Petition for Writ of Certiorari — New York State Department of Health v. Andrulonis

60-1864___

Supreme Court, U.S

FILED

IN THE

JUN States, 91

Supreme Court of the Uni

States THE CLERK

October Term, 1990

NEW YORK STATE DEPARTMENT OF HEALTH,

Petitioner,

against

JOANNA ANDRULONIS, Individually and as Conservator of

the Property of JEROME ANDRULONIS; UNITED

STATES OF AMERICA; GLATT AIR TECHNIQUES, INC.;

GLATT GmbH; WISCONSIN ALUMNI RESEARCH

FOUNDATION, INC.; WARF INSTITUTE, INC;

RALTECH SCIENTIFIC SERVICES, INC.; RALSTON

PURINA COMPANY; ELI LILLY AND COMPANY; and

JOHN L. THOMPSON AND SONS COMPANY,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

ROBERT ABRAMS

Attorney General of ihe State of New

York, Attorney for Petitioner

The Capitol

Albany, NY 12224

(518) 474-6697

O. PETER SHERWOOD

Solicitor General

PETER H. SCHIFF

Deputy Solicitor General

MICHAEL S. BUSKUS

Assistant Attorney General

Of Counsel

Dated: May 31, 1991

THE REPORTER COMPANY, INC., Walton, NY 13856—800 252-7181—1991

(1064A—LC3-630)

i.

Question Presented.

Whether, in view of the conflict between the decision

below in this case and this Court’s ruling in Gaubert and a

number of circuit court decisions, certiorari should be

granted to determine whether the discretionary function

exception to the Federal Tort Claims Act bars a claim, the

gravamen of which in this case is that a Federal Govern-

ment scientist with authority and discretion to cooperate

with local government scientists negligently failed to assess

the risks of an experiment and failed fully to warn other

knowledgeable scientists of safety hazards?

ii.

Parties.

The parties to the proceeding in the court whose judg-

ment is sought to be reviewed are:

1. Joanna Andrulonis, Individually and as Conservator

of the Property of Jerome Andrulonis, Plaintiff;

2. The United States, Defendant and Third-Party

Plaintiff;

3. The New York State Department of Health

(“NYSDOH”), the Third-Party Defendant; and

4. Glatt Air Techniques, Inc.; Glatt GmbH; Wisconsin

Alumni Research Foundation, Inc.; Warf Institute, Inc.;

Raltech Scientific Services, Inc.; Ralston Purina Company;

Eli Liily and Company; and John L. Thompson and Sons

and Company, Defendants.

All of the non-governmental defendants (# 4 above)

settled with plaintiffs during trial and were not involved on

the appeal to the Court of Appeals. Only parties ## 1-3

were, and still are, involved in this appeal.

iii.

Table of Contents.

Page

ee as ck ccd k ak sc aeaad cones i

ee eee ap heh kb aes c6as nan base ea es il

Lr iv

cs ec i Neda k aise eanneekss 1

Ea 2

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Reasons for Granting the Writ.................... 15

OG re 24

IV.

Index to Appendix.*

. Opinion of the United States Court of Appeals, Sec-

ond Circuit, Dated January 28, 1991..........

. Opinion of the United States District Court for the

Northern District of New York, Dated December

See Cs Sok i nwesa annus 00606hekeeseed 0a

. Opinion of the United States District Court for the

Northern District of New York, Dated October 3,

PETER Daan Gua ecehianacneneeenewes hens)

. Order of the United States Court of Appeals for the

Second Circuit Denying Petition for Rehearing,

ER ee ree

. Order of the United States Court of Appeals, Second

Circuit, Dated January 28, 1991, Issued as Man-

EE I, SUNS asc ch eden santacsosassae

. Amended Judgment of the United States District

Court for the Northern District of New York,

EPUROG ERROGNNNOT ED, BPGD ow wns ccc cnn ceces

. Judgment of the United States District Court for the

Northern District of New York, Dated October

Se ES bb iors ean xuueee Kika eee bs

*Appendix printed under separate cover.

Page

Al

A46

A390

A399

A401

A403

V.

TABLE OF AUTHORITIES.

Page

CASES:

Allen v. United States, 816 F2d 1417 (10th Cir 1987),

revg, 588 F Supp 247 (D Utah 1984) ....... 21

Andrulonis v. United States, 924 F2d 1210 (2d Cir

| RE EERE Pw yl passim

Andrulonis v. United States, 724 F Supp 1421 (NDNY

RR ea ie ey oe 9,12

Andrulonis v. United States, 593 F Supp 1336 (NDNY

PRR! Dae le By ee 11

Barnson v. United States, 816 F2d 549 (10th Cir), cert.

denied, 484 US 896 (1987) ................ 23

Begay v. United States, 768 F2d 1059 (9th Cir 1985),

cert. denied, 485 US 935 (1988). ........ 21, 23

Berkovitz v. United States, 486 US 531 (1988) ..... 12

Dalehite v. United States, 346 US 15 (1953)..... 20, 22

Hart v. United States, 894 F2d 1539 (11th Cir 1990) 21

Henderson v. United States, 846 F2d 1233 (9th Cir

6 no bincekds Cea ee ee 21

Vi.

Page

In re Consolidated U.S. Atmospheric Testing Litiga-

tion, 616 F Supp 759 (ND Cal 1985), affd, 820

F2d 982 (9th Cir 1987), cert. denied sub nom.

Konizeski v. Livermore Labs, 485 US 905

oo Se eee eee Ce ree 22

Kennewick v. United States, 880 F2d 1018 (9th Cir

LaBarge v. Mariposa County, 798 F2d 364 (9th Cir

1986), cert. denied sub nom. County of Mar-

iposa v. United States, 481 US 1014 (1987)... 21

McMichael v. United States, 856 F2d 1026 (8th Cir

er LL re grat eee nrg ED 21

Merklin v. United States, 788 F2d 172 (3d Cir 1986) 21

Millang v. United States, 817 F2d 533 (9th Cir 1987),

cert. denied, 485 US 987 (1988)............ 21

Mitchell v. United States, 787 F2d 466 (9th Cir 1986) 21

Myslakowski v. United States, 806 F2d 94 (6th Cir

Ss 6:44 44.04 6%4 Ca RRAa KO EKER eek 23

Sea-Land Services, Inc. v. United States, 919 F2d 888

CSG GP TIPE 5 nc acc cacccccccccaccusseaces 23

Starrett v. United States, 847 F2d 539 (9th Cir 1988) 21

Totten v. United States, 806 F2d 698 (6th Cir 1985) 22

United States v. Gaubert, 111 S Ct 1267, 113 L Ed 2d

DOP CROMER os cc cscncicntcdeaabuseewes passim

Vii.

United States v. Gaubert, 885 F2d 1284 (Sth Cir

SE SUAS ck ake anes haha ce eae ea ene

U.S. Fidelity & Guar. Co. v. United States, 837 F2d

116 (3d Cir), cert. denied, 487 US 1235

(1988)

Weiss v. United States, 889 F2d 937 (10th Cir

PU CikcacGhchachans acne kagueenenaes

OTHER AUTHORITY:

Stern & Gressman, Supreme Court Practice (6th

ed., 1986), §4.18, pp. 224-226 ...........

Page

16

LS

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990.

New YorRK STATE DEPARTMENT OF HEALTH,

Petitioner,

against

JOANNA ANDRULONIS, Individually and as Conservator of

tue Property of JEROME ANDRULONIS; UNITED STATES OF

AMERICA; GLATT AIR TECHNIQUES, INC.; GLATT GmbH;

WISCONSIN ALUMNI RESEARCH FOUNDATION, INC.;

WARE INSTITUTE, INC.; RALTECH SCIENTIFIC SERVICES,

INC.; RALSTON PURINA COMPANY; ELI LILLY AND Com-

PANY; and JOHN L. THOMPSON AND SONS COMPANY,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

PETITION FOR A WRIT OF CERTIORARI.

Opinions Below.

The opinion of the Court of Appeals for the Second

Circuit is printed in petitioner’s appendix at pages Al-A45.

It is reported at 924 F2d 1210 (1991).

2

The opinion of the District Court is printed in petitioner’s

appendix at pages A46-A3839. It is reported at 724 F Supp

1421 (NDNY 1989). An earlier opinion of the District

Court is printed in petitioner’s appendix at A390-A398. It

is reported at 593 F Supp 1336 (NDNY 1984).

Jurisdiction.

The mandate of the Court of Appeals for the Second

Circuit was entered on March 12, 1991. The order denying

NYSDOH’s petition for rehearing was entered on March 4,

1991. The judgment of the Second Circuit was filed Janu-

ary 28, 1991.

This Court’s jurisdiction is invoked under 28 USC

§1254(1).

Although the court below directed a rernand for calcula-

tion of the proper apportionment of settlement proceeds

from private tortfeasors—a purely state-law question—no

further action in the trial court will result in this case being

more ripe for review at a later juncture. See, Stern &

Gressman, Supreme Court Practice (6th ed., 1986), § 4.18,

pp 224-226 The court below definitively resolved the fed-

eral statutory question under the Federal Tort Claims Act.

Nothing that might occur on remand will enhance the

ripeness of the federal question for review by this Court.

Statute Involved.

28 USC § 2680(a)

Ҥ 2680. Exceptions

The provisions of this chapter [28 USCS §§ 2671 et

seq.] and section 1346(b) of this title shall not apply

to—

3

(a) 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 agency or an employee of the

Government, whether or not the discretion involved

be abused.”

Statement of the Case.!

Plaintiff, a research scientist employed by the New York

State Department of Health (“NYSDOH”), tragically con-

tracted rabies and suffered permanent brain damage as a

result of exposure to a rabies virus provided by Dr. George

Baer, a United States Government scientist employed by

the Center for Disease Control (“CDC”), a Federal

research facility. App, A3. The experiment was conducted

by NYSDOH scientists on NYSDOH premises. App, A3,

A9. The accident happened when aerosois, or airborne

particles, of rabies virus leaked out of a machine being used

to manipulate the virus in an attempt to convert it into a

vaccine that could be used to prevent the spread of the

disease of rabies in wildlife. App, A6-A7.

Government employee Baer had supplied the experimen-

tal virus at the request of State scientists. App, A9. As in

other specific areas of scientific research, Government sci-

entists at CDC specializing in rabies are frequently consul-

ted by other scientists seeking information, advice and

other forms of scientific collaboration. App, A9. NYSDOH

scientists were attempting to develop a vaccine that would

‘References to “App, A

this Petition. References to “Tr.

transcript. References to “Exh

to “J. App.

Appeals.

” refer to pages of the Appendix to

” refer to pages of the trial

” refer to trial exhibits. References

” refer to pages of the Joint Appendix in the Court of

4

be eaten by wildlife (e.g., foxes and raccoons), thereby

immunizing the animals from the disease and preventing its

spread. App, A7. There were numerous technical and prac-

tical difficulties encountered by the NYSDOH scientists,

prompting them to consult with the Government experts at

CDC. App, A9. Dr. Baer was the leading rabies expert at

CDC and was known to NYSDOH scientists as the expert’s

expert. App, A7, A9. Accordingly, NYSDOH scientists

informed Dr. Baer of their research objectives, theories,

results and difficulties. App, A7, A9. They sought his help

and advice in order to overcome problems in their experi-

ment. App, A7, A9.

The basic elements of NYSDOH’s research project can

be concisely stated. App, A7. The purpose was to create a

“vaccine”, or modified “virus”, which would be con-

sumed—as “bait” or “food”—by wildlife, especially foxes

who were a species peculiarly susceptible to rabies. App,

A7. A virus is a microscopic organism which infects a host

organism and multiplies in the host tissues. App, A3, A63.

A vaccine is an artificial product usually developed from a

virus. App, A7. The theory of vaccines in general, and this

one in particular, was that a sufficiently “attenuated” or

weakened virus could be administered to man or animal

and would create antibodies so that the body’s own immune

system could resist a “challenge” by later exposure to the

disease. App, A7.

The factual detaiis of the experiment, and of rabies

research generally, are not crucial to an understanding of

the legal issue raised in this petition, namely, whether the

errors or omissions of a Government scientist were pro-

tected by the discretionary function exception of the Fed-

eral Tort Claims Act (“FTCA”). Those factual matters are

explored at great length in the opinions of both lower

courts. App, A6-A14, A55-A58, A60-A157. In this Peti-

tion, we will focus on the findings of negligence—which

5

related to errors of risk assessment and failure to warn

other sophisticated scientists that their research methods

were unsafe—in an effort to show that the negligence of

CDC’s Dr. Baer was within the protection of the discretion-

ary function exception.

Efforts by NYSDOH scientists using conventional labo-

ratory techniques failed to yield a vaccine with enough

potency, or titer. App, A9. Therefore, NYSDOH requested

help from Dr. Baer at CDC. App, A9. Dr. Baer agreed to

supply a more potent strain of rabies virus that he had used

in his own experiments at CDC. App, A9-A10. With the

understanding that NYSDOH would furnish to CDC some

samples of the resulting vaccine product which NYSDOH

scientists would produce, Dr. Baer managed to get CDC

indirectly to subsidize NYSDOH’s project by paying the

cost of NYSDOH’s rental of a machine used in the experi-

ment. App, A8-A9.

For the experiment conducted by NYSDOH at a

NYSDOH facility which ended in tragedy, NYSDOH sci-

entists directed and controlled the use of this machine. App,

A9. Unfortunately, the machine leaked and plaintiff

became exposed to the viral material. App, A8. Neither the

NYSDOH scientists, nor Dr. Baer—who was present solely

in an observer status—actually knew or appreciated the

magnitude of the risk. App, Al2. Indeed, CDC’s Dr. Baer

himself stood a few feet away from the machine while it

was in use during the project. App, Al2.

Hindsight demonstrated that all of the scientists involved

were negligent in not perceiving the risks of aerosol expo-

sure to the experimental virus. App, A10-A11. This risk

was not fully understood at the time. Every scientist present

during this experiment, like any other professional poten-

tially exposed to the rabies virus (e.g., veterinarians, posta!

delivery personnel), had been pre-vaccinated with the com-

6

mercial (Eli Lilly) rabies vaccine. App, A8, All, A91.

Every scientist present during this experiment had previ-

ously had their blood levels of rabies antibodies tested.

App, A8. Every scientist present during this experiment had

received positive confirmation that they had enough pro-

tection in their bloodstream to prevent the contraction of

the rabies disease even if they came into contact with live

rabies virus. App, A8. NYSDOH and CDC researchers all

assumed that the rabies virus used in this project, even in

high concentrations, was safer to use than the “street virus”

in rabid animals which researchers frequently encountered,

but for which no injury had ever occurred, presumably

because they had been inoculated with the commercial

vaccine. App, A8-A10.

At trial, it was found that NYSDOH scientists had oper-

ated an unsafe laboratory, in that they did not have avail-

able for use a number of devices that could have avoided

aerosol exposure to the rabies virus. App, Al 1. Since plain-

tiff, because of his State employee status and receipt of

workers’ compensation benefits, was prohibited under State

law from suing NYSDOH, the theory of liability at trial was

that the Government was at fault as a joint tortfeasor. App,

A6. The testimony from plaintiffs’ experts was to the effect

that research and safety conditions at the State laboratory

were so bad that no research at this level of sophistication

could safely have been conducted there. App, A8. The key

findings of negligence against CDC’s Dr. Baer related to

his failure to halt a State-directed research project when Dr.

Baer was merely an observer. App, A22. Alternatively, the

courts below found that Dr. Baer should have warned the

State scientists of the hazards of proceeding with the exper-

iment. App, A22.

The risk that these scientists negligently failed to per-

ceive related to the “route of transmission” of the rabies

virus. App, Al1. There are two principal methods of expo-

sure: bloodstream or aerosol (airborne). App, Al 1.

7

For a typical case of exposure (for example, by dog bite),

the rabies virus enters the body directly through the blood-

stream. App, All, A62. For that route of transmission, the

commercial vaccine had always been effective. App, Al 1.

Indeed, there had never, in the entire history of the com-

mercial vaccine, been a single case of a scientist (or anyone

else) contracting rabies when, as here, that person had

previously been vaccinated with the commercial vaccine

and blood tests had confirmed the level (titer) of blood

antibodies. Tr. 1027-1028, 1421, 2224-2225.

In the case at bar, the route of transmission was not the

typical bite route, but, rather by inhalation or aerosol expo-

sure. App, A10-A11. As it turned out, this risk of exposure

did not enjoy the protection of the commercial vaccine.

App, A12. Unlike the typical case, the virus entered plain-

tiff's body by being inhaled, apparently traveling from the

nerve endings in the nasal mucosa directly through the

nervous system to the brain. App, Al1. Thus, even though

plaintiff had been immunized with the commercial vaccine,

it was not effective in preventing contracture of rabies.

App, All. In effect, by bypassing the bloodstream, the

rabies virus avoided the rabies antibodies produced by the

commercial vaccine. App, All.

Plaintiff at trial, bolstered by expert opinion testimony

from risk-appraisal scientists, proved the negligence of Dr.

Baer on the basis that he should have known of the risk of

aerosol exposure. Tr. 985-987, 999-1000, 1003, 1030,

1086-1087, 1479-1483. Like other scientists who spe-

cialized in rabies research, Dr. Baer was certainly aware of

the theoretical danger of aerosol exposure. Tr. 1038, 1176,

2138-2139. Indeed, Dr. Baer was the expert’s expert in the

field, having written countless articles, as well as having

been editor in chief of the definitive two-volume scientific

treatise on rabies. fr. 111, 2330.

8

Dr. Baer believed, from years of his own research with

the strain of rabies virus in question, that it was not dan-

gerous to previously immunized scientists, since the virus

had been used by scientists for years without human illness,

despite accidental exposure to humans in laboratories. Tr.

1097, 1429-1430, 1786-1787. There was, of course, no

conceivable way scientists could actually know the risk to

humans, since scientific ethics forbid experiments on

humans. Tr. 335, 645, 905-906. However, scientific data

on species like foxes strongly suggested that this experi-

mental strain of rabies virus was not dangerous. Tr. 1209,

1211, 2143-2148. The few adverse effects upon some ani-

mal species which had been documented in the scientific

literature were discounted on factual or scientific grounds

as not suggesting real risks for man. Tr. 1176, 2255,

2265-2266.

Likewise, Dr. Baer had scientific reasons for his belief

that there was no significant risk to himself or anyone else

from aerosol exposure to the virus he brought to the

NYSDOH laboratory for the experiment in question. Tr.

2252, 2254, 2258-2259, 2312-2314. It is true that “cave

workers” doing research in bat caves had, years earlier,

contracted rabies. App, A94-A99. However, the levels of

exposure were perceived to be much higher there, and,

more critically, those cave workers had not been protected

by immunization with the commercial vaccine. App, A94-

A99; Tr. 1175, 2310. Thus, Dr. Baer believed that exposure

to aerosols in a laboratory by scientists immunized with a

commercial vaccine was not dangerous. Tr. 2252, 2254,

2258-2259, 2312-2314, 2322, 2324.

There was also one case in scientific history of a labora-

tory worker who contracted rabies. App, A99-A100.

A scientist in Texas who was mixing rabies materials in a

blender contracted rabies after apparently inhaling aerosols

9

produced during the blending process. App, A100. How-

ever, two critical facts distinguished that case from this

case. App, A99-A101. First, the virus there was the so-

called “Challenge Virus Standard” (“CVS”), meaning the

particularly lethal strain used as the benchmark virus to

“challenge” or kill animals as a means of assaying the

effectiveness of vaccines previously administered. App,

A85-A86, A100. Moreover, while the victim of the blender

incident had received pre-exposure vaccination some 13

years before the accident, he had not developed demonstra-

ble blood antibodies. App, A100. Thus, it was as if he had

never been immunized. App, A100-A101.

Therefore, on the basis of his knowledge and expertise,

Dr. Baer discounted as insignificant, albeit mistakenly, the

risk which theoretically existed with any exposure to rabies

aerosols. Tr. 1032, 1173-1174, 1884, 1979-1980, 2313-

2314. He exposed himself to aerosols in the NYSDOH

laboratory, as did NYSDOH chief researcher Dr. Debbie

and plaintiff. App, A12. Although we will never know for

certain, it is believed that the reason only plaintiff contrac-

ted the disease is that he spent more time with the Uni-Glatt

machine and was closer to the source of the leak in the

machine. App, Al2-A13.

With the benefit of hindsight, everyone recognizes that

Dr. Baer miscalculated the risk to which he exposed him-

self, Dr. Debbie and plaintiff.

The district court held that the Government was liable in

negligence for the errors and omissions of CDC’s Dr. Baer.

Andrulonis v. United States, 724 F Supp 1421 (NDNY

1989); App, A46 et seg. Because NYSDOH was a third-

party defendant (having been impleaded by the Govern-

ment), but not a party sued by plaintiff, the district court

recognized that none of the negligence of NYSDOH scien-

10

tists could itself give rise to Government liability. 724 F

Supp at 1472; App, A181. The court made a lengthy anal-

ysis of NYSDOH’s negligence, 724 F Supp at 1472-1480;

App, A181-A210, finding that NYSDOH scientists were

sophisticated members of the “community of rabies

experts” who were assumed to know the general theories

and research concepts applicable to rabies work. 724 F

Supp at 1474; App, A187. The court also found that

NYSDOH scientists should have known the following: that

pathogenicity of viruses could not be known for certain;

that safe laboratory practice required researchers to assume

that the experimental strain was dangerous to humans; that

the concentration of a virus directly affects its patho-

genicity; that aerosol exposure to viruses should be avoided;

and that, despite its prior effectiveness, the commercial! Eli

Lilly vaccine (with which the scientists had been treated)

could not guarantee safety against aerosol exposure to

rabies virus. 724 F Supp at 1475-1476; App, A190-A195.

The court also found that NYSDOH scientists also knew

that the machine they were using was not airtight. 724 F

Supp at 1476; App, A193.

From all of those facts, the district court found that

NYSDOH scientists should have been able to anticipate

that the experiment conducted on NYSDOH premises was

unsafe. 724 F Supp at 1476-1477; App, A194-A198. The

court found that NYSDOH (principally because of its chief

rabies researcher, Dr. Debbie) was negligent in not making

a proper “risk assessment” in connection with this experi-

ment. 724 F Supp at 1477-1478; App, A198-A199. In

particular, the court faulted NYSDOH for not following

generally accepted laboratory practices to avoid exposure

to aerosols. 724 F Supp at 1478; App, Al199-A200. The

court found that, without jeopardizing the efficacy of the

experiment, NYSDOH could have enclosed the experirnen-

tal apparatus in an airtight container to prevent aerosol

exposure to the virus. 724 F Supp at 1478-1479; App,

11

A201-A202. On the basis of all of those findings, the

district court held that NYSDOH was negligent, and that its

negligence represented 65% of the causal negligence, with

30% attributed to the Government and the balance to pri-

vate parties who settled. 724 F Supp at 1480, 1509; App,

A208, A297.

The district court then explained its findings of negli-

gence on the part of the Government. 724 F Supp at

1481-1496; App, A210-A256. The court focused on the

theory of failure to warn. 724 F Supp at 1485-1493; App,

A227-A249. On the basis that CDC’s Dr. Baer was more

knowledgeable about rabies than any of NYSDOH’s scien-

tists, the court found that Dr. Baer had a duty to make sure

that NYSDOH’s scientists were fully aware of all of the

dangers associated with the use of this experimental virus.

724 F Supp at 1488-1489; App, A232-A236. The court

placed particular emphasis on the fact that Dr. Baer was

present in NYSDOH’s laboratory while the experiment was

being conducted. 724 F Supp at 1489; App, A235-A238.

Therefore, since Dr. Baer saw that NYSDOH’s laboratory

was not equipped with safety equipment that would have

minimized or averted aerosol exposure to the virus, the

court held that a duty arose to warn NYSDOH scientists of

the danger of continuing with the experiment. 724 F Supp

at 1490; App, A238-A239. The court held that Dr. Baer,

and hence CDC and the Government, could be found liable

in negligence for not giving warnings in those circum-

stances. 724 F Supp at 1491-1493, 1495; App, A242-

A248, A253-A254.

The district court, which had earlier denied the Govern-

ment’s motion to dismiss on the basis of the discretionary

function exception, Andrulonis v. United States, 593 F Supp

1336 (NDNY 1984); App, A390-A398, gave very brief

mention to the discretionary function exception. 724 F

Supp at 1496-1498; App, A256-A264. The district court

12

heavily relied upon Indian Towing Co. v. United States, 350

US 61 (1955). Andrulonis, 724 F Supp at 1497; App,

A259-A260. The court hinged its analysis on the planning/

operational distinctions which the court understood /ndian

Towing to state as the measure of the discretionary function

exception. 724 F Supp at 1497-1498; App, A259-A262.

The Court of Appeals affirmed the district court’s deci-

sion in an opinion, Andrulonis v. United States, 924 F2d

1210 (2d Cir 1991); App, Al-A45, which, insofar as is

relevant here, held that the discretionary function exception

did not apply. 924 F2d at 1217-1220; App, A15-A23. The

court applied what it understood to be a two-part test

derived from Berkovitz v. United States, 486 US 531 (1988).

Andrulonis, 924 F2d at 1218; App, Al8-A19.

“First, we must consider whether the conduct was a

matter of choice for the acting employee, and if so,

we must then determine whether the employee’s

actions involved public policy considerations.” 924

F2d at 1218; App, A18.

The court acknowledged that there was no statute, regula-

tion or any other directive which mandated what Dr. Baer

should have done or which forbade him from what he did.

924 F2d at 1218; App, Al9.

‘No such directive was applicable to Dr. Baer in this

case; at the critical points in these events he had the

power to choose his actions.” 924 F2d at 1218; App,

Al9.

Thus, in the view of the Second Circuit, Dr. Baer’s conduct

was “discretionary” in the sense of not being circumscribed

by regulations as in Berkovitz. Andrulonis, 924 F2d at 1218,

App, Al9.

13

“But this does not end the inquiry. As we have

noted, to qualify for the exception, Dr. Baer’s critical

choices had to involve policy considerations, and

here they did not.” 924 F2d at 1218; App, A19.

For its definitional or line-drawing aspect of the opinion,

the Second Circuit relied upon what it understood to be the

planning/operational dichotomy created in /ndian Towing

and subsequently evolved in Second Circuit cases.

Andrulonis, 924 F2d at 1218-1219; App, A19-A20. The

Second Circuit interpreted /ndian Towing as holding that

only the initial decision as to whether or not to install a

lighthouse would be discretionary; in all other respects,

there was no conceivable discretion and liability could be

imposed for failure to “maintain” the lighthouse. 924 F2d

at 1219; App, A20.

The court conceded that sometimes the execution of

policy decisions might be protected by the discretionary

function exception. 924 F2d at 1219; App, A21. The Sec-

ond Circuit viewed those “execution” or “implementation”

decisions as protected by the discretionary function excep-

tion only “when the steps in the execution process also

require policy judgments”. 924 F2d at 1219; App, A21.

However, the court viewed this category of protected “‘exe-

cution” or “implementation” decisions very narrowly. 924

F2d at 1219; App, A21. Essentially, the court required

proof of conscious, deliberate and explicit balancing of

risks, benefits and costs; in the absence of such an evidenti-

ary record, the Government would not be protected by the

discretionary function exception. 924 F2d at 1219; App,

A21.

Applying those principles to the case at bar, the Second

Circuit held that the Government’s decisions to encourage

rabies research, to provide funding to NYSDOH and to

furnish the virus were all protected “policy” decisions

14

within the scope of the discretionary function exception.

924 F2d at 1219; App, A22.

“The same is not true, however, with Dr. Baer’s

alleged failure to warn of the extreme dangers pre-

sented by the particular circumstances of the March

29th experiment which Dr. Baer failed to interrupt.

The situation simply did not lend itself to policy

balancing, not [Sic] is there any indication that Dr.

Baer considered the policy implications or the pros

and cons of allowing the experiment to proceed.

Once he became aware of the risks, Dr. Baer was

obligated to give warning. His is precisely the type

of negligent omission for which congress waived the

government’s sovereign immunity in order to pro-

vide redress to citizens for the torts of government

actors.” 924 F2d at 1219; App, A22.

The court went on to reach other issues, including

NYSDOH’s argument on a purely State-law question with

respect to the apportionment of the proceeds of plaintiffs’

$1,300,000 in settlements with private tortfeasors.

Andrulonis, 924 F2d at 1223-1226; App, A33-A41. The

court reversed and remanded solely for purposes of recom-

puting the net judgment under the correct standards for

allocating the proceeds of settlement. 924 F2d at 1226,

1227; App, A41, A4S5. In all other respects, the judgment

was affirmed. 924 F2d at 1227; App, A45.

15

Reasons for Granting the Writ.

The Second Circuit's opinion conflicts with this Court’s

opinion in Gaubert in that it relies upon the discredited

operational/planning distinction, as well as an unduly

restrictive view of the discretionary function exception as

applied to scientific evaluations of risk.

The Second Circuit’s opinion preceded by two months

this Court’s opinion in United States v. Gaubert, 111 S Ct

1267, 113 L Ed 2d 335 (1991). The opinion below is in

conflict with Gaubert.

In Gaubert, this Court refused to limit the protection of

the discretionary function exception to the management or

planning level of a Government agency. 111 S Ct at

1274-1275, 113 L Ed 2d at 348. Rather, day-to-day man-

agement of an agency’s business, as well as management

determinations of the broader contours of an agency’s pol-

icy, were protected from tort liability under the discretion-

ary function exception. 111 § Ct at 1275, 113 L Ed 2d at

348.

This Court held in Gaubert that not all “policy” in agen-

cies is set in Washington by Commissioners, Secretaries or

Cabinet-level executives. Rather, the very nature of effec-

tive governance, as well as the employment of experts with

specialized expertise, requires that policy often be decided

and implemented by persons lower in the agency hierarchy

in whom responsibility is reposed. In Gaubert, Federal

banking officials supervised certain aspects of a federally-

insured savings and loan institution. All of the Federal

supervision was undertaken with a view towards stabilizing

a shaky savings and loan, to avert losses, protect depositors

and to minimize the Government’s exposure on deposit

‘insurance guarantees. Thus, the Government role included

the formulation of broader policy questions such as

16

replacement of existing management of the bank and rec-

ommendations for merger or acquisition of it by a stronger

financial institution. However, the Government also

became much more involved in the day-to-day activities of

the bank after replacing prior management with Govern-

ment appointees. Government employees recommended

the hiring of certain consultants; advised the bank on

whether, when, and how its subsidiaries should be placed

into bankruptcy; mediated salary disputes; reviewed a draft

of a complaint to be used in litigation; recommended

change of status under State laws; intervened to prevent

action by State regulators; and otherwise became involved

in minute details of management of the bank.

The Court of Appeals for the Fifth Circuit believed that

such Government involvement in the day-to-day workings

of a bank took the case outside the scope of the discretion-

ary function exception. The Court of Appeals in Gaubert

relied on Indian Towing Co. v. United States, 350 US 61

(1955), in distinguishing between “policy decisions”, which

fell within the exception, and “operational actions”, which

did not. United States v. Gaubert, 885 F2d 1284, 1287 (Sth

Cir 1989). The Fifth Circuit reasoned that bank regulators

had engaged in “operational” activities, and thus had

“crossed the line established in Indian Towing.” 885 F2d at

1289.

This Court rejected the narrow and artificial distinctions

drawn by the Fifth Circuit in Gaubert. This Court cate-

gorically stated that lower courts had, incorrectly, inter-

preted Indian Towing as having adopted “a nonexistent

dichotomy between discretionary functions and operational

activities”. Gaubert, 111 S Ct at 1275, 113 L Ed 2d at 349.

The Fifth Circuit in Gaubert, as this Court held, had

simply taken much too narrow a view of the meaning and

scope of the discretionary function exception. The lower

st

17

court had failed to recognize that policy must be, and

frequently is, set and implemented by experts within an

agency to whom responsibility is delegated. This Court

held that the availability of discretion in particular circum-

stances is presumed where agency employees are pursuing

the general agency objectives, except where specific

agency regulations or directives channel, forbid, or other-

wise limit the exercise of discretion.

“When established governmental policy, as express-

ed or implied by statute, regulation, or agency

guidelines, allows a Government agent to exercise

discretion, it must be presumed that the agent’s acts

are grounded in policy when exercising that discre-

tion. For a complaint to survive a motion to dismiss,

it must allege facts which would support a finding

that the challenged actions are not the kind of con-

duct that can be said to be grounded in the policy of

the regulatory regime. The focus of the inquiry is not

on the agent’s subjective intent in exercising the

discretion conferred by statute or regulation, but on

the nature of the actions taken and whether they are

susceptible to policy analysis.” i11 S Ct at 1274-

1275, 113 L Ed 2d at 348.

Applying those criteria in Gaubert, this Court reversed

the Fifth Circuit and found that all of the challenged acts of

the federal employees involved the exercise of discretion in

furtherance of public policy goals. 111 S Ci at 1279-1280,

113 L Ed 2d at 354.

In the case at bar, the Second Circuit made a similar

error. Much as the Fifth Circuit had done in Gaubert, the

Second Circuit relied heavily upon /ndian Towing in formu-

lating a distinction between protected and unprotected gov-

ernmental conduct. Andrulonis, 924 F2d at 1219; App,

A19-A20. While the Second Circuit did agree that the

18

broader contours of CDC’s policy of cooperative research

ventures with NYSDOH were protected by the discretion-

ary function exception, 924 F2d at 1219; App, A22, it

refused to treat implementation of that policy by Dr. Baer

in the same way. The court held that Dr. Baer’s awareness

of risks took his conduct outside the scope of the discretion-

ary function exception. 924 F2d at 1219; App, A22. The

court asserted that because Dr. Baer did not interrupt or

stop the NYSDOH project, his conduct was not protected

by the discretionary function exception. 924 F2d at 1219;

App, A22.

“The situation simply did not lend itself to policy

balancing, not [sic] is there any indication that Dr.

Baer considered the policy implications or the pros

and cons of allowing the experiment to proceed.

Once he became aware of the risks, Dr. Baer was

obligated to give warning. His is precisely the type

of negligent omission for which congress waived the

government’s sovereign immunity in order to pro-

vide redress to citizens for the torts of government

actors.” 924 F2d at 1219; App, A22.

This analysis is at odds with the lessons of Gaubert for

several reasons. To begin with, despite the fact that the

Second Circuit found that no statute, no regulation and no

agency directive dictated what Dr. Baer should have done,

924 F2d at 1218; App, A19, the court still held that his

conduct was not discretionary. 924 F2d at 1219; App, A22.

Indeed, CDC policy allowed CDC’s scientists to share

biological products (in CDC parlance, “etiologic agents”)

with public and private research laboratories. App, A9.

This CDC policy allowed CDC to share such etiologic

agents with any recognized health department that rou-

tinely worked with such agents. App, A9. The purpose was

to facilitate research and experimentation. Moreover,

because CDC neither had the resources nor staff for inves-

19

tigations, CDC’s policy was not to investigate the compe-

tence of the receiving laboratory. App, A9; Tr. 1813-1815,

1954-1958, 1968-1969. The practice in the private sector

was comparable, as Yale University like ise shared its

etiologic agents without investigating the -zceiving labora-

tory. Tr. 1409-1412. Thus, the acts or omissions of Dr. Baer

with respect to his assumptions of the competence of

NYSDOH’s researchers, as well as his failure to intervene

in a NYSDOH-controlled experiment, could not possibly be

non-discretionary under the Gaubert analysis. Dr. Baer

clearly was empowered to share etiologic agents and as

chief of viral zoonosis research at CDC he unquestionably

had broad discretion as to how best to implement CDC’s

policies of sharing etiologic agents for research purposes.

App, A19; Tr. 1812-1813, 1959-1963.

Moreover, there simply was no recognition by the Second

Circuit that policy is set and implemented by various per-

sons, at various levels of government, and at various levels

of detail and in various levels of complexity of fact and

judgment. Judgment by scientists, based upon their experi-

ence and knowledge in a specialized area, is just as much

discretionary as judgment by bankers in their specialized

area.

One can readily understand that the magnitude of the

tragedy to plaintiff in the case at bar skewed the thinking of

the court below, as it tried to avoid dismissing the claim on

the basis of the discretionary function exception. But the

implications of the Second Circuit’s analysis are much

broader and far more sweeping than just this case. The

nature of the inquiry and the scope of potential Govern-

ment liability is present in every case of collaborative sci-

entific inquiry. Current research on a cure for Acquired

Immune Deficiency Syndrome (AIDS) is just one example.

Under the analysis of the Second Circuit, Government sci-

entists who share research ideas, viral or tissue samples or

20

practically anything else conceivably used by scientists,

may be creating tort liability for the Government which the

discretionary function exception would not insulate from

liability.

Petitioner wishes to underscore the fact that the nature of

plaintiff's claim, as well as the holdings of the courts below,

hinge upon an alleged duty of one scientist (employed by

the Government) to take action in the research laboratory

of another scientist (here, Dr. Debbie of NYSDOH) and

attempt to halt a project being conducted by an experi-

enced, sophisticated researcher (Dr. Debbie) in his own

(NYSDOH) research laboratory. While it is true that if Dr.

Baer were himself running his project in his own (CDC)

laboratory, he might have been expected to use safety

devices to prevent aerosol exposure (see, CDC Lab Safety

Manual; Exh G-136; J. App. at 9243-9445), the safety

precautions in that CDC booklet applied only to CDC

facilities. There simply was no CDC policy, regulation or

practice requiring bystanders in someone else’s research

laboratory to intervene or to warn another knowledgeable

scientist about how he should run his experiment. App,

Al9.

The Second Circuit also failed to understand that “risk

assessment” is a core value implicit in the meaning of the

discretionary function exception. With the benefit of hind-

sight, and particularly when parsing minute details of any

particular governmental endeavor, it is always possible to

demonstrate that a risk was not fully appreciated. But, one

of the main teachings of Dalehite v. United States, 346 US

15, 27-28 (1953), is that the protection of the discretionary

function exception does not disappear merely because the

scope of the risk was not fully appreciated. Otherwise, the

exception means very little and liability is simply gauged

by an ordinary measure of negligence.

21

Therefore, simply on the basis of the conflict with

Gaubert, as well as the misinterpretation of Indian Towing

and Dalehite, the Second Circuit’s analysis should be

reviewed by this Court.2

Additionally, there is enough conflict and tension in ear-

lier rulings on similar issues in the Courts of Appeals as to

warrant certiorari on that basis as well. The conflict in

decisional law is most evident in the cases dealing with

scientific judgment generally and risk-assessment in partic-

ular. These cases include radiation-related injuries from

nuclear testing, the handling and disposal of toxic sub-

stances, as well as the selection of appropriate safety equip-

ment and procedures for dangerous substances. The cases

from other circuits have applied the discretionary function

exception to errors in judgment by scientists and techni-

cians with respect to their conscious and inadvertent risk-

assessment decisions. These cases stand in conflict with the

Second Circuit’s analysis in the case at bar.

2The Second Circuit held that the “clearly erroneous” standard of

review applied to all aspects of the case, including the district court’s

evaluation of the discretionary function exception. Andrulonis, 924 F2d

at 1214, 1220; App. A6, A23. This is in conflict with other circuits

which apply a “de novo” standard of review. Weiss v. United States, 889

F2d 937, 938 (10th Cir 1989); McMichael v. United States, 856 F2d

1026, 1031 (8th Cir 1988); Starrett v. United States, 847 F2d 539, 541

(9th Cir 1988); Mitchell v. United States, 787 F2d 466, 468 (9th Cir

1986); Merklin v. United States, 788 F2d 172, 174 (3d Cir 1986); Hart v.

United States, 894 F2d 1539 (11th Cir 1990). While it is true that

purely or largely factual questions in an FTCA case are subject to

“clearly erroneous” review, the ultimate legal conclusions are not;

rather, the conclusions of law, even when mixed with factual questions,

must be reviewed de novo. Henderson v. United States, 846 F2d 1233

(9th Cir 1988); LaBarge v. Mariposa County, 798 F2d 364 (9th Cir

1986), cert. denied sub nom. County of Mariposa v. United States, 481

US 1014 (1987); Millang v. United States, 817 F2d 533 (9th Cir 1987),

cert. denied, 485 US 987 (1988); Begay v. United States, 768 F2d 1059,

1062 (9th Cir 1985).

22

In Allen v. United States, 816 F2d 1417 (10th Cir 1987),

revg, 588 F Supp 247 (D Utah 1984), scientists in the 1950s

conducted open-air atomic bomb tests in Nevada. 816 F2d

at 1418. While the general framework of the testing pro-

gram was the subject of detailed plans, the execution

thereof was not similarly confined by written plans and

procedures. 816 F2d at 1419. The district court concluded

that the nature of the decisionmaking (scientific judgments

of risk assessments) and the hierarchy of the decision-

makers (low-level delegees in the chain of command) took

the case outside the scope of the discretionary function

exception. 588 F Supp at 338-340. The Tenth Circuit,

reversing the lower court, held that all of the challenged

actions surrounding the planning, operations and day-to-

day activities of the open-air testing program were pro-

tected from liability on the basis of the discretionary func-

tion exception. 816 F2d at 1424.

The Ninth Circuit came to a similar conclusion in

another case involving personal injury and wrongful death

claims by military and civilian participants in the atmo-

spheric nuclear weapons testing program. In re Consoli-

dated U.S. Atmospheric Testing Litigation, 616 F Supp 759

(ND Cal 1985), affd, 820 F2d 982 (9th Cir 1987), cert.

denied sub nom. Konizeski v. Livermore Labs, 485 US 905

(1988).

Other courts of appeals have come to similar conclusions

in cases where it was alleged that safety procedures for the

handling of dangerous substances either were not in effect

or were not followed. In Totten v. United States, 806 F2d

698 (6th Cir 1986), an employee of a manufacturer of Air

Force missile was killed during clean-up of hazardous solid

rocket fuel after a missile test failure. 806 F2d at 699. In

the summary judgment posture of that case, it was assumed

that plaintiff could prove that the United States—which had

reserved the right to oversee and to inspect the military

23

contractor’s work-—was guilty of negligence in [1] failing

to comply with a Department of Defense “Military Stand-

ard” requiring the use of non-static clothing; [2] failing to

comply with a like requirement for non-sparking tools; and

[3] failing to have fire-fighting equipment standing ready at

the site. 806 F2d at 699-700. The Court of Appeals upheld

the dismissal of the complaint on the basis of the discretion-

ary function defense and the reasoning in Dalehite. 806 F2d

at 700-702. Similarly, in U.S. Fidelity & Guar. Co. v. United

States, 837 F2d 116 (3d Cir), cert. denied, 487 US 1235

(1988), the proof at trial (which resulted in a verdict for

plaintiff) demonstrated negligent risk assessment. The

claim was still dismissed, on the basis of the discretionary

function defense, because the decisions were judgmental

and discretionary, albeit erroneously made. 837 F2d at 122.

Moreover, decisions by the Ninth and Tenth Circuits

have held that the failure of the Surgeon General, the Public

Health Service and their employees to disclose known

health risks to uranium workers constituted discretionary

or judgmental decisions protected by the discretionary

function exception. Begay v. United States, 768 F2d 1059,

1064-1066 (9th Cir 1985), cert. denied, 485 US 935

(1988); Barnson v. United States, 816 F2d 549, 553-557

(10th Cir), cert. denied, 484 US 896 (1987).

Additionally, a number of other courts have emphatically

rejected the Second Circuit’s approach of conditioning dis-

cretionary function immunity on proof by the Government

that its employee vested with discretion actually engaged in

a conscious, deliberate “balancing” of risks. Andrulonis,

924 F2d at 1219; App, A22. The weight of authority is to

the contrary. Myslakowski v. United States, 806 F2d 94,

97-98 (6th Cir 1986); Sea-Land Services, Inc. v. United

States, 919 F2d 888, 892 (3d Cir 1990); Kennewick v.

United States, 880 F2d 1018, 1028 (9th Cir 1989).

24

CONCLUSION

This court should grant a writ of certiorari. This court

should either vacate the decision below and remand for

reconsideration in light of Gaubert or should grant plen-

ary consideration.

Dated: Albany, New York

May 31, 1991

Respectfully submitted,

ROBERT ABRAMS

Attorney General of the State of

New York

Attorney for Petitioner

O. PETER SHERWOOD

Solicitor General

PETER H. SCHIFF

Deputy Solicitor General

MICHAEL S. BUSKUS

Assistant Attorney General

Of Counsel

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