1

RECOMMENDED FOR FULL-

Pursuant to Sixth Circ

ELECTRONIC CITATION: 2000 F

File Name: 00a0

UNITED STATES COU

FOR THE SIXTH 

____________

ERNESTINE CARTER HUGHES,

Plaintiff-Appellant,

v.

VANDERBILT UNIVERSITY,

WILLIAM J. DARBY, M.D.,

THE METROPOLITAN

GOVERNMENT OF NASHVILLEAND DAVIDSON COUNTY,

TENNESSEE, THE NUTRITION

FOUNDATION, INC., and THEROCKEFELLER FOUNDATION,

Defendants-Appellees,

THE STATE OF TENNESSEE,

Defendant.

Appeal from the United St

for the Middle District of Te

No. 98-00770—Thomas A. H

Argued: March 

Decided and Filed: 
2 Hughes v. Vanderbilt University, et al. No. 99-5499

*

The Honorable Kathleen M. O’Malley, United States District Judge

for the Northern District of Ohio, sitting by designation.

Before: SILER and GILMAN, Circuit Judges;

O’MALLEY, District Judge.

*

_________________

COUNSEL

ARGUED: 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 which

SILER, J., joined. O’MALLEY, D. J. (p. 13), delivered aseparate opinion concurring in the result only.

_________________

OPINION

_________________

RONALD LEE GILMAN, Circuit Judge. Ernestine Carter

Hughes 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, we AFFIRM the

judgment of the district court.
No. 99-5499 Hughes v. Vander

I. BACKGRO

A. Factual background

In 1945, Vanderbilt University 

study to further understand how irobody. The study, which was Foundation, Inc. (NFI), the Internthe Rockefeller Foundation (RockeDepartment of Health, involved neCaldwell and Ransom elementaTennessee. William J. Darby, M.Dresearchers. The students, most oages of seven and ten, were given laced with radioactive iron. Danalyzed before-and-after blood children, and then published the rJournal of Nutrition.

At all times relevant to this 

Nashville. In 1945, she was eight the Caldwell elementary school. that Hughes, then known as ErnDarby’s subjects.

The 1945 study failed to dra

attention until January 13, 1994, whThe Tennessean, ran a front-page sof the testing involved. Titled “StDrink,” the article was based on a be issued the following day. The Nsimilar piece on the cover of its Ja

On January 17, 1995, Katherine 

she was one of the students subjeclass action against the defendaDistrict Court for the Middle Distrigarnered its own share of media 1995, The Tennessean again ran matter and, on January 19, 1995, Caffiliate reported on the suit during 
4 Hughes v. Vanderbilt University, et al. No. 99-5499

In 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 by The Tennessean. Her case was dismissed on orabout July 8, 1998.B. Procedural history

On August 24, 1998, Hughes, on behalf of herself and all

others 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, and plaintiff and class members did not know or

No. 99-5499 Hughes v. Vander

_______________

CONCURRE

_______________

KATHLEEN McDONALD O’M

concurring. I respectfully concur iagree that the allegations in Hughbar her claim as a matter of law; thmajority and the district court cite read as binding admissions on tissue. I also cannot agree that, Hughes should be charged with happened to her as a child was wclaim at or near the time she reachebecause I believe that, in the circuwhere there were numerous newspbroadcasts regarding these eventknown of the injury which is the Sevier v. Turner, 742 F.2d 262, 27

I further note that I do not beli

would necessarily, or even usuallyrunning of the statute of limitationsbeen marginally different – if tcomprehensive in its coverage, or icity where the media coverage ocunwilling to conclude, at the sumHughes had constructive knowlehowever, comfortable in the narrow here agreeing with the majorit“publicity was sufficient to charge knowledge of the events underlyinSee Op. at 9.
12 Hughes v. Vanderbilt University, et al. No. 99-5499

in 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) (citations

and internal quotation marks omitted).

Our holding reflects these important principles. The

Vanderbilt 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) (quoting Wood v.Carpenter, 101 U.S. 135, 139 (1879)).

III. CONCLUSION

For all of the reasons set forth above, we AFFIRM the

judgment of the district court.

No. 99-5499 Hughes v. Vander

have reason to know of their cladefendants in regard to the Schools radioactive iron experim14, 1994, and later. A great mastill do not know about the expe

(Emphasis added.)

In October and November of 1

filed dispositive motions based on taction was barred by the statute affidavits and exhibits were subsupport of, and in response to, the

On November 19, 1998, Hugh

complaint by changing the daabove—that is, the portion of her cand the class members did not knoof the existence of their claims “unand later.” Hughes stated in an af1, 1998 that she did not know abo1998.” Her request to amend, hodocket entry of the district court’motion is unsupported other than [bas to a ‘typographical’ error whihaving signed the pleading in the H

All of the defendants’ motions w

judge for a ruling. On January 19, issued his report and recommendmagistrate judge noted that he woumaterials filed by the parties and, idismiss as requests for summary setting forth the facts and the applthe magistrate judge addressed the the January 14, 1994 date set forth the July 8, 1998 date alleged in denial of Hughes’s motion to amagistrate judge stated that he subsequent affidavit to create a ma
6 Hughes v. Vanderbilt University, et al. No. 99-5499

The 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 Vanderbilt

study 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 the Hensley action 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 further

analysis, 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. ANALYSIS

A. The nature of the motions being reviewed

Although not raised as an issue of contention between the

parties, it is important to clarify the nature of the motions

No. 99-5499 Hughes v. Vanderit does constitute an admission should have been aware of the clThis admission, moreover, was not Henley, who was represented by Hsame date in her earlier action.

In point of fact, Hughes’s clai

decades ago, one year after she aTENN. CODE. ANN. § 28-1-106 (sefor persons under the age of eightaction accrues). Hughes specificalthat “Vanderbilt and Darby . . . in

to ingest radioactive iron by forcib

and instilling the radioactive suagainst her will, ignoring her proAlthough there may have been no she was being given a radioactivdescription of the manner in which administered the test is probably sher to investigate further once she rWe need not, however, answer thextensive media publicity in the mher judicial admission regarding wshould have learned of the studies

In light of Hughes’s alleged 

recognize that any procedural baunfair. There is, however, a broadeSupreme Court has stated:

[S]tatutes of limitations, which in all systems of enlightened jupervasive legislative judgment tput the adversary on notice to dperiod of time and that the right in time comes to prevail over the These enactments are statutes oaffording plaintiffs what the reasonable time to present thedefendants and the courts from h
10 Hughes v. Vanderbilt University, et al. No. 99-5499

used reasonable diligence is tested by an objectivestandard.”).

Based on the undisputed facts concerning the media

attention 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 with TheTennessean’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 our

conclusion. 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 does

not establish that it was Hughes—as opposed to others in thepotential class—who learned of the facts on January 14, 1994,

No. 99-5499 Hughes v. Vanderbeing reviewed. Pursuant to thProcedure,

[i]f, on a motion asserting the ddismiss for failure of the pleadiwhich relief can be granted, matare presented to and not exclmotion shall be treated as one for disposed of as provided in Rule 

FED. R.

CIV. P. 12(b).

Here, the district court adopte

report and recommendation in wexplicitly noted that, pursuant to Rto consider the evidentiary materiaand treat the motions to dismiss judgment. Nonetheless, both the recommendation, and the district cto refer to “the motions to dmisstatements, this court will trgranting summary judgment. See v. Ohio Carpenters Health & We558 (6th Cir. 1991) (holding that tshould be viewed as one granting sthe fact that the district court nomenclature” by continuing to use after its consideration of an affidaviinto one governed by Rule 56).B. Standard of review

We review de novo the district 

judgment. See Smith v. AmeritecCir. 1997). Summary judgment is no genuine issues of material fact party is entitled to judgment as a m

CIV. P. 56(c). In deciding a motio

the court must view the evidence inferences in favor of the non-movElec. Indus. Co. v. Zenith Radio 
8 Hughes 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 that

Hughes’s suit was untimely

Hughes does not dispute the magistrate judge’s use of

Tennessee’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. See TENN.CODEANN. § 28-3-104(a)(1).

The real dispute between the parties concerns when the one

year began to run. Both sides refer to McCroskey 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 (6th

Cir. 1984). In Sevier, 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). This

court 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 great

weight on the fact that the Vanderbilt experiments hadreceived a significant amount of media attention in the midNo. 99-5499 Hughes v. Vander

1990s. Indeed, “[w]here events publicity, plaintiffs may be chargeoccurrence.” United Klans of Am152, 154 (5th Cir. 1980). The factsuch a situation. The press releasJanuary of 1994 led to the publicatNashville’s two leading newspapesame newspapers, as well as a missued reports on a nearly identica

This publicity was sufficient 

constructive knowledge of the evenaction, especially in light of the facshe resided in Nashville. See id. a

plaintiffs should have known that against the defendants when the conference that revealed facts supwhen the conference led to the puleast two newspapers circulated wwhich the suit was eventually filed

In support of her appeal, Hughes 

be charged with constructive knowhear or read any of the media repoargues in her brief as follows: “At Mrs. Hughes did not take nor read she watch Channel 5. Her husband discussed her experience at Caldwnewspaper until 1995 or 1996.”

The relevant inquiry in cases s

however, is an objective one. See 

Benefit Plan v. Smith Barney She

1254 (1st Cir. 1996) (noting that thappropriate test for determining Whirlpool Fin. Corp. v. GN Holdin

(7th Cir. 1995) (“[T]o determine triggered an objective ‘reasonable’ applied to the facts.”); Volk v. D.A. 

1406, 1417 (9th Cir. 1987) (“[T]he