Full opinion text
OPINION MOTLEY, District Judge. This court is faced with assessing a sad episode in the conduct of the United States Government and a personal tragedy for an unsuspecting victim and his family. The case arises from the death of Harold Blauer, a mental patient who died in 1953 as a guinea pig in an experiment to test potential chemical warfare agents for the United States Army. Rather than admit its role in Blauer’s death, the Government covered up its involvement in the affair, thus this opinion is issued today rather than in the early 1950’s when the death occurred. I. INTRODUCTION This is a negligence action brought against the United States under the Federal Tort Claims Act, 28 U.S.C. Sections 1346(b), 2671-80. The plaintiff, Elizabeth Barrett, is the daughter of Harold Blauer and brings suit for his wrongful death in her capacity as executrix of Blauer’s estate. Harold Blauer died in 1953 as a result of one in a series of injections of mescaline derivatives he was given at the New York State Psychiatric Institute, a hospital operated by New York State. Blauer’s ex-wife brought an action against the State of New York on behalf of the Estate, which she eventually settled. It was disclosed for the first time in 1975 that the Army had supplied the chemicals Blauer received, and that the injections had been made as part of an experiment to develop chemical warfare agents. After this shocking revelation, Elizabeth Barrett, one of Blauer’s daughters, instituted three lawsuits during the period from 1976 through 1978 against the United States as well as numerous federal and state employees as individuals. During the ten years over which this litigation has extended, the three cases have been consolidated into one, and various defendants have moved to dismiss on a number of grounds, including failure to state a claim, lack of personal jurisdiction, res judicata, statute of limitations, immunity, release, and lack of standing. When the case finally came to trial in October of 1986, only five defendants remained: the United States; General William M. Creasy, former Chief of the Army Chemical Corps; Dr. Amedeo S. Marrazzi, the Chemical Corp’s project officer for the contract under which the chemical that killed Blauer was administered; Dr. James P. Cattell, the doctor who injected Blauer with the chemical; and Dr. Newton Bigelow, former New York State Commissioner of Mental Hygiene. Creasy and Marrazzi were dismissed as defendants for lack of personal jurisdiction on motions made at trial. A jury found that a release signed in 1955 on behalf the Blauer Estate relieved Cattell and Bigelow of liability. The law requires that an action brought against the United States under the Federal Tort Claims Act be tried by a court without a jury. 28 U.S.C. Sec. 2402; O’Connor v. United States, 269 F.2d 578, 585 (2d Cir.1959). This opinion explains the court’s decision with respect to the remaining defendant, the United States. The job of reconstructing events that occurred over 30 years ago was a prodigious one for both the court and the litigants. The facts that emerged at trial are as follows. II. FACTS A. The Army’s Program In the early 1950’s, the United States Army became interested in the use of hallucinogenic compounds as potential chemical warfare agents. An internal memorandum of the Army Chemical Center written in 1951 proposed the establishment of contracts to study psychochemical agents on human beings under controlled laboratory conditions, and mentioned the New York State Psychiatric Institute (the “Psychiatric Institute” or “Institute”) as a potential contractor. It was expected that under such a contract “new technical data will be derived ... which will provide a firmer basis for the utilization of psychochemical agents both for offensive use as sabotage weapons and for protection against them.” In 1951, the Army Chemical Corps and the Psychiatric Institute (through the New York State Department of Mental Hygiene) entered into contract DA 18-108-CML-2913 (“2913”) and contract DA 18-108-CML-2914 (“2914”). Contract 2913 was for the psychological investigation of potential chemical warfare agents, and contract 2914 was for the psychiatric investigation of these agents. As of May 26, 1952, contracts 2913 and 2914 were integrated. Under the contracts, the Army would supply certain chemical derivatives of mescaline to the Institute for studies on its psychiatric patients. The Institute would report its findings to the Chemical Corps in quarterly reports. The Institute was well-known and respected in the field of psycho-pharmacology, and in the past had investigated commercially-supplied mescaline sulfate for possible use in its work with mental patients. Contract. 2913 was termed “Effects of Certain CW [Chemical Warfare] Agents on Psychiatric Behavior.” The contract, as revised on June 9, 1952, provided that: “The Contractor will conduct studies of Psychochemical agents on human subjects to determine clinical effects on psychological behavior, including controls on normal human subjects necessary to evaluate the more profound changes expected in the behavior of psychiatrically liable subjects.” Contract 2914 had an analogous purpose for psychiatric study. These were the contracts under which the chemical compound that killed Harold Blauer was provided and administered. Much of the text of these contracts was boilerplate of the variety often found in government contracts at the time. Although the Government retained the right to terminate the contracts at its convenience, overall control of the clinical experimentation was vested in the Psychiatric Institute. The portions of the contracts titled “Supervision ” stated that the technical phases of the work would be under the supervision and direction of certain Institute doctors. The Psychiatric Institute was responsible for designing its own protocols and procedures to perform the clinical tests of the chemical substances on its patients. This was done by Dr. Paul Hoch, the head of the Institute’s experimental psychiatry division. The Army, however, retained responsibility for synthesizing the chemicals, performing animal toxicity tests necessary for determining proper beginning doses for human beings, and supplying the chemicals to the Psychiatric Institute. At the time the chemicals were synthesized and supplied to the Psychiatric Institute, they were considered classified by the Chemical Corps. For this reason, all information relating to their structure as well as chemical, psychological, and physiological properties was classified. In addition, the Army’s program to investigate the military potential of hallucinogens was classified by the Army’s Intelligence Division at the level of the Army Chief of Staff, in accordance with Executive Orders and Army implementing regulations. Both Dr. Hoch and Dr. James Cattell, the doctor who physically gave Blauer the injections, had to be given security clearance to perform the experiments. In November of 1952, the Medical Director of the Army Chemical Corps delivered to Dr. Hoch at the Institute the following five newly-synthesized chemical compounds: Code Name (Chemical Name—“Street Name”) EA 1297 (Methylenedioxyphenyl-ethylamine) EA 1298 (MethylenedioxyphenyMsopropylamine—“MDA”) EA 1304 (Methylenedioxyphenyl-isobutylamine) EA 1316 (Dimethoxyphenyl-isopropylamine—“DMA”) EA 1322 (Dimethoxyphenyl-isobutylamine) Three of these chemical derivatives of mescaline were eventually injected into Mr. Blauer as part of the experiments conducted under the contract. EA 1298 was the chemical that killed him. These chemicals were synthesized by Dr. Amedeo Marrazzi of the Chemical Corps, who was also the project officer for the contracts with the Institute. The compounds were synthesized by making chemical alterations in the “side chains” of the mescaline molecule. A side chain is a molecular structure attached to the main body of a molecule. Chemicals produced in this way from the same molecule are called either homologues or analogues of each other, depending on the extent of difference between their structures. It was well known in the early 1950’s that a change in the side chain of a molecule could radically alter the effect of a chemical on the human body. In particular, it was known that changing a side chain could increase the toxicity of a given chemical compound tremendously. It was known further that it was impossible to predict the effect the alteration of a side chain could have on the toxicity or other qualities of a chemical simply by looking at the change in chemical structure of the molecule on paper. Thus it was necessary to test carefully any newly-synthesized chemical for toxicity before it was administered to human beings. B. The Toxicity Studies Before the Psychiatric Institute began its clinical tests, the Army performed toxicity tests on the mescaline derivatives, as required by the contract. The generally accepted scientific and medical standards of the time required that such toxicity tests be performed on animals before a chemical substance could be administered to a human being. The purpose of the tests was to determine safe doses to begin experiments with human beings. The preferred method of establishing safe human doses for a new chemical in the early 1950’s was to determine the “LD-50” for the chemical in various species of animals. The LD-50 of a chemical for a particular species is the dose of the chemical that will kill 50% of test subjects of that species to whom the dose is administered (Lethal Dose-50%). Although it has become required practice to determine the LD-50 of a chemical for a number of different species of animals, including some higher animals, before that chemical may be administered to human beings, this practice was not standard in the early 1950’s. However, it was known then that test results derived for only one species—particularly a lower species such as mice—were subject to greater error, and that particular care had to be taken in deriving such results if they were to be applied to human beings. In the early 1950’s, the accepted method of deriving an LD-50 of a chemical for a particular species was as follows. Test animals of the same species were divided into groups of at least 5 to 10 animals each. The first step was to find bracketing doses that, when administered to a group of animals, would kill 0% and 100% of them respectively. Next, doses in between these two extremes were chosen in an effort to focus in on the dose that would kill 50% of the test animals. In the early 1950’s there was no set number of these mid-range doses that had to be tested; rather, the number depended on how quickly a dose was found that was in the vicinity of the LD-50. After at least one or two doses were found that were near the 50% level, these data for each test group were placed on a graph with the dose on one axis and the percent of animals killed on the other. A line was then drawn through or “fitted to” these points. The point on the line that corresponded to “50% killed” on one axis corresponded to the estimated LD-50 dose on the other. After the LD-50 was determined for a particular species, it was divided by the average body weight of the animals tested and typically expressed in terms of milligrams per kilogram (mg/kg) of body weight. In this way, information regarding the LD-50 of one species could be applied, with care, to others. To determine a safe dose to begin experimentation on human beings, it was accepted practice to divide the LD-50 determined in other species by 100. The Chemical Corps reported LD-50’s to the Psychiatric Institute for the derivatives of mescaline it supplied. These included EA 1298, the chemical that killed Harold Blauer. The only LD-50’s it determined were for mice, a relatively low species. The Chemical Corps used the following procedure to determine the LD-50 for EA 1298 in mice. First, twenty mice were given a dose of 1.2 mg/kg and none died. Then ten mice were given a dose of 12.5 mg/kg and again none died. Finally, five mice were given a dose of 100 mg/kg and all of them died. At this point, only the first step of the process was complete: finding the bracketing doses. However, the Chemical Corps did not proceed further. It simply concluded from the data before it that the LD-50 of EA 1298 was between 20 and 80 mg/kg, and reported this plus the test results to the Psychiatric Institute. This procedure was grossly inadequate compaired with the scientific and medical standards of the time. The Chemical Corps delivered the compound knowing that the Psychiatric Institute would not be making further animal toxicity studies before it injected the compounds into human beings in fulfillment of the contract. The Institute also had toxicity information from a source other than the Chemical Corps. The Institute found that EA 1298 had been synthesized before and that there was a report in the literature about the chemical. This report has been referred to throughout the course of this litigation as the “Gunn Study.” The Army did not know that the Institute had the Gunn Study or that anyone else had ever synthesized EA 1298. Most of the Gunn Study dealt with subjects other than the toxicity of the chemicals. However, the article did report minimum lethal doses (MLD’s) for each of the compounds, including EA 1298. The MLD was the lowest dose at which it was found that any animal died from administration. In the early 1950’s the MLD, as it was presented in the Gunn Study, was known not to be a reliable basis for determining doses for human beings, but such information could be useful to a trained scientist in conjunction with other information. However, the Army’s LD-50 study was of such little use that, even when supplemented by the Gunn Study, it did not provide sufficient information on which to base safe doses for human beings. Not even someone of Dr. Hoch’s experience and expertise could have safely determined human doses using only the information contained in the Army’s LD-50 study and the Gunn Study. After Blauer’s death, the Army asked the University of Michigan to do LD-50 studies on several of the mescaline derivatives it had provided to the Psychiatric Institute, including EA 1298. These tests were performed properly, according to the scientific and medical standards of the time. The University performed the tests on mice, rats, guinea pigs, dogs, and monkeys. The reported LD-50’s of EA 1298 for these animals were as follows: Species mg/kg Method of Administration Mouse 57.7 intraperitoneal Rat 33.1 intraperitoneal Guinea Pig 33.7 intraperitoneal Dog 6.8 intravenous Monkey 9.0 intravenous An LD-50 that is determined through intraperitoneal administration is much higher than one determined for the same species through intravenous administration. Therefore, it is not medically sound to use an intraperitoneal LD-50 to determine safe intravenous doses unless some correction is made for this fact. In addition to the above data, the Michigan study showed that the LD-50 for EA 1298 is several times lower than the LD-50 of the other mescaline derivatives used in the experiment, meaning it is considerably more toxic. The study also reported that EA 1298 caused such symptoms in animal subjects as tremors and tonic extensor and clonic convulsions before death. These symptoms were similar to the physical symptoms Harold Blauer experienced before his death. C. Harold Blauer’s Treatment at the Institute Harold Blauer was admitted voluntarily to the New York State Psychiatric Institute on December 5, 1952, suffering from severe depression after a divorce. From October to December, 1952, he had been a patient at Roosevelt and Bellevue Hospitals. Shortly after Blauer was admitted to the Institute, he was diagnosed as a pseudo-neurotic schizophrenic. He was assigned to the care of Dr. George Schnack, a psychiatric resident who treated him with talk therapy. Blauer improved substantially under Dr. Schnack’s care, and when Blauer died, he was scheduled to be released in a matter of weeks. In addition to this talk therapy, Blauer was used as a subject in the chemical studies the Institute performed under contract with the Army’s Chemical Corps. The chemical injections Blauer received during these experiments were not for his diagnosis or therapy. Although, there is evidence that in the early 1950’s there was some hope that mescaline, and perhaps its derivatives, might one day be developed as a diagnostic or therapeutic tool for working with the mentally ill, there is no doubt that the injections Blauer received were not intended to serve any diagnostic or therapeutic purposes for him, personally. The sole purpose of the injections was experimental. The primary purpose of the experiment was to gather the data the Chemical Corps required for its investigation of the mescaline derivatives as potential chemical warfare agents. The doctors at the Institute might also have been interested in the results of the experiments to further their own scientific knowlege of how the mind works, and perhaps had some long-run hope that the chemicals might prove to be a useful tool in the treatment of mental patients. However, the lack of communication between those conducting the experiment and those conducting Blauer’s therapy and diagnosis shows that no diagnostic or therapeutic purpose for Blauer, himself, was ever intended from the injections. This is also clear from the fact that Blauer was given widely varying doses of three different chemicals. In addition, it is implausible that the injections were given for Blauer’s diagnosis, since he was to be released from the Institute not long after the fifth injection was given. Blauer was competent to give consent to the experiment. He never gave written consent to participate in the experiment, but written consent was not required in the early 1950’s. Oral consent was, however, required, and a patient had the right to withdraw at any time from an experiment to which he had previously consented. Blauer was aware that the drugs he was given were “experimental” in the sense that they did not come off the shelf from a pharmacy. However, he was unaware that they were not being administered to help him; that is, that the purpose of the injections was purely experimental. He certainly had no idea that he was being used in an experiment to develop chemical warfare agents. Dr. Paul Hoch of the Institute designed the protocols for the chemical studies using the toxicity data supplied by the Army plus the Gunn Study. Dr. James Cattell, the senior research scientist at the Institute, gave Blauer the following chemical injections according to these protocols: Date Chemical Total Dose (mg.) Mg/Kg of Body Weight 12/11/52 EA 1298 28.4 0.4 12/18/52 EA 1316 69.5 1.0 12/23/52 EA 1297 347.5 5.0 12/30/52 EA 1316 695.0 10.0 1/8/53 EA 1298 450.0 6.47 Immediately before the first injection of EA 1298, Dr. Cattell’s study notes indicate that Blauer was “[v]ery apprehensive” about taking part in the study and that “considerable persuasion [was] required” to make him accept the injection. The chemical caused a feeling of pressure in his head and a slight tremor in his right leg. Immediately before the second injection, the study notes again indicate that Blauer was “apprehensive” about taking part. There was little or no physical reaction to this chemical. Before the third injection, the nurses observed that Blauer was more disturbed about having the experiments continue. He asked one of them if she would call the “drug study” floor and tell them that he had a cold because the doctors would never believe him if he told them. Nevertheless, Blauer was given the third injection. The chemical caused him to shake all over. Before the fourth injection, Blauer stated clearly to his therapist, Dr. Schnack, that he did not want to continue with the injections. He was told, however, that if he did not continue he would have to leave the Psychiatric Institute and return to Bellevue or Roosevelt Hospital, where he had been miserable before. He therefore did not pursue his complaints further. The fourth injection caused a violent reaction. He had body tremors and repeatedly sat up and flopped back down. The protocol Dr. Hoch had designed called for the injection of 450 mg of EA 1298 as the fifth injection. This was sixteen times Blauer’s only other dose of EA 1298, which had been administered as his first injection. It was not scientifically or medically sound to base the dose of one chemical on a patient’s reaction to an analogue or homologue of that chemical, such as the mescaline derivatives Blauer had been given in his second, third, and fourth injections. This was known in the early 1950’s. Before Blauer’s final injection, he complained about the injections often to both his therapist and the nurses. Nevertheless, on January 8, 1953 between 9:53 and 9:57 a.m., Blauer was injected with 450 mg, or 6.47 mg/kg of body weight, of EA 1298. According to the drug study notes, at 9:57 Blauer became very restless and had to be restrained by the nurse. He began sweating profusely and flailing his arms wildly. At 10:01 he “pulled up in bed,” his body stiffened, his teeth clenched, and he began frothing at the mouth. Similar reactions continued for over an hour. Blauer was still talking and moving his legs randomly at 11:05. Finally, about one and one-half hours after the injection had begun, Blauer lapsed into a coma. He was pronounced dead at 12:15 p.m. At approximately the same time that Blauer received his injection of EA 1298, another patient was given the same chemical. It was known in the early 1950’s that the prudent course of conduct was to give injections of relatively untested chemicals such as EA 1298 serially rather than concurrently; that is, to give an injection to one patient and analyze the result before giving an injection of the same chemical to another. The other patient’s reaction to EA 1298 was similar to Blauer’s. However, it was so violent that the injection was stopped when it was only about one-third complete. After the patient recovered, she said, “I’ve been in hell. Why did they put me in hell?” She added, “They were supposed to make me feel good. I’ve never felt this bad before; I feel terrible.” D. Events After Blauer’s Death The Psychiatric Institute informed the New York City Medical Examiner (the “Medical Examiner”) of Blauer’s death on the day it occurred. On January 9, 1953, the day after Blauer died, Dr. Cattell submitted a written report to the Medical Examiner that explained the death as follows: The patient received an intravenous injection of a mescaline derivative at 9:53 a.m. on January 8, 1953 for diagnostic purposes. He had received this drug previously with no untoward reaction. A few minutes after the injection the patient became unconscious, showed a tonic rigidity of neck and arms and legs, became cyanotic, pulse became thready and blood pressure dropped to 110/40. He was given intravenous glucose and coramine and nasal oxygen and he showed a marked improvement. He started to speak and appeared to be on the way to recovery. Then he suddenly became pulseless, blood pressure dropped, respiration ceased and he expired. He was pronounced dead at 12:15 p.m. There was no mention that the “drug” had been administered as part of a chemical study, and, in fact, the report was misleading in that it indicated that the injection was given for diagnostic purposes. The Medical Examiner’s autopsy report listed the cause of Blauer’s death as “coronary arteriosclerosis, Sudden death after intravenous injection of a mescaline derivative, January 8th 1953.” On the morning of January 9, Dr. Hoch of the Institute informed the Chemical Corps of Blauer’s death. Army doctors had several conversations that day to discuss the Army’s response. The Army immediately began to take actions to make sure that its involvement with Blauer’s death did not come to light. It was made clear to Dr. Hoch that the Army’s involvement was to be hidden. It was agreed that the Medical Examiner could have a sample of the chemical, which he was eventually given, but only on the condition that its source not be revealed. At the request of a Col. Bayliss, Dr. Amedeo Marrazzi, the Chemical Corp’s project officer for the contract under which the experiments had been performed, travelled to the Psychiatric Institute on January 10. At the Institute, Marrazzi spoke with Dr. Hoch and Dr. Cattell to learn how Blauer had died, and obtained from them records of the injections. He instructed them not to continue the experiments until certain safety measures were implemented. However, he also noted in his trip report that the results of the experiments obtained thus far were very useful for the Army’s purposes, that he recommended continuation of the experiments, and that $120,000 had been transferred to the Chemical Corps for this purpose. In addition, Marrazzi indicated in his trip report that while he was in New York he “prevailed on one of the New York City medical examiners with whom he was well acquainted to place all the records [regarding Blauer] in a confidential file in the medical examiner’s office.” Thus the Medical Examiner was informed that Blauer’s death was connected with secret Army experiments, but he was also told that this information was not to be disclosed. Dr. Schnack, Blauer’s treating physician was not informed of his patient’s death until he attempted to obtain Blauer’s record from a nurse to continue the treatment. When he learned of Blauer’s death, Schnack attempted to find out more about how Blauer had died, but he was told in no uncertain terms that he was to stay out of the matter and that others would be taking care of the case from that point on. Schnack was rebuffed several times when he attempted to obtain Blauer’s record to make his closing entries. He remembers being frustrated by his inability to gain information. When he was finally given Blauer’s file, it was considerably smaller and thinner than normal, indicating that portions were missing. The Psychiatric Institute informed Blauer’s ex-wife, Amy Blauer, of the death on the day it occurred. She was told that Blauer had died of an overdose of a drug. She was not told that he had been a subject in a chemical experiment or that the injection was not given for Blauer’s own good. She certainly was never told that Blauer had died in an experiment to develop chemical warfare agents for the United States Army. As soon as Amy Blauer learned of her ex-husband’s death, she contacted the law firm of Kaye, Scholer, Fierman & Hayes (“Kaye Scholer”), which immediately began to investigate the possibility of a lawsuit. Harold Fierman, a partner at the firm, was Amy Blauer’s uncle. On January 22, 1953 and January 28, 1953, Kaye Scholer wrote to the Institute on behalf of Mrs. Blauer requesting information on Blauer’s death. Complete and accurate information was not forthcoming. The firm was never told that Blauer died in an experiment, and was never given any of the documents regarding Blauer—such as the drug study notes or contract documents—that would have led Kaye Scholer to suspect the Army’s involvement, or, indeed, to suspect that there was anything at all unusual about Blauer’s death. On the contrary, the law firm was consistently led to believe that Blauer had died from an atypical reaction to a drug administered for his diagnosis and therapy. Charles Cohen, then a young associate with Kaye Scholer, went to the Psychiatric Institute to gather information. While there, he was allowed to read and take notes on some of Blauer’s hospital records. Of course, he was not permitted to see any of the drug study records that might have led him to suspect the Army’s involvement. To aid in its investigation, Kaye Scholer contacted Dr. Louis Winkelman for expert medical advice. Winkelman told Kaye Scholer that a mescaline derivative is “a product of mescaline probably produced by one of the drug companies, with something added to or removed from the mescaline in an attempt to decrease the toxic effect.” Dr. Winkelman suggested that the mescaline derivative might have been given to Blauer in connection with electric shock therapy to lessen the accompanying spacisity- When given details of the Medical Examiner’s autopsy report, Winkelman concluded that it “would seem that [Blauer] was particularly sensitive to this drug and that the death appeared to be an accidental one.” These were reasonable conclusions to draw given the misleading nature of the Medical Examiner’s report and the other documents available to Kaye Scholer. Winkelman also suggested that Kaye Scholer check the Psychiatric Institute’s records to see whether the mescaline derivative had previously been given and what effect it had had. This was never done. On April 2,1953, Kaye Scholer, on behalf of Amy Blauer and the Blauer Estate, filed complaints in the New York Court of Claims against the State of New York, alleging that Blauer’s death was caused by the Institute’s negligence in injecting him with an overdose of a toxic and dangerous compound. Mr. David Marcus, then Assistant Attorney General of the State of New York, was assigned to defend the case. Communications between Amy Blauer and Kaye Scholer were slowed by the fact that she moved to Mexico soon after the litigation began. She was a somewhat uncooperative client, in that she often did not respond to her lawyers’ letters promptly. However, her presence in New York was not essential to the progress of the litigation. The State of New York never obtained a notice of deposition or a court order for examination of Amy Blauer before trial. By motion dated December 10, 1953, the Estate sought the right to examine Institute personnel under oath and to inspect “all documents, correspondence, records and writings in any way affecting,” inter alia, the “injections given to said Harold Blauer and the effect thereof upon him.” On January 4, 1954, the Court of Claims granted the motion and authorized production of the Institute’s records bearing on the treatment of Mr. Blauer and the examination of the doctors involved, which was scheduled for January 12, 1954. The Estate eventually did receive some of the Institute’s records of Blauer’s treatment. However, it was never given any documents that in any way indicated the Army’s involvement, although a number of such documents clearly fell within the scope of the production order. The plaintiff was never told that documents could not be produced because they were classified. Rather, the fact of their existence was simply never disclosed. The plaintiff was aware, however, that its document request was never full complied with. From the documents to which the firm was eventually given access, a careful reader could have concluded that Blauer had died as a result of the injection of a mescaline derivative and that this “drug” was in some sense “experimental.” However the records also contained several inaccurate and misleading statements, some added at the time of Mr. Blauer’s death or afterwards. They indicated that Blauer was given the chemical for “diagnostic and therapeutic purposes,” when in fact the purpose was purely experimental. They also stated that Blauer’s reaction to the drug was “atypical,” when, in fact the chemical was newly-synthesized, and thus no reaction could be “atypical.” Finally, they made it appear that Blauer’s death, while triggered by the injection, was really caused by a weak heart. Assistant Attorney General David Marcus learned of the Army’s involvement with Blauer’s death for the first time when be began to prepare his witnesses for trial and was told they would not be able to answer a number of questions because of security classification. He agreed to join in the effort to keep the Army’s involvement secret. Marcus sought to postpone the examination of witnesses before trial on several occasions at the direction of the Army. This was accomplished through mutual agreement with the plaintiff, and these depositions never occurred. The primary reason the Army covered up its involvement was to avoid “embarassment and adverse publicity” that would result from disclosure that the Government was testing potential chemical warfare agents on unsuspecting citizens. In particular, the Chemical Corps was concerned that it would be difficult to place similar contracts for chemical studies in the future if the public were to become aware of such experiments. Although concern about the release of classified information was also a factor in the Army’s desire to keep its role in Blauer’s death secret, the classified nature of the material was generally referred to in Army memoranda and meetings on the subject more as a means of keeping the Army’s secret than a reason, in itself, for keeping the secret. The State of New York also feared adverse publicity if it were to become known that the New York State Psychiatric Institute had performed chemical warfare experiments on its patients. This gave the State incentive to cooperate with the United States in the cover-up. The Government soon decided on the strategy of having David Marcus pressure the Estate to settle its claim quickly, while at the same time making sure that the Estate never had reason to suspect that Blauer’s case involved anything but garden-variety hospital malpractice, if that. In January of 1954, the Assistant Chief of Staff of the Army’s Intelligence Division verbally agreed to pay one-third of an out-of-court settlement in the Court of Claims action if the Army’s role were not disclosed. In addition, at the Army’s request, Marcus discussed with Dr. Newton Bigelow, the New York State Commissioner of Mental Hygiene, ways to bypass the submission of the case to the Court of Claims to avoid disclosure of the Army’s involvement. Efforts to keep sensitive documents out of the hands of the Estate continued. At the end of June, 1954, Col. Nathaniel Rieger of the Department of the Army, Office of the Judge Advocate General, requested from Mr. John Vogel, an attorney with the Chemical Corps, that all documents in the possession of the Institute, classified or unclassified, pertaining to the contracts for experimenting with EA 1298 be taken out of the State of New York and returned to the Army Chemical Center in Maryland. On July 28, Lt. Col. Harris North of the Judge Advocate General’s Office (JAG) advised Lt. Col. Herbert Greer, Legal Advisor to the Chief Chemical Officer of the Chemical Corps, that JAG believed “it would be mutually advantageous to the United States and the State of New York if the [Psychiatric Institute] voluntarily placed this contract [for experiments on EA 1298] ... and any other contract records which in any way describe this as a contract for testing chemical warfare agents on human subjects, in the possession of the Chemical Corps Procurement Agency, Army Chemical Center, Maryland, at least during the pendency of the subject litigation. There they would be beyond the subpoena power of the plaintiff in [the Court of Claims] action.” Some time in 1954, all documents in the Institute’s possession relating to EA 1298, both classified and unclassified, were moved to the Army Chemical Center with the exception of the contract document itself. In 1975, some twenty years later, these and other documents were discovered in the safe of Dr. Van Sim of the Edge-wood Arsenal in Maryland, with instructions not to open them without his authorization. When Dr. Hoch requested that some of his files be returned, the Army determined to “stall” him until after the litigation was settled, to assure that such documents would not be given to Blauer’s estate. On June 30, 1954, Blauer’s case was brought to the attention of the Department of Justice. A conference was held at the Department to discuss the case on July 6, 1954. In attendance were Dr. Hoch of the Psychiatric Institute, doctors from the Chemical Corps, and lawyers from the Justice Department and the Judge Advocate General’s Office. After considerable comment by all the parties at the conference, it was concluded that: 1. Immediate action would be taken to declassify the security category of the chemical EA 1298. 2. The Department of the Army would explore the availability of funds to settle the Court of Claims litigation. 3. Further research would be done to determine whether any scientific literature had been published on the chemical compound administered to Blauer. 4. If it became necessary to reveal the source of the drug at trial, Dr. Hoch should identify the Army Medical Corps as the supplier. (The Army Chemical Corps performs many functions for the Army Medical Corps.) After this conference, the Army declassified the chemical name of EA 1298, its formula, its psychological and psychiatric properties, and its “diagnostic uses.” The Government did this so that witnesses called in connection with the litigation could avoid the necessity of claiming privilege if asked some preliminary questions about the chemical given to Blauer. Of course, claiming a privilege because of classification would have alerted the Estate immediately that there was much more to Blauer’s case than it had been led to believe. The purpose of the contract with the Institute remained classified. On July 12, 1954, a second larger conference was held at the Department of Justice with many of the same participants as the first in attendance, plus a few additions. Much of the discussion was directed by George S. Leonard, a lawyer in the Civil Division of the Department of Justice. Leonard stated that if it became necessary at trial, the Estate could be told that the source of the chemical was an Army Medical Officer of the Army Medical Authority or the Army Chemical Center Medical Laboratory. He specified, however, that if the source of the compound had to be revealed, it should be attributed to the Army Medical Corps, not to the Chemical Corps. Leonard also stated that the nature and purpose of the contract between the Institute and the Army were not to be revealed. He justified this by asserting that the purpose of the contract was not legally relevant. However, it was clear that the court was not to be allowed to decide what was and was not legally relevant. These facts were simply to be concealed. In addition, Leonard noted that, in his opinion, the Estate’s case would be worth between $60,000 and $75,000 “in the event the full attendant circumstances were revealed to the court,” and that the case should be settled to prevent the truth from coming to light. In concluding the conference, Leonard “forcibly informed Mr. Marcus that the pretrial procedures and any further proceedings should be limited to the medical aspects of the case.” He reiterated that, if necessary, the source of the drug could be identified as the Army Medical Corps. However, he emphasized that revealing the relationship between the Government and the Institute, the purpose of the contract, or the results of the experiments would be objectionable. Dr. Hoch also spoke at the conference. He admitted that he might have deviated from accepted medical practice in the treatment of Mr. Blauer. He also refused to state that he would have used EA 1298 in the absence of the contract with the Chemical Corps. In response to requests made at the conferences, two Justice Department lawyers wrote a memorandum in which they detailed ways to limit the areas on which the Blauer litigation would touch. The memorandum also detailed considerations that should “shape the answers” of any of the doctors called to testify. The memorandum suggested that the doctors state that mescaline derivatives had been coming into general use for the diagnosis and therapy of mental patients. It strongly discouraged any mention of the animal toxicity tests or the experimental nature of the injections, since, according to this memorandum, “we have been advised that neither the patient nor his family were advised of the proposed therapy or gave permission.” Marcus began pressuring the Estate to settle its claim early in 1954, in accordance with the United States’ wishes and his perception of the best interests of the State of New York. He took a tough bargaining position, claiming that the State had not been negligent and that Blauer had died of a heart attack rather than the injection. He said, however, that New York State would be willing to settle the case to avoid the expense and adverse publicity of a trial. The United States agreed to contribute one-half of any reasonable settlement reached. This was on the condition that both the contribution and the Army’s role in Blauer’s death be kept secret, and that the release signed would cover the supplier of the drug and thus the United States. Since the Chemical Corps did not have funds to contribute to the settlement, it was arranged through the Army Intelligence Division that intelligence contingency funds be made available for this purpose. Mr. Marcus and Kaye Scholer negotiated a settlement of $15,000. By letter dated April 27, 1955, then Assistant Attorney General of the United States Warren E. Burger informed Marcus that a payment in the amount of $7,500 to the State of New York would be made as soon as the administrative arrangements for issuing a check for that amount were completed. Amy Blauer returned from Mexico and replaced Kaye Scholer with the firm of O’Dwyer & Bernstein. She did this largely because of personal differences she had with her uncle at Kaye Scholer. A stipulation of substitution was filed in June of 1954. O’Dwyer and Bernstein did little, if anything, to develop further the facts regarding Blauer’s death. The firm did, however, continue the settlement proceedings in Kaye Scholer’s place. New York law required that the settlement of any claim against the State be approved by a judge of the New York Court of Claims, and that a prima facie showing that the State was negligent be made before the Court. The Court of Claims judge handling the Blauer case refused to approve the $15,000 settlement figure. Marcus telephoned the Judge Advocate General’s Office with this information. He said he believed the judge would agree to an $18,000 settlement. On May 16, 1955, the Judge Advocate General assured Marcus that the Government would contribute $9,000 of that figure. The Estate ultimately accepted the $18,000 settlement. The Court of Claims proceeding to approve the settlement was held on May 17, 1955. Amy Blauer and Dr. Hoch both testified at the hearing. Only Mr. Marcus examined Hoch, who testified to matters relating to the State’s liability. The Estate’s attorney, Anthony Sacco, declined to examine Hoch, since the purpose of the proceeding was simply to approve a settlement already negotiated between the parties and to satisfy the requirements of State law. Hoch testified that Blauer’s injections were not given according to the generally accepted medical practices of the time. Parts of Hoch’s testimony were false and misleading. He testified repeatedly that the injections Blauer was given were a regular part of his diagnosis and therapy. He also implied that the substances given Blauer were commonly used for such purposes and that they were not “new” drugs. This testimony was consistent with the strategy the Government lawyers had discussed with Hoch earlier and with their desire to limit the scope of the trial so that the Chemical Corps’ involvement in Blauer’s death would not come to light. During Hoch’s testimony, Marcus handed documents he identified as Blauer’s medical record at the Psychiatric Institute directly to the Claims Court Judge to be impounded and then returned to Marcus after the proceeding. Sacco was not permitted to see these documents. However, Sacco made it clear that he was reserving his right to see the records if the need should arise. The judge responded that he did not see why Sacco should see the records if the case was about to be settled, and Sacco agreed. Amy Blauer also gave some testimony at the hearing to allow the court to conclude that the settlement figure was reasonable. However, the court never performed a traditional determination of damages under New York’s wrongful death statute, nor did it attempt to do so. Rather, it simply accepted the $18,000 settlement figure to which the parties had agreed earlier. Amy Blauer also testified that, as part of the settlement, she understood that she was relinquishing the Estate’s claims against, inter alia, the supplier of the drug injected into her ex-husband. On the day of the hearing, she signed a release releasing the “... organization, group, governmental body or agency which furnished the drug.” The court issued findings of fact and conclusions of law that stated that Blauer had died as a result of New York State’s negligence and that damages of $18,000 should be awarded to the Estate. Marcus forwarded the executed release by letter dated May 20, 1955 to George Leonard at the Department of Justice and requested a check for $9,000. Assistant Attorney General Burger forwarded the letter to the Judge Advocate General’s Office. The Judge Advocate General responded by letter informing the Attorney General of the United States, Herbert Brownell, that the release was satisfactory and enclosing a check for $9,000. Burger then forwarded the check to Marcus. The judgment in the amount of $18,000 was entered on July 7, 1955 on behalf of Amy Blauer as administratrix of the Estate. The judgment was satisfied by a check from New York State for that amount on December 2, 1955. Neither Amy Blauer nor the Estate’s attorneys learned that the United States had paid half of the settlement until 1975. They were kept totally in the dark about every aspect of the Army’s involvement in Blauer’s death. Amy Blauer died in 1974. On August 12, 1975, representatives of the Secretary of the Army contacted Blauer’s two daughters and issued a press release disclosing for the first time that the Army had been involved in Blauer’s death. In September of 1975, Elizabeth Barrett, Blauer’s eldest daughter, filed an administrative claim for $8,500,000 with the Department of the Army for the wrongful death of her father. On or about October 27, 1975, Barrett applied to the New York Court of Claims for pre-suit discovery to learn the facts surrounding her father’s death. On January 9, 1976, the Court of Claims denied without prejudice Barrett’s application on grounds that the 1955 judgment precluded Barrett from instituting another lawsuit against the State of New York. See Barrett v. State of New York, 85 Misc.2d 456, 378 N.Y.S.2d 946 (Ct.Cl.1976). Barrett then filed the actions that gave rise to this lawsuit in federal court in 1976 and 1978. III. DISCUSSION A. Affirmative Defenses The United States asserts three affirmative defenses to this action. These are (1) that the action is barred by the statute of limitations, (2) that the release signed by Amy Blauer in 1955 relieved the Government of liability, and (3) that the Court of Claims’ finding in 1955 that damages to Harold Blauer’s Estate amounted to $18,-000 precludes the Estate from claiming higher damages in this action. It is necessary to discuss these affirmative defenses before reaching the substance of plaintiff’s claim. 1. Statute of Limitations The Federal Tort Claims Act provides that “[a] tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues.” 28 U.S.C. Sec. 2401(b). The general rule under the Act is that a tort claim accrues at the time of the plaintiff’s injury. United States v. Kubrick, 444 U.S. 111, 120, 100 S.Ct. 352, 358, 62 L.Ed.2d 259, 268 (1979). If plaintiff’s claim accrued under the Act when Blauer died in 1953, then this action is barred. However, under certain conditions, accrual may not occur until the plaintiff has, or with reasonable diligence would have, discovered the critical facts of both his or her injury and its cause. Id.; Barrett v. United States, 689 F.2d 324, 327 (2d Cir.1982), cert. denied, 462 U.S. 1131, 103 S.Ct. 3111, 77 L.Ed.2d 1366 (1983). Thus, “[r]ead into every federal statute of limitations ... is the equitable doctrine that in case of defendant’s fraud or deliberate concealment of material facts relating to his wrongdoing, time does not begin to run until plaintiff discovers, or by reasonable diligence could have discovered, the basis of the lawsuit.” Barrett 689 F.2d at 327 (quoting Fitzgerald v. Seamans, 553 F.2d 220, 228 (D.C.Cir.1977)). This court has the benefit of the teachings of the Second Circuit on this issue contained in one of the two prior Circuit Court decisions in this case, See Barrett v. United States, 689 F.2d at 327-30 [hereinafter Barrett /]. In Barrett I, the Second Circuit reversed a district court decision dismissing plaintiff’s claims as barred by the statute of limitations. The Court held that application of the diligence-discovery accrual standard would be triggered if it were proven at trial that the Government had deliberately concealed the material facts related to its wrongdoing. Id. at 328. Barrett I identified certain of plaintiff’s allegations that, if proven, would trigger application of the diligence-discovery rule. These allegations bear repeating: [I]nternal agency memoranda indicate that even after the Army agreed to declassify (from the previously “Secret” category) the nature of the drug which killed Blauer it insisted that, if revealed, the source of the drug should be identified as the Army Medical Corps rather than the Army Chemical Corps. In addition, the warfare research purpose for developing the compound and for administering it to Blauer was to remain classified defense information. Thus, there would only remain the deliberate false impression that the drug used on Blauer was administered for therapeutic purposes. When Blauer’s estate brought a tort action in the New York State Court of Claims in 1953, Marcus, the Assistant Attorney General of New York responsible for defense of the suit, was “forcibly informed” that the legal proceedings should be limited to the “medical aspects” of the case; he was urged to postpone indefinitely the previously scheduled depositions of Institute doctors because, “due to security classification,” they “would probably not be able to answer the questions which would be propounded.” Marcus was further informed that nobody would be permitted to testify or disclose information “under threat of prosecution under the Espionage Act.” The Army repeatedly urged that certain Institute documents connecting the Government with these events be turned over to the Army while litigation was pending so that, according to an Army memorandum, they could be placed “beyond the subpoena power of the plaintiff.” Finally, when the suit was settled for $18,000 in 1955 the Government agreed to pay half of the settlement on the condition that its role and purpose for supplying the drug would be kept secret. Barrett I at 328. Plaintiff has successfully proven each of these allegations and more at trial. Thus, the diligence-discovery rule is properly applied in this case, and the cause of action must be held to have accrued when the Estate should have discovered the critical facts of Blauer’s injury and its cause. Id. Since the injury was known immediately, the crucial question is when the Estate should have discovered the critical facts relating to the cause of death. Id. When Blauer’s estate brought suit against the State of New York in 1955, it knew or could have known through a reasonable investigation only of a garden-variety medical malpractice case. The Estate was misled from the moment Amy Blauer was informed of her husband’s death into believed that her husband died because of an atypical reaction to a drug administered for his diagnosis and therapy. A conspiracy soon developed to make sure that the Estate accepted this convenient picture of the death. The United States and the State of New York plotted the coverup because of their concern about adverse publicity, and the doctors at the Psychiatric Institute were happy to go along because of their concern about their professional reputations. In contrast to this false picture of the nature of Blauer’s injury, the true gravamen of the Estate’s claim is that Blauer was given an injection entirely for experimental purposes and not for his own benefit. That is, “the real reason Blauer died was not medical incompetence in the administration of a therapeutic or diagnostic drug, but the fact that he was used as a human guinea pig.” Barrett I at 329. In addition, as the Second Circuit pointed out in Barrett I, “not only was the ‘what’ element of the causation inquiry unknown to the plaintiff until 1975, but the ‘who’ element was also missing from the puzzle.” Barrett I at 330. The Government concealed totally its involvement with Blauer’s death. “It is illogical to require a party to sue the Government for negligence at a time when the Government’s responsibility in the matter is suppressed in a manner designed to prevent the party, even with reasonable effort, from finding out about it.” Id. After Blauer died, the United States and those acting at its direction went about removing any “red flags” that might have led the Estate even to imagine such a scenario. The people from whom a plaintiff would normally expect to hear of unusual circumstances surrounding a death were either kept ignorant of the facts by the Army’s actions or incorporated as accomplices in the Government’s cover-up. The Government’s job was made easier by the fact that information about the true nature of Blauer’s death was already limited to two doctors at the Institute because the project was classified. For example, Blauer’s treating physician, Dr. Schnack, was told that he was to keep out of the Blauer matter so that he would not accidently expose the Chemical Corps’ involvement. The New York Medical Examiner was told of the Army’s involvement but was also told that this involvement could not be disclosed to the Estate or to anyone else. The Estate was given access only to incomplete and partially inaccurate medical records that corroborated the story that Blauer had died of an overdose of a drug administered for diagnostic and therapeutic purposes and contained no hint of the Chemical Corps’ role. The medical expert that the Estate hired to assess these records reasonably concluded from them that Blauer’s death was accidental and in no way unusual. If the Estate had asked about the source of the chemical at the 1955 trial, it would have been told that it was supplied by “Army doctors” or by “the Army Medical Corps.” This answer also would have lulled the Estate into not searching beyond the simple story that Blauer had died from an overdose of a drug administered for his diagnosis and therapy. Finally, Dr. Hoch gave false and misleading testimony at the 1955 hearing to reinforce the false image of Blauer’s death that the United States wished the Estate to accept. While the Estate was being misled about Blauer’s death, Marcus was pressuring it to settle for what seemed to be a substantial sum, given the uncertain nature of the claim as the Estate understood it. It is also necessary to note—as the defendants in this case reminded the court and jury often at trial—that the events involved in this case occurred at a time when people trusted their government and other institutions in a way that may seem almost naive today. Given the way that the United States sanitized the Estate’s view of the events leading to Blauer’s death, plaintiff was duly diligent in attempting to discover the critical facts, or the “what” element, of its claim. It sent Mr. Cohen to the Psychiatric Institute to investigate Blauer’s death. It at one point or another examined what it thought were the major documents in Blauer’s medical record. It also obtained the Medical Examiner’s report on Blauer’s death. It related the information it had gained to a medical expert, and the expert reasonably advised the Estate that Blauer’s death appeared to have been a simple accident. When faced with this sanitized record and what seemed to be a fair, if not generous, settlement offer from the State, it was reasonable for the Estate to settle its case without further investigation. While the law requires that plaintiff have been reasonably diligent in pursuing its claim, it does not require that plaintiff have gone chasing after shadows. The court, therefore, concludes that the plaintiff could not have discovered the critical facts surrounding the cause of Blauer’s death through reasonable diligence until the Army’s involvement was revealed in 1975. The United States’ successful efforts to cover up these facts removed from the Estate’s path any evidence that might have led it to become suspicious, and the extent of its investigation was reasonable under these circumstances. 2. Release In 1955 Amy Blauer signed a broad release in return for the $18,000 paid in settlement of her claim. It released from liability, inter alia, “the organization, group, governmental body or agency which furnished the drug” that caused Blauer’s death. If valid under New York law, this release clearly would free the United States from liability in this case. A release may, however, be set aside under New York law if induced by fraud. Barrett v. United States, 622 F.Supp. 574, 584 (S.D.N.Y.1985); Goldsmith v. National Container Corp., 287 N.Y. 438, 443, 40 N.E.2d 242 (Ct.App.1942). To show fraud, plaintiff must have proven that: 1) there was a misrepresentation or active and wrongful concealment of a material fact; 2) the representation was in fact false and was known to be false at the time it was made or the concealment was intentional; 3) the misrepresentation was made for the purpose of inducing plaintiff to rely on it or the concealment was done to mislead the plaintiff; 4) plaintiff did, in fact, rely on the misrepresentation or would have acted differently had she known of the concealment; and 5) plaintiff was caused injury as a proximate result of the misrepresentation or concealment. Barrett v. United States, 622 F.Supp. at 584; Mallis v. Banker’s Trust Co., 615 F.2d 68, 81 (2d Cir.1980), cert. denied, 449 U.S. 1123, 101 S.Ct. 938, 67 L.Ed.2d 109 (1981). The United States is bound by the fraudulent actions of its agents or co-conspirators. Ferrainolo v. Prudential Ins. Co., 197 N.Y.S.2d 36, 38 (Sup.Ct.1960), modified on other grounds, 12 A.D.2d 720, 208 N.Y.S.2d 136 (4th Dep’t.1960); see also cases collected in 19 N.Y.Jur.2d 461, notes 97-99 (1982). Plaintiff has proven each of these elements by a clear preponderance of the evidence. See George Backer Management Corp. v. Acme Quilting Co., Inc., 46 N.Y.2d 211, 413 N.Y.S.2d 135, 139, 385 N.E.2d 1062, 1066 (Ct.App.1978); Simcuski v. Saeli, 44 N.Y.2d 442, 453, 406 N.Y.S.2d 259, 265, 377 N.E.2d 713, 719 (Ct.App.1978). The major misrepresentation made to the plaintiff was that Blauer’s injection was given for diagnostic and therapeutic purposes rather than solely for experimental purposes. The Estate was told this consistently, from the time it learned of Blauer’s death until the day the release was signed. This misrepresentation appeared in the Institute’s report to the Medical Examiner, in the Medical Examiner’s report, and in the Institute’s medical records supplied to the Estate in connection with the litigation. In addition, Dr. Hoch repeated it at the proceeding at which the release was confirmed by the Court of Claims. The Estate did not learn that the injection was given solely as part of an experiment until 1975. The fact that Blauer was given the injection of EA 129