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RITCHIE v. U.S.

May 24, 2004.

WAYNE A. RITCHIE, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant



The opinion of the court was delivered by: MARILYN PATEL, Chief Judge, District

MEMORANDUM & ORDER Plaintiffs Motion for Summary Judgment
Plaintiff Wayne Ritchie has alleged in this action that the Central Intelligence Agency and the Bureau of Narcotics tested psychoactive drugs on unknowing and unwitting American citizens including plaintiff during the 1950s, and that this non-consensual testing drove plaintiff to commit an armed robbery on December 20, 1957. Plaintiff initially filed claims against the United States of America under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. ("FTCA"), and against Robert V. Lashbrook and Ira Feldman under the First, Fourth, Fifth and Eighth Amendments to the United States Constitution, Plaintiff sought twelve-million dollars in compensatory damages, as well as costs and attorneys' fees.

The court previously dismissed plaintiff's constitutional claims, but has allowed plaintiff to proceed under the FTCA. Now before the court are plaintiff and defendant's cross-motions for summary judgment. Defendant has filed for complete summary judgment on the issue of causation, arguing that plaintiff cannot prove that he was administered lysergic acid diethylamide (LSD) by the United States government in 1957, and that even assuming that he had been dosed with LSD, he cannot prove that the LSD caused him to commit the armed robbery that gave rise to this action. Plaintiff has moved for summary judgment on the particular issue of whether "Wayne Ritchie was an unwitting LSD victim of CIA Subproject 42."*fn1 Having considered the arguments presented and for the reasons stated below, the court enters the following memorandum and order.

 BACKGROUND

  As explained in this court's July 1, 2002, Memorandum and Order, plaintiff, a former Deputy United States Marshal, alleges that he was unwittingly given food or drinks that were laced with lysergic acid diethylamide (LSD) or another psychoactive drug while he was attending a holiday party in the United States Post Office Building on December 20, 1957. Compl. ¶ 12. According to plaintiff's uncontradicted declaration, Ritchie first arrived at his office's Christmas party at approximately noon on December 20, 1957. Ritchie Dec. ¶ 5. He drank a single bourbon and soda and returned to his office shortly thereafter. Id. Two hours later, Ritchie re-entered the party and consumed three or four more drinks. Id. at 6. Plaintiff then began to feel paranoid and imagined that his fellow officers and co-workers had turned against him. Id. at 7. He left work, returned home briefly, and then visited four bars, where he consumed a total of two more drinks. Id. at 7-9. Still fueled by paranoia, plaintiff then resolved to hold up a bar and returned to his office where he took two revolvers from his personal locker. Id. at 9-10. He entered a fifth bar, had one drink, and then drew a weapon and demanded money. Id. at 10. Someone knocked Ritchie unconscious, and he was subsequently arrested. Id. at 10-11.

  Plaintiff alleges that he was a victim of a federal program, called "MKULTRA," dedicated to the research and development of drugs, including LSD, that might be used to alter human behavior, Compl. ¶¶ 18 & 26, Plaintiff maintains that he "first suspected that he might have been surreptitiously drugged" when he read the obituary of Dr. Stanley Gottlieb, a former CIA agent implicated in that agency's mind-control program, in the newspaper on March 15, 1999. Compl, ¶ 23. He found additional support for his suspicion in April 1999 when he read a diary entry of George White, an agent of the Bureau of Narcotics and allegedly the operating head of the CIA's "mind-altering program" in San Francisco. See Compl. ¶ 24; Ritchie Dep., Exh. B-12 (White was a senior employee at the San Francisco. Federal Narcotics Bureau in the 1950s). White's December 20, 1957, diary entry stated, in part, "xmas party Fed bldg Press Room." Ritchie Dep., Exh. D; Compl. ¶ 25*fn2 White was an MKULTRA subcontractor from approximately 1953 until 1964. McGinn Dec. ¶ 5. In that role, he established a safehouse apartment in San Francisco. where drug tests were conducted on drug informants and prostitutes. Id. Defendant has also produced an extensive record of newspaper and television coverage documenting federal mind-control experimentation. Id., Exhs. A-C (newspaper articles) & X (books).

  Today, neither party disputes that MKULTRA existed, and that Ira Feldman and George White were engaged in the involuntary drugging of unwitting suspects in San Francisco. on behalf of the CIA. See generally 2nd Feldman Dec. Both sides agree further that plaintiff suffered a brief psychotic episode on the night of December 20, 1957, that resulted in his attempted robbery of the Shady Grove Bar. See, e.g., Gottlieb Rep., at 17 ("Brief Psychotic Disorder on December 20 1957"); Ketchum Rep., at 10 ("It is certainly appropriate . . . to regard Wayne's episode as a temporary psychotic disorder."). These cross-motions for summary judgment concern the particular questions of whether Wayne Ritchie was himself a victim of the CIA's MKULTRA program, and whether Ritchie can establish that this alleged drugging with LSD was the cause of his psychotic episode.

 LEGAL STANDARD

  Summary judgment is proper when the pleadings, discovery and affidavits show that there is "no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Material facts are those which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id. The moving party for summary judgment bears the burden of identifying those portions of the pleadings, discovery and affidavits that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986). On an issue for which the opposing party will have the burden of proof at trial, the moving party need only point out "that there is an absence of evidence to support the nonmoving party's case." Id. Once the moving party meets its initial burden, the nonmoving party must go beyond the pleadings and, by its own affidavits or discovery, "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). Mere allegations or denials do not defeat a moving party's allegations. Id.; see also Gasaway v. Northwestern Mut. Life Ins. Co., 26 F.3d 957, 960 (9th Cir. 1994). The court may not make credibility determinations, Anderson. 477 U.S. at 249, and inferences to be drawn from the facts must be viewed in the light most favorable to the party opposing the motion. Masson v. New Yorker Magazine, 501 U.S. 496, 520 (1991).

 DISCUSSION

 I. Admission of the Levy and Loftus Declarations

  At a case management conference held on November 5, 2003, defendant's counsel announced that she had filed Rule 26 reports for two additional expert witnesses, Dr. Mark I. Levy, M.D., and Dr. Elizabeth F. Loftus, Ph.D., within the past two days, and that she intended to rely upon the testimony of these two experts in her motion for summary judgment. Defendant had already long since filed Rule 26 reports for two other expert witnesses, and plaintiff had been afforded the opportunity to depose these witnesses. In light of the fact that this case is approximately three years old, and the fact that cross-motions for summary judgment have long been anticipated, the court noted that it did not look favorably upon the eleventh-hour introduction of defendant's third and fourth experts.*fn3 Nonetheless, the court stated that it would allow defendant to submit a declaration describing the necessity of having the court consider the declarations of Dr. Levy and Dr. Loftus, and might allow said testimony into the record were such necessity well established.

  Defendant's counsel has failed to provide any reasonable argument that Dr. Levy and Dr. Loftus are essential to the proper resolution of these motions for summary judgment. In its proffer of their testimony, defendant merely restates its spurious claim that no deadlines existed in this case for the filing of expert reports and that defendant only became aware of the existence of these experts in September 2003. These assertions elide the fundamental points of timeliness at issue here, namely that this case is already several years old, and that plaintiff had already filed a motion for summary judgment before defendant filed reports of its third and fourth experts. Reasonable diligence on the part of defendant's counsel would have brought these experts to the fore much earlier — the issues about which these individuals opine are not new, only the experts themselves are. Before this court could consider these two new experts in the context of this motion for summary judgment, it would be necessary to allow plaintiff's to depose them both and submit an updated declaration from plaintiff's own expert in response. These steps would likely occasion an additional delay in these proceedings of several months, if not more. Defendant has failed to offer any particularized explanation regarding the importance of the opinions offered by Dr. Levy and Dr. Loftus, or any reason that this court should agree to further postpone consideration of the parties' long-awaited motions for summary judgment on their or defendant's behalf. By consequence, the court declines to consider the declarations of Dr. Levy and Dr. Loftus in conjunction with these motions.*fn4

 II. Ritchie as Unwilling LSD Victim

  A. Plaintiff's Principal Proffered Facts

  1. Direct Evidence

  In support of his motion for summary judgment on the issue of whether he was administered LSD unwittingly pursuant to CIA Subproject 42, Ritchie relies upon the confluence of several different pieces of evidence. The most important evidence, and the only direct indication that he may have been drugged, is the deposition testimony of Ira Feldman, a supervisory group head at the Federal Bureau of Narcotics (FBN), who worked under George White and Dr. Sidney Gottlieb (another CIA employee) on the MKULTRA project. Plaintiff first deposed Feldman on July 30, 2002; when further evidence linking Feldman to Project MKULTRA subsequently came to light this court permitted plaintiff to depose Feldman a second time. During this second deposition, taken on February 7, 2003, Feldman appears to admit that he administered LSD to Wayne Ritchie without Ritchie's knowledge or consent. Feldman gives this indication three times, though each reference is somewhat oblique. First, he states: "I drugged guys involved in about ten, twelve, period, [sic] I didn't do any follow-up, period, because it wasn't a very good thing to go and say `How do you feel today?' You don't give them a tip. You just back away and let them worry like this nitwit, Ritchie". 2nd Feldman Dep., at 428 (emphasis added). Following that statement, Feldman engaged in a colloquy with ...

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