|||UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
|||Nos. 61, 62, 506, Docket Nos. 89-6274, 90-6016, 90-6028
924 F.2d 1210
|||decided: January 28, 1991.
|||JOANNA ANDRULONIS, INDIVIDUALLY AND AS CONSERVATOR OF THE PROPERTY OF
JEROME ANDRULONIS, PLAINTIFFS-APPELLEES/CROSS-APPELLANTS,
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 AND COMPANY, DEFENDANTS, UNITED STATES OF AMERICA, DEFENDANT-APPELLANT/CROSS-APPELLEE. UNITED STATES OF AMERICA, THIRD-PARTY PLAINTIFF-APPELLEE, V. NEW YORK STATE DEPARTMENT OF HEALTH, THIRD-PARTY DEFENDANT-APPELLANT
|||Cross-appeals from judgment following a bench trial in the United States
District Court for the Northern District of New York, Howard G. Munson,
Judge. The district court found plaintiff Jerome Andrulonis to have suffered
$6,424,641 in damages for injuries from rabies contracted while conducting
a laboratory experiment with the virus. The court held the government liable
under the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671-2680, and found
the State of New York liable for contribution under N.Y. Civ. Prac. L.&
R. §§ 1401-1404. Before the end of trial, both Jerome and Joanna Andrulonis
settled their claims against the nongovernmental defendants for a total
of $1,300,000. The settling parties allocated the settlement proceeds so
that Joanna Andrulonis received $1,075,000 and Jerome Andrulonis received
$225,000. Approving this allocation, the district court, pursuant to New
York's General Obligations Law § 15-108, applied the appropriate setoff
that reduced the final award to Jerome Andrulonis to $5,978,409.
|||Michael S. Buskus, Albany, New York, Assistant Attorney General of the
State of New York (Robert Abrams, Attorney General of the State of New York,
Peter H. Schiff, Deputy Solicitor General, Peter J. Dooley, Assistant Attorney
General, of Counsel), for Third-Party Defendant-Appellant NYS Department
|||William G. Cole, Washington, District of Columbia, Appellate Staff Attorney,
Civil Division, Department of Justice (Stuart M. Gerson, Assistant Attorney
General, Department of Justice, Robert M. Greenspan, Staff Attorney, Civil
Division; Frederick J. Scullin, United States Attorney for the Northern
District of New York, of Counsel), for United States of America.
|||James D. Featherstonhaugh, Albany, New York (Roemer & Featherstonhaugh,
John R. Mineaux, of Counsel), for Plaintiffs-Appellees/Cross-Appellants.
|||Pratt, Mahoney, and Walker, Circuit Judges.
|||PRATT, Circuit Judge
|||Jerome Andrulonis contracted the disease of rabies while conducting a
laboratory experiment with a rabies viral strain. He became tragically ill
and eventually suffered serious and permanent brain damage, leaving him
with the mental capacity of a four-year-old. He also suffered marked personality
and behavioral changes as a result of dementia secondary to rabies encephalitis.
Andrulonis's mental incapacity and emotional instability are permanent.
The experiment, which was conducted under the supervision of Dr. John G.
Debbie, a scientist employed by the New York State Department of Health
("NYSDOH"), and observed by Dr. George M. Baer, a federal government
scientist, took place in the state-operated Griffin Laboratories just outside
Albany, New York.
|||Joanna Andrulonis, individually, and as conservator of the property of
Jerome Andrulonis, her husband, brought this action against the United States
of America and a number of nongovernmental defendants to recover damages
for the severe injuries they have suffered because of the rabies. The claim
against the United States was, of course, brought under the Federal Tort
Claims Act, 28 U.S.C. §§ 1346, 2671-2680 ("FTCA" or "the
act"). The United States cross-claimed against the nongovernmental
defendants and filed a third-party complaint for contribution against the
State of New York. See N.Y. Civ. Prac. L. & R. §§ 1401-1404. Before
trial, the district court dismissed Joanna Andrulonis's individual claims
against the United States for failure to timely file the administrative
claim required by the FTCA. Andrulonis v. United States, 1989 U.S. Dist.
Lexis 15102, No. 79-CV-847, slip op. at 7 (N.D.N.Y. March 8, 1984); see
28 U.S.C. § 2675(a) and § 2401(b).
|||Before the end of trial, plaintiffs, through a series of agreements, had
settled with all of the nongovernmental parties for a total of $1,300,000.
The settling parties agreed that $225,000 would be paid in satisfaction
of the primary claims of Jerome Andrulonis and that $1,075,000 would be
paid in satisfaction of the derivative claims of Joanna Andrulonis.
|||After a nonjury trial of the remaining unresolved FTCA claims of plaintiff
Jerome Andrulonis against the United States and the contribution claims
of the United States against NYSDOH, Judge Munson found the government liable
in negligence for Jerome Andrulonis's injuries and also found NYSDOH liable
to the government on its contribution claim. In addition, considering the
relative culpabilities of the settling private defendants, he found Eli
Lilly and Company and John L. Thompson & Sons and Company responsible
to the extent of 5 percent and exonerated the other settling defendants.
The court assessed damages in the amount of $6,424,641, including $2,417,238
for the future custodial care of Jerome Andrulonis, and apportioned them
30 percent to the United States, 65 percent to NYSDOH, and 5 percent to
Lilly/Thompson. Andrulonis v. United States,
724 F. Supp. 1421
|||Under section 15-108 of New York's General Obligations Law, the United
States was entitled, with respect to each settlement, to a setoff for the
greater of "(a) the amount stipulated in the settlement agreement,
(b) the consideration paid for the release, or (c) the amount of the settling
defendant's equitable share of the damages." N.Y. Gen. Oblig. Law §
15-108. As noted earlier, Jerome Andrulonis had been allocated $225,000
of the proceeds of a settlement agreement with the private defendants. Of
this amount, Lilly/Thompson paid $100,000 and the other settling private
defendants paid $125,000. Since defendants Lilly/Thompson had settled for
an amount that was less than their equitable share, the district court reduced
the award by 5 percent or $321,232, representing the proportionate culpability
found against Lilly/Thompson. Since the district court found no culpable
conduct attributable to the other settling defendants, it reduced Jerome
Andrulonis's award by the actual dollar amount paid to him by those defendants
-- $125,000. This left the United States primarily responsible to Jerome
Andrulonis for $5,978,409, subject to recovering from the state 68.42 percent
(65/95ths) of that amount, or $4,090,427, on its third-party contribution
claim. N.Y. Civ. Prac. L. & R. § 1402.
|||Given the complexity of this case, we must delve with considerable detail
into the circumstances surrounding Andrulonis's illness and the experiment
that caused it. It is unfortunate that such a long and technical narrative
must follow, but a full understanding of the district court's decision cannot
be reached without careful consideration of the virus used, the disease
it causes, and the methods of researching rabies used at the time the tragedy
occurred. The following facts include those that the district court found
rabies experts reasonably should have known about the disease. Since the
district court's findings are not clearly erroneous, we must accept them
as true. Fed. R. Civ. P. 52(a).
|||Jerome Andrulonis was a 34-year-old senior bacteriologist employed to
conduct rabies research in NYSDOH's Griffin Laboratory under the supervision
of Dr. John G. Debbie, a research scientist employed by NYSDOH as head of
the rabies labs at Griffin. Dr. Debbie was persuaded to conduct rabies research
by Dr. George M. Baer, Chief of the Viral Zoonosis Branch and Rabies Laboratory
at the Center for Disease Control ("CDC"), a division of the United
States Department of Health and Human Services. The research being done
by Dr. Debbie and Andrulonis was part of a joint effort by the NYSDOH and
the CDC to develop a technique for mass immunization of wildlife in the
hope of eradicating the incidence of rabies transmitted to man.
|||To realize this goal, Dr. Debbie was working on an oral vaccine that could
be distributed to wildlife. Because the initial virus strains tested by
Dr. Debbie could not withstand the destructive stomach acids of some species,
he decided, upon the advice of Dr. Baer, to try a method called "enteric
coating." Under this method, a pill, or nonpareil, would be coated
first with the rabies virus, then a protective coating, and finally, a shell
that could withstand stomach acids but would disintegrate in the animal's
intestines, allowing the virus to be absorbed there. The virus would not
cause development of the disease, but would cause the body to produce antibodies
that would protect the animal against subsequent exposures to the rabies
|||Dr. Debbie contacted the coating department at defendant WARF Institute,
Inc. ("WARF"), which on March 30, 1976, sent a representative
to demonstrate a coating technique using a Uni-Glatt machine, manufactured
by defendant Glatt GmbH and distributed by defendant Glatt Air Techniques,
Inc. ("the Glatt defendants"). The Uni-Glatt machine operated
by suspending nonpareils in a column of upflowing air confined in a tube.
The suspended nonpareils would then be coated with aerosolized virus.
|||When the machine operated, the aerosol itself could be seen inside the
tube, although any leakage into the atmosphere was not visible to the unaided
eye and left no trace outside the machine. However, nonpareils would occasionally
leak out of the machine into the lab environment, and the final coating
process created a visible reddish dust that escaped from the machine leaving
the entire laboratory coated with the reddish dust after each run. During
the initial demonstration run, it became apparent to everyone in the laboratory
that the machine was not airtight. Despite this, the only precautions required
of the lab workers were the wearing of a mask and gloves, and the maintenance
of a high level of rabies antibodies in their blood systems through periodic
inoculations with a rabies vaccine manufactured by defendant Eli Lilly and
Company and distributed by defendant John L. Thompson & Sons and Company
|||Funding for the Uni-Glatt rabies experiments was provided by the federal
CDC. In exchange, Dr. Debbie was to provide the CDC with some of the coated
nonpareils prepared in the course of the Uni-Glatt experiments. Beyond providing
the funding, CDC officials made no attempt to direct the day-to-day operations
of the project, to devise any protocol, or otherwise to control the research
efforts at Griffin.
|||Dr. Debbie used the Uni-Glatt in two more experiments in July and September
of 1976, both times using a rabies viral strain prepared by Andrulonis with
a titer of 6. "Titer" is the term used to indicate a standardized
measure of a substance's ability to produce a defined result. With respect
to the rabies virus, the titer measures the ability to kill laboratory mice
after intracerebral injection of a solution containing that virus. The titer
is expressed exponentially.
|||During the July and September runs, heat generated by the machine killed
most of the viral particles and reduced the titer of the vaccine to 1, a
level that produced irregular serum antibody levels. To overcome this problem,
Dr. Debbie asked Dr. Baer to prepare a viral strain with a higher titer.
|||Dr. Baer, in keeping with CDC's general practice of preparing and supplying
viral strains to many private and state-operated labs, prepared a relatively
unknown viral strain, ERA-BHK/21, with a titer of 8.1. This was derived
from a commercially available ERA vaccine, but it had a much higher concentration
of viral particles and was less susceptible to heat. While the basic ERA
vaccine had several known favorable characteristics, the particular characteristics
of ERA-BHK/21 were relatively unknown to most scientists in March of 1977,
since it was several times removed from the commercial ERA vaccine. ERA-BHK/21
was created through a process called "passaging" that had the
potential for producing unpredictable changes in characteristics. The handful
of studies on ERA-BHK/21 had reported mixed results about pathogenicity,
and no one knew with certainty whether man was susceptible to developing
the disease of rabies as a result of infection from this ERA-derived virus
strain. The CDC generally recommended, as a precaution, that the virus be
treated as pathogenic to man.
|||Several other factors, in addition to uncertainty about the characteristics
of ERA-BHK/21, complicated the situation. People usually contract rabies
through the saliva of an infected animal during a bite. Infection through
aerosol exposure, the route of infection in Andrulonis's case, is much more
rare and was not even recognized until the late 1950s or early 1960s. Not
all exposures lead to infection; not all infections lead to the disease.
Regardless of the route of infection, the chances of getting the disease
after exposure are closely related to the quantity of viral particles, or
the dose, to which a person is exposed. When the exposure is aerosol in
nature, the dose is probably the single most important factor in determining
whether the virus will cause the disease.
|||In addition, the pathogenesis of the disease is very different between
the airborne and the bite routes. With a bite, the area is bathed with blood,
so if the bitten person has been immunized, the antibodies in the blood
have an opportunity to neutralize the virus before it can invade the central
nervous system. In contrast, when airborne, the virus hits olfactory nerves
that are exposed to the environment and that have as their only protection
the nasal mucosa. Ordinarily, olfactory nerves do not have significant contact
with antibodies in the blood stream. Thus, even if a person has been immunized,
the antibodies do not have a chance to come into contact with the infected
nerves, unless the vaccine is able to produce antibodies in the mucosa.
|||In 1976-1977, when Andrulonis was exposed to the virus, it was not known
whether the Lilly vaccine he and the other lab technicians were using could
protect against aerosol exposure. Lilly did not conduct studies even after
becoming aware of the possibility of aerosol exposure, nor did it warn users
of the potential that its vaccine might not protect against aerosol exposures.
In light of the meager then-existing knowledge about aerosol exposures and
vaccines, the district court found that safe lab practices mandated avoidance
of all aerosol exposures and that virus-laden aerosols should not even be
created unless absolutely necessary for the research goal, and in those
cases, the aerosols should be physically contained using one of the readily-available
|||On the evening of March 28, 1977, Dr. Baer personally delivered the specially
prepared ERA-BHK/21 virus strain with a titer of 8.1 to Dr. Debbie at Griffin.
He informed Dr. Debbie of the titer and Dr. Debbie relayed this information
to the other lab workers the next morning. No disclosure was made about
how the strain was prepared or how many times it was passaged. No safety
inspection was made of the lab premises, but this was consistent with ordinary
CDC practice in similar circumstances.
|||The tragic experiment took place the next day, March 29th. With Dr. Baer
observing, Dr. Debbie started the machine and began circulating the nonpareils
in the glass tube. The aerosolization process using the ERA-BHK/21 virus
lasted over an hour, during which time both Dr. Debbie and Andrulonis worked
in close proximity to the machine. The process required close attention,
and usually Andrulonis or Dr. Debbie sat near the machine and tapped the
glass tube with the handle of a screwdriver to prevent nonpareils from sticking
together. Commonly, Andrulonis would place his face within six to twelve
inches of the tube while tapping it, and would remain that close to the
machine for minutes at a time throughout the run. Dr. Baer also observed
the process closely and, at times, was within a foot of the machine.
|||Dr. Baer left on the evening of March 29th. Another coating run was done
the next day, but this time using a viral strain prepared by Andrulonis
that had a titer of 5.5.
|||The district court found on adequate, albeit disputed, evidence that Andrulonis
had contracted rabies during the March 29, 1977, experiment that Dr. Baer
observed. To begin with, Andrulonis's only contact with the virus was at
work. On the job, it was unlikely that he got rabies from routine procedures;
more likely, he contracted the disease from an "unusual" exposure.
Of his four possible exposures between March of 1976 and March of 1977,
compelling evidence points to the March 29, 1977, experiment as the cause
of his illness, which first appeared in April of 1977. As to the other exposures,
in March, July and September of 1976, a six-month incubation period is within
the realm of possibility, but the average is 20-60 days. Only 14 percent
of the incidents of rabies have an incubation period greater than 90 days
regardless of the method of exposure. Since this was an aerosol exposure,
the incubation period was more likely to be shorter than longer.
|||Another unusual aspect of the March 29th experiment was its use of the
most highly concentrated virus with a titer of 8.1. This means there were
100 times more viral particles than a 6.0 titer and 400 times more viral
particles than a 5.5 titer. Further, the viral strain used in the March
29th experiment was more resistant to the heat generated by the machine.
Finally, the district court accepted the opinion testimony of various experts
who stated with a reasonable degree of medical and scientific certainty
that Andrulonis contracted the disease of rabies as a result of exposure
in the March 29th experiment.
|||The district court found the government liable under New York law on three
independent theories of negligence: supplier's duty to warn, non-negligent
creation of a hazard, and negligent entrustment. The government challenges
each of these holdings. The district court also held that the discretionary
function exception of the Federal Tort Claims Act was inapplicable to this
case, and both the government and NYSDOH appeal from this holding.
|||In addition, the government and NYSDOH appeal from the district court's
approval of the allocation of settlement proceeds; NYSDOH appeals the district
court's apportionment of damages; and finally, Jerome Andrulonis cross-appeals
from the court's determination of the cost of future custodial care.
|||We first turn to the question of whether the discretionary function exception
protects the government from suit in these circumstances. If the exception
were to apply in this case, it would bar this action against the government,
and we could dismiss the complaint on that ground alone. However, since
we determine that the exception is inapplicable here, we must then discuss
the question of whether New York law imposes liability on the government
under the circumstances of this case. Of the three theories relied on by
the district court, we determine that the failure to furnish an adequate
warning is sufficient to hold the government liable, so we need not reach
the merits of the other two theories.
|||We next will address the questions of whether the settlement proceeds
were properly allocated between Joanna and Jerome Andrulonis, and whether
the district court properly apportioned the percentages of responsibility
between the federal government and the state. Finally, we will discuss the
plaintiff's cross-appeal on whether the district court correctly calculated
his damages for future custodial care.
|||A. Discretionary Function Exception
|||Initially, we take up whether this action was barred by the discretionary
function exception to the FTCA. The tort claims act generally authorizes
suits against the United States for damages
|||for injury or loss of property, or personal injury or death caused by
the negligent or wrongful act or omission of any employee of the Government
while acting within the scope of his office or employment, under circumstances
where the United States, if a private person, would be liable to the claimant
in accordance with the law of the place where the act or omission occurred.
|||28 U.S.C. § 1346(b). The act further provides that the United States shall
be liable with respect to tort claims "in the same manner and to the
same extent as a private individual under like circumstances." 28 U.S.C.
|||Although the act waives the sovereign immunity of the United States, it
does not do so in all respects. Congress carefully excepted several important
classes of tort claims from the act's broad waiver of immunity. Of particular
relevance here, section 2680(a) provides that the act shall not apply to
|||any claim 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.
|||28 U.S.C. § 2680(a). "The discretionary function exception * * *
marks the boundary between Congress' willingness to impose tort liability
upon the United States and its desire to protect certain governmental activities
from exposure to suit by private individuals." United States v. S.A.
Empresa De Viacao Aerea Rio Grandense (Varig Airlines),
467 U.S. 797,
81 L. Ed. 2d 660,
104 S. Ct. 2755,
468 U.S. 1226,
82 L. Ed. 2d 919,
105 S. Ct. 26
|||The Supreme Court in Dalehite v. United States,
346 U.S. 15,
97 L. Ed. 1427,
73 S. Ct. 956
(1953), analyzed the legislative history of the act and concluded that its
waiver of sovereign immunity was inapplicable to "acts of a governmental
nature or function." The basis for the exception was congress's wish
"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." Varig Airlines,
467 U.S. at 814.
The foundation for this exception is protection of "the principles
embodied in the separation of powers doctrine by keeping the judiciary from
deciding questions consigned to the executive and legislative branches of
the government." Caban v. United States,
671 F.2d 1230,
1233 (2d Cir. 1982).
|||By barring tort liability for activities that require the alleged tortfeasor
to consider and weigh competing policies in arriving at his decision, this
test protects courts from "involve[ment] in making . . . decision[s]
entrusted to other branches of the government," and especially from
questions involving "not negligence but social wisdom, not due care
but political practicability, not reasonableness but economic expediency".
|||Id. (citations omitted). Congress thus sought to assure that tort liability
would not "seriously handicap efficient government operations."
United States v. Muniz,
374 U.S. 150,
10 L. Ed. 2d 805,
83 S. Ct. 1850
|||Determining whether specific conduct is protected by the discretionary
function exception to the FTCA is sometimes difficult. The act itself contains
no definition of the types of discretionary functions within the exception.
"The principal difficulty is simply that all federal employees exercise
a certain amount of discretion in the discharge of their responsibilities."
671 F.2d at 1232.
|||To determine whether conduct falls within the exception, we must focus
on "the nature of the conduct, rather than the status of the actor,"
467 U.S. at 813,
and use a two-step process to examine the challenged conduct. See Berkovitz
v. United States,
486 U.S. 531,
100 L. Ed. 2d 531,
108 S. Ct. 1954
(1988); In re Joint E. & So. District Asbestos Litigation,
891 F.2d 31,
36 (2d Cir. 1989). 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. Asbestos Litigation,
891 F.2d at 36.
|||As to the first step, the Supreme Court has determined that "conduct
cannot be discretionary unless it involves an element of judgment or choice."
486 U.S. at 536.
Thus, when a federal statute, regulation, or policy specifically dictates
a course of action for an employee to follow, the employee has no option
but to adhere to the directive. Id. If the employee can make no choice,
then there can be no discretion for the exception to protect. Id. 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.
|||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. The Berkovitz Court stated that "the exception,
properly construed, * * * protects only governmental actions and decisions
based on considerations of public policy." Id. at 537. If an action
leaves "room for policy judgment and decision there is discretion."
346 U.S. at 36.
|||In Indian Towing Co. v. United States,
350 U.S. 61,
100 L. Ed. 48,
76 S. Ct. 122
(1955), the Court distinguished between an initial government decision to
build a lighthouse and subsequent actions to maintain the lighthouse. The
initial decision to undertake and maintain a lighthouse service was a discretionary
judgment; however, the failure to adequately maintain the lighthouse in
good condition, since it did not involve any permissible exercise of policy
judgment, subjected the government to suit under the FTCA. Id. at 69; see
486 U.S. at 538
|||Similarly, in Caban, we determined that the adoption of a regulation by
the INS was discretionary but a wrongful detention by an INS employee was
not discretionary. Caban,
671 F.2d at 1233.
See also Caraballo v. United States,
830 F.2d 19,
21-22 (2d Cir. 1987) (initial decision to patrol a national park was discretionary,
but the manner in which decision was executed was not discretionary); Eklof
Marine Corp. v. United States,
762 F.2d 200,
204-05 (2d Cir. 1985) (initial decision to provide navigational aid by marking
obstructions was discretionary, but the precise manner of marking an obstruction
did not implicate policy and was not a discretionary act).
|||The government tries to distinguish this line of cases in two ways. First,
it contends that the Indian Towing approach is inapplicable because the
government here did not decide upon a particular safety measure and then
negligently implement its decision. The government would thus restrict Indian
Towing to cases involving a decision to provide safety measures. We decline
to limit Indian Towing so narrowly. We think that case rested not so much
on the government's decision to install a safety device, a lighthouse, but
on its negligent maintenance of the lighthouse and the fact that decisions
to maintain the lighthouse did not implicate policy considerations. In Indian
Towing, only the initial decision to install the lighthouse was discretionary.
|||Sometimes, even the execution of a policy decision is subject to protection
by the discretionary function exception; this occurs when the steps in the
execution process also require policy judgments. For example, in Varig Airlines,
the Court not only found that the Federal Aviation Administration's implementation
of a program for compliance review was discretionary, but it also found
that the acts of the FAA employees who executed the program were protected,
because those employees "were specifically empowered to make policy
judgments regarding the degree of confidence that might reasonably be placed
in a given manufacturer, the need to maximize compliance with FAA regulations,
and the efficient allocation of agency resources." Varig Airlines,
467 U.S. at 820.
However, in Caban, we determined that even if regulations and statutes appear
to vest immigration officials with broad discretion, where the language
goes only to the standard of care by which governmental employees' behavior
is to be judged, the language does not convert the discharge of prescribed
responsibilities into decisions which involve a choice between competing
policy considerations. Caban,
671 F.2d at 1233.
In short, the key inquiry is whether the decisions, be they initial decisions
or implementation decisions, were necessarily susceptible to policy analysis.
891 F.2d at 37;
United States Fidelity & Guar. Co. v. United States,
837 F.2d 116,
121 (3d Cir.), cert. denied,
487 U.S. 1235,
101 L. Ed. 2d 935,
108 S. Ct. 2902
|||In this case, the government's decisions to encourage rabies research,
provide funding for the research, and provide NYSDOH with the virus were
all decisions that implicated policy considerations and therefore were protected
by the discretionary function exception. The same is not true, however,
with Dr. Baer's alleged failure to warn of the extreme dangers presented
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 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 provide redress to citizens
for the torts of government actors.
|||The government relies on Dalehite to support its contention that even
mundane decisions necessary to execute a policy decision are entitled to
protection under the discretionary function exception. Dalehite involved
a tragic explosion of fertilizer that had been manufactured and shipped
at the instigation and under the supervision of the government. The Supreme
Court held that even those actions that were necessary in the execution
of a policy decision were entitled to protection under the discretionary
function exception. Dalehite,
346 U.S. at 36.
Dalehite is distinguishable, however, because the Court could not find there
any specific instance of negligence by an employee. The accident was "a
complex result of the interacting factors of mass, heat, pressure and composition,"
id. at 42, and no single action was identified as the cause of the accident.
Liability of the government thus could only have been based on the larger
policy decision to manufacture and store the fertilizer.
|||The government suggests that a similar inability to pinpoint the precise
source should prevent liability in this case, because this accident, too,
was the result of complex processes. The district court, however, was able
to penetrate the complex facts of this case and determine that Jerome Andrulonis's
illness resulted, at least in part, from Dr. Baer's failure to warn of the
potentially disastrous consequences of the March 29th experiment he was
observing. This was a nondiscretionary negligent omission that did not implicate
any balancing of policy factors. The district court's findings on this point
are not clearly erroneous, and the government is therefore not entitled
to protection from suit under the discretionary function exception.
|||B. Supplier's Duty to Warn
|||The district court found the government liable on three independent theories
of tort liability. We need discuss only the supplier's duty to warn, because
it is sufficient to affirm on the liability issue.
|||Under the FTCA, the law of the state where the tort occurred applies.
28 U.S.C. § 1346(b); Hatahley v. United States,
351 U.S. 173,
100 L. Ed. 1065,
76 S. Ct. 745
(1956); Montellier v. United States,
315 F.2d 180,
185 (2d Cir. 1963). Because most of the acts or omissions of Dr. Baer occurred
in New York, the substantive law of New York governs this case.
|||Under established New York law, a supplier of a product which the supplier
knows or should know is dangerous if used in the usual and expected manner
has a duty to adequately warn users of the product of the danger unless
the danger is obvious or well-known. Young v. Elmira Transit Mix, Inc.,
52 A.D.2d 202, 204-05, 383 N.Y.S.2d 729, 731 (4th Dept. 1976) (Cardamone,
J.) (citing Restatement (Second) of Torts § 388); Billiar v. Minnesota Mining
and Mfg. Co.,
623 F.2d 240,
243 (2d Cir. 1980). See also Schumacher v. Richards Shear Co., Inc., 59
N.Y.2d 239, 246-47, 464 N.Y.S.2d 437, 441, 451 N.E.2d 195 (1983). Breach
of this duty can lead to liability in negligence.
|||The government initially argues that a supplier's duty to warn is inapplicable
to this case because the doctrine should be limited to a commercial context;
that purely scientific activities should be exempt from the rigors of traditional
tort law; that the risk-spreading rationale underlying imposition of this
duty should not be applicable because the government is not an income-producing
entity; and that imposing liability in this situation would tend to curtail
scientific research, and restrict the flow of information and exchange of
knowledge which are vital for producing health-related benefits.
|||Although we are sympathetic to the government's policy arguments, they
simply are not supported by the applicable law. In the first place, the
FTCA specifically provides for the imposition of liability on the federal
government as if it were a private person. The fact that the government
does not generate income and is not considered a commercial entity is irrelevant
in light of congress's decision that governmental immunity is waived in
certain circumstances if government employees commit torts.
|||Furthermore, we agree with the district court that New York does not require
a commercial transaction as a prerequisite to liability for breach of a
duty to warn. Restatement (Second) of Torts § 405; Pease v. Sinclair Refining
104 F.2d 183,
186 (2d Cir. 1939) (applying New York law). In addition, and contrary to
the government's contention, there is probably no entity better able to
spread the risk of scientific research than the government, which has the
biggest "customer" base of all -- taxpayers. Finally, in a situation
where our entire population may benefit from eradication of rabies, it is
not unreasonable to have the potential beneficiaries share the cost of an
unfortunate incident occurring in the search for an effective method for
vaccination against this lethal disease.
|||Although the imposition of a duty to warn of potential hazardous consequences
may, as the government argues, tend to chill the collegial atmosphere of
the scientific community, we think that the benefits of imposing such a
duty, at least in the highly unusual circumstances of this case, far outweigh
any potentially chilling effects. All scientists should assure that reasonable
and appropriate safety precautions are taken in the lab. Laboratory staffs
should not have to bear the financial burdens in addition to the personal
risks that accompany the quest for scientific advancement. If identifiable
negligence does occur, its economic consequences need not be excused as
necessary for the benefit of science, no matter how noble the goals of the
|||The government also contends that even if the imposition of a supplier's
duty to warn is the appropriate legal standard, Dr. Baer satisfied this
duty by informing Dr. Debbie of the extremely high concentration of the
virus. The district court found that at the time Dr. Baer gave the warning,
it was sufficient merely to advise Dr. Debbie that the viral strain was
highly concentrated; given what Dr. Baer knew at that time, the warning
was proportionate to the risk. However, the district court also found that
when Dr. Baer actually observed the experiment, he should have realized
the extreme danger created by using his ERA-BHK/21 virus in a leaky aerosolizing
machine and should have immediately supplemented his warning. The government
argues that requiring Dr. Baer to supplement the warning just because he
was a rabies expert and he decided to stay at Griffin to observe the experiment
|||Under the applicable New York law, we disagree. In Cover v. Cohen, 61
N.Y.2d 261, 274-75, 473 N.Y.S.2d 378, 385, 461 N.E.2d 864 (1984), the New
York Court of Appeals determined that a manufacturer or retailer may incur
liability for failing to warn of newly discovered dangers in the use of
a product that come to his attention after manufacture or sale. These dangers
may be discovered through advancements in the state of the art, with which
the manufacturer is expected to stay abreast, or through being made aware
of later accidents involving dangers in the product, of which warning should
be given to users. Although a product may be reasonably safe when manufactured
and sold and involve no then-known risks of which warning need be given,
risks thereafter revealed by user operation and brought to the attention
of the manufacturer or vendor may impose upon either or both an additional
duty to warn. Id. at 275, 473 N.Y.S.2d at 385. The type of notice that will
trigger a manufacturer's post-delivery duty to warn is a function of the
degree of danger involved and the number of instances reported, id., and
these are questions of fact. Id. at 276, 473 N.Y.S.2d at 385.
|||In this case, Judge Munson determined that Dr. Baer, while observing the
experiment in the lab, should have known of the dangers involved and that
he had sufficient notice to trigger a duty to provide additional warning.
Dr. Baer was observing an experiment with the extremely potent rabies virus
he had supplied being used in a leaky machine in a way that could potentially
cause great harm to those present in the lab. In these circumstances, he
should have realized the risks and warned against continuing the experiment
without additional precautions.
|||Judge Munson based his conclusion on several subordinate findings: (1)
whenever aerosols were used at the CDC labs in Georgia, a laminar flow containment
system was also used; (2) Dr. Baer knew that safe lab practice required
containment; (3) Dr. Debbie told Dr. Baer about the red dust that had escaped
from the Uni-Glatt machine during the third run of the experiments; (4)
Dr. Baer saw nonpareils escape from the machine; (5) Dr. Baer saw Dr. Debbie
patch the machine with electrical tape; (6) photographs of the machine showed
that it did not appear to be airtight; and (7) Dr. Baer saw that the machine
had to be assembled by hand in the laboratory for each experiment. Judge
Munson also found that Dr. Baer's testimony, denying his knowledge of the
Uni-Glatt's leak, lacked credibility.
|||When Dr. Baer saw that the Uni-Glatt was not airtight, he should have
immediately alerted Dr. Debbie and the lab staff, including Andrulonis,
of the hazards posed by the way the ERA-BHK/21 virus was to be used; his
failure to do so was, under New York law, a breach of duty to those in the
lab, including Andrulonis.
|||Finally, the government argues that even if the case is properly a duty-to-warn
action, and even if Dr. Baer's single preliminary warning was inadequate,
the government still cannot be liable, because the case falls within the
"knowledgeable user" exception. This argument focuses on proximate
cause, which is a necessary predicate to finding liability. Sheehan v. City
of New York, 40 N.Y.2d 496, 501, 387 N.Y.S.2d 92, 95, 354 N.E.2d 832 (1976).
|||In duty to warn cases, New York recognizes two circumstances that would
preclude a finding of proximate cause: obviousness and the knowledgeable
user. Proximate cause cannot be found when the dangers are obvious or well-known.
Lancaster Silo & Block v. Northern Propane Gas, 75 A.D.2d 55, 427 N.Y.S.2d
1009, 1015 (4th Dept. 1980). Nor can it be found with a knowledgeable user,
one who is actually aware of the dangerous nature of the product supplied.
Belling v. Haugh's Pools Ltd., 126 A.D.2d 958, 959, 511 N.Y.S.2d 732, 733
(4th Dept.), appeal denied, 70 N.Y.2d 602, 518 N.Y.S.2d 1024, 512 N.E.2d
550 (1987). Although the government relies here solely on the knowledgeable
user doctrine, loosely referred to as the "knowledgeable user exception",
a brief look at "obviousness" is necessary to understand why the
government's argument fails.
|||If a danger is obvious, there is no duty to warn against it. Kerr v. Koemm,
557 F. Supp. 283,
287 (S.D.N.Y. 1983). The Restatement (Second) of Torts § 388 and comment
(k) state that a duty to inform users of a danger exists if the supplier
of a product has no reason to expect that the user will discover its condition
and realize the danger involved. See also Lancaster Silo, 427 N.Y.S.2d at
1015; Young, 383 N.Y.S.2d at 731; Kerr,
557 F. Supp. at 287.
This inquiry into the obviousness of the danger depends not upon actual
knowledge of the user, but upon whether the danger was sufficiently obvious
that it would be unreasonable to impose a duty to warn on the manufacturer.
557 F. Supp. at 287.
Thus, the focus of the "obviousness" inquiry is upon the objective
reasonableness of the supplier's judgment about whether users will perceive
the danger. Id. The danger must be so apparent or so clearly within common
knowledge that a user would appreciate the danger to the same extent that
a warning would provide. Belling, 511 N.Y.S.2d at 733. The district court
held that the danger here was not obvious because Dr. Baer actually witnessed
the experiment and should have immediately recognized that neither Dr. Debbie
nor Andrulonis realized the hazards they were facing. On appeal the government
does not challenge that conclusion.
|||In contrast, the "knowledgeable user exception", on which the
government does rely, involves a subjective test: whether the particular
user was aware of the danger. McDaniel v. Williams, 23 A.D.2d 729, 257 N.Y.S.2d
702 (1st Dept. 1965); Rosebrock v. General Electric Co., 236 N.Y. 227, 140
N.E. 571 (1923); Kerr,
557 F. Supp. at 287.
Its rationale is that knowledge is equivalent to prior notice. Billiar,
623 F.2d at 243.
Where the plaintiff knows of a danger, a warning cannot increase his awareness
of its presence, Kerr,
557 F. Supp. at 286,
and where a warning would not have prevented the harm, a failure to warn
cannot be the proximate cause of the injury. Torrogrossa v. Towmotor Co.,
44 N.Y.2d 709, 711, 405 N.Y.S.2d 448, 449, 376 N.E.2d 920 (1978); Billiar,
623 F.2d at 243.
|||In this case, the district court determined that Dr. Debbie did not have
actual knowledge of the specific danger in the March 29th experiment. Of
course, it determined that Dr. Baer did not have actual knowledge of the
specific danger either. Thus, the question becomes whether the knowledgeable
user exception applies where the knowledge of both supplier and user is
imputed, not actual. The government suggests that the exception should apply
here, because the district court found that the state was more than twice
as culpable as the federal government, and that Dr. Debbie's "failure
to appreciate the hazard to which he was exposing his workers seems more
unreasonable than Dr. Baer's failure to recognize the same hazard."
724 F. Supp. at 1508.
|||While attractive, the government's argument is not dispositive, because
the knowledgeable user exception applies only where the user is actually
aware of the precise danger involved. Belling, 511 N.Y.S.2d at 733; Kerr,
557 F. Supp. at 287.
A supplier's duty to warn, on the other hand, arises if he knows or should
know of the danger; actual knowledge of the precise danger is not required
to hold the supplier liable. Schumacher, 59 N.Y.2d at 248, 464 N.Y.S.2d
at 441; Young, 383 N.Y.S.2d at 731. Here, the district court determined
that the user had no actual knowledge of the precise danger, but both the
supplier, Dr. Baer, and the user, Dr. Debbie, were charged with imputed
knowledge. In these circumstances, the government, through Dr. Baer's breach
of his duty to warn, is liable to Andrulonis for his injuries.
|||Since we find that the duty-to-warn theory supplies a sufficient basis
to establish the government's liability and to affirm that part of the district
court's judgment, we need not address the district court's further reliance
on the other two theories of liability.
|||C. Allocation of Settlement Proceeds
|||Before the end of trial, the Andrulonises and the non-governmental defendants
entered into a series of settlement agreements resulting in a total settlement
of $1.3 million. The settling parties agreed to allocate $225,000 to Jerome
Andrulonis and $1,075,000 to Joanna Andrulonis. Any settlement funds allocated
to Joanna Andrulonis, whose claims against the government were dismissed
for failure to timely file an administrative claim, could not be used to
reduce the final award of damages to Jerome Andrulonis as provided under
section 15-108 of New York's General Obligations Law. The government and
NYSDOH now challenge this allocation and the district court's approval of
it as being contrary to the policy underlying that section.
|||Section 15-108 of New York's General Obligations Law provides an incentive
to settle and attempts to define the effect of a settlement on collateral
rights and liabilities in future litigation. Section 15-108(a) provides
in relevant part:
|||Effect of release of or covenant not to sue tortfeasors. When a release
* * * is given to one of two or more persons liable or claimed to be liable
in tort for the same injury, or the same wrongful death, it does not discharge
any of the other tortfeasors from liability for the injury or wrongful death
unless its terms expressly so provide, but it reduces the claim of the releasor
against the other tortfeasors to the extent of any amount stipulated by
the release or the covenant, or in the amount of the consideration paid
for it, or in the amount of the released tortfeasor's equitable share of
the damages under article fourteen of the civil practice law and rules,
whichever is the greatest.
|||The "right of set-off" provided by subdivision (a) "is
intended to avoid a result in which the non-settling tortfeasors bear more
than their equitable share of the plaintiff's damages." Lambert Houses
Redevelopment Co. v. HRH Equity Corp., 117 A.D.2d 227, 232-33, 502 N.Y.S.2d
433, 436 (1st Dept. 1986). The government and the state contend that the
apportionment of settlement proceeds in the case at bar undermines this
purpose. They claim that the Andrulonises intentionally allocated most of
the settlement proceeds to Joanna Andrulonis in order to minimize any right
of setoff that might arise from trial of Jerome Andrulonis's remaining claims.
Finally, they argue that the court should not have accepted the settling
parties' decision, but should have independently allocated the settlement
funds to reflect the relative injuries suffered by Jerome and Joanna Andrulonis.
|||In Hill v. St. Clare's Hospital, 67 N.Y.2d 72, 77, 499 N.Y.S.2d 904, 907,
490 N.E.2d 823 (1986), the injured party and his wife, as derivative claimant,
entered into a settlement with the original tortfeasors, but continued their
claim against subsequent tortfeasors for aggravation of the original injuries.
Their general release contained no reservation of rights and no allocation
of damages as between plaintiffs or as between the successive injuries.
Id. Although the court focused primarily on the problem of allocating settlement
proceeds between original injuries and aggravated injuries for purposes
of setoff against the subsequent tortfeasors, its analysis is helpful in
determining a proper apportionment between two plaintiffs.
|||The court stated that "to the extent that the injured party and the
original tort-feasor are permitted to stipulate the amount by which the
liability of the successive tort-feasor is to be reduced by the original
tort-feasor's payment, intent remains a factor, but the amount stipulated
must also be shown to have been arrived at in good faith." Id. at 84-85,
499 N.Y.S.2d at 912. The court determined that the finder of fact, in making
a decision as to attribution of the settlement payment, should "consider
the statement as to allocation, if any, * * * contained in the settlement
documents and the gravity of the respective injuries and determine whether
the amount allocated by the parties was arrived at in good faith."
Id. at 86, 499 N.Y.S.2d at 912 (emphasis added).
|||In Casey v. State, 119 A.D.2d 363, 507 N.Y.S.2d 159 (2d Dept. 1986), the
plaintiffs sued three alleged tortfeasors for wrongful death and for conscious
pain and suffering. Before trial, a settlement was reached with two of the
defendants, but neither release separately allocated the proceeds to the
wrongful death and the pain and suffering causes of action. Instead, the
Surrogate's Court made the allocation decision. The court held that any
settlement sum, even though allocated by the parties or by a decree of the
Surrogate's Court, must, for the purpose of a subsequent setoff, be apportioned
at the trial; and it is the obligation of the finder of fact, after hearing
the evidence, to make such an apportionment. Id. 507 N.Y.S. 2d at 162. A
nonsettling party is not bound by any agreement as to allocation made without
its knowledge or consent. Id. 507 N.Y.S. 2d at 163. Therefore, the self-created
apportionment proffered by the claimants and approved by the Surrogate was
not binding on the trial court. Id.
|||In Casey, the court was concerned that the defendant state would be responsible
for the bulk of a wrongful death award because the claimants' proposed allocation
would have resulted in $175,000 of the settlement being allocated to a "potentially
non-existent pain and suffering cause of action", thereby unfairly
reducing the setoff in the wrongful death action and leaving the state with
none of the benefits of section 15-108. Id. Thus, the court, per Justice,
now District Judge, Arthur Spatt, stated: "We are dealing with two
separate and distinct causes of action. The State is entitled to a true
setoff based on the merits of the respective causes of action. This apportionment
[of the earlier settlement] must be predicated on the evidence adduced at
the trial with regard to the monetary value of each cause of action."
|||Similarly, in Merrill v. State of New York, 110 Misc. 2d 260, 442 N.Y.S.2d
352 (1981), aff'd, 89 A.D.2d 802, 453 N.Y.S.2d 383, 384 (4th Dept. 1982),
where plaintiffs had earlier settled with one of the joint tortfeasors for
a gross unallocated amount in a case involving separate claims for personal
injuries and loss of services, the trial court held that the proper way
to apportion the settlement proceeds was in proportion to the damages found
to have been sustained by the respective claimants. See also Hager v. Hutchins,
91 Misc. 2d 402, 398 N.Y.S.2d 316 (1977) (trial court confronted with a
settlement with several defendants for an unallocated sum in a case involving
causes of action for wrongful death and conscious pain and suffering held
that a prior order of the Supreme Court which had approved the compromise
of the claims against the settling defendants and allocated the proceeds
entirely to the wrongful death cause of action was not binding on the trial
|||The district court in this case assessed the reasonableness of the apportionment
of the settlement monies and ultimately approved the allocation. It rejected
the government's suggestion that Hill and Casey required that for setoff
purposes, the apportionment of a settlement fund must in every instance
approximate the relative injuries of the plaintiffs. Instead, the district
court conducted a good faith analysis to determine whether the amounts allocated
to Jerome Andrulonis and Joanna Andrulonis could be approved. First, it
asked whether the amount set aside for Jerome Andrulonis was a reasonable
approximation of the settling defendants' equitable share of his total damages,
and second, whether the amount set aside for Joanna Andrulonis was unreasonably
excessive in light of the damages she actually suffered.
|||The district court found that the amount allocated to Jerome Andrulonis
did not grossly underestimate the settling parties' equitable share of the
damages he suffered. Although Judge Munson noted a significant discrepancy
between Lilly/Thompson's settlement amount and its equitable share of Jerome
Andrulonis's damages, he considered all the settling defendants as a group
and determined that the total amount Jerome Andrulonis received did not
so grossly deviate from the amount ultimately allocated to those defendants
as to raise an inference of bad faith.
|||Judge Munson then turned to Joanna Andrulonis's portion of the settlement
proceeds. In determining whether the total amount she received was a good
faith assessment of the value of her claims, he applied the standard used
to review a jury damage award -- whether the award was so excessive as to
"shock the judicial conscience". See Martell v. Boardwalk Enterprises,
748 F.2d 740,
750 (2d Cir. 1984). The district judge felt this was the appropriate standard
because a settlement precluded a right to a jury trial. Sensing no shock
and looking to other damage awards in loss of consortium actions, the district
judge concluded that the apportionment of settlement monies was made in
|||The district judge relied in part on the facts that Joanna Andrulonis
was procedurally barred from any recovery against the government or the
state, and that any amount she received from settling her claims with the
private defendants represented the entirety of the damages she will recover.
Thus, the nongovernmental defendants would bear the entire cost of the damages
suffered by Joanna Andrulonis, including that portion for which the United
States and the NYSDOH would otherwise be responsible, but neither the government
nor the state would be required to contribute.
|||We disagree with that analysis. Judge Munson approved the settling parties'
allocation of settlement proceeds after determining whether it was "reasonable."
New York law, however, requires the trial court to make an independent determination
of what the proper apportionment of settlement proceeds should be, based
on the monetary value of each cause of action. See Casey, 507 N.Y.S.2d at
163. Thus, the trial court should have made its allocation decision de novo,
and not just reviewed the parties' chosen apportionment for reasonableness.
|||In addition, while the fact that Joanna Andrulonis had no claim against
either the government or the state may have influenced the parties in deciding
whether or not to settle, it is not conclusive under New York law of the
amount that can be allocated to Joanna Andrulonis upon a subsequent setoff.
If Joanna Andrulonis had timely filed an administrative claim she also could
have recovered damages from the government, and it may be unfortunate that
she will not be able to recover from the governmental tortfeasors; but New
York does not permit the parties' private agreements to decrease the amount
of the settlement to be offset against the non settling defendants. The
district court's point that only the settling defendants are paying for
Joanna Andrulonis's injuries is incorrect, since the government and the
state are, through the corresponding reduction in the setoff on Jerome Andrulonis's
claim, being required to carry a significant portion of her award.
|||Settling parties may not structure the apportionment to avoid a later
setoff by a nonsettling defendant; to hold otherwise would permit them to
circumvent the policy underlying section 15-108. The district court recognized
that this is precisely what the Andrulonises had tried to do, but it felt
that New York law did not prohibit such a result. We disagree. As shown
above, the New York cases establish that the parties' settlement agreement,
even when confirmed by a court order, does not bind a trial court in determining
the proper allocation of settlement proceeds for purposes of setoff. That
allocation must follow from a comparison by the trial court of the injuries
of the settling plaintiffs. We therefore remand to the district court with
a direction to independently evaluate the relative injuries of the settling
plaintiffs and to reduce the damages to be awarded to Jerome Andrulonis
by the amount of the settlement thus allocated to him.
|||D. Apportionment of Culpability between the Government and NYSDOH
|||The district court, pursuant to N.Y.C.P.L.R. §§ 1401-1404 governing contribution
claims, found the government responsible for 30 percent of the damages suffered
by Jerome Andrulonis and NYSDOH responsible for 65 percent. NYSDOH appeals
this apportionment and contends that the court erred in finding it responsible
for more of the damages than the government. Relying on the notion that
culpability is correlated with duty, which in this case happened to depend
on the expertise of the actor, NYSDOH argues that the percentages of fault
must be reassessed to reflect the federal government's greater responsibility
in causing Jerome Andrulonis's illness. NYSDOH argues that the district
court's finding that Dr. Baer was the preeminent expert in the field of
rabies mandates that the government, having greater expertise, should be
charged with a greater share of the damages.
|||We disagree. NYSDOH is correct in asserting that New York law holds experts
to a higher standard of care. See Restatement (Second) of Torts § 289, comment
m; Toth v. Community Hospital at Glen Cove, 22 N.Y.2d 255, 263, 292 N.Y.S.2d
440, 447-48, 239 N.E.2d 368 (1968) (holding specialists accountable to a
higher standard than general practitioners); Hope v. Fall Brook Coal Co.,
3 A.D. 70, 75, 38 N.Y.S. 1040, 1043 (4th Dept. 1893) (duty of care is measured
against knowledge and expertise of the participants). However, NYSDOH confuses
application of the appropriate standard of care in defining the minimal
level of duty that may be owed to another, with the entirely different process
of weighing the expertise of an actor in determining his portion of damages.
In essence, NYSDOH urges that the percentages of damages apportioned must
be directly related to the relative levels of expertise of the defendants.
New York law does not require such a restrictive approach.
|||The district court's apportionment of damages, like other findings of
fact, is subject to the clearly erroneous standard of review. Fed. R. Civ.
P. 52(a). The district court relied on Dr. Baer's expertise in concluding
that he had a duty to warn and, thus, in holding the government liable to
Jerome Andrulonis. Turning to the degree of the state's culpability for
purposes of contribution, the court had before it evidence of Dr. Debbie's
expertise with the rabies virus, his prior experience with the Uni-Glatt
machine, his intimate knowledge of conditions at the Griffin laboratory,
and his role as supervisor of the laboratory with the attendant responsibilities.
Balancing all the circumstances of the case, Judge Munson found Dr. Debbie's
failure to appreciate the hazards of using the leaky machine in this series
of rabies experiments to be more culpable than Dr. Baer's single tragic
lapse. Since his findings are not clearly erroneous, we affirm his apportionment
of damages under N.Y.C.P.L.R. § 1402.
|||E. Damages for Future Custodial Care
|||The district court awarded Jerome Andrulonis $2,417,238 for his future
custodial care, relying on an assumption of continued care within the home.
Jerome Andrulonis cross-appeals from this part of the judgment, claiming
that the damage figure must be based on care in a neurological facility,
since it is uncertain whether Joanna can continue to care for Jerome in
her home indefinitely into the future. He asks that the damages for future
custodial care be increased to $6,841,925.
|||This argument is without merit. The district court estimated future custodial
care on the basis of 24-hour care with three shifts of nursing aides in
his home for the rest of his life. Although professional nurses were not
considered necessary for Jerome's daily care, the district court used the
salary for professional nurses because no one else was willing to do the
job at a lower cost. In addition, the district court also determined that
Jerome would function best in the home environment where he could live in
a predictable structure provided by his family. Since the plaintiff presented
no evidence as to when, if ever, institutional care would replace the completely
supervised home care presently being provided for Jerome, the district court
was not clearly erroneous in the amount it awarded for future custodial
|||We reverse that portion of the judgment of the district court that calculated
the setoff under New York's General Obligations Law § 15-108 from the parties's
own allocation of settlement proceeds and remand on that issue for further
proceedings consistent with this opinion. In all other respects the judgment
|||Reversed in Part, Affirmed in Part and Remanded.
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