1RECOMMENDED FOR FULL-TEXT PUBLICATIONPursuant to Sixth Circuit Rule 206ELECTRONIC CITATION: 2000 FED App. 0193P (6th Cir.)File Name: 00a0193p.06UNITED STATES COURT OF APPEALSFOR THE SIXTH CIRCUIT_________________ERNESTINECARTERHUGHES,Plaintiff-Appellant,v.VANDERBILTUNIVERSITY,WILLIAMJ.DARBY,M.D.,THEMETROPOLITANGOVERNMENT OFNASHVILLEANDDAVIDSONCOUNTY,TENNESSEE,THENUTRITIONFOUNDATION,INC., and THEROCKEFELLERFOUNDATION,Defendants-Appellees,THESTATE OFTENNESSEE,Defendant.;>1No. 99-5499Appeal from the United States District Courtfor the Middle District of Tennessee at Nashville.No. 98-00770—Thomas A. Higgins, District Judge.Argued: March 6, 2000Decided and Filed: June 7, 20002Hughes v. Vanderbilt University, et al.No. 99-5499*The Honorable Kathleen M. O’Malley, United States District Judgefor the Northern District of Ohio, sitting by designation.Before: SILER and GILMAN, Circuit Judges;O’MALLEY, District Judge.*_________________COUNSELARGUED:Phillip L. Davidson, Nashville, Tennessee, forAppellant. Robert P. LoBue, PATTERSON, BELKNAP,WEBB & TYLER, New York, New York, for Appellees.ON BRIEF:Phillip L. Davidson, Nashville, Tennessee, forAppellant. John S. Bryant, BASS, BERRY & SIMS,Nashville, Tennessee, Francis H. Young, METROPOLITANDEPARTMENT OF LAW, Nashville, Tennessee, John L.Chambers, STOKES & BARTHOLOMEW, Nashville,Tennessee, John W. Wagster, HOLLINS, WAGSTER &YARBROUGH, Nashville, Tennessee, for Appellees.GILMAN, J., delivered the opinion of the court, in whichSILER, J., joined. O’MALLEY, D. J. (p. 13), delivered aseparate opinion concurring in the result only._________________OPINION_________________RONALD LEE GILMAN, Circuit Judge. Ernestine CarterHughes contends that the defendants unlawfully subjected herto dangerous medical tests in 1945 when she was a child. Thedistrict court concluded that Hughes’s 1998 action was barredby the statute of limitations. Hughes now challenges thatdecision. For the reasons set forth below, weAFFIRMthejudgment of the district court.No. 99-5499Hughes v. Vanderbilt University, et al.3I. BACKGROUNDA. Factual backgroundIn 1945, Vanderbilt University conducted a three-monthstudy to further understand how iron is absorbed in the humanbody. The study, which was funded by the NutritionFoundation, Inc. (NFI), the International Health Division ofthe Rockefeller Foundation (Rockefeller), and the TennesseeDepartment of Health, involved nearly 200 children from theCaldwell and Ransom elementary schools in Nashville,Tennessee. William J. Darby, M.D., was one of the principalresearchers. The students, most of whom were between theages of seven and ten, were given lemonade that had beenlaced with radioactive iron. Darby and his colleaguesanalyzed before-and-after blood samples drawn from thechildren, and then published the results of their work in theJournal of Nutrition.At all times relevant to this case, Hughes resided inNashville. In 1945, she was eight years old and a student atthe Caldwell elementary school. Vanderbilt records reflectthat Hughes, then known as Ernestine Carter, was one ofDarby’s subjects.The 1945 study failed to draw any significant publicattention until January 13, 1994, when a Nashville newspaper,The Tennessean, ran a front-page story recounting the natureof the testing involved. Titled “Students Given RadioactiveDrink,” the article was based on a Vanderbilt press release tobe issued the following day.The Nashville Bannerprinted asimilar piece on the cover of its January 14, 1994 issue.On January 17, 1995, Katherine Henley, who alleged thatshe was one of the students subjected to the study, filed aclass action against the defendants in the United StatesDistrict Court for the Middle District of Tennessee. That casegarnered its own share of media attention. On January 18,1995,The Tennesseanagain ran a front-page story on thematter and, on January 19, 1995, CBS’s Nashville televisionaffiliate reported on the suit during three different broadcasts.4Hughes v. Vanderbilt University, et al.No. 99-5499In August of 1997, however, Henley admitted that at the timeof the study she was not enrolled in either the Caldwell orRansom elementary schools. This revelation was alsoreported byThe Tennessean. Her case was dismissed on orabout July 8, 1998.B. Procedural historyOn August 24, 1998, Hughes, on behalf of herself and allothers similarly situated, filed suit against Vanderbilt, Darby,the Metropolitan Government of Nashville and DavidsonCounty, NFI, Rockefeller, and the State of Tennessee. Inaddition to a request for class action certification, hercomplaint alleged violations of 42 U.S.C. §§ 1983 and 1985,and set forth claims of negligence, battery, and strict liability(based on ultrahazardous activity). The factual allegationsmade by Hughes included the assertion that “Vanderbilt andDarby . . . intentionally forced plaintiff to ingest radioactiveiron by forcibly holding her mouth open and instilling theradioactive substance into her mouth against her will,ignoring her protests.” She further alleged that, as a result ofthe ingestion, “she has suffered loss of weight, bloodproblems, tumors, and other severe, physical problems.”Hughes also addressed the timing of her suit:On July 8, 1998, the plaintiff was first informed that shewas a subject of this radiation experiment by way oflearning that a lawsuit [that] was filed by KatherineHenley on or about late April 1997 had been dismissed.In late 1993 and early 1994, the first disclosures of manyhuman radiation experiments came out in the press,including other experiments conducted by . . . Vanderbilt.However, plaintiff was not aware of these disclosuresuntil she learned that the Henley lawsuit . . . had beendismissed. . . .The plaintiff and class members, in the exercise ofreasonable diligence, did not know or have reason toknow the true nature and dangers of the radioactiveexperimentation to which they were subjected to in thepast, andplaintiff and class members did not know orNo. 99-5499Hughes v. Vanderbilt University, et al.13_______________________CONCURRENCE_______________________KATHLEEN McDONALD O’MALLEY, District Judge,concurring. I respectfully concur in the result only. I do notagree that the allegations in Hughes’s complaint operate tobar her claim as a matter of law; the allegations to which themajority and the district court cite are far too imprecise to beread as binding admissions on this important dispositiveissue. I also cannot agree that, on the record presented,Hughes should be charged with the knowledge that whathappened to her as a child was wrongful, so as to bar herclaim at or near the time she reached majority. I concur solelybecause I believe that, in the circumstances presented here –where there were numerous newspaper articles and televisionbroadcasts regarding these events – Hughes should haveknown of the injury which is the basis for her action.SeeSevier v. Turner, 742 F.2d 262, 273 (6th Cir. 1984).I further note that I do not believe that advertising alonewould necessarily, or even usually, be sufficient to begin therunning of the statute of limitations. If the circumstances hadbeen marginally different – if the media had been lesscomprehensive in its coverage, or if Hughes did not live in thecity where the media coverage occurred – I likely would beunwilling to conclude, at the summary judgment stage, thatHughes had constructive knowledge of the event. I am,however, comfortable in the narrow circumstances presentedhere agreeing with the majority’s conclusion that the“publicity was sufficient to charge Hughes with constructiveknowledge of the events underlying her cause of action. . .”SeeOp. at 9.12Hughes v. Vanderbilt University, et al.No. 99-5499in which the search for truth may be seriously impairedby the loss of evidence, whether by death ordisappearance of witnesses, fading memories,disappearance of documents, or otherwise.United States v. Kubrick, 444 U.S. 111, 117 (1979) (citationsand internal quotation marks omitted).Our holding reflects these important principles. TheVanderbilt study occurred more than fifty years prior to thefiling of this lawsuit. Darby, the only researcher still alive, isallegedly in poor health and would be unable to testify. TheRockefeller representatives who were involved in funding theprogram are apparently all deceased. It would also bedifficult, if not impossible, for a jury to fully understand thescientific and ethical context in which these experiments tookplace. These circumstances illustrate why this court hasobserved as follows: “‘Statutes of limitations are vital to thewelfare of society and are favored in the law.’ Stale conflictsshould be allowed to rest undisturbed after the passage oftime has made their origins obscure and the evidenceuncertain.”Dayco Corp. v. Goodyear Tire & Rubber Co.,523 F.2d 389, 394 (6th Cir. 1975) (quotingWood v.Carpenter, 101 U.S. 135, 139 (1879)).III. CONCLUSIONFor all of the reasons set forth above, weAFFIRMthejudgment of the district court.No. 99-5499Hughes v. Vanderbilt University, et al.5have reason to know of theirclaimsfor relief against thedefendants in regard to the Caldwell and RansomSchools radioactive iron experimentuntil about January14, 1994, and later. A great many members of the classstill do not know about the experiment.(Emphasis added.)In October and November of 1998, all of the defendantsfiled dispositive motions based on the assertion that Hughes’saction was barred by the statute of limitations. Severalaffidavits and exhibits were submitted by the parties insupport of, and in response to, these motions.On November 19, 1998, Hughes moved to amend hercomplaint by changing the date cited in the excerptabove—that is, the portion of her complaint alleging that sheand the class members did not know or have reason to knowof the existence of their claims “until about January 14, 1994,and later.” Hughes stated in an affidavit filed on December1, 1998 that she did not know about the study “until July 8,1998.” Her request to amend, however, was denied. Thedocket entry of the district court’s decision states that “thismotion is unsupported other than [by] the assertion of counselas to a ‘typographical’ error which is contradicted by hishaving signed the pleading in the Henley action . . . .”All of the defendants’ motions were referred to a magistratejudge for a ruling. On January 19, 1999, the magistrate judgeissued his report and recommendation. At the outset, themagistrate judge noted that he would consider the evidentiarymaterials filed by the parties and, in turn, treat the motions todismiss as requests for summary judgment. Then, aftersetting forth the facts and the applicable standard of review,the magistrate judge addressed the apparent conflict betweenthe January 14, 1994 date set forth in Hughes’s complaint andthe July 8, 1998 date alleged in her affidavit. Citing thedenial of Hughes’s motion to amend her complaint, themagistrate judge stated that he “does not deem [her]subsequent affidavit to create a material factual dispute . . . .”6Hughes v. Vanderbilt University, et al.No. 99-5499The magistrate judge then discussed the applicable lawregarding the statute of limitations and concluded as follows:[B]y her own admission in her complaint, plaintiff citesthat she was aware or reasonably should have been awareof her claims in [January], 1994 . . . . Plaintiff also statesthat there were public studies on the Caldwell project thatwere published in 1994, although she states that she wasnot aware of them until July 8, 1998. . . . Moreover, themanner in which Hughes described her ingestion of thisliquid as “forced by the defendants against her will” . . .also suggests Hughes[’s] longstanding awareness of thecited facts underlying her claims.After citing the media reports concerning the Vanderbiltstudy and Henley’s suit, the magistrate judge reiterated hisview that “[t]he existence of litigation on the same project andthe attendant publicity would have placed a reasonable personon knowledge [sic] of her federal claims by July, 1994 and nolater than July, 1995 when theHensleyaction was filed andits prominent publicity was widespread.” The magistratejudge then recommended that all of the defendants’ motionsbe granted.On March 9, 1999, the district court, without furtheranalysis, adopted the magistrate judge’s recommendation anddismissed Hughes’s complaint on the basis of the statute oflimitations. In this appeal, Hughes does not take issue withthe district court’s denial of her motion to amend hercomplaint. Rather, Hughes asserts that (1) she was not awarethat she had been a subject of Darby’s tests until July 8, 1998,and (2) the issue of whether she had exercised reasonable careand diligence in discovering her cause of action should havebeen submitted to a jury.II. ANALYSISA. The nature of the motions being reviewedAlthough not raised as an issue of contention between theparties, it is important to clarify the nature of the motionsNo. 99-5499Hughes v. Vanderbilt University, et al.11it does constitute an admission that a reasonable personshould have been awareof the claims at issue by that date.This admission, moreover, was not an “accidental” inclusion.Henley, who was represented by Hughes’s attorney, used thesame date in her earlier action.In point of fact, Hughes’s claim may have been barreddecades ago, one year after she attained her majority.SeeTENN.CODE.ANN. § 28-1-106 (setting forth the accrual rulefor persons under the age of eighteen at the time a cause ofaction accrues). Hughes specifically alleged in her complaintthat “Vanderbilt and Darby . . .intentionally forcedplaintiffto ingest radioactive iron byforcibly holding her mouth openand instilling the radioactive substance into her mouthagainst her will, ignoring her protests.” (Emphasis added.)Although there may have been no way for her to know thatshe was being given aradioactivesubstance, her detaileddescription of the manner in which Darby and his colleaguesadministered the test is probably sufficient to have obligatedher to investigate further once she reached the age of majority.We need not, however, answer this question because of theextensive media publicity in the mid-1990s and because ofher judicial admission regarding when persons in her positionshould have learned of the studies.In light of Hughes’s alleged medical problems, werecognize that any procedural bar may at first blush seemunfair. There is, however, a broader principle at stake. As theSupreme Court has stated:[S]tatutes of limitations, which are found and approvedin all systems of enlightened jurisprudence, represent apervasive legislative judgment that it is unjust to fail toput the adversary on notice to defend within a specifiedperiod of time and that the right to be free of stale claimsin time comes to prevail over the right to prosecute them.These enactments are statutes of repose; and althoughaffording plaintiffs what the legislature deems areasonable time to present their claims, they protectdefendants and the courts from having to deal with cases10Hughes v. Vanderbilt University, et al.No. 99-5499used reasonable diligence is tested by an objectivestandard.”).Based on the undisputed facts concerning the mediaattention given to the Vanderbilt study in question, noreasonable factfinder could find that Hughes’s cause of actionaccrued any later than January 19, 1995. This was the datethat Nashville’s CBS affiliate reported the filing of Henley’sclass action lawsuit against the same defendants involved inthe present action. By this time there had been numerousnews reports both in print and on television discussing thefacts supporting Hughes’s claims, beginning withTheTennessean’s front-page story on January 13, 1994. Hughesfiled her complaint on August 24, 1998, long after the oneyear period in which to file her cause of action had ended. Assuch, her suit is untimely.Hughes’s own complaint in this case supports ourconclusion. As previously noted, the district court ruled thatHughes’s claim accrued on January 14, 1994, the date shecites in her complaint. Plaintiffs are bound by admissions intheir pleadings, and a party cannot create a factual issue bysubsequently filing a conflicting affidavit.See Reid v. Sears,Roebuck & Co., 790 F.2d 453, 460 (6th Cir. 1986) (“A partymay not create a factual issue by filing an affidavit, after amotion for summary judgment has been made, whichcontradicts her earlier deposition testimony.”);Ferguson v.Neighborhood Hous. Servs. of Cleveland, Inc., 780 F.2d 549,551 (6th Cir. 1986) (“Not only are such admissions. . . binding before the trial court, but they are binding onappeal as well.”). Moreover, such admissions can underminethe timeliness of a plaintiff’s claim.See, e.g.,Davis v. A.G.Edwards & Sons, Inc., 823 F.2d 105, 107-08 (5th Cir. 1987)(holding that the plaintiff was bound by admissions in hispleadings as to when he first discovered defendants’misconduct).Even if the relevant statement made in her complaint doesnot establish that it was Hughes—as opposed to others in thepotential class—who learned of the facts on January 14, 1994,No. 99-5499Hughes v. Vanderbilt University, et al.7being reviewed. Pursuant to the Federal Rules of CivilProcedure,[i]f, on a motion asserting the defense numbered (6) todismiss for failure of the pleading to state a claim uponwhich relief can be granted, matters outside the pleadingare presented to and not excluded by the court, themotion shall be treated as one for summary judgment anddisposed of as provided in Rule 56 . . . .FED.R.CIV.P. 12(b).Here, the district court adopted the magistrate judge’sreport and recommendation in which the magistrate judgeexplicitly noted that, pursuant to Rule 12(b), he was electingto consider the evidentiary materials submitted by the partiesand treat the motions to dismiss as motions for summaryjudgment. Nonetheless, both the magistrate judge in hisrecommendation, and the district court in its order, continuedto refer to “the motions to dismiss.” Despite thesemisstatements, this court will treat the rulings below asgranting summary judgment.See United Bhd. of Carpentersv. Ohio Carpenters Health & Welfare Fund, 926 F.2d 550,558 (6th Cir. 1991) (holding that the district court’s decisionshould be viewed as one granting summary judgment, despitethe fact that the district court committed an “error innomenclature” by continuing to use the term “dismissal” evenafter its consideration of an affidavit converted the proceedinginto one governed by Rule 56).B. Standard of reviewWe review de novo the district court’s grant of summaryjudgment.See Smith v. Ameritech, 129 F.3d 857, 863 (6thCir. 1997). Summary judgment is appropriate when there areno genuine issues of material fact in dispute and the movingparty is entitled to judgment as a matter of law.SeeFED.R.CIV.P. 56(c). In deciding a motion for summary judgment,the court must view the evidence and draw all reasonableinferences in favor of the non-moving party.See MatsushitaElec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 5878Hughes v. Vanderbilt University, et al.No. 99-5499(1986). The judge is not “to weigh the evidence anddetermine the truth of the matter but to determine whetherthere is a genuine issue for trial.”Anderson v. Liberty Lobby,Inc., 477 U.S. 242, 249 (1986). A genuine issue for trialexists when there is sufficient “evidence on which the jurycould reasonably find for the plaintiff.”Id.at 252.C. The district court did not err when it held thatHughes’s suit was untimelyHughes does not dispute the magistrate judge’s use ofTennessee’s one-year statute of limitations as the controllingstatute. Indeed, “[i]n all actions brought under § 1983alleging a violation of civil rights or personal injuries, thestate statute of limitations governing actions for personalinjuries is to be applied.”Berndt v. Tennessee, 796 F.2d 879,883 (6th Cir. 1986). Following this rule, the applicablelimitations period in Tennessee is one year.SeeTENN.CODEANN. § 28-3-104(a)(1).The real dispute between the parties concerns when the oneyear began to run. Both sides refer toMcCroskey v. BryantAir Conditioning Co., 524 S.W.2d 487 (Tenn. 1975), assetting forth Tennessee’s rule on that issue. Federal law,however, controls the determination of when a civil rightsaction accrues.See Sevier v. Turner, 742 F.2d 262, 273 (6thCir. 1984). InSevier, this court concluded as follows: “Thestatute of limitations commences to run when the plaintiffknows or has reason to know of the injury which is the basisof his action. A plaintiff has reason to know of his injurywhen he should have discovered it through the exercise ofreasonable diligence.”Id.at 273 (citations omitted). Thiscourt has also stated that “[i]n determining when the cause ofaction accrues in section 1983 actions, we have looked towhat event should have alerted the typical lay person toprotect his or her rights.”Dixon v. Anderson, 928 F.2d 212,215 (6th Cir. 1991).As noted previously, the magistrate judge placed greatweight on the fact that the Vanderbilt experiments hadreceived a significant amount of media attention in the midNo. 99-5499Hughes v. Vanderbilt University, et al.91990s. Indeed, “[w]here events receive . . . widespreadpublicity, plaintiffs may be charged with knowledge of theiroccurrence.”United Klans of Am. v. McGovern, 621 F.2d152, 154 (5th Cir. 1980). The facts of this case represent justsuch a situation. The press release issued by Vanderbilt inJanuary of 1994 led to the publication of front-page stories inNashville’s two leading newspapers. One year later, thosesame newspapers, as well as a major television network,issued reports on a nearly identical lawsuit filed by Henley.This publicity was sufficient to charge Hughes withconstructive knowledge of the events underlying her cause ofaction, especially in light of the fact that, at all relevant times,she resided in Nashville.See id.at 154-55 (holding that theplaintiffs should have known that they had a potential claimagainst the defendants when the defendants held a pressconference that revealed facts supporting such a claim andwhen the conference led to the publication of articles in atleast two newspapers circulated within the federal district inwhich the suit was eventually filed).In support of her appeal, Hughes asserts that she should notbe charged with constructive knowledge because she did nothear or read any of the media reports discussed above. Sheargues in her brief as follows: “At the time of these articles,Mrs. Hughes did not take nor read the newspapers. Nor didshe watch Channel 5. Her husband with whom she had neverdiscussed her experience at Caldwell School did not take thenewspaper until 1995 or 1996.”The relevant inquiry in cases such as the one before us,however, is an objective one.See J. Geils Band EmployeeBenefit Plan v. Smith Barney Shearson, Inc., 76 F.3d 1245,1254 (1st Cir. 1996) (noting that the objective standard is theappropriate test for determining a “date of discovery”);Whirlpool Fin. Corp. v. GN Holdings, Inc., 67 F.3d 605, 609(7th Cir. 1995) (“[T]o determine if inquiry notice has beentriggered an objective ‘reasonable’ diligence standard must beapplied to the facts.”);Volk v. D.A. Davidson & Co., 816 F.2d1406, 1417 (9th Cir. 1987) (“[T]he extent to which a plaintiff