion. [B]y her own admission in her complaint, plaintiff cites Henley, who was represented by Hughes’s attorney, used the that she was aware or reasonably should have been aware same date in her earlier action. of her claims in [January], 1994 . . . . Plaintiff also states that there were public studies on the Caldwell project that In point of fact, Hughes’s claim may have been barred were published in 1994, although she states that she was decades ago, one year after she attained her majority. See not aware of them until July 8, 1998. . . . Moreover, the TENN. CODE. ANN. § 28-1-106 (setting forth the accrual rule manner in which Hughes described her ingestion of this for persons under the age of eighteen at the time a cause of liquid as “forced by the defendants against her will” . . . action accrues). Hughes specifically alleged in her complaint also suggests Hughes[’s] longstanding awareness of the that “Vanderbilt and Darby . . . intentionally forced plaintiff cited facts underlying her claims. to ingest radioactive iron by forcibly holding her mouth open and instilling the radioactive substance into her mouth After citing the media reports concerning the Vanderbilt against her will, ignoring her protests.” (Emphasis added.) study and Henley’s suit, the magistrate judge reiterated his Although there may have been no way for her to know that view that “[t]he existence of litigation on the same project and she was being given a radioactive substance, her detailed the attendant publicity would have placed a reasonable person description of the manner in which Darby and his colleagues on knowledge [sic] of her federal claims by July, 1994 and no administered the test is probably sufficient to have obligated later than July, 1995 when the Hensley action was filed and her to investigate further once she reached the age of majority. its prominent publicity was widespread.” The magistrate We need not, however, answer this question because of the judge then recommended that all of the defendants’ motions extensive media publicity in the mid-1990s and because of be granted. her judicial admission regarding when persons in her position should have learned of the studies. On March 9, 1999, the district court, without further analysis, adopted the magistrate judge’s recommendation and In light of Hughes’s alleged medical problems, we dismissed Hughes’s complaint on the basis of the statute of recognize that any procedural bar may at first blush seem limitations. In this appeal, Hughes does not take issue with unfair. There is, however, a broader principle at stake. As the the district court’s denial of her motion to amend her Supreme Court has stated: complaint. Rather, Hughes asserts that (1) she was not aware that she had been a subject of Darby’s tests until July 8, 1998, [S]tatutes of limitations, which are found and approved and (2) the issue of whether she had exercised reasonable care in all systems of enlightened jurisprudence, represent a and diligence in discovering her cause of action should have pervasive legislative judgment that it is unjust to fail to been submitted to a jury. put the adversary on notice to defend within a specified period of time and that the right to be free of stale claims II. ANALYSIS in time comes to prevail over the right to prosecute them. These enactments are statutes of repose; and although A. The nature of the motions being reviewed affording plaintiffs what the legislature deems a reasonable time to present their claims, they protect Although not raised as an issue of contention between the defendants and the courts from having to deal with cases parties, it is important to clarify the nature of the motions

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used reasonable diligence is tested by an objective being reviewed. Pursuant to the Federal Rules of Civil standard.”). Procedure, Based on the undisputed facts concerning the media [i]f, on a motion asserting the defense numbered (6) to attention given to the Vanderbilt study in question, no dismiss for failure of the pleading to state a claim upon reasonable factfinder could find that Hughes’s cause of action which relief can be granted, matters outside the pleading accrued any later than January 19, 1995. This was the date are presented to and not excluded by the court, the that Nashville’s CBS affiliate reported the filing of Henley’s motion shall be treated as one for summary judgment and class action lawsuit against the same defendants involved in disposed of as provided in Rule 56 . . . . the present action. By this time there had been numerous news reports both in print and on television discussing the FED. R. CIV. P. 12(b). facts supporting Hughes’s claims, beginning with The Tennessean’s front-page story on January 13, 1994. Hughes Here, the district court adopted the magistrate judge’s filed her complaint on August 24, 1998, long after the one- report and recommendation in which the magistrate judge year period in which to file her cause of action had ended. As explicitly noted that, pursuant to Rule 12(b), he was electing such, her suit is untimely. to consider the evidentiary materials submitted by the parties and treat the motions to dismiss as motions for summary Hughes’s own complaint in this case supports our judgment. Nonetheless, both the magistrate judge in his conclusion. As previously noted, the district court ruled that recommendation, and the district court in its order, continued Hughes’s claim accrued on January 14, 1994, the date she to refer to “the motions to dismiss.” Despite these cites in her complaint. Plaintiffs are bound by admissions in misstatements, this court will treat the rulings below as their pleadings, and a party cannot create a factual issue by granting summary judgment. See United Bhd. of Carpenters subsequently filing a conflicting affidavit. See Reid v. Sears, v. Ohio Carpenters Health & Welfare Fund, 926 F.2d 550, Roebuck & Co., 790 F.2d 453, 460 (6th Cir. 1986) (“A party 558 (6th Cir. 1991) (holding that the district court’s decision may not create a factual issue by filing an affidavit, after a should be viewed as one granting summary judgment, despite motion for summary judgment has been made, which the fact that the district court committed an “error in contradicts her earlier deposition testimony.”); Ferguson v. nomenclature” by continuing to use the term “dismissal” even Neighborhood Hous. Servs. of Cleveland, Inc., 780 F.2d 549, after its consideration of an affidavit converted the proceeding 551 (6th Cir. 1986) (“Not only are such admissions into one governed by Rule 56). . . . binding before the trial court, but they are binding on appeal as well.”). Moreover, such admissions can undermine B. Standard of review the timeliness of a plaintiff’s claim. See, e.g., Davis v. A.G. Edwards & Sons, Inc., 823 F.2d 105, 107-08 (5th Cir. 1987) We review de novo the district court’s grant of summary (holding that the plaintiff was bound by admissions in his judgment. See Smith v. Ameritech, 129 F.3d 857, 863 (6th pleadings as to when he first discovered defendants’ Cir. 1997). Summary judgment is appropriate when there are misconduct). no genuine issues of material fact in dispute and the moving party is entitled to judgment as a matter of law. See FED. R. Even if the relevant statement made in her complaint does CIV. P. 56(c). In deciding a motion for summary judgment, not establish that it was Hughes—as opposed to others in the the court must view the evidence and draw all reasonable potential class—who learned of the facts on January 14, 1994, inferences in favor of the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587

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(1986). The judge is not “to weigh the evidence and 1990s. Indeed, “[w]here events receive . . . widespread determine the truth of the matter but to determine whether publicity, plaintiffs may be charged with knowledge of their there is a genuine issue for trial.” Anderson v. Liberty Lobby, occurrence.” United Klans of Am. v. McGovern, 621 F.2d Inc., 477 U.S. 242, 249 (1986). A genuine issue for trial 152, 154 (5th Cir. 1980). The facts of this case represent just exists when there is sufficient “evidence on which the jury such a situation. The press release issued by Vanderbilt in could reasonably find for the plaintiff.” Id. at 252. January of 1994 led to the publication of front-page stories in Nashville’s two leading newspapers. One year later, those C. The district court did not err when it held that same newspapers, as well as a major television network, Hughes’s suit was untimely issued reports on a nearly identical lawsuit filed by Henley. Hughes does not dispute the magistrate judge’s use of This publicity was sufficient to charge Hughes with Tennessee’s one-year statute of limitations as the controlling constructive knowledge of the events underlying her cause of statute. Indeed, “[i]n all actions brought under § 1983 action, especially in light of the fact that, at all relevant times, alleging a violation of civil rights or personal injuries, the she resided in Nashville. See id. at 154-55 (holding that the state statute of limitations governing actions for personal plaintiffs should have known that they had a potential claim injuries is to be applied.” Berndt v. Tennessee, 796 F.2d 879, against the defendants when the defendants held a press 883 (6th Cir. 1986). Following this rule, the applicable conference that revealed facts supporting such a claim and limitations period in Tennessee is one year. See TENN. CODE when the conference led to the publication of articles in at ANN. § 28-3-104(a)(1). least two newspapers circulated within the federal district in which the suit was eventually filed). The real dispute between the parties concerns when the one year began to run. Both sides refer to McCroskey v. Bryant In support of her appeal, Hughes asserts that she should not Air Conditioning Co., 524 S.W.2d 487 (Tenn. 1975), as be charged with constructive knowledge because she did not setting forth Tennessee’s rule on that issue. Federal law, hear or read any of the media reports discussed above. She however, controls the determination of when a civil rights argues in her brief as follows: “At the time of these articles, action accrues. See Sevier v. Turner, 742 F.2d 262, 273 (6th Mrs. Hughes did not take nor read the newspapers. Nor did Cir. 1984). In Sevier, this court concluded as follows: “The she watch Channel 5. Her husband with whom she had never statute of limitations commences to run when the plaintiff discussed her experience at Caldwell School did not take the knows or has reason to know of the injury which is the basis newspaper until 1995 or 1996.” of his action. A plaintiff has reason to know of his injury when he should have discovered it through the exercise of The relevant inquiry in cases such as the one before us, reasonable diligence.” Id. at 273 (citations omitted). This however, is an objective one. See J. Geils Band Employee court has also stated that “[i]n determining when the cause of Benefit Plan v. Smith Barney Shearson, Inc., 76 F.3d 1245, action accrues in section 1983 actions, we have looked to 1254 (1st Cir. 1996) (noting that the objective standard is the what event should have alerted the typical lay person to appropriate test for determining a “date of discovery”); protect his or her rights.” Dixon v. Anderson, 928 F.2d 212, Whirlpool Fin. Corp. v. GN Holdings, Inc., 67 F.3d 605, 609 215 (6th Cir. 1991). (7th Cir. 1995) (“[T]o determine if inquiry notice has been triggered an objective ‘reasonable’ diligence standard must be As noted previously, the magistrate judge placed great applied to the facts.”); Volk v. D.A. Davidson & Co., 816 F.2d weight on the fact that the Vanderbilt experiments had 1406, 1417 (9th Cir. 1987) (“[T]he extent to which a plaintiff received a significant amount of media attention in the mid-