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John Doe v. United States of America

July 15, 2011

JOHN DOE,
PLAINTIFF,
v.
UNITED STATES OF AMERICA, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: James E. Boasberg United States District Judge

MEMORANDUM OPINION

Plaintiff John Doe worked as a scientist for Research Support Instruments ("RSI"), a subsidiary of government contractor Physical Sciences, Inc. ("PSI"). During the course of an experiment, he alleges, he was exposed to the pathogen causing Bovine Spongiform Encephalopathy, commonly known as "mad-cow disease." As a result, Plaintiff brings this pro se action against RSI, PSI, and the United States seeking $15 million in damages for negligence, intentional and negligent infliction of emotional distress, strict liability, and Constitutional torts under the Fifth Amendment. RSI and PSI now jointly move to dismiss for failure to state a claim, and PSI separately moves to dismiss for lack of personal jurisdiction. The Court agrees that Plaintiff has failed to raise a cognizable issue, obviating any need to decide the jurisdictional question.*fn1

I. Background

RSI provides engineering and scientific services to the Naval Research Laboratory ("NRL") in Washington, D.C. Plaintiff, who holds a Ph.D. in physics, was employed as a scientist at RSI between August 2006 and August 2008. Second Am. Compl. at 8. During this period, Plaintiff worked "exclusively for NRL and on NRL site [sic]," where his job entailed "developing a [research] method . . . ." Id.

Plaintiff alleges that, in March 2007, his supervisor "told [Plaintiff] about his intention to involve in research [sic] on Mad-Cow disease in collaboration" with the National Veterinary Services Laboratory ("NVSL") in Ames, Iowa. Id. at 9. According to Plaintiff, "the plan was to perform the same type of . . . measurements on Mad-Cow disease samples as [Plaintiff] performed on [other materials] . . . to see if . . . [the] method can distinguish between brain tissue infected with Mad-Cow disease and healthy brain tissue." Id. Shortly thereafter, Plaintiff's supervisor allegedly gave him "an envelope . . . containing four [tissue] samples," two of which contained mad-cow disease and the other two contained healthy tissue. Id. Plaintiff claims that when he asked his supervisor about "the risk and . . . safety procedures," he was told "just not to eat the samples." Id.

Plaintiff alleges he performed the experiments on the samples as requested, and, upon completion, he informed his supervisor that "the results of the experiment [] did not show any difference between infected and not-infected [sic] samples . . . ." Id. at 10. At a subsequent meeting, Plaintiff attempted to "justify his time [working on the experiments] and show the results to the group leader," but he was ignored by the group leader, who "conspicuously turned his head away and changed the subject." Id. Plaintiff was "puzzled by [this] behavior," and asserts it was at this time that he "[began] to realize something [was] wrong about the Mad-Cow experiment." Id.

Approximately two weeks later, Plaintiff met with the microbiologist of the research group who was responsible for "the safe handling of biological materials." Id. at 10-11. When Plaintiff explained that he had performed experiments on the mad-cow disease samples, the microbiologist "answered right away in a somewhat scared voice: 'if they find out, they are going to close [the] lab.'" Id. at 11. Plaintiff surmised that "the Bio-safety commission at NRL [had] never evaluated the experiment," and as a result he had unwittingly taken part in a "clandestine experiment" that was "not authorized." Id. (emphasis in original). Furthermore, during a group discussion on an unrelated matter a year later in March 2008, Plaintiff claims he learned that "it was very likely that the [experiment] . . . sprayed pieces of mad-cow infected tissue into the air." Id.

Plaintiff concludes that he invariably would have "ingested and breathed such pieces of infected tissue" because he conducted the experiment over a period of "eight hours in [a] small room within five feet of the [mad-cow disease] samples." Id. at 11-12. Upon seeking medical advice about his alleged exposure to mad-cow disease, Plaintiff reports that he was told by an infectious disease specialist that:

(1) [t]he disease is extremely rare and poorly understood; (2) [t]here is no cure and no treatment for such disease . . . ; (3) [t]he disease[] [is] 100% fatal, and the one year before death, when the symptoms appear, is brutal; (4) [t]he incubation time . . . can be decades; (5) [t]here are no tests that can be employed before the very last stage of the disease when the symptoms appear . . . . The diagnosis is done at autopsy.

Id. at 13-14.

Plaintiff has brought this suit for negligence, intentional infliction of emotional distress, negligent infliction of emotional distress, and an alleged violation of his rights under the Fifth Amendment; he additionally seeks to hold Defendants strictly liable for engaging in abnormally dangerous activity. Id. at 6, 20-51. Plaintiff demands $15 million in damages and injunctive relief in the form of medical monitoring. Although the United States has answered, RSI and PSI have filed a Motion to Dismiss under Federal Rules of Civil Procedure 12(b)(6) for failure to state a claim and 12(b)(2) for lack of personal jurisdiction.

II. Legal Standard

To survive a motion to dismiss under Rule 12(b)(2), Plaintiff bears the burden of "establishing a factual basis for the [Court's] exercise of personal jurisdiction over the defendant." Crane v. New York Zoological Society, 894 F.2d 454, 456 (D.C. Cir. 1990) (citing Reuber v. United States, 750 F.2d 1039, 1052 (D.C. Cir. 1984), rev'd on other grounds by Kauffman v. Anglo-American School of Sofia, 28 F.3d 1223 (D.C. Cir. 1994)). To meet this burden, Plaintiff "must allege specific facts connecting the defendant with the forum." Capital Bank Int'l Ltd. v. Citigroup, Inc., 276 F. Supp. 2d 72, 74 (D.D.C. 2003) (citing Second Amendment Foundation v. U.S. Conference of Mayors, 274 F.3d 521, 524 (D.C. Cir. 2001)).

In determining whether a basis for personal jurisdiction exists, "factual discrepancies appearing in the record must be resolved in favor of the plaintiff." New York Zoological Society, 894 F.2d at 456 (citing Reuber, 750 F.2d at 1052). Unlike with a motion to dismiss under Rule 12(b)(6), the Court "may consider materials outside the pleadings in deciding whether to grant a motion to dismiss ...


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