Ernestine Carter Hughes v. Vanderbilt University , William J. Darby , M.d., the Metropolitan Government of…

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0193P (6th Cir.)
File Name: 00a0193p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
ERNESTINE C ARTER HUGHES,
Plaintiff-Appellant,
v.
VANDERBILT UNIVERSITY ,
W ILLIAM J. DARBY , M.D.,
THE M ETROPOLITAN
GOVERNMENT OF NASHVILLE
AND DAVIDSON C OUNTY ,
TENNESSEE , THE NUTRITION
FOUNDATION , INC., and THE
R OCKEFELLER FOUNDATION ,
Defendants-Appellees,
THE S TATE OF TENNESSEE ,
Defendant.
;>

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No. 99-5499
Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 98-00770—Thomas A. Higgins, District Judge.
Argued: March 6, 2000
Decided and Filed: June 7, 2000

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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, for
Appellant. Robert P. LoBue, PATTERSON, BELKNAP,
WEBB & TYLER, New York, New York, for Appellees.
ON BRIEF: Phillip L. Davidson, Nashville, Tennessee, for
Appellant. John S. Bryant, BASS, BERRY & SIMS,
Nashville, Tennessee, Francis H. Young, METROPOLITAN
DEPARTMENT 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 a
separate opinion concurring in the result only.
_________________
OPINION
_________________
RONALD LEE GILMAN, Circuit Judge. Ernestine Carter
Hughes contends that the defendants unlawfully subjected her
to dangerous medical tests in 1945 when she was a child. The
district court concluded that Hughes’s 1998 action was barred
by the statute of limitations. Hughes now challenges that
decision. For the reasons set forth below, we AFFIRM the
judgment of the district court.

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No. 99-5499 Hughes v. Vanderbilt University, et al. 3
I. BACKGROUND
A. Factual background
In 1945, Vanderbilt University conducted a three-month
study to further understand how iron is absorbed in the human
body. The study, which was funded by the Nutrition
Foundation, Inc. (NFI), the International Health Division of
the Rockefeller Foundation (Rockefeller), and the Tennessee
Department of Health, involved nearly 200 children from the
Caldwell and Ransom elementary schools in Nashville,
Tennessee. William J. Darby, M.D., was one of the principal
researchers. The students, most of whom were between the
ages of seven and ten, were given lemonade that had been
laced with radioactive iron. Darby and his colleagues
analyzed before-and-after blood samples drawn from the
children, and then published the results of their work in the
Journal of Nutrition.
At all times relevant to this case, Hughes resided in
Nashville. In 1945, she was eight years old and a student at
the Caldwell elementary school. Vanderbilt records reflect
that Hughes, then known as Ernestine Carter, was one of
Darby’s subjects.
The 1945 study failed to draw any significant public
attention until January 13, 1994, when a Nashville newspaper,
The Tennessean, ran a front-page story recounting the nature
of the testing involved. Titled “Students Given Radioactive
Drink,” the article was based on a Vanderbilt press release to
be issued the following day. The Nashville Banner printed a
similar piece on the cover of its January 14, 1994 issue.
On January 17, 1995, Katherine Henley, who alleged that
she was one of the students subjected to the study, filed a
class action against the defendants in the United States
District Court for the Middle District of Tennessee. That case
garnered its own share of media attention. On January 18,
1995, The Tennessean again ran a front-page story on the
matter and, on January 19, 1995, CBS’s Nashville television
affiliate reported on the suit during three different broadcasts.

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4 Hughes v. Vanderbilt University, et al. No. 99-5499
In August of 1997, however, Henley admitted that at the time
of the study she was not enrolled in either the Caldwell or
Ransom elementary schools. This revelation was also
reported by The Tennessean. Her case was dismissed on or
about 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 Davidson
County, NFI, Rockefeller, and the State of Tennessee. In
addition to a request for class action certification, her
complaint 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 allegations
made by Hughes included the assertion that “Vanderbilt and
Darby . . . intentionally forced plaintiff to ingest radioactive
iron by forcibly holding her mouth open and instilling the
radioactive substance into her mouth against her will,
ignoring her protests.” She further alleged that, as a result of
the ingestion, “she has suffered loss of weight, blood
problems, tumors, and other severe, physical problems.”
Hughes also addressed the timing of her suit:
On July 8, 1998, the plaintiff was first informed that she
was a subject of this radiation experiment by way of
learning that a lawsuit [that] was filed by Katherine
Henley on or about late April 1997 had been dismissed.
In late 1993 and early 1994, the first disclosures of many
human radiation experiments came out in the press,
including other experiments conducted by . . . Vanderbilt.
However, plaintiff was not aware of these disclosures
until she learned that the Henley lawsuit . . . had been
dismissed. . . .
The plaintiff and class members, in the exercise of
reasonable diligence, did not know or have reason to
know the true nature and dangers of the radioactive
experimentation to which they were subjected to in the
past, and plaintiff and class members did not know or
No. 99-5499 Hughes v. Vanderbilt University, et al. 13
_______________________
CONCURRENCE
_______________________
KATHLEEN McDONALD O’MALLEY, District Judge,
concurring. I respectfully concur in the result only. I do not
agree that the allegations in Hughes’s complaint operate to
bar her claim as a matter of law; the allegations to which the
majority and the district court cite are far too imprecise to be
read as binding admissions on this important dispositive
issue. I also cannot agree that, on the record presented,
Hughes should be charged with the knowledge that what
happened to her as a child was wrongful, so as to bar her
claim at or near the time she reached majority. I concur solely
because I believe that, in the circumstances presented here –
where there were numerous newspaper articles and television
broadcasts regarding these events – Hughes should have
known of the injury which is the basis for her action. See
Sevier v. Turner, 742 F.2d 262, 273 (6th Cir. 1984).
I further note that I do not believe that advertising alone
would necessarily, or even usually, be sufficient to begin the
running of the statute of limitations. If the circumstances had
been marginally different – if the media had been less
comprehensive in its coverage, or if Hughes did not live in the
city where the media coverage occurred – I likely would be
unwilling to conclude, at the summary judgment stage, that
Hughes had constructive knowledge of the event. I am,
however, comfortable in the narrow circumstances presented
here agreeing with the majority’s conclusion that the
“publicity was sufficient to charge Hughes with constructive
knowledge of the events underlying her cause of action. . .”
See Op. at 9.

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12 Hughes v. Vanderbilt University, et al. No. 99-5499
in which the search for truth may be seriously impaired
by the loss of evidence, whether by death or
disappearance 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 the
filing of this lawsuit. Darby, the only researcher still alive, is
allegedly in poor health and would be unable to testify. The
Rockefeller representatives who were involved in funding the
program are apparently all deceased. It would also be
difficult, if not impossible, for a jury to fully understand the
scientific and ethical context in which these experiments took
place. These circumstances illustrate why this court has
observed as follows: “‘Statutes of limitations are vital to the
welfare of society and are favored in the law.’ Stale conflicts
should be allowed to rest undisturbed after the passage of
time has made their origins obscure and the evidence
uncertain.” 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. Vanderbilt University, et al. 5
have reason to know of their claims for relief against the
defendants in regard to the Caldwell and Ransom
Schools radioactive iron experiment until about January
14, 1994, and later. A great many members of the class
still do not know about the experiment.
(Emphasis added.)
In October and November of 1998, all of the defendants
filed dispositive motions based on the assertion that Hughes’s
action was barred by the statute of limitations. Several
affidavits and exhibits were submitted by the parties in
support of, and in response to, these motions.
On November 19, 1998, Hughes moved to amend her
complaint by changing the date cited in the excerpt
above—that is, the portion of her complaint alleging that she
and the class members did not know or have reason to know
of the existence of their claims “until about January 14, 1994,
and later.” Hughes stated in an affidavit filed on December
1, 1998 that she did not know about the study “until July 8,
1998.” Her request to amend, however, was denied. The
docket entry of the district court’s decision states that “this
motion is unsupported other than [by] the assertion of counsel
as to a ‘typographical’ error which is contradicted by his
having signed the pleading in the Henley action . . . .”
All of the defendants’ motions were referred to a magistrate
judge for a ruling. On January 19, 1999, the magistrate judge
issued his report and recommendation. At the outset, the
magistrate judge noted that he would consider the evidentiary
materials filed by the parties and, in turn, treat the motions to
dismiss as requests for summary judgment. Then, after
setting forth the facts and the applicable standard of review,
the magistrate judge addressed the apparent conflict between
the January 14, 1994 date set forth in Hughes’s complaint and
the July 8, 1998 date alleged in her affidavit. Citing the
denial of Hughes’s motion to amend her complaint, the
magistrate judge stated that he “does not deem [her]
subsequent affidavit to create a material factual dispute . . . .”

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6 Hughes v. Vanderbilt University, et al. No. 99-5499
The magistrate judge then discussed the applicable law
regarding the statute of limitations and concluded as follows:
[B]y her own admission in her complaint, plaintiff cites
that she was aware or reasonably should have been aware
of her claims in [January], 1994 . . . . Plaintiff also states
that there were public studies on the Caldwell project that
were published in 1994, although she states that she was
not aware of them until July 8, 1998. . . . Moreover, the
manner in which Hughes described her ingestion of this
liquid as “forced by the defendants against her will” . . .
also suggests Hughes[’s] longstanding awareness of the
cited facts underlying her claims.
After citing the media reports concerning the Vanderbilt
study and Henley’s suit, the magistrate judge reiterated his
view that “[t]he existence of litigation on the same project and
the attendant publicity would have placed a reasonable person
on knowledge [sic] of her federal claims by July, 1994 and no
later than July, 1995 when the Hensley action was filed and
its prominent publicity was widespread.” The magistrate
judge then recommended that all of the defendants’ motions
be granted.
On March 9, 1999, the district court, without further
analysis, adopted the magistrate judge’s recommendation and
dismissed Hughes’s complaint on the basis of the statute of
limitations. In this appeal, Hughes does not take issue with
the district court’s denial of her motion to amend her
complaint. Rather, Hughes asserts that (1) she was not aware
that she had been a subject of Darby’s tests until July 8, 1998,
and (2) the issue of whether she had exercised reasonable care
and diligence in discovering her cause of action should have
been 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. Vanderbilt University, et al. 11
it does constitute an admission that a reasonable person
should have been aware of the claims at issue by that date.
This admission, moreover, was not an “accidental” inclusion.
Henley, who was represented by Hughes’s attorney, used the
same date in her earlier action.
In point of fact, Hughes’s claim may have been barred
decades ago, one year after she attained her majority. See
TENN . C ODE . ANN . § 28-1-106 (setting forth the accrual rule
for persons under the age of eighteen at the time a cause of
action accrues). Hughes specifically alleged in her complaint
that “Vanderbilt and Darby . . . intentionally forced plaintiff
to ingest radioactive iron by forcibly holding her mouth open
and instilling the radioactive substance into her mouth
against her will, ignoring her protests.” (Emphasis added.)
Although there may have been no way for her to know that
she was being given a radioactive substance, her detailed
description of the manner in which Darby and his colleagues
administered the test is probably sufficient to have obligated
her to investigate further once she reached the age of majority.
We need not, however, answer this question because of the
extensive media publicity in the mid-1990s and because of
her judicial admission regarding when persons in her position
should have learned of the studies.
In light of Hughes’s alleged medical problems, we
recognize that any procedural bar may at first blush seem
unfair. There is, however, a broader principle at stake. As the
Supreme Court has stated:
[S]tatutes of limitations, which are found and approved
in all systems of enlightened jurisprudence, represent a
pervasive legislative judgment that it is unjust to fail to
put the adversary on notice to defend within a specified
period of time and that the right to be free of stale claims
in time comes to prevail over the right to prosecute them.
These enactments are statutes of repose; and although
affording plaintiffs what the legislature deems a
reasonable time to present their claims, they protect
defendants and the courts from having to deal with cases

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10 Hughes v. Vanderbilt University, et al. No. 99-5499
used reasonable diligence is tested by an objective
standard.”).
Based on the undisputed facts concerning the media
attention given to the Vanderbilt study in question, no
reasonable factfinder could find that Hughes’s cause of action
accrued any later than January 19, 1995. This was the date
that Nashville’s CBS affiliate reported the filing of Henley’s
class action lawsuit against the same defendants involved in
the present action. By this time there had been numerous
news reports both in print and on television discussing the
facts supporting Hughes’s claims, beginning with The
Tennessean’s front-page story on January 13, 1994. Hughes
filed her complaint on August 24, 1998, long after the one-
year period in which to file her cause of action had ended. As
such, her suit is untimely.
Hughes’s own complaint in this case supports our
conclusion. As previously noted, the district court ruled that
Hughes’s claim accrued on January 14, 1994, the date she
cites in her complaint. Plaintiffs are bound by admissions in
their pleadings, and a party cannot create a factual issue by
subsequently filing a conflicting affidavit. See Reid v. Sears,
Roebuck & Co., 790 F.2d 453, 460 (6th Cir. 1986) (“A party
may not create a factual issue by filing an affidavit, after a
motion for summary judgment has been made, which
contradicts 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 on
appeal as well.”). Moreover, such admissions can undermine
the 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 his
pleadings 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 the
potential class—who learned of the facts on January 14, 1994,
No. 99-5499 Hughes v. Vanderbilt University, et al. 7
being reviewed. Pursuant to the Federal Rules of Civil
Procedure,
[i]f, on a motion asserting the defense numbered (6) to
dismiss for failure of the pleading to state a claim upon
which relief can be granted, matters outside the pleading
are presented to and not excluded by the court, the
motion shall be treated as one for summary judgment and
disposed of as provided in Rule 56 . . . .
FED . R. C IV . P. 12(b).
Here, the district court adopted the magistrate judge’s
report and recommendation in which the magistrate judge
explicitly noted that, pursuant to Rule 12(b), he was electing
to consider the evidentiary materials submitted by the parties
and treat the motions to dismiss as motions for summary
judgment. Nonetheless, both the magistrate judge in his
recommendation, and the district court in its order, continued
to refer to “the motions to dismiss.” Despite these
misstatements, this court will treat the rulings below as
granting summary judgment. See United Bhd. of Carpenters
v. Ohio Carpenters Health & Welfare Fund, 926 F.2d 550,
558 (6th Cir. 1991) (holding that the district court’s decision
should be viewed as one granting summary judgment, despite
the fact that the district court committed an “error in
nomenclature” by continuing to use the term “dismissal” even
after its consideration of an affidavit converted the proceeding
into one governed by Rule 56).
B. Standard of review
We review de novo the district court’s grant of summary
judgment. See Smith v. Ameritech, 129 F.3d 857, 863 (6th
Cir. 1997). Summary judgment is appropriate when there are
no genuine issues of material fact in dispute and the moving
party is entitled to judgment as a matter of law. See FED . R.
C IV . P. 56(c). In deciding a motion for summary judgment,
the court must view the evidence and draw all reasonable
inferences in favor of the non-moving party. See Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587

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8 Hughes v. Vanderbilt University, et al. No. 99-5499
(1986). The judge is not “to weigh the evidence and
determine the truth of the matter but to determine whether
there is a genuine issue for trial.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986). A genuine issue for trial
exists when there is sufficient “evidence on which the jury
could 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 controlling
statute. Indeed, “[i]n all actions brought under § 1983
alleging a violation of civil rights or personal injuries, the
state statute of limitations governing actions for personal
injuries is to be applied.” Berndt v. Tennessee, 796 F.2d 879,
883 (6th Cir. 1986). Following this rule, the applicable
limitations period in Tennessee is one year. See TENN . C ODE
ANN . § 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. Bryant
Air Conditioning Co., 524 S.W.2d 487 (Tenn. 1975), as
setting forth Tennessee’s rule on that issue. Federal law,
however, controls the determination of when a civil rights
action accrues. See Sevier v. Turner, 742 F.2d 262, 273 (6th
Cir. 1984). In Sevier, this court concluded as follows: “The
statute of limitations commences to run when the plaintiff
knows or has reason to know of the injury which is the basis
of his action. A plaintiff has reason to know of his injury
when he should have discovered it through the exercise of
reasonable diligence.” Id. at 273 (citations omitted). This
court has also stated that “[i]n determining when the cause of
action accrues in section 1983 actions, we have looked to
what event should have alerted the typical lay person to
protect 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 had
received a significant amount of media attention in the mid-
No. 99-5499 Hughes v. Vanderbilt University, et al. 9
1990s. Indeed, “[w]here events receive . . . widespread
publicity, plaintiffs may be charged with knowledge of their
occurrence.” United Klans of Am. v. McGovern, 621 F.2d
152, 154 (5th Cir. 1980). The facts of this case represent just
such a situation. The press release issued by Vanderbilt in
January of 1994 led to the publication of front-page stories in
Nashville’s two leading newspapers. One year later, those
same newspapers, as well as a major television network,
issued reports on a nearly identical lawsuit filed by Henley.
This publicity was sufficient to charge Hughes with
constructive knowledge of the events underlying her cause of
action, especially in light of the fact that, at all relevant times,
she resided in Nashville. See id. at 154-55 (holding that the
plaintiffs should have known that they had a potential claim
against the defendants when the defendants held a press
conference that revealed facts supporting such a claim and
when the conference led to the publication of articles in at
least two newspapers circulated within the federal district in
which the suit was eventually filed).
In support of her appeal, Hughes asserts that she should not
be charged with constructive knowledge because she did not
hear or read any of the media reports discussed above. She
argues in her brief as follows: “At the time of these articles,
Mrs. Hughes did not take nor read the newspapers. Nor did
she watch Channel 5. Her husband with whom she had never
discussed her experience at Caldwell School did not take the
newspaper until 1995 or 1996.”
The relevant inquiry in cases such as the one before us,
however, is an objective one. See J. Geils Band Employee
Benefit Plan v. Smith Barney Shearson, Inc., 76 F.3d 1245,
1254 (1st Cir. 1996) (noting that the objective standard is the
appropriate test for determining a “date of discovery”);
Whirlpool Fin. Corp. v. GN Holdings, Inc., 67 F.3d 605, 609
(7th Cir. 1995) (“[T]o determine if inquiry notice has been
triggered an objective ‘reasonable’ diligence standard must be
applied to the facts.”); Volk v. D.A. Davidson & Co., 816 F.2d
1406, 1417 (9th Cir. 1987) (“[T]he extent to which a plaintiff

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