Phillips v. Monsanto Company et al

Filing 183

OPINION MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendant's motion to dismiss for lack of jurisdiction, [Doc. No. 165], is granted. 165 Signed by District Judge Henry Edward Autrey on 4/22/15. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
BENJAMIN M. PHILLIPS, SR., et al.,
Plaintiffs,
v.
THE LELAND STANFORD JUNIOR
UNIVERSITY d/b/a STANFORD
UNIVERSITY, et al.,

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Case No. 4:12-CV-02269-HEA

Defendants.
OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Defendant the United States of America’s
Motion to Dismiss for Lack of Subject-Matter Jurisdiction, [Doc. NO. 165].
Plaintiffs oppose the motion. For the following reasons, the motion will be granted.
Background
Plaintiffs bring this putative class action against the United States of
America, among others, alleging in their Third Amended Complaint theories of
public nuisance, Count I; battery, Count IV; and Recklessness, Count V.
Presumably, the claims against the United States are brought under the Federal
Tort Claims Act, 28 U.S.C. § 2674 (“FTCA”).

Defendant United States filed a motion to dismiss for lack of subject matter
jurisdiction. The government maintains that Plaintiffs' claims fall within the
discretionary function exception to the FTCA's waiver of sovereign immunity.
Standard on Motion to Dismiss
Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a party may
move for dismissal based on lack of jurisdiction over the subject matter.
“Dismissal under Rule 12(b)(1) is appropriate if the issue before the court is
whether the plaintiff has failed to satisfy a threshold jurisdictional requirement.”
Schubert v. Bethesda Health Group, Inc., 319 F.Supp.2d 963, 966 (E.D.Mo.2004)
(citation omitted). When a court considers a Rule 12(b)(1) motion, it has “ ‘broader
power to decide its own right to hear the case than it has when the merits of the
case are reached.’ ... Jurisdictional issues, whether they involve questions of law or
of fact, are for the court to decide.” Osborn v. United States, 918 F.2d 724, 729
(8th Cir.1990) (quoting and citing Williamson v.. Tucker, 645 F.2d 404, 413 (5th
Cir.1981)). Further, “no presumptive truthfulness attaches to the plaintiff's
allegations, and the existence of disputed material facts will not preclude the trial
court from evaluating for itself the merits of jurisdictional claims. Moreover, the
plaintiff will have the burden of proof that jurisdiction does in fact exist.” Id. at
730 (citation omitted).
Discussion
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Lawsuits against the United States of America are barred by sovereign
immunity unless the United States consents to such suit. Hercules, Inc. v. United
States, 516 U.S. 417, 422 (1996) (citations omitted). The Eighth Circuit recently
summarized the relevant law of sovereign immunity as follows:
The United States is immune from suit unless it consents. Congress waived
the sovereign immunity of the United States by enacting the FTCA, under
which the federal government is liable for certain torts its agents commit in the
course of their employment.
The United States is, nevertheless, immune if an exception applies. Under 28
U.S.C. § 2680(a), the FTCA does not waive immunity for “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.”
A two-part test determines when the discretionary function exception
applies. First, the conduct at issue must be discretionary, involving an element
of judgment or choice. The second requirement is that the judgment at issue be
of the kind that the discretionary function exception was designed to shield.
Because the exception's purpose is to prevent judicial second-guessing of
government decisions based on public policy considerations, it protects only
those judgments grounded in social, economic, and political policy.
Hart v. United States, 630 F.3d 1085, 1088 (8th Cir.2011) (quoting Riley v.
United States, 486 F.3d 1030, 1032 (8th Cir.2007) (citations and internal marks
omitted)). Where the United States has not waived sovereign immunity under the
FTCA, the district court lacks subject matter jurisdiction to hear the case. Id. The
FTCA's waiver of sovereign immunity is not complete, and contains exceptions. At
issue here is the “discretionary function” exception, which provides that no
liability shall lie for “[a]ny claim ... based upon the exercise or performance or the
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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.” 28 U.S.C. § 2680(a); see also Herden v. United States, 726
F.3d 1042, 1046 (8th Cir.2013) (en banc). If the discretionary function exception
applies, it is a jurisdictional bar to suit. Herden, 726 F.3d at 1046.
A well-established legal framework applies to determine whether the
discretionary function exception bars a party's suit under the FTCA. Id. This
framework was set forth most recently by the Supreme Court in United States v.
Gaubert, 499 U.S. 315, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991). The first inquiry
is whether the challenged conduct or omission is truly discretionary, that is,
whether it involved an element of judgment or choice, or conversely, was
“controlled by mandatory statutes or regulations.” Gaubert, 499 U.S. at 328, 111
S.Ct. 1267. If the challenged conduct is not discretionary, the exception does not
apply. Herden, 726 F.3d at 1046. If the challenged action is discretionary,
however, the second inquiry is whether the government employee's judgment or
choice was based on considerations of “social, economic, and political policy.” Id.
In analyzing whether an alleged act or omission falls within the discretionary
function exception, the United States Supreme Court has provided two guiding
principles to assist the District Courts. Berkovitz v. United States, 486 U.S. 531,
536, 108 S.Ct. 1954, 1958, 100 L.Ed.2d 531 (1988). First, the alleged action must
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be a matter of choice for the acting employee. Id. “[I]f the employee's conduct
cannot appropriately be the product of judgment or choice, then there is no
discretion in the conduct for the discretionary function exception to protect.” Id. at
536, 108 S.Ct. at 1959. Therefore, in order for the discretionary function exception
to apply, the government must have made a choice.
The second guiding principle requires a court to determine whether the
choice is of the kind that the discretionary exception was designed to shield. Id.
This inquiry reflects the policy of Congress “to prevent judicial ‘second-guessing’
of legislative and administrative decisions grounded in social, economic, and
political policy through the medium of an action in tort.” United States v. Varig
Airlines, 467 U.S. 797, 814, 104 S.Ct. 2755, 2765, 81 L.Ed.2d 660 (1984). When
engaging in this second inquiry, a court is to determine whether the judgment is
grounded in social, economic, or political policy, and, if the choice is based on
such policy considerations, then the discretionary exception will bar the claim.
Dykstra, 140 F.3d at 795. Therefore, the discretionary exception only insulates the
federal government from liability in cases where the government makes a decision
based upon considerations of public policy. Berkovitz, 486 U.S. at 537, 108 S.Ct. at
1959.
Plaintiffs’ Third Amended Complaint alleges the following facts:

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Defendants cooperated and conspired to participate in and to run a study that was
conducted in and around the environs of the Pruitt-Igoe housing complex in St.
Louis. Defendants jointly and severally and as co-conspirators along with other
conspirators such as the United States Army and other unknown conspirators
caused to be sprayed upon the residents and structures of Pruitt-Igoe and
surrounding areas of St. Louis chemicals such as zinc cadmium sulfide and other
substances believed to be radioactive without the knowledge or consent of those
residents. The true purpose of the study is unknown.
The United States, in its memorandum in support of the motion to dismiss,
presents the following background:
In 1942, the Chemical Warfare Service, predecessor to the Army
Chemical Corps, assumed responsibility for the government’s biological
weapons (“BW”) research and development program. U.S. Exh. 1, 114
(TOXICOLOGICAL ASSESSMENT OF THE ARMY’S ZINC CADMIUM
SULFIDE DISPERSION TESTS, NATIONAL RESEARCH COUNCIL,
114 (1997)); U.S. Exh. 2, 2 (“U.S. Army Activity in the U.S. Biological
Warfare Programs, Vol. 1,” Department of the Army, Feb. 15, 1977). The
BW program pursued an overarching strategic policy of BW deterrence with
retaliation if necessary. U.S. Exh. 1 at 114. Because of the limited data and
scientific experience available at the initiation of this program, “the policy
required extensive research and development to determine precisely [the
United States’] vulnerability, the efficacy of [U.S.] protective measures, and
the tactical and strategic capability of various [biological warfare] agents
and delivery systems.” Id. In determining how to obtain this information, the
Army considered several approaches that weighed military objectives
against feasibility and human safety. Id. at 115. The central goal of the
Corps’ BW testing was to determine “the effects of buildings, terrain,
meteorological conditions, and so on, on the dispersion of BW agents,” both
by enemy combatants in the United States and by the United States in enemy
territories. Id. Consequently, the Corps rejected the possibility of testing
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with live agents as unjustifiably dangerous in inhabited areas and incapable
of providing necessary information in remote, uninhabited areas. Id. at 11516. It also rejected wind tunnel testing and construction of a simulated target
city as inadequate to obtain necessary data and economically infeasible
respectively. Id.
The Corps eventually determined that the best experimental design to
balance all competing interests was dispersion of simulated BW agent
replacements in inhabited areas. Id. at 116. In order to get the most useful
results from these simulant dispersal studies, the Corps’ researchers also
determined the best test sites, evaluating similarities to Soviet cities of
interest, and the best simulants, balancing comparability to BW agents of
interest, safety of potentially exposed individuals, and cost. Id. at 116-117.
In total, from 1941 to 1973 160 BW simulant tests were conducted in 66
locations in the United States and Canada. Id. at 119. Throughout the life of
this program, “materials that were considered by the scientific community to
be safe were selected,” and “public safety was stated to be the foremost
consideration.” Id., see also U.S. Exh. 2 at 9 (“Safety and medical aspects in
BW R&D as well as testing were always of overwhelming concern….”). In
order to protect national security interests, the public was not notified and
the program received a high security clearance classification. U.S. Exh. 1 at
118.
Two distinct sets of Zinc Cadmium Sulfide (“ZnCdS”) dispersion
tests were conducted in Saint Louis. The first ZnCdS study, conducted by
the Chemical Corps in 1953 as a classified operation, included 17 field tests
with 35 releases of ZnCdS over two areas of the city. Id. at 254.
Many potential sites were considered for these dispersion tests based
on their similarities in “meteorologic, terrain, population, and physical
characteristics [to] the Soviet cities of interest.” Id. at 117. Saint Louis was
selected as a test site based on its climate range, topography, and location on
a river, as well as its population, physical infrastructure, and the availability
of part-time labor. Id. at 117-118.
ZnCdS was selected as the simulant for the Saint Louis study after
balancing several competing interests. ZnCdS was well-suited to the Army’s
information-collecting objective because of its particle size, “stability in the
atmosphere,” “dispersibility,” and “detectable glow.” Id. at 117. It was also
“desirable as a simulant [because of] its economic feasibility.” Id. Most
importantly, ZnCdS was understood to “lack…toxicity to humans, animals,
and plants,” and to be “an inert material.” Id. (internal citations omitted).
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The second ZnCdS study, conducted by the USPHS between 1963
and 1965 and published in 1966, included seven test series with 42 releases
of ZnCdS over two different areas of the city. Id. at 187-188, see also U.S.
Exh. 4, 1-2 (“Public Health Service St. Louis Dispersion Study, Vol. II”).
The USPHS selected the Saint Louis metropolitan area to be part of a
program of air pollution studies. Saint Louis was considered desirable for
the air pollution study because it was reasonably flat; removed from
significant topographic features that would influence large-scale air flow;
and proximate to weather radar equipment operated by the designers of the
study, the Air Resources Field Research Office in Cincinnati, Ohio. U.S.
Exh. 3, 2 (“Public Health Service St. Louis Dispersion Study, Vol. I”). The
primary purpose of this study was “to describe dispersion over an urban area
and to relate the dispersion to meteorological parameters.” Id. at 1. Once
again the researchers chose ZnCdS because of its unique physical qualities
which provided a “simple and sensitive method of detection and quantitative
evaluation.” Id. at 5.
The Army ZnCdS experiments were declassified in the early 1990s,
leading to concerns among certain populations of citizens and their
legislative representatives that unknowing exposure could have contributed
to serious health problems. U.S. Exh. 1 at 2. In response, the Army
Environmental Hygiene Agency prepared retrospective human health risk
reports for ZnCdS exposure in Saint Louis and other cities. Id. In 1997, the
National Research Council (“NRC”) produced an independent toxicological
assessment reviewing the Army’s original data and subsequent health reports
as well as public comment and publicly available data on cadmium toxicity.
See id. at 1-13. NRC, assuming the worst case scenario, concluded that the
risk of cancer and non-cancer disease from exposure to ZnCdS at the levels
and for the duration of time present in the dispersion studies was negligible
and that a full epidemiological study was infeasible. Id. at 79-81, 93. At the
time, the NRC noted that the bioavailability of ZnCdS, the degree of
breakdown and absorption of ZnCdS components in the body, and ZnCdS’s
inhalation toxicity, were unknown and should be tested because of the
known toxicity of free cadmium. Id. at 99. Later studies concluded that
ZnCdS does not easily break down into its component elements after
inhalation and thus remains poorly bioavailable in the body, protecting
against cadmium exposure. See U.S. Exh. 5 (“Health Effect of Project
SHAD Chemical Agent: Zinc Cadmium Sulfide,” The Center for Research
Information, Inc. on behalf of the National Academies (2004)).
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The government moves to dismiss plaintiffs’ claims arguing that the
discretionary function exception applies, and therefore, there is no subject matter
jurisdiction.
To take advantage of the discretionary function exception, the government
must first establish that the challenged conduct “involve[d] an element of judgment
or choice.” Berkovitz by Berkovitz v. United States, 486 U.S. 531, 536 (1988).
Here, plaintiff challenges the decision to conduct chemical studies in the St. Louis
metropolitan area in the 1950’s and 1960’s.
The government initially notes that Plaintiffs have failed to allege that the
United States was subject to or violated any relevant mandatory or specific
regulations, which would prompt the discretionary exception to the FTCA. That
having been said, the government goes on to argue that no mandatory and specific
regulations constrained the Chemical Corps’ conduct of the ZnCdS study or
required the Corps to warn St. Louis residents of their possible exposure to ZnCdS
as a result of the study. In support of its position, the government submits the 1951
Department of Defense Directive 200.01. DOD 200.1. The Secretary of Defense
ordered the three military departments to increase their support of, and
participation in projects necessary to bring the United States to the required state of
readiness. Additionally, the directive required the military departments to carry
out certain recommendations contained in the June 30, 1950 Report of the
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Secretary of Defense’s Ad Hoc Committee on Chemical, Biological and
Radiological Warfare. The Secretary of the Army was given the responsibility too
coordinate the three departments’ efforts to implement the recommendations. The
directive and incorporated recommendations, however, did not dictate a specific
course of conduct rising to the level of a mandatory duty for any Chemical Corps
personnel that would defeat the discretionary function exception. Appley Bros. v.
U.S., 164 F.3d 1164, (8th Cir. 1999). Rather, the directive required the military
departments to improve their readiness; study ways and means to provide greater
personnel emphasis to the programs; and survey the present status and adequacy of
tactical and technical doctrine, principles and concepts for the employment of
chemical and biological weapons; and take necessary action to increase the flow of
data for the evaluation of chemical and biological agents and munitions. None of
the directives imposed any course of action on the Army Chemical Corps.
Nor do the incorporated recommendations contain specific requirements. The
agencies are left to their own discretion as to how to implement the
recommendations. The recommendations leave to the agencies the design,
implementation and coordination of the information program to the discretion of
the departments. Plaintiffs have failed to satisfy the first step in the discretionary
function exception analysis. If “there was room for judgment or choice in the
decision made,” then the challenged conduct was discretionary and the Court
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proceeds to second step: “evaluat[ing] whether the conduct is of the kind that the
discretionary function exception was designed to shield from liability.” Kohl v.
U.S., 699 F.3d 935, 940 (6th Cir. 2012)(internal quotation marks omitted). Because
the exception’s purpose is “to prevent judicial second-guessing of legislative and
administrative decisions grounded in social, economic, and political policy through
the medium of an action in tort,” United States v. Gaubert, 499 U.S. 315, 322–23
(1991) (internal quotation marks omitted), “if th[e] action involves choice or
judgment that is ‘susceptible to policy analysis,’ then it falls within the
discretionary-function exception,” Kohl, 699 F.3d at 940 (quoting Gaubert, 499
U.S. at 325).
“[W]hen established governmental policy, as expressed 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 discretion.” Id. (citations omitted). Thus, Plaintiffs must show “that
the challenged actions are not the kind of conduct that can be said to be grounded
in the policy of the regulatory regime.” See Gauhert, 499 U.S. at 325.
Even if the conduct was discretionary, however, the “‘court must [still]
determine whether that judgment is of the kind that the discretionary function
exception was designed to shield,’ before concluding that the suit is barred.” See
Demery v. United States Dep't of Interior, 357 F.3d 830, 833 (8th Cir.2004).
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Id., 357 F.3d at 833 (quoting Berkovitz, 486 U.S. at 536). “Because the exception's
purpose is to prevent judicial second-guessing of government decisions based on
public policy considerations, it protects only those judgments grounded in social,
economic, and political policy.” Riley v. United States, 486 F.3d 1030, 1032 (8th
Cir.2007) (quoting C.R.S. by D.B.S. v. United States, 11 F.3d 791, 796 (8th
Cir.1993)). The judgment or decision need only be “susceptible to policy analysis,
regardless of whether social, economic, or political policy was ever actually taken
into account, for the exception to be triggered.” Demery, 357 F.3d at 834 (finding
the Bureau of Indian Affairs maintenance of an aeration system “lends itself to
policy analysis,” and therefore the BIA was immune from suit for decisions
regarding the maintenance of the aeration system). The plaintiff must rebut this
presumption; otherwise, the court will “presume the decision was based on public
policy considerations.” Id. at 833 (quoting Dykstra v. United States Bureau of
Prisons, 140 F.3d 791, 796 (8th Cir.1998)).
“The planning and execution of [a] research experiment is susceptible to
policy analysis, including judgments about how to respond to hazards, what level
of safety precautions to take, and how best to execute the experiment in a way that
balance[s] the safety needs” of those involved with the need to obtain the
experimental goals. Kohl, 699 F.3d at 943.

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These decisions are issues of policy and susceptible to a policy analysis.
Demery, 357 F.3d at 833; C.R.S. v. U.S., 11 F.3d 791, 801 (8th Cir. 1993); see also
Rosebush v. United States, 119 F.3d 438, 443 (6th Cir.1997) (“[D]ecisions whether
and how to make federal lands safe for visitors require making policy judgments
protected by the discretionary function exception.”). The Court finds the ZnCdS
tests were grounded in public policy and are discretionary functions excepted from
the FTCA's waiver of sovereign immunity.
The contours of the discretionary function cannot be defined with precision,
and each case must be analyzed individually. The Court's determination that the
tests are discretionary functions excepted from the FTCA's waiver of sovereign
immunity is consistent with the Eighth Circuit's decisions analyzing the
discretionary function exception. See, e.g., Hart v. United States, 630 F.3d 1085
(8th Cir.2011) (finding Bureau of Indian Affairs officer's decisions regarding how
and when to restrain arrestee fell within discretionary function exception); Riley v.
United States, 486 F.3d 1030 (8th Cir.2007) (finding the USPS's choice of curbside
delivery at a dangerous intersection balanced considerations of personnel,
efficiency, economy, and safety and fell within discretionary function exception);
Demery, 357 F.3d at 830 (finding BIA's maintenance of aeration system at lake,
and the warnings associated with the danger of open water, fell within the
discretionary function exception).
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Plaintiffs strenuously argue that the Court should allow discovery prior to
resolution of the motion to dismiss. As the government points out, however, the
information Plaintiffs seek is contained in the national archives, just as available to
Plaintiffs as Defendant United States. Likewise, Plaintiffs’ request for a hearing
on the issue is unavailing. The Court has considered the extensive briefing on the
issue and has heard argument of counsel regarding the propriety of dismissal. No
further hearing on the matter is required for the Court to conclude that the
challenged governmental actions fall within the discretionary function exception to
the Federal Tort Claims Act. The Court concludes that it lacks subject matter
jurisdiction over Plaintiffs’ claims against the United States.
Accordingly,
IT IS HEREBY ORDERED that Defendant's motion to dismiss for lack of
jurisdiction, [Doc. No. 165], is granted.
Dated this 22nd day of April, 2015.

________________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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