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ORLIKOW v. UNITED STATES

January 18, 1988

Mrs. David Orlikow, et al., Plaintiffs
v.
United States of America, Defendant



The opinion of the court was delivered by: PENN

 Plaintiffs filed this Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671, et seq., suit against the United States for injuries they sustained from an alleged experimentation/research project funded by the Central Intelligence Agency (CIA). Defendant characterizes the actions of Dr. Ewen Cameron, the psychiatrist who utilized the CIA funds for his research, as psychiatric treatment which falls within the parameters of acceptable medical standards. The case is before the Court on defendant's motion for summary judgment. Defendant has propounded numerous arguments supported by a plethora of documents to which plaintiffs have parried with countervailing arguments and evidence. *fn1" Despite the copious paper filed in this motion, the issues can be narrowed to: (1) whether defendant's actions fall within the discretionary function exception to the FTCA, (2) whether the statute of limitations precludes suit by plaintiffs, (3) whether the actions fall within the foreign country exception and, (4) whether the CIA can be liable for the actions of an independent contractor. A thorough analysis of the case must begin with sorting through the admitted facts and those issues which remain in dispute. Against this framework the relevant law is applied.

 I. BACKGROUND

 The facts submitted in this case are labyrinthine and generally not disputed. The pivotal issue, however, pertaining to whether Dr. Cameron's research was medically sound therapy or experimentation, is plainly in dispute. In their Amended Complaint the plaintiffs allege, (1) negligent failure of supervision and control over CIA employees, (2) negligent and reckless funding of hazardous experiments, (3) liability for CIA funding of medical malpractice. Amended Complaint at 19-24. A brief overview of the case will provide the context in which this action arose.

 In the 1950s, the CIA initiated an expansive covert research project, known as MKULTRA, which was designed to investigate chemical and biological warfare. The project was established to counter Soviet and Chinese advances in brainwashing and interrogation techniques. Various subprojects were contracted out to research institutions. Because the Agency funded the research indirectly, participating individuals often were unaware of the CIA involvement. C.I.A. v. Sims, 471 U.S. 159, 105 S. Ct. 1881, 1884, 85 L. Ed. 2d 173 (1985). An April 3, 1953 memorandum reads:

 
Aside from the offensive potential, the development of a comprehensive capability in this field of covert chemical and biological warfare gives us thorough knowledge of the enemy's theoretical potential thus enabling us to defend ourselves against a foe who might not be as restrained in the use of these techniques as we are. *fn2"

 Defendant's Motion Exhibit *fn2"

 Many of the early projects involved the use of Lysergic Acid Diethyamide (LSD) and other drugs and some involved experimentation on unwitting human subjects. Id. 105 S. Ct. at 1884, n. 2. A few tragic deaths occurred from these actions. *fn3" Defendant admits that as a result of one specific death, critical letters were given by Director Dulles to the Chief, TSS, Mr. Gibbons, the Chief of the Technical Operations Branch of TSS, Colonel Drum, and the Chief of the Chemical Division of TSS, Dr. Gottlieb. Defendant's Statement of Material Facts as to Which There Is No Genuine Issue, hereinafter "Defendant's Statement" par. 20. Additionally, after the Olson death, Director Dulles "made it clear that these projects should be handled under adequate medical supervision." Defendant's Statement par. 22.

 In 1955, the CIA set up a secret front organization, known as the Society for the Investigation of Human Ecology (SIHE), to fund further studies. CIA employee, Dr. John Gittinger and Dr. Wolff from Cornell, assisted in the program formation. Approximately a year later, Dr. Gittinger read an article, published in the American Journal of Psychiatry, written by Dr. Ewen Cameron from the Allan Memorial Institute of Psychiatry, and entitled Psychic Driving. Defendant's Motion Exhibit 6. The article prompted him to invite Dr. Cameron to submit an application for SIHE research funds. Defendant's Statement pars. 31-32.

 The article described a technique administered to individuals who suffered from varying forms of mental disorders. The technique involved the playback of a significant statement made by the patient though the use of a continuous loop tape recorder. Certain methods were utilized to reduce defense mechanisms and "depattern" behavior. These techniques were later detailed in an application for research funds submitted to the SIHE. They included the use of "particularly intensive" electroconvulsive shock, sensory isolation, and drug induced continuous sleep for many days. The application requested funds to improve the technique of heteropsychic driving and to investigate the range of physiological functions which can be changed by these procedures. Among the studies proposed was the use of chemical agents, including LSD, to depattern the individual. Defendant's Motion Exhibit 7. Dr. Cameron characterized his work as the "gateway through which he might pass to a new field of psychotherapeutic methods." Psychic Driving, 112 Am. J. Psy. 502 (January, 1956). Whether in fact the methods used in Dr. Cameron's therapy, particularly those related to "preparing" the patient for Psychic Driving, were therapeutic, ethical or within the standard of medical care, is a pivotal issue disputed in this case.

 II. DISCRETIONARY FUNCTION

 Defendant asserts, inter alia, that this case must be dismissed because each of the actions alleged are protected by the discretionary function exception under the FTCA. 28 U.S.C. § 2680 (a). The issue is jurisdictional. The applicable two pronged clause provides that the Act shall not apply to:

 
Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal ...

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