112 150 FEDERAL REPORTER, 3d SERIES · 2019. 2. 1. · 112 150 FEDERAL REPORTER, 3d SERIES broadcasts and markets them to a specific clientele. See, Pacific and Southern Co., Inc

112 150 FEDERAL REPORTER, 3d SERIES

broadcasts and markets them to a specificclientele. See, Pacific and Southern Co.,Inc. v. Duncan, 744 F.2d 1490 (11th Cir.1984)(off-the-air videotaping of news broadcastsfor sale to subjects of the stories not fairuse).

Kirkwood has not met his burden of show-ing that his use of Infinity’s broadcasts doesnot infringe Infinity’s copyrights. Kirkwoodlikens Dial–Up to a library photocopy ma-chine, invoked by customers whose particularuse may or may not be infringing. However,as Infinity points out, large-scale photocopy-ing, even for the statutorily-approved pur-pose of educational use, can still infringe.See e.g., Princeton, 99 F.3d at 1389 (courtshave rejected attempts by for-profit users tostand in the shoes of their customers); BasicBooks, Inc. v. Kinko’s Graphics Corp., 758F.Supp. 1522, 1526 (S.D.N.Y.1991). See alsoTexaco, 60 F.3d at 931 (photocopying entirearticles for personal archival use not a fairuse). Given the potential for large-scale re-transmission of Infinity’s broadcasts by Kirk-wood’s service, we conclude that Dial–Up’sretransmission of Infinity’s copyrightedbroadcasts is not a fair use.

C. Conclusion

Our holding that Kirkwood’s is not a fairuse does not necessarily end the case be-cause Kirkwood has also asserted the de-fense that he is a ‘‘carrier’’ and thus is statu-torily exempted from liability. See 17 U.S.C.§ 111(a)(3). The district court, because itfound Kirkwood’s fair use defense meritori-ous, did not address the carrier defense. 965F.Supp. at 561.

As part of its argument that the fair usedefense does not apply, Infinity says that theexistence of an exemption from infringementliability for statutory carriers implies thatCongress foresaw retransmission and speci-fied when it would and would not constituteinfringement. By this argument, if Kirk-wood is not a carrier (as Infinity argues he isnot), then his retransmission could not be afair use. If we had decided that Dial–Upconstituted a fair use, this argument wouldacquire more importance since we wouldwant to satisfy ourselves that Congress didnot intend that all retransmissions not cov-

ered by the carrier provisions be deemedinfringements (an issue on which we take noposition). However, since we decide thatDial–Up is not a fair use, we need not bolsterthat conclusion by addressing Infinity’s fairuse argument based on the carrier provi-sions. As for the carrier defense itself, wethink it is sound judicial administration toleave this issue to the district court to decidein the first instance and we, of course, ex-press no opinion as to the merits of thatdefense.

The judgment of the district court is re-versed and the case is remanded for furtherproceedings in accordance with this opinion.

,

Gloria KRONISCH, Executrix of theEstate of Stanley Milton Glickman,

Plaintiff–Appellant,

v.

UNITED STATES of America, SidneyGottlieb, in his individual and in hisofficial capacities, Richard Helms, in hisindividual and in his official capacities,and John Does, unknown agents of theCentral Intelligence Agency, Defen-dants–Appellees.

No. 97–6116.

United States Court of Appeals,Second Circuit.

Argued Jan. 30, 1998.

Decided July 9, 1998.

Plaintiff brought suit against UnitedStates and two officials of the Central Intelli-gence Agency (CIA), alleging that he wasone of the victims of tests conducted by CIAin the 1950s in which lysergic acid diethyla-mide (LSD) was administered to unsuspect-ing persons. The United States DistrictCourt for the Southern District of New York,Kimba M. Wood, J., 1997 WL 907994, adopt-

113KRONISCH v. U.S.Cite as 150 F.3d 112 (2nd Cir. 1998)

ing report and recommendation of NaomiReice Buchwald, United States MagistrateJudge, entered summary judgment for defen-dants. Plaintiff appealed. The Court of Ap-peals, José A. Cabranes, Circuit Judge, heldthat: (1) plaintiff was aware of basic facts ofhis Federal Tort Claims Act (FTCA) claimmore than two years before filing administra-tive claim, and he failed to exercise reason-able diligence after becoming aware of thosefacts, and, thus, his FTCA claim againstUnited States was untimely; (2) to extentBivens claims were based on allegation thatdefendant officials were liable for devisingand executing program of covert CIA drugtesting of which plaintiff was a subject, theseclaims were time-barred; (3) jury questionexisted as to timeliness of remaining Bivensclaim against official who headed drug test-ing program, alleging that official was theperson who administered LSD-laced drink toplaintiff; (4) jury was permitted, though notrequired, to draw adverse inference againstofficial based on CIA’s destruction of docu-ments and files related to its drug testingprogram; (5) circumstantial evidence, com-bined with possibility that jury would chooseto draw adverse inference, was sufficient topreclude summary judgment; and (6) offi-cial’s alleged drugging of plaintiff in Pariswas sufficiently related to official’s work inNew York to make out prima facie showingof long-arm jurisdiction over official underNew York long-arm statute.

Affirmed in part, vacated in part, andremanded.

See also: 1994 WL 524992, 1995 WL303625.

1. Federal Courts O802

On appeal from grant of summary judg-ment for defendants, reviewing court is re-quired to view facts in light most favorable toplaintiff. Fed.Rules Civ.Proc.Rule 56, 28U.S.C.A.

2. Federal Courts O776

Court of Appeals reviews de novo thedistrict court’s determination that plaintiff’sclaims are barred by statute of limitations.

3. Limitation of Actions O95(5)

Plaintiff was aware of basic facts of hisFederal Tort Claims Act (FTCA) claim morethan two years before he filed administrativeclaim alleging that he was victim of lysergicacid diethylamide (LSD) testing by CentralIntelligence Agency (CIA), and he also failedto exercise reasonable diligence in pursuinghis claim thereafter, thus rendering hisFTCA claim untimely; plaintiff first came tobelieve that he had been drugged by CIAfour years before filing claim, when he wastold by his sister about congressional hear-ings into CIA testing program and began towatch hearings on television. 28 U.S.C.A.§ 2401(b).

4. Limitation of Actions O95(3), 104(1)

Ordinarily, Federal Tort Claims Act(FTCA) claim accrues at time of injury, but,in cases where government conceals acts giv-ing rise to plaintiff’s claim, or where plaintiffwould reasonably have had difficulty discern-ing fact or cause of injury at time it wasinflicted, the so-called ‘‘diligence-discoveryrule of accrual’’ applies, under which accrualmay be postponed until plaintiff has or withreasonable diligence should have discoveredcritical facts of both his injury and its cause.28 U.S.C.A. § 2401(b).

See publication Words and Phrasesfor other judicial constructions and def-initions.


To apply ‘‘diligence-discovery rule of ac-crual’’ for Federal Tort Claims Act (FTCA)claim, discovery of ‘‘critical facts’’ of injuryand causation is not an exacting requirement,but requires only knowledge of, or knowledgethat could lead to, the basic facts of theinjury, i.e., knowledge of injury’s existenceand knowledge of its cause or of person orentity that inflicted it; plaintiff need notknow each and every relevant fact of hisinjury or even that injury implicates cogniza-ble legal claim, but, rather, claim will accruewhen plaintiff knows, or should know, enoughof critical facts of injury and causation toprotect himself by seeking legal advice. 28U.S.C.A. § 2401(b).



Federal Tort Claims Act (FTCA) claimdoes not accrue when person has merehunch, hint, suspicion, or rumor of claim, butsuch suspicions do give rise to duty to inquireinto possible existence of a claim in exerciseof due diligence. 28 U.S.C.A. § 2401(b).


Central Intelligence Agency’s (CIA) re-sponse to plaintiff’s document request wouldnot toll statute of limitations on Federal TortClaims Act (FTCA) claim alleging that plain-tiff was victim of tests conducted by CIA inwhich lysergic acid diethylamide (LSD) wasadministered to unsuspecting persons, de-spite plaintiff’s contention that response wasmisleading and constituted a ‘‘fresh conceal-ment;’’ CIA merely informed plaintiff that ithad completed search of its files and haduncovered no record of him, and there wasno reason to believe that this response wasinaccurate in light of prior destruction ofrelevant CIA documents. 28 U.S.C.A.§ 2401(b).


Justice Department’s response to queryfrom plaintiff was not a ‘‘concealment’’ thatwould toll statute of limitations on FederalTort Claims Act (FTCA) claim alleging thatplaintiff was a victim of tests conducted byCentral Intelligence Agency (CIA) in whichlysergic acid diethylamide (LSD) was admin-istered to unsuspecting persons, since De-partment’s letter merely informed plaintiffthat Department lacked jurisdiction to expe-dite CIA’s response to his document request,and that plaintiff’s inquiry did not appear tomerit special investigation by Attorney Gen-eral. 28 U.S.C.A. § 2401(b).

9. United States O50.20

Federal courts in New York apply three-year statute of limitations period to Bivensclaims.

10. Federal Courts O424, 427

While state law supplies statute of limi-tations period for Bivens claim, federal lawdetermines when federal claim accrues.

11. Limitation of Actions O104(1)Under federal law, limitations period

governing Bivens constitutional tort claimswill be equitably tolled so long as defendants’concealment of their wrongdoing preventedplaintiff from becoming aware of, or discover-ing through the exercise of reasonable dili-gence, his cause of action.

12. Limitation of Actions O95(5)To extent plaintiff’s Bivens claims were

based on allegation that defendant CentralIntelligence Agency (CIA) officials were lia-ble for devising and executing program ofcovert CIA drug testing of which plaintiffwas a subject, these claims accrued whenplaintiff became aware of basic facts underly-ing his claim, thus rendering claims untimelywhen filed more than three years thereafter;four years before filing suit, plaintiff was toldabout and began watching televised congres-sional hearings on CIA drug experimentationprogram, he learned from hearings that firstofficial headed CIA’s drug experimentationprogram at relevant time, and he would havebeen able to identify second official had heinquired.

13. Federal Civil Procedure O2515To extent plaintiff’s Bivens claim alleged

that particular Central Intelligence Agency(CIA) official was the person who laced plain-tiff’s drink with lysergic acid diethylamide(LSD), as part of CIA drug experimentationprogram several decades earlier, it was ques-tion for jury whether plaintiff should havebeen able, through exercise of due diligenceand more than three years prior to filing suit,to identify official as the clubfooted man whoserved plaintiff his drink in 1952, thus pre-cluding summary judgment on Bivens claimon statute of limitations grounds.

14. Federal Civil Procedure O2515Plaintiff’s circumstantial evidence that

he may have been one of the victims ofCentral Intelligence Agency’s (CIA) drugtests in 1950s, when combined with possibili-ty that jury would choose to draw adverseinference based on CIA’s destruction of itsfiles on its drug testing program, was suffi-cient to entitle plaintiff to proceed to trial onhis Bivens constitutional tort claim, allegingthat particular CIA official laced his drink


with lysergic acid diethylamide (LSD) as partof CIA drug experimentation program, thusprecluding summary judgment.

15. United States O50.20For purposes of plaintiff’s Bivens consti-

tutional tort claim, alleging that particularCentral Intelligence Agency (CIA) officiallaced plaintiff’s drink with lysergic acid di-ethylamide (LSD) several decades earlier,jury was permitted, though not required, todraw adverse inference against official basedon CIA’s destruction of documents and filesrelated to its drug testing program, at offi-cial’s direction.

16. Evidence O78Party’s intentional destruction of evi-

dence relevant to proof of an issue at trialcan support inference that the evidencewould have been unfavorable to party re-sponsible for its destruction.

17. Evidence O78For adverse inference to arise from de-

struction of evidence, party having controlover the evidence must have had obligationto preserve it at time it was destroyed, andthis obligation to preserve evidence ariseswhen party has notice that evidence is rele-vant to litigation, most commonly when suithas already been filed, providing the partyresponsible for the destruction with expressnotice, but also on occasion in other circum-stances, as for example when party shouldhave known that evidence may be relevant tofuture litigation.

18. Evidence O78For adverse inference to arise from de-

struction of evidence, once court has conclud-ed that party was under obligation to pre-serve the evidence that it destroyed, it mustthen consider whether the evidence was in-tentionally destroyed, and likely contents ofthat evidence.

19. Evidence O78Where party loses opportunity to identi-

fy a particular document or documents like-ly to contain critical evidence because filesthat might contain the document(s) have allbeen destroyed, prejudiced party may bepermitted inference in his favor, arising

from destruction of evidence, so long as hehas produced some evidence suggesting thata document or documents relevant to sub-stantiating his claim would have been includ-ed among the destroyed files.

20. Federal Civil Procedure O2546Destruction of evidence, standing alone,

is not enough to allow a party who hasproduced no evidence, or utterly inadequateevidence, in support of given claim to survivesummary judgment on that claim, but, whereinnocent party has produced some, not insub-stantial, evidence in support of his claim, theintentional destruction of relevant evidenceby opposing party may push claim that mightnot otherwise survive summary judgmentover the line. Fed.Rules Civ.Proc.Rule 56,28 U.S.C.A.

21. Federal Courts O76.15Central Intelligence Agency (CIA) offi-

cial’s alleged drugging of plaintiff in Pariswas sufficiently related to official’s work inNew York to make out prima facie showingof long-arm jurisdiction over official under‘‘transacting business’’ provision of NewYork’s long-arm statute, for purposes of Bi-vens claim alleging that official laced plain-tiff’s drink with lysergic acid diethylamide(LSD) several decades earlier as part of CIAdrug testing program headed by official,based on official’s admitted visits to NewYork, during relevant time frame, to personsinvolved in CIA’s testing program, and offi-cial’s testimony that he may have self-admin-istered LSD in New York City. N.Y.McKin-ney’s CPLR 302(a), par. 1.

22. Constitutional Law O305(5) Federal Courts O417

Personal jurisdiction of federal courtover non-resident defendant is governed bylaw of the state in which court sits, subject tocertain constitutional limitations of due pro-cess. U.S.C.A. Const.Amend. 5.

23. Federal Civil Procedure O1825Where district court decides pretrial mo-

tion to dismiss for lack of personal jurisdic-tion on basis of written record, without hold-ing evidentiary hearing, plaintiff need onlymake prima facie showing of jurisdictionthrough its own affidavits and supporting


materials to defeat motion. Fed.Rules Civ.Proc.Rule 12, 28 U.S.C.A.

24. Constitutional Law O305(5) Courts O12(2.15)

To make out prima facie showing ofpersonal jurisdiction over defendant under‘‘transacting business’’ provision of NewYork’s long-arm statute, plaintiff must showthat defendant purposefully availed himselfof privilege of conducting activities withinNew York such that bringing defendant be-fore a New York court does not offend dueprocess, and that plaintiff’s cause of actionarose out of those activities in New York.N.Y.McKinney’s CPLR 302(a), par. 1.

25. Courts O12(2.10)For cause of action to ‘‘arise out of’’

party’s activities in New York, for purposesof New York’s long-arm statute, there mustbe articulable nexus, or substantial relation-ship, between claim asserted and actions thatoccurred in New York. N.Y.McKinney’sCPLR 302(a), par. 1.

See publication Words and Phrasesfor other judicial constructions and def-initions.

Sidney Bender, Leventritt Lewittes &Bender, New York City (Risa Bender, ofcounsel), for Plaintiff–Appellant.

Nancy G. Milburn, Assistant United StatesAttorney for the Southern District of NewYork, New York City (Mary Jo White, Unit-ed States Attorney for the Southern Districtof New York, Steven M. Haber, AssistantUnited States Attorney, of counsel), for De-fendants–Appellees.

Before: CALABRESI, CABRANES, andHEANEY,* Circuit Judges.

JOSiE A. CABRANES, Circuit Judge:Gloria Kronisch, executrix of the estate of

Stanley Milton Glickman (‘‘Glickman’’ or‘‘plaintiff’’), appeals from a judgment of theUnited States District Court for the South-ern District of New York (Kimba M. Wood,

Judge) granting summary judgment in favorof defendants. Glickman brought suitagainst the United States of America andtwo officials of the Central Intelligence Agen-cy (the ‘‘CIA’’), Sidney Gottlieb and RichardHelms, alleging that he was one of the vic-tims of the CIA’s program to test the effectsof mind-altering drugs, including lysergicacid diethylamide (‘‘LSD’’), on unwitting sub-jects beginning in the early 1950s. Glickmanclaims that Gottlieb or some other agent ofthe United States government placed LSD inhis drink in a Paris café in October 1952.The district court, adopting in full the conclu-sions of the Report and Recommendation ofMagistrate Judge Naomi Reice Buchwald,granted defendants’ motion for summaryjudgment on the bases that plaintiff hadfailed to establish a genuine issue of materialfact as to liability, that his claims were time-barred, and that the court lacked personaljurisdiction over Gottlieb and Helms. Weaffirm in part, vacate in part, and remand.

I.

A. The CIA’s Drug–Testing Programs

The Select Committee to Study Govern-mental Operations with Respect to Intelli-gence Activities, chaired by the late SenatorFrank Church of Idaho (the ‘‘Church Com-mittee’’), held hearings in 1975 to investigatevarious CIA activities, including the testingand use of chemical and biological agents bythe intelligence community. The final reportof the Church Committee, published in 1976,explained that the CIA was acutely con-cerned in the late 1940s and early 1950s thatthe Soviet Union, China, and other Commu-nist countries had used, or were developingthe capacity to use, chemical and biologicalagents and other techniques for purposes ofinterrogation, brainwashing, and attacksagainst United States and Allied personnelabroad. See Final Report of the Select Com-mittee to Study Governmental Operationswith Respect to Intelligence Activities, 94thCong., 2d Sess. (Apr. 26, 1976), at 392(‘‘Church Committee Report’’). ‘‘Of particu-

* The Honorable Gerald W. Heaney, of the UnitedStates Court of Appeals for the Eight Circuit,

sitting by designation.


lar concern was the drug LSD.’’ 1 Id. Asdescribed by the Church Committee Report,

In order to meet the perceived threat tonational security, substantial programs forthe testing and use of chemical and biologi-cal agents—including projects involvingthe surreptitious administration of LSD tounwitting nonvolunteer subjects at all so-cial levels, high and low, native Americanand foreign—were conceived, and imple-mented. These programs resulted in sub-stantial violations of the rights of individu-als within the United States.

Id. at 393 (internal quotation marks omitted).In the late 1970s, at the request of theSubcommittee on Health and Scientific Re-search of the Senate Committee on HumanResources, chaired by Senator Edward M.Kennedy of Massachusetts (the ‘‘KennedyCommittee’’), the CIA attempted to identifyvictims of the drug tests. The CIA ultimate-ly identified sixteen unwitting subjects ofLSD tests in the United States, but did notidentify any victims of overseas testing.

The earliest CIA program involving theuse of chemical and biological agents wasapproved by the Director of Central Intelli-gence (‘‘DCI’’) in 1950. Id. at 387. Knowninitially as Project BLUEBIRD and renamedARTICHOKE in August 1951, the objectivesof this program were the development ofdefensive techniques for resisting interroga-tion as well as ‘‘the evaluation of offensiveuses of unconventional interrogation tech-niques, including hypnosis and drugs.’’ Id.The project included both controlled in-houseexperiments regarding interrogation tech-niques, as well as overseas interrogations onforeign nationals using nonhallucinogenicdrugs (so-called ‘‘truth serums’’) that oc-curred in ‘‘safehouses’’ or other secure loca-tions. See id. at 387–88. The overseas in-terrogations were conducted upon known orsuspected foreign intelligence agents, double

agents, and defectors, but, according to thegovernment, also may have included personsnot suspected of espionage or wrongdoing.See Declaration of Nancy G. Milburn, Assis-tant United States Attorney for the SouthernDistrict of New York, in Support of Defen-dants’ Motion for Summary Judgment, Ex-hibits 4–8 (April 25, 1996) (‘‘Milburn Declara-tion’’). During two overseas trips in 1952,interrogations were conducted by ARTI-CHOKE teams using ‘‘new drugs,’’ identifiedas seconal, dexedrine, and marijuana. Id.Ex. 10. The documents contained in therecord before us do not indicate the use ofhallucinogenic drugs such as LSD as part ofthe BLUEBIRD/ARTICHOKE Program,nor do the BLUEBIRD/ARTICHOKE docu-ments indicate that interrogations took placein France—where Glickman alleges he wasdrugged in October 1952—or that they wereperformed on Americans overseas. SeeKronisch v. United States, No. 83 Civ. 2458,1997 WL 907994, at *5–*6 (S.D.N.Y. April 14,1997) (‘‘Kronisch III ’’).

Based on a proposal to the DCI fromdefendant Richard Helms—then the CIA’sAssistant Deputy Director for Plans—theCIA’s technical research component, knownas the Technical Services Division (‘‘TSD’’),initiated Project MKULTRA, the agency’sprincipal project to study the effects of chem-ical and biological agents on human behavior.See Church Committee Report at 389–90.Although not formally approved by the DCIuntil April 13, 1953, id. at 390, ProjectMKULTRA was ‘‘actively underway sincethe middle of 1952.’’ Milburn Declaration,Ex. 23. MKULTRA included 149 subpro-jects that the CIA contracted out, by meansof a special funding mechanism intended toensure the highest level of secrecy, to spe-cialists in universities, hospitals, pharmaceu-tical houses, and public and private institu-

1. As the Church Committee Report explains:The CIA had received reports that the SovietUnion was engaged in intensive efforts to pro-duce LSD; and that the Soviet Union hadattempted to purchase the world’s supply ofthe chemical. As one CIA officer who wasdeeply involved in the work with this drugdescribed the climate of the times: ‘‘[It] isawfully hard in this day and age to reproducehow frightening all of this was to us at the

time, particularly after the drug scene has be-come as widespread and as knowledgeable inthis country as it did. But we were literallyterrified, because this was the one materialthat we had ever been able to locate that reallyhad potential fantastic possibilities if usedwrongly.’’

Id. at 392–93, 91 S.Ct. 1999 (quoting testimonyof CIA officer, 11/21/75) (alteration in original).


tions. See Church Committee Report at390–91; Kronisch III, 1997 WL 907994, at*6; Milburn Declaration, Ex. 28. DefendantSidney Gottlieb, who at the time was Chief ofthe Chemical Division of TSD, was put incharge of planning and organizing MKUL-TRA in 1952.

As described in the Church CommitteeReport, LSD was one of the materials testedin the MKULTRA program, and that testingincluded the ‘‘surreptitious administration [ofLSD] to unwitting nonvolunteer subjects innormal life settings by undercover officers ofthe Bureau of Narcotics acting for the CIA.’’Church Committee Report at 391. In theview of the CIA, such surreptitious testingwas important because the ‘‘testing of mate-rials under accepted scientific proceduresfails to disclose the full pattern of reactionsand attributions that may occur in operation-al situations.’’ Id. (internal quotation marksand citation omitted). The record shows thatBureau of Narcotics Agent George White,who was asked by Gottlieb in 1952 to workon LSD research for the CIA, see Declara-tion of Sidney Gottlieb ¶ 4 (April 23, 1996)(‘‘Gottlieb Declaration’’), conducted LSD ex-periments on unsuspecting persons in NewYork City. White may have given LSD tounwitting friends in his New York Cityapartment in November 1952, and beginningin June 1953 he administered LSD to unsus-pecting persons (typically drug informantsand prostitutes) with whom he came intocontact in his work as a narcotics agent. SeeKronisch III, 1997 WL 907994, at *6 n. 8. Hemay also have administered LSD to one ormore unsuspecting persons at a bar. SeeHearings Before the Subcommittee onHealth and Scientific Research of the SenateCommittee on Human Resources on S. 1893,95th Cong., 1st Sess. 204 (Sept. 20 and 21,1977) (‘‘Kennedy Committee Hearings’’) (tes-timony of Sidney Gottlieb).

In addition to testing LSD on unwittingsubjects in the United States, ‘‘[a] specialprocedure, designated MKDELTA, was es-tablished to govern the use of MKULTRAmaterials abroad.’’ Church Committee Re-port at 391. The Church Committee deter-mined ‘‘that the use of these materialsabroad began in 1953, and possibly as early

as 1950.’’ Id. (emphasis added). Defendantsassert that overseas use of LSD was limitedto formal interrogation settings, and thatthese interrogations were performed exclu-sively on foreign nationals. They claim thatGottlieb traveled overseas to participate inthese interrogations on three occasions be-tween late 1953—a year or more after plain-tiff’s alleged incident—and 1956. They as-sert that the first of these trips was to theFar East, and while national security con-cerns prevent them from divulging the loca-tions of the other two interrogations, theyhave represented that neither occurred inFrance. See Brief of Defendants–Appelleesat 8. Other than these three occasions, defen-dants assert that ‘‘neither Gottlieb nor any-one else in TSD participated in any overseasinterrogations or operations in which a per-son was given LSD.’’ Id.

However, as the Church Committee Re-port indicates, ‘‘[b]ecause MKULTRA rec-ords were destroyed, it is impossible to re-construct the operational use of MKULTRAmaterials by the CIA overseas.’’ ChurchCommittee Report at 391. MKULTRA rec-ords were destroyed in January 1973 by TSDpersonnel acting on the orders of Gottlieb,who in turn had obtained approval fromHelms. See id. at 389. During hearings intothe CIA’s drug-testing activities held by theKennedy Committee, Gottlieb testified thathe had ordered the files destroyed for threereasons: to hide the identities of researcherswho had assisted the CIA on express assur-ances of confidentiality; to prevent the rec-ords (many of which were incomplete) frombeing misunderstood once he and others whowere most familiar with the program retired;and as part of a CIA-wide drive to reduce theamount of paper it stored. See KennedyCommittee Hearings at 195 (testimony ofSidney Gottlieb).

The destruction of MKULTRA documents‘‘made it impossible for the [Church] Com-mittee to determine the full range and extentof the largest CIA research program involv-ing chemical and biological agents,’’ and ‘‘pre-vented the Committee from determining thefull extent of the operations which made useof materials developed in the MKULTRAprogram.’’ Church Committee Report at


404. However, many financial records relat-ed to MKULTRA—some of which referredto substantive aspects of the program—didescape destruction, and were the subject oftestimony by Gottlieb and others at the Ken-nedy Committee hearings. Neither that tes-timony nor any of the recovered financialrecords contain any reference to plaintiff, orto overseas testing of LSD on unwitting sub-jects in France, or to any overseas testing in1952, when Glickman claims to have beendrugged. The record also shows, however,that few if any Americans other than thoseworking with the CIA had access to LSD inthe early 1950s.

B. Glickman’s Personal History

[1] On appeal from a grant of summaryjudgment for defendants, we are required toview the facts in the light most favorable toplaintiff. See Lightfoot v. Union CarbideCorp., 110 F.3d 898, 908 (2d Cir.1997). Fromthat standpoint, Glickman’s personal historyincludes the following:

In October 1952, Glickman was pursuing apromising career as an artist in Paris. Hewas approached one evening by an acquain-tance who asked Glickman to accompany himto the Café Select to meet some Americanfriends. Upon meeting these men at theCafé Select, Glickman and the men engagedin several hours of contentious debate onpolitical issues. As Glickman prepared toleave, one of the men offered Glickman adrink as a conciliatory gesture, and Glickmaneventually accepted. Rather than call overthe waiter, the man walked to the bar to getthe drink, at which point Glickman observedthat he had a clubfoot. Halfway through thedrink, Glickman ‘‘began to experience alengthening of distance and a distortion of[his] perception,’’ and he observed that ‘‘[t]hefaces of the gentlemen flushed with excite-ment as they watched the execution of thedrink.’’ Affidavit of Stanley Milton Glickman¶ 13 (August 20, 1983). One of the men then‘‘brought the topic of discussion to the work-ing of miracles,’’ id., and suggested to Glick-man that surely he would be capable of thispower. Glickman left the café and experi-enced distortions of color and other halluci-nations, believing that he had been poisoned.

When Glickman awoke the next morning, hewas hallucinating intensely.

For approximately two weeks, Glickman‘‘wandered in the pain of madness, delusionand terror,’’ and then decided to return tothe Café Select, where he ‘‘consciously closed[his] eyes to wait for ‘someone’ to come andtell [him] what had happened.’’ Id. ¶ 16. Hewas then carried from the café, placed on thefloor of an automobile, and taken to theAmerican Hospital of Paris, where he wasadmitted on November 11, 1952. Glickmanremained in the hospital for two days, duringwhich time he was examined and given elec-troshock treatment. He signed himself outof the hospital against the wishes of hisattending physician, but returned a day laterand remained as a patient for seven days—during which time he believes he was givenadditional doses of hallucinatory drugs—untila friend arrived and helped him to sign outand to return to his studio. Over the nextten months, Glickman remained mostly in hisstudio, experiencing ‘‘stress, terror, halluci-nation and difficulty eating,’’ which ‘‘reduced[his] body to a feeble quality.’’ Id. ¶ 20.When friends of his brother-in-law’s familysaw him on the street and observed his con-dition, they contacted Glickman’s family, whoarranged for him to be brought back to theUnited States in July 1953.

Glickman was treated by a doctor for sev-eral weeks, and his physical condition beganto improve, but his mental condition did not.He saw psychiatrists on a few occasions, butrefused to continue treatment. Over thenext twenty-five years, he held various oddjobs but never painted again and never led anormal social life. Glickman died on Decem-ber 11, 1992.

C. Procedural History

In 1977, Glickman’s sister, Gloria Kronisch,called him and said that she had read anarticle indicating that the CIA ‘‘had experi-mented with L.S.D. on unsuspecting personsin foreign countries in the 1950’s.’’ Id. ¶ 28.Kronisch sent Glickman the article, andGlickman began to watch the Kennedy Com-mittee hearings on television. It was at thistime that Glickman first formed a belief thathe had been drugged by the CIA in 1952.


During the latter months of 1977 through theend of January 1978, Glickman expressedthis belief in letters to Senator Kennedy, theCIA, and the Attorney General, and at somepoint he unsuccessfully sought legal repre-sentation. After a friend, Dean Corren, trav-eled to Washington in April 1981 and ob-tained additional information about the CIA’sdrug-testing programs by examining the CIAfiles that had earlier been made public pursu-ant to the Freedom of Information Act(‘‘FOIA’’), 5 U.S.C. § 552, Glickman filed anadministrative tort claim with the CIA onDecember 22, 1981. The CIA denied theclaim by letter dated December 1, 1982.Glickman filed this suit on March 30, 1983.

Glickman sued defendant United Statesunder the Federal Tort Claims Act, 28U.S.C. § 2671 et seq. (‘‘FTCA’’), raisingcommon-law tort claims of negligence, inva-sion of privacy, misrepresentation, and inten-tional infliction of emotional distress. Healso sued defendants Gottlieb and Helms intheir individual capacities and in their officialcapacities as former employees of the CIA,2

under Bivens v. Six Unknown NamedAgents of Federal Bureau of Narcotics, 403U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619(1971), raising claims under the First,Fourth, Fifth, and Eighth Amendments to

the United States Constitution. The caselanguished as the result of a series of delays,see Kronisch v. United States, No. 83 Civ.2458, 1994 WL 524992, at *2 (S.D.N.Y. Sept.27, 1994) (‘‘Kronisch I ’’) (describing proce-dural history), and after discovery was com-pleted,3 defendants moved for summaryjudgment. The Magistrate’s Judge’s Reportand Recommendation recommended that themotion be granted on the bases that plain-tiff’s claims were untimely, that plaintiff hadfailed to establish a genuine issue of materialfact on the merits, and that the court lackedpersonal jurisdiction over Gottlieb andHelms. Judge Wood adopted the recommen-dations of Magistrate Judge Buchwald intheir entirety, and granted defendants’ mo-tion. See Kronisch III, 1997 WL 907994.

II.

A. Statute of Limitations

[2] We review de novo the district court’sdetermination that plaintiff’s claims arebarred by the statute of limitations. SeeEagleston v. Guido, 41 F.3d 865, 870 (2dCir.1994).

1. FTCA Claims

[3] The FTCA provides that ‘‘[a] tortclaim against the United States shall be for-

2. The district court dismissed the complaintagainst Helms and Gottlieb insofar as it soughtmoney damages from them in their official ca-pacities. See Robinson v. Overseas Military SalesCorp., 21 F.3d 502, 510 (2d Cir.1994) (Bivensclaim for money damages can only be broughtagainst federal official in his individual capacity).Appellant does not challenge this disposition onappeal.

3. ‘‘In the course of discovery, defendants pro-duced approximately thirty thousand pages ofdocuments, many of which were heavily redactedby the CIA on the basis of the statutory privilegesestablished by the National Security Act of 1947,50 U.S.C. § 403–3(c)(5), and the Central Intelli-gence Agency Act of 1949, 50 U.S.C. § 403g, andthe state secrets privilege. In addition, a rela-tively small amount of information was redactedpursuant to the Privacy Act of 1974, 5 U.S.C.§ 552a.’’ Kronisch I, 1994 WL 524992, at *1(footnote omitted). Plaintiff sought leave tomove to compel disclosure of the redacted mate-rial. To determine whether to permit plaintiff tomake this motion, Magistrate Judge Buchwaldrequested that plaintiff choose fifty documentsthat he believed would be most advantageous tohis case, which the court then reviewed in cam-

era in unredacted form to determine whetherthey contained any relevant information andwhether the privilege assertions were well-found-ed. The parties submitted additional materialsto aid the court in making this determination.See id. The CIA was unable to locate an unre-dacted copy of one of the requested documents,and instead submitted in its place an unredactedcopy of a different document requested by plain-tiff. Magistrate Judge Buchwald sustained theUnited States’ assertions of privilege, found theunredacted documents to be irrelevant to plain-tiff’s claim, and denied plaintiff leave to move tocompel the production of unredacted material inthe remaining documents. See 1994 WL 524992.Judge Wood subsequently affirmed MagistrateJudge Buchwald’s discovery order. See Kronischv. United States, No. 83 Civ. 2458, 1995 WL303625 (S.D.N.Y. May 18, 1995) (‘‘Kronisch II ’’).Substantially for the reasons stated by the districtcourt, we believe that the court did not abuse its‘‘wide discretion in managing pre-trial discov-ery,’’ B.F. Goodrich v. Betkoski, 99 F.3d 505, 523(2d Cir.1996), and, having viewed the unredactedversions of the documents ourselves, we affirmthe district court’s discovery order. We haveconsidered plaintiff’s challenges to the districtcourt’s order, and find them to be without merit.


ever barred unless it is presented in writingto the appropriate Federal agency within twoyears after such claim accrues.’’ 28 U.S.C.§ 2401(b). Inasmuch as plaintiff filed an ad-ministrative claim with the CIA on December22, 1981, his FTCA claim against the govern-ment is untimely if it accrued prior to De-cember 22, 1979.

[4–6] Ordinarily, a plaintiff’s FTCA claimaccrues at the time of injury. See Barrett v.United States, 689 F.2d 324, 327 (2d Cir.1982). However, in cases such as this one,where the government conceals the acts giv-ing rise to plaintiff’s claim, or where plaintiffwould reasonably have had difficulty discern-ing the fact or cause of injury at the time itwas inflicted, the so-called ‘‘diligence-discov-ery rule of accrual’’ applies.4 Under thisrule, ‘‘accrual may be postponed until theplaintiff has or with reasonable diligenceshould have discovered the critical facts ofboth his injury and its cause.’’ Id. Discoveryof the ‘‘critical facts’’ of injury and causationis not an exacting requirement, but requiresonly

knowledge of, or knowledge that could leadto, the basic facts of the injury, i.e., knowl-edge of the injury’s existence and knowl-edge of its cause or of the person or entitythat inflicted itTTTT [A] plaintiff need notknow each and every relevant fact of hisinjury or even that the injury implicates acognizable legal claim. Rather, a claimwill accrue when the plaintiff knows, orshould know, enough of the critical facts ofinjury and causation to protect himself byseeking legal advice.

Guccione v. United States, 670 F.Supp. 527,536 (S.D.N.Y.1987) (citations omitted) (Mot-ley, J.), aff’d on other grounds, 847 F.2d 1031(2d Cir.1988), cert. denied, 493 U.S. 1020, 110S.Ct. 719, 107 L.Ed.2d 739 (1990). A claimdoes not accrue when a person has a merehunch, hint, suspicion, or rumor of a claim,see Hobson v. Wilson, 737 F.2d 1, 35(D.C.Cir.1984), cert. denied, 470 U.S. 1084,105 S.Ct. 1843, 85 L.Ed.2d 142 (1985), butsuch suspicions do give rise to a duty toinquire into the possible existence of a claim

in the exercise of due diligence, see id. at 35& n. 107.

We agree with the district court that Glick-man was aware of the basic facts of hisFTCA claim before December 22, 1979.Glickman first came to believe that he hadbeen drugged by the CIA in 1977, when hewas told by his sister about the KennedyCommittee hearings and began to watch thehearings on television. As Glickman testifiedat his deposition, after watching the KennedyCommittee hearings in 1977 and learning ofthe CIA’s drug tests on unsuspecting personsin the 1950s, he reached ‘‘the logical conclu-sion after remembering the events of my lifein 1952 that I was one of those victims.’’ OnOctober 3, 1977, Glickman made a FOIArequest to the CIA for copies of any docu-ments filed under his name or containing hisname, believing that ‘‘inasmuch as I was oneof [their] victims, they would have my recordin my personal file.’’ Deposition of StanleyMilton Glickman at 283 (October 23, 1987)(‘‘Glickman Deposition’’). Upon receiving aresponse from the CIA advising him that theagency’s only record was of one StanleyGlickman from Illinois who had received em-ployment information from the CIA in 1976,Glickman responded, by letter dated January30, 1978, that he was not that individual, andadded that ‘‘as an aid to your search I willspecify that Paris[,] France in the 1950’s isthe area for you to focus upon.’’ Glickmanalso wrote to Senator Kennedy on October11, 1977, urging him to identify the individualvictims of the CIA’s tests. Senator Kennedyresponded, by letter dated November 1,1977, that neither the CIA nor the KennedyCommittee had yet been able to identifyvictims, ‘‘principally due to the fact that therecords concerning these tests were de-stroyed in 1973.’’ Glickman again wrote toSenator Kennedy on January 28, 1978, ask-ing him for help in obtaining his recordsfrom the CIA, and stating that ‘‘[m]y contin-ued interest in the subject of CIA drug ex-perimentation on unsuspecting persons in the1950’s is due to my belief that I AM ONEOF THOSE PERSONS.’’ Finally, Glickmansought help from Attorney General GriffinBell, informing him in a letter dated Novem-

4. Defendants do not contest that the diligence-discovery rule of accrual applies in this case.

The only dispute is when plaintiff’s claims ac-crued under this rule.


ber 9, 1977 that Glickman believed himself tobe a victim of a CIA drug experiment, andasking him to expedite Glickman’s receipt ofCIA files.

Accordingly, it is clear that Glickman hadformed a firm belief prior to December 22,1979—and certainly no later than January28, 1978, the date of his second letter toSenator Kennedy—that he had been an un-witting victim of a CIA drug experiment.Moreover, based on the information he pos-sessed prior to that date, Glickman believedstrongly enough in his claim to (unsuccessful-ly) seek legal representation. See Guccione,670 F.Supp. at 536 (‘‘[A] claim will accruewhen the plaintiff knows, or should know,enough TTT to protect himself by seekinglegal advice.’’) (citing United States v. Ku-brick, 444 U.S. 111, 122–25, 100 S.Ct. 352, 62L.Ed.2d 259 (1979)).5 Glickman’s firmly ex-pressed belief in his claim and his effort toseek legal advice undermine his later conten-tion that he had only a mere ‘‘hunch’’ or‘‘suspicion’’ of his injury and its cause.

In any event, even if plaintiff’s awarenessof his injury and its cause prior to December1979 could only be characterized as a mere‘‘hunch’’ or ‘‘suspicion,’’ plaintiff would stillhave been under a duty to diligently investi-gate his claim. See Hobson, 737 F.2d at 35& n. 107. However, after his initial inquiries

in 1977 and the early part of 1978, plaintifftook no further steps whatsoever to pursuehis claim until April 1981, when his friendDean Corren went to Washington to examinepublicly available CIA files. Accordingly,plaintiff’s FTCA claim is untimely both be-cause he was aware of the basic facts of hisinjury and its cause more than two yearsbefore filing his administrative claim, andbecause he failed to exercise due diligence inpursuing his claim. Although plaintiff con-tends that his claim did not accrue untilCorren’s trip to Washington in 1981, whichprovided Glickman with more concrete infor-mation about the CIA’s drug-testing pro-gram, this information was merely a moredetailed description of the program of whichGlickman became aware as early as 1977, andwhich had given rise to his firm belief at thattime that he was one of the victims of thisprogram. Indeed, information of the sortobtained by Corren was publicly available(among other places, in the Church Commit-tee Report) long before April 1981, andGlickman offers no explanation as to why hedid not try to obtain such information sooner.

[7, 8] Plaintiff argues that the responseshe received from the CIA and the JusticeDepartment to the letters he sent them weremisleading, and constituted a ‘‘fresh conceal-ment’’6 that should toll the statute of limita-

5. The record is not clear as to exactly whenGlickman first sought legal advice, althoughGlickman’s deposition testimony suggests that itwas as early as 1977 or 1978. In any event,there is no suggestion in the record that Glick-man’s decision to seek legal advice—even assum-ing arguendo that he first did so after December22, 1979—was based on any new informationbeyond that which he possessed as early as 1977.The relevant point is that before December 22,1979, Glickman’s belief that he had beendrugged by the CIA was sufficient for him tohave been aware of the need to protect himselfby seeking legal counsel. Although Glickmanwas not successful at the time in obtaining coun-sel, this fact alone is not dispositive. Inasmuchas Glickman, at the time he sought counsel, knewenough to assert the basic outlines of a cause ofaction capable of surviving a motion to dismissfor failure to state a claim, the fact that counselwas unwilling to take the case, and to developfurther facts through court-ordered discovery,does not prevent the statute of limitations fromrunning. See Kubrick, 444 U.S. at 124, 100 S.Ct.352 (‘‘If [plaintiff] fails to bring suit because he isTTT mistakenly told that he does not have a case,

we discern no sound reason for visiting the con-sequences of such error on the defendant bydelaying the accrual of the claimTTTT’’).

6. The original concealment that occurred by vir-tue of the destruction of MKULTRA documentsin 1973 did not continue to toll the statute oflimitations once Glickman became aware of thebasic facts of his claim in 1977–1978. See, e.g.,Pinaud v. County of Suffolk, 52 F.3d 1139, 1157(2d Cir.1995) (‘‘[W]hen a defendant fraudulentlyconceals the wrong, the time limit of the statuteof limitations does not begin running until theplaintiff discovers, or by the exercise of reasonablediligence should have discovered, the cause ofaction.’’) (emphasis added; internal punctuationand citation omitted). To the extent that plaintiffargues otherwise, he seems to be suggesting thatwithout the destroyed documents, he could nothave been reasonably certain that he wasdrugged by the CIA. However, if plaintiff neededto be reasonably certain that the governmentcaused his injury in order for his FTCA claim toaccrue, Glickman’s claim would not have ac-crued to this day, and might never accrue. Aplaintiff need not have compelling proof of the


tions. This argument is without merit. TheCIA merely informed Glickman, in a letterdated February 10, 1978, that it had complet-ed the search of its files and had uncoveredno record of him. Even assuming arguendothe merits of Glickman’s claim, there is noreason to believe that this response was inac-curate in light of the destruction of MKUL-TRA documents in January 1973. Moreover,at the time he received the CIA’s response,Glickman was already aware, from SenatorKennedy’s letter of November 1, 1977, thatthe MKULTRA files had been destroyed in1973. Therefore, the fact that the CIA un-covered no documents containing Glickman’sname should not have come as a surprise tohim—much less can it be characterized as anobstructive ‘‘concealment’’ warranting thetolling of the statute of limitations. Indeed,although Glickman took no further actions toinvestigate his claim until April 1981, he stat-ed at his deposition that, even after beingtold that the CIA had no records of him, hecontinued to believe that he was a victim of aCIA experiment. As to the Department ofJustice’s response of December 7, 1977, thatletter did nothing more than inform Glick-man, who had requested that the Depart-ment expedite the CIA’s response to hisFOIA request, that the Department lackedjurisdiction to do so and that the inquiry didnot appear to merit a special investigation bythe Attorney General. This letter cannot beregarded as a ‘‘concealment’’ that should tollthe statute of limitations.

In sum, because plaintiff was aware of thebasic facts of his FTCA claim prior to De-cember 22, 1979, and because he failed toexercise reasonable diligence in pursuing hisclaim between early 1978 and April 1981, hisFTCA claim against the United States isuntimely under the applicable two-year stat-ute of limitations.

2. Bivens claims against Helms andGottlieb

Plaintiff alleges Bivens claims against de-fendants Helms and Gottlieb for violating hisconstitutional rights by ‘‘devising and execut-ing a program of experimental L.S.D. testingand electro shock treatment, of which thePlaintiff was a subject.’’ Amended Com-plaint of Stanley Milton Glickman ¶¶ 44–53.He also alleges that Gottlieb was the actualperson who gave him the drink laced withLSD. See id. ¶ 18. We conclude that plain-tiff’s Bivens claims are untimely except inso-far as they allege that Gottlieb was actuallythe person who gave plaintiff the LSD-laceddrink.

[9–11] Federal courts in New York applya three-year statute of limitations period toBivens claims. See Chin v. Bowen, 833 F.2d21, 23–24 (2d Cir.1987). While state lawsupplies the statute of limitations period,‘‘federal law determines when a federal claimaccrues.’’ Eagleston, 41 F.3d at 871. Underfederal law, the limitations period governingplaintiff’s Bivens claims, like the period gov-erning his FTCA claims, will be equitablytolled so long as defendants’ concealment oftheir wrongdoing prevented plaintiff from be-coming aware of, or discovering through theexercise of reasonable diligence, his cause ofaction. See Barrett, 689 F.2d at 327 (‘‘[R]eadinto every federal statute of limitations is theequitable doctrine that in case of defendant’sfraud or deliberate concealment of materialfacts relating to his wrongdoing, time doesnot begin to run until plaintiff discovers, orby reasonable diligence could have discover-ed, the basis of the lawsuit.’’) (internal punc-tuation and citation omitted). Accordingly,inasmuch as plaintiff filed his complaintagainst Gottlieb and Helms on September 13,1983, his claims against them are untimely ifhe was aware of these claims, or should havebeen aware of them through the exercise ofreasonable diligence, before September 13,1980.7

validity of his claim in order for his claim toaccrue—indeed, in cases where plaintiff’s claimis ultimately misconceived, such proof will notexist—but must simply have formed a firm beliefin his claim based on his awareness of the basicfacts of injury and causation.

7. The district court observed that ‘‘[c]onceivably,plaintiff could argue that the limitations period

for his Bivens claims should be tolled during thependency of his administrative tort claim,’’ Kron-isch III, 1997 WL 907994, at *15, although thecourt did not cite any authority in support of thisproposition. The court went on to find, in anyevent, that plaintiff’s Bivens claims accrued morethan three years before the filing of his adminis-trative claim in December 1981, and therefore


[12] Insofar as plaintiff alleges thatHelms and Gottlieb are liable for devisingand executing a program of covert CIA drugtesting of which plaintiff was a subject, weagree with the district court that theseclaims accrued at or about the same time asplaintiff’s FTCA claims against the govern-ment—in no event later than January 28,1978, well before September 1980. It is un-disputed that, after learning of the KennedyCommittee hearings and watching some ofthe testimony on television, Glickman wasaware in 1977 that Gottlieb headed the CIA’sdrug experimentation program in the 1950s.See Original Affidavit of Stanley MiltonGlickman ¶ 27 (appended to Affidavit of Stan-ley Milton Glickman (August 20, 1983)).Moreover, if in the exercise of reasonablediligence plaintiff had made any inquiriesinto which other CIA officials had authorityover the agency’s drug testing program, it isclear that plaintiff would have been able toidentify Helms. Among other things,Helms’s role was well documented in theChurch Committee Report. Indeed, plaintiffdoes not argue that he could not have discov-ered Helms’s role within the limitations peri-od. See Kronisch III, 1997 WL 907994, at*16. Rather, plaintiff argues that the limita-tions period for his Bivens claims should betolled for the same reasons as he advanceswith respect to his FTCA claims. We rejectthese arguments for the reasons statedabove.

[13] Our analysis differs, however, withrespect to plaintiff’s claim that Gottlieb him-self was the person who laced Glickman’sdrink with LSD. Although plaintiff knew in1977 that Gottlieb headed the CIA’s drugtesting program, he only first came to believethat Gottlieb himself was the man who gavehim the drink in the Café Select when Cor-ren asked him, upon returning from Wash-ington in April 1981, whether any of the men

in the café had a clubfoot. Plaintiff allegesthat he then recalled that the man who gavehim the drink was indeed clubfooted—a char-acteristic, Corren informed him, that wasshared by Gottlieb. To the extent that plain-tiff’s Bivens claims are based on the allega-tion that he was drugged by somebody con-nected with the CIA—pursuant to a programinstalled and executed by Helms and Gott-lieb—plaintiff was clearly on notice of theseclaims. However, it is less clear—and, webelieve, a question for the jury—whetherplaintiff should have been able, through theexercise of due diligence, to plausibly connectGottlieb to the man in the café prior to beingtold by Corren that Gottlieb had a clubfoot.See Guccione, 670 F.Supp. at 537 (‘‘The ques-tion whether [a plaintiff] knew or should haveknown the critical facts of his claim, and thesubsidiary question of whether he exerciseddue diligence to discover them are ordinarilymatters for the finder of fact,’’ except where‘‘it is beyond dispute that plaintiff shouldhave known [or] indeed, actually knew thecritical facts of his claim.’’).

Defendants contend that ‘‘[a]ssuming sole-ly for argument that one could reasonablyinfer from Gottlieb’s clubfoot that he person-ally participated in plaintiff’s alleged injury,plaintiff’s reasonably diligent inquiries be-tween 1978 and 1981 could have alerted himto Gottlieb’s foot condition, which is dis-cussed in [John] Marks’s book, [The Searchfor the ‘Manchurian Candidate’ ].’’8 Brief ofDefendants–Appellees at 35. We believethat this is a question of fact for the jury. Itis not so clear that the exercise of reasonablediligence prior to April 1981 would have ledGlickman to identify Gottlieb as the clubfoot-ed man who allegedly drugged him in 1952that we may conclude as a matter of law thatGlickman failed to fulfill his duty of duediligence. See Orlikow v. United States, 682F.Supp. 77, 83–85 (D.D.C.1988) (refusing to

the court had no occasion to decide whether thelimitations period should be tolled during thependency of the administrative claim. Plaintiffdoes not argue on appeal that the filing of anadministrative claim tolls the statute of limita-tions for a Bivens suit, and we therefore have nooccasion to consider the question.

8. John Marks was a former Senate aide andState Department official whose book, The

Search for the ‘‘Manchurian Candidate,’’ based onthousands of pages of CIA documents obtainedthrough the FOIA, gave a detailed description ofthe CIA’s drug-testing programs. The docu-ments reviewed by Corren in 1981 were appar-ently the ones originally made public pursuant toMarks’s FOIA request. See Affidavit of Dean R.Corren ¶ 2 (August 19, 1983).


find that plaintiffs’ claims arising fromMKULTRA drug tests were untimely basedon plaintiffs’ failure to read Marks’s book orparticular articles about the CIA’s drug test-ing program, and concluding that these is-sues of diligence were for the jury).

Similarly, the fact that Glickman may havewatched Gottlieb testify during the 1977Kennedy Committee hearings does not re-quire the conclusion that, as a matter of law,Glickman should have been able to connecthim to the man in the Café Select prior toApril 1981. First of all, notwithstanding thedistrict court’s observation that ‘‘Glickmanhas stated that he watched on television asGottlieb testified about the [CIA’s drug-test-ing] projects before the United States Sen-ate,’’ Kronisch III, 1997 WL 907994, at *16,in fact the record contains conflicting evi-dence as to whether Glickman actuallywatched Gottlieb testify, or whether he sim-ply was aware of Gottlieb’s role within theagency from other witnesses’ testimony, butdid not see Gottlieb himself testify. SeeGlickman Deposition at 283 (stating, in re-sponse to question as to how Glickman hadconcluded that the CIA was responsible fordrugging him, ‘‘I believe that newspaper arti-cle or the television program had statedwhile Mr. Gottlieb was on TV at the time, orhis testimony was on, I don’t know that I sawhim, but I believe—I don’t remember who

testified, but there was information given ofthe programs and their overseas—of theiruse of LSD in the 1950s. I don’t knowwhose testimony I heard.’’). The question ofwhether Glickman actually saw Gottlieb testi-fy in 1977 is a question of fact for the jury.Even if Glickman did see Gottlieb testify, thequestion of whether Glickman should havereasonably been able to connect Gottlieb tothe clubfooted man who gave him the LSD-laced drink twenty-five years earlier is also aquestion for the jury.

In sum, Glickman’s Bivens claims are un-timely insofar as he alleges that Helms andGottlieb were in charge of the CIA programthat led to his being unwittingly druggedwith LSD.9 But his Bivens claims are notuntimely as a matter of law insofar as healleges that Gottlieb himself was the manwho administered the LSD in the Café Selectin 1952. Whether Glickman should havebeen able, through the exercise of reasonablediligence, to make the connection betweenGottlieb and the man in the café within thelimitations period is a question that the jurymust decide.10

B. The Merits—Genuine Issues of MaterialFact

We review a district court’s grant of sum-mary judgment de novo. See Krumme v.

9. Apart from Glickman’s primary claim that hewas drugged at the Café Select by an agent of theUnited States government, who may have beenGottlieb himself, he also claims that he was ad-ministered electroshock treatment and additionalhallucinatory drugs at the American Hospital ofParis. The suggestion is that this treatment wasalso part of the CIA’s drug-testing program. Insupport of this argument, plaintiff introducedevidence that: (1) he had been treated at thehospital for hepatitis earlier in 1952, and a CIAInformation Report summarizing information ac-quired between November 1952 and September1953 (which spans the time of Glickman’s admis-sion to the hospital) states that ‘‘[s]ubjects inwhom even only a slight modification of hepaticfunction is present TTT make a very marked re-sponse to LSD’’; and (2) the psychiatrist whotreated Glickman after the incident at the CaféSelect had published an article regarding hisexperiments with LSD on rabbits that was citedin CIA materials. Whatever else might be saidabout the merits of plaintiff’s claim regarding histreatment at the American Hospital of Paris, thisclaim is part and parcel of plaintiff’s more gener-al (untimely) claim that he was the subject of a

CIA experiment, and not his more specific (time-ly) claim that he was drugged by Gottlieb him-self. In other words, this claim would haveaccrued when plaintiff first came to believe thathe was a victim of CIA drug tests, and is there-fore untimely.

10. It would not avail the plaintiff to argue thathis putative inability to make this factual connec-tion prior to April 1981 also tolls the accrual ofhis FTCA claim and his Bivens claims againstHelms and Gottlieb arising from their roles inthe CIA’s LSD testing program. While Glick-man’s ability, as of April 1981, to potentially linkGottlieb to the man in the café strengthened allof Glickman’s claims, his awareness of the exis-tence of the FTCA claim and the broader Bivensclaim—and hence the commencement of the lim-itations period for those claims—did not dependon his ability to identify Gottlieb as the possibledirect perpetrator of the drugging. So long as aplaintiff has enough information to identify thebasic facts giving rise to his claim, his ignoranceof additional supportive facts does not postponethe very accrual of his claim.


Westpoint Stevens Inc., 143 F.3d 71, 83–84(2d Cir.1998). Summary judgment is appro-priate only if, construing the evidence in thelight most favorable to the non-moving party,no genuine issue of material fact remains tobe resolved by a jury. See Anderson v.Liberty Lobby, Inc., 477 U.S. 242, 247–50,106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Thenon-moving party who will bear the burdenof proof at trial must produce specific factsindicating that a genuine factual issue exists.See Scotto v. Arcadio Almenas, 143 F.3d 105,114 (2d Cir.1998). However, ‘‘[w]e do notresolve disputed issues of fact but determinewhether genuine issues of fact exist to beresolved at trial.’’ Krumme, 143 F.3d 71,83–84.

[14, 15] A discussion of whether Glick-man has produced sufficient evidence to sur-vive summary judgment on his sole timelyclaim (his Bivens claim that Gottlieb was theperson who laced his drink with LSD) mustbegin by focusing on the CIA’s destruction ofits MKULTRA files in 1973, at the directionof Gottlieb and with the approval of Helms.Although we believe, like the district court,that a jury might be skeptical of plaintiff’sclaim that he was drugged by Gottlieb, wealso believe, contrary to the district court,that a jury should be permitted (but notrequired) to draw an adverse inferenceagainst Gottlieb based on the destruction ofMKULTRA documents. Further, we believethat, when combined with the possibility thata jury would choose to draw such an adverseinference, plaintiff’s circumstantial evidencethat he may have been one of the victims ofthe CIA’s drug tests was enough—barelyenough, but enough nonetheless—to entitlehim to proceed to trial.

[16] It is a well-established and long-standing principle of law that a party’s inten-tional destruction of evidence relevant toproof of an issue at trial can support aninference that the evidence would have beenunfavorable to the party responsible for itsdestruction. See, e.g., Nation–Wide Check

Corp. v. Forest Hills Distributors, 692 F.2d214, 217–18 (1st Cir.1982); 2 John HenryWigmore, Evidence in Trials at CommonLaw § 291 (James H. Chadbourn rev.1979).11

This adverse inference rule is supported byevidentiary, prophylactic, punitive, and reme-dial rationales. The evidentiary rationale de-rives from the common sense notion that aparty’s destruction of evidence which it hasreason to believe may be used against it inlitigation suggests that the evidence washarmful to the party responsible for its de-struction. The prophylactic and punitive ra-tionales are based on the equally common-sensical proposition that the drawing of anadverse inference against parties who de-stroy evidence will deter such destruction,and will properly ‘‘plac[e] the risk of anerroneous judgment on the party that wrong-fully created the risk.’’ Nation–Wide Check,692 F.2d at 218. Finally, courts have recog-nized a remedial rationale for the adverseinference—namely, that an adverse inferenceshould serve the function, insofar as possible,of restoring the prejudiced party to the sameposition he would have been in absent thewrongful destruction of evidence by the op-posing party. See Skeete v. McKinsey & Co.,No. 91 Civ. 8093, 1993 WL 256659, at *5(S.D.N.Y. July 7, 1993); Turner v. HudsonTransit Lines, Inc., 142 F.R.D. 68, 74(S.D.N.Y.1991).

[17, 18] In order for an adverse inferenceto arise from the destruction of evidence, theparty having control over the evidence musthave had an obligation to preserve it at thetime it was destroyed. This obligation topreserve evidence arises when the party hasnotice that the evidence is relevant to litiga-tion—most commonly when suit has alreadybeen filed, providing the party responsiblefor the destruction with express notice, butalso on occasion in other circumstances, asfor example when a party should have knownthat the evidence may be relevant to futurelitigation. See Turner, 142 F.R.D. at 72–73;

11. The principle that an adverse inference maybe drawn against a party responsible for the lossor destruction of evidence is often associatedwith the famous common-law case of Armory v.Delamirie, 1 Strange 505, 93 Eng. Rep. 664 (K.B.1722), in which a chimney sweep who found a

jewel sued a jeweler for the loss of the jewel, andwas entitled, based on the jeweler’s return of thering without the stone, to an inference that thestone was ‘‘of the finest water.’’ See Welsh v.United States, 844 F.2d 1239, 1246 (6th Cir.1988); Nation–Wide Check, 692 F.2d at 218.


Skeete, 1993 WL 256659, at *4. Once a courthas concluded that a party was under anobligation to preserve the evidence that itdestroyed, it must then consider whether theevidence was intentionally destroyed, and thelikely contents of that evidence. See Weinr-eich v. Sandhaus, 850 F.Supp. 1169, 1181 n.19 (S.D.N.Y.1994).

The district court properly rejected defen-dants’ argument that an adverse inferencewas not warranted because at the time theMKULTRA documents were destroyed in1973 no litigation, administrative action, orcongressional investigation had commenced,and because Helms’s and Gottlieb’s reasonsfor destroying the evidence allegedly hadnothing to do with the fear of future litiga-tion. See Kronisch III, 1997 WL 907994, at*21. Although defendants claimed that thedocuments were destroyed to preserve theconfidential identities of outside participantsin the MKULTRA program, to prevent in-complete documents from being misunder-stood, and to prevent paper overflow, thedistrict court concluded that ‘‘[i]t is some-what hard to believe that both Gottlieb andHelms TTT were concerned only with theeffect of disclosure on other persons connect-ed to the drug program, and not with thepossible consequences to themselves or tothe CIA.’’ Kronisch III, 1997 WL 907994, at*22. Moreover, the district court observed,Gottlieb’s own expressed fear that the docu-ments might be ‘‘misunderstood’’ could beinterpreted in a number of ways, including asa fear that the documents would become thesubject of litigation. See id. At the veryleast, the district court could not rule out thepossibility that a reasonable jury would findthat Helms and Gottlieb feared the prospectof litigation against them individually, andthat this prospect may have played a role intheir decision to order the destruction ofMKULTRA files. Inasmuch as the veracityof Gottlieb’s stated reasons for destroyingthe MKULTRA documents ‘‘is an issue ofcredibility best left for trial,’’ id., the districtcourt presumed for purposes of consideringthe motion for summary judgment that de-fendants had an obligation to preserve thefiles and that the destruction was intentional,see id. Defendants do not challenge thissound approach on appeal.

Concluding (or, for purposes of summaryjudgment, assuming) that a party has inten-tionally destroyed evidence that it had anobligation to preserve is not the end of thestory, however. We must also attempt todetermine whether there is any likelihoodthat the destroyed evidence would have beenof the nature alleged by the party affected byits destruction. This inquiry is part of ourattempt to place the innocent party in thesame position he would have been in had theevidence not been destroyed by the offendingparty. The task is unavoidably imperfect,inasmuch as, in the absence of the destroyedevidence, we can only venture guesses withvarying degrees of confidence as to what thatmissing evidence may have revealed. None-theless, before we permit the drawing of anadverse inference, we require some showingindicating that the destroyed evidence wouldhave been relevant to the contested issue.See Stanojev v. Ebasco Services, Inc., 643F.2d 914, 923–24 (2d Cir.1981) (refusing todraw inference, based on nonproduction ofpersonnel records, that the records wouldhave substantiated plaintiff’s age discrimina-tion claim, where the nonproduction bore ‘‘nological relationship to a finding of age dis-crimination’’ because ‘‘the documents [were]from a time period prior to [plaintiff]’s as-sumption of the position from which he wasdischarged’’); Skeete, 1993 WL 256659, at *7(refusing to draw adverse inference whereparty had ‘‘not demonstrated prejudice fromthe denial of access to the destroyed or lostmaterials’’ because it had ‘‘fail[ed] to provideany extrinsic evidence that the subject mat-ter of the lost or destroyed materials wouldhave been unfavorable to [the opposing par-ty] or would have been relevant to the issuesin this lawsuit’’). Wigmore states the rule asfollows:

The failure or refusal to produce a relevantdocument, or the destruction of it, is evi-dence from which alone its contents maybe inferred to be unfavorable to the pos-sessor, provided the opponent, when theidentity of the document is disputed, firstintroduces some evidence tending to showthat the document actually destroyed orwithheld is the one as to whose contents itis desired to draw an inference.


2 Wigmore, Evidence in Trials at CommonLaw § 291, at 228 (emphasis in original).

[19] Wigmore’s description of the properrule was offered in the context of a hypothet-ical in which a particular document (e.g., adeed meant to show the conveyance of acertain piece of land from X to Y), known byall to contain critical evidence in the case,was destroyed. Where, as here, a partyloses the opportunity to identify such a par-ticular document or documents likely to con-tain critical evidence because the voluminousfiles that might contain the document(s) haveall been destroyed, the situation becomesmore complex—but there can be no doubtthat the same basic principle proposed byWigmore still applies. That is, the preju-diced party may be permitted an inference inhis favor so long as he has produced someevidence suggesting that a document or doc-uments relevant to substantiating his claimwould have been included among the de-stroyed files.

Just how much evidence is enough to sup-port an inference about the content of de-stroyed evidence cannot be precisely defined,and will necessarily vary from case to case,but we remain mindful of Wigmore’s admoni-tion that ‘‘care should be taken’’ not to re-quire too specific a level of proof. Id. at 228.Indeed, holding the prejudiced party to toostrict a standard of proof regarding the likelycontents of the destroyed evidence wouldsubvert the prophylactic and punitive pur-poses of the adverse inference, and wouldallow parties who have intentionally de-stroyed evidence to profit from that destruc-tion. Certainly, the level of proof that willsuffice to support an inference in favor of theinnocent party on a particular issue must beless than the amount that would suffice tosurvive summary judgment on that issue.Otherwise, innocent parties meant to benefitfrom the adverse inference against offendingparties would receive no benefit at all, havingbeen deprived of evidence that may havebeen crucial to making their case, and yetbeing held to precisely the same standard ofproof before they may present their case to ajury.

[20] We do not suggest that the destruc-tion of evidence, standing alone, is enough to

allow a party who has produced no evi-dence—or utterly inadequate evidence—insupport of a given claim to survive summaryjudgment on that claim. See Nation–WideCheck, 692 F.2d at 218–19 (‘‘The issue beforethe court was not whether the destructionwas sufficient, standing alone, to warrant anadverse inference about the documents’ con-tents; it was simply whether the destructionwas at all relevant to the tracing issue, and ifso, whether it was sufficiently probative inconjunction with the other evidence to sup-port the tracing conclusion.’’). But at themargin, where the innocent party has pro-duced some (not insubstantial) evidence insupport of his claim, the intentional destruc-tion of relevant evidence by the opposingparty may push a claim that might not other-wise survive summary judgment over theline. In the absence of such a result, asnoted above, the purposes of the adverseinference are eviscerated. Although we em-phasize again that there are reasons to beskeptical of plaintiff’s claim, we disagree withthe district court’s conclusion that plaintiff’sevidence is so utterly insubstantial as to ren-der an adverse inference unwarranted as amatter of law. We believe that plaintiff hasproduced enough circumstantial evidence tosupport the inference that the destroyedMKULTRA files may have contained docu-ments supporting (or potentially proving) hisclaim, and that the possibility that a jurywould choose to draw such an inference, com-bined with plaintiff’s circumstantial evidence,is enough to entitle plaintiff to a jury trial.

We reiterate that, at the summary judg-ment stage, we are required to draw allfactual inferences in Glickman’s favor.Moreover, for purposes of this summaryjudgment motion (only), defendants do notcontest that Glickman was unwittinglydrugged with LSD in a Paris café in 1952.See Kronisch III, 1997 WL 907994, at *20.Although at trial Gottlieb might be able tooffer explanations for the events in Glick-man’s life beginning in October 1952, andmight be able to discredit the conclusion ofplaintiff’s expert that these events are ex-plained by Glickman’s unwitting consumptionof LSD, defendants have not yet attemptedto do so. Defendants likewise do not contest


at this stage that Glickman was given theLSD-laced drink by an American with a club-foot—a distinguishing characteristic pos-sessed by Gottlieb, the head of the MKUL-TRA program. See id. The allegation thatthe man who gave Glickman the drink wasclubfooted is also one that might be attackedby Gottlieb at trial. Glickman claims to haveonly remembered this distinguishing charac-teristic some twenty-nine years after the factwhen his friend Dean Corren, upon Corren’sreturn from Washington after viewing CIAfiles in 1981, asked him whether the man whogave him the drink in 1952 was clubfooted.Glickman’s recollection in response to hisfriend’s suggestive question will doubtless bechallenged at trial. However, whateverdoubts Gottlieb might reasonably be able tocreate in the minds of a jury as to thecredibility of this recollection are not doubtsthat we may now entertain, inasmuch as weare reviewing the grant of a motion for sum-mary judgment.

Accordingly, we must accept as true forpurposes of reviewing the district court’s de-cision on this motion that Glickman was giv-en LSD by an American with a clubfoot in1952. Plaintiff has produced evidence thatthe pool of Americans who would have hadaccess to LSD at the relevant time—not tomention the subset of all such individualsalso having a clubfoot—was quite limited,inasmuch as ‘‘LSD was known only to a fewresearchers and government agents’’ in 1952.Report of Dr. Lester Grinspoon, AssociateProfessor of Psychiatry, Harvard MedicalSchool, at 8 (May 3, 1988). Moreover, as thedistrict court recognized, ‘‘it appears that theCIA, and specifically Gottlieb, was engagedin some form of LSD research in 1952.’’Kronisch III, 1997 WL 907994, at *20. Inconducting LSD tests on unwitting victimswithin the United States, the CIA at timeswould make contact with the subject in a baror other public place, and administer thedrug by slipping it into the person’s drink—ascenario like the one allegedly experienced

by Glickman. See Kronisch III, 1997 WL907994, at *6, *20. Apart from the domestictesting of LSD on unwitting subjects,MKULTRA materials were used abroad on anumber of occasions, ‘‘possibly as early as1950.’’ Church Committee Report at 391.Although there is no direct evidence that anyoverseas tests were conducted in Paris or onAmerican subjects in non-interrogational set-tings, and although Gottlieb testified at hisdeposition that his only overseas use of LSDinvolved three interrogations of foreign na-tionals after 1952 in places other thanFrance, the destruction of MKULTRA fileshas made it ‘‘impossible to reconstruct theoperational use of MKULTRA materials bythe CIA overseas,’’ id., and thereby, perhapsto contradict Gottlieb’s assertions.

In sum, while plaintiff’s chain of circum-stantial evidence may prove to be altogethervulnerable at trial, it is sufficient to suggestthe reasonable possibility that, had Gottlieband Helms not ordered the destruction of theMKULTRA files, these files may have con-tained evidence helping to substantiate plain-tiff’s claim that Gottlieb drugged him in Parisin 1952. Accepting, as the current recordrequires on defendants’ motion for summaryjudgment, that very few Americans—otherthan those working with the CIA—knew ofor had access to LSD in 1952; that Gottliebwas engaged in some form of LSD researchin 1952; that the CIA performed LSD testson unwitting subjects in the United States ator near the relevant time; that the CIA drugtests were at times performed using thesame means alleged here; that the CIA test-ed LSD abroad, albeit under different condi-tions and circumstances; and that the manwho gave Glickman the drink, like Gottlieb,had the distinguishing trait of a clubfoot, wecannot say that it is so unlikely that thedestroyed MKULTRA files would have con-tained evidence buttressing plaintiff’s claimthat an adverse inference is unwarranted asa matter of law.12 Although plaintiff has not

12. Plaintiff has also offered evidence that Gott-lieb met with George White—the Bureau of Nar-cotics Agent who administered LSD to unwittingsubjects in New York City—on October 20, 1952(in New York), and then again in Washington,D.C. on October 30, 1952. Plaintiff argues thatthere is therefore a window within the relevant

time period (Glickman’s admission to the Ameri-can Hospital of Paris on November 11, 1952occurred approximately two weeks or so afterthe alleged incident at the Café Select, suggestingthat the incident would have occurred in thevicinity of the last week of October) during whichGottlieb could have been in Paris. See Kronisch


produced direct proof that the CIA conduct-ed LSD tests in Paris, or that the overseasuse of LSD involved tests on Americans(rather than foreign nationals) in non-interro-gational settings, the most obvious source ofsuch proof, if it were to exist at all, has beendestroyed at Gottlieb’s direction. Underthese circumstances, requiring more directproof than plaintiff has provided before per-mitting an adverse inference to be drawnagainst Gottlieb would be at odds with thepurposes of the adverse inference rule.

Assuming that a jury were to find thatGottlieb had an obligation to preserve theMKULTRA documents that he ordered to bedestroyed, the jury would be entitled to drawan adverse inference against Gottlieb. Thepossibility that the jury would choose to drawsuch an inference, along with plaintiff’s othercircumstantial evidence that he was druggedby the CIA—specifically, by Gottlieb—isenough to entitle plaintiff to a jury trial.

C. Personal Jurisdiction

[21] The district court concluded that itlacked personal jurisdiction over both Helmsand Gottlieb. Inasmuch as we have alreadyconcluded that the claims against Helms areuntimely, we have no need to consider plain-tiff’s challenges to the district court’s conclu-sion with respect to Helms. However, wedisagree with the district court’s conclusionthat it lacked personal jurisdiction over Gott-lieb.

[22, 23] ‘‘Personal jurisdiction of a federalcourt over a non-resident defendant is gov-erned by the law of the state in which thecourt sits—subject, of course, to certain con-stitutional limitations of due process.’’ Rob-inson v. Overseas Military Sales Corp., 21F.3d 502, 510 (2d Cir.1994). Under the rele-vant portions of New York’s long-arm stat-ute, personal jurisdiction may be assertedover a non-domiciliary who, in person orthrough an agent, ‘‘transacts any businesswithin the state.’’ N.Y.C.P.L.R. § 302(a)(1)(McKinney’s 1990). Where, as here, the dis-

trict court decides a pretrial motion to dis-miss for lack of personal jurisdiction on thebasis of the written record, without holdingan evidentiary hearing, the plaintiff ‘‘ ‘needonly make a prima facie showing of jurisdic-tion through its own affidavits and support-ing materials’ ’’ to defeat the motion. Welin-sky v. Resort of the World D.N.V., 839 F.2d928, 930 (2d Cir.1988) (quoting Marine Mid-land Bank, N.A. v. Miller, 664 F.2d 899, 904(2d Cir.1981)).

[24, 25] We are persuaded that Glickmanhas made a prima facie showing of personaljurisdiction over Gottlieb under the ‘‘trans-acting business’’ provision of N.Y.C.P.L.R.§ 302(a)(1). Under this provision, plaintiffmust show that Gottlieb ‘‘purposefullyavail[ed] himself of the privilege of conduct-ing activities within New York’’ such thatbringing Gottlieb before a New York courtdoes not offend due process, and that plain-tiff’s cause of action ‘‘ar[o]se out of’’ thoseactivities in New York. CutCo Indus., Inc. v.Naughton, 806 F.2d 361, 365 (2d Cir.1986)(internal punctuation omitted); see Kreutterv. McFadden Oil Corp., 71 N.Y.2d 460, 527N.Y.S.2d 195, 198–99, 522 N.E.2d 40 (1988);McGowan v. Smith, 52 N.Y.2d 268, 437N.Y.S.2d 643, 644–45, 419 N.E.2d 321 (1981).In order for a cause of action to ‘‘arise outof’’ a party’s activities in New York, theremust be ‘‘an articulable nexus,’’ or a ‘‘sub-stantial relationship,’’ between the claim as-serted and the actions that occurred in NewYork. See Kreutter, 527 N.Y.S.2d at 198–99,522 N.E.2d 40; McGowan, 437 N.Y.S.2d at645, 419 N.E.2d 321.

Gottlieb admits that he made approximate-ly six trips to New York in 1952, and that he‘‘visited George White on two or three occa-sions in 1952 to discuss his becoming a con-sultant for the CIA in LSD research.’’ Gott-lieb Declaration ¶ 4. White, a Bureau ofNarcotics Agent, conducted LSD tests onunsuspecting persons in New York, includingone experiment in which he gave LSD to agroup of his friends in his New York apart-

III, 1997 WL 907994, at *20 n. 19. Although, ofcourse, it is not defendants’ burden to prove anegative, we note that CIA Agent Frank H. Lau-binger testified in his deposition that he recalledeither preparing or helping to prepare a memo-

randum that would have reflected all internation-al travel by Gottlieb in 1952—and no such docu-ment has been forthcoming from defendants inresponse to plaintiff’s specific document request.


ment in November 1952. The record alsoreflects that beginning in June 1953, Whitecovertly administered LSD to people in NewYork with whom he came into contact in hisrole as a narcotics agent. Gottlieb testifiedbefore the Kennedy Committee that Whitemay have conducted his tests on one or moreoccasions by administering the drug to anunsuspecting person in a bar.

Apart from his contacts with White, Gott-lieb also declared that he may have visitedDr. Harold Abramson, a physician who laterbecame an MKULTRA consultant, in NewYork in 1952. See Gottlieb Declaration ¶ 4.According to Gottlieb, ‘‘Dr. Abramson mayhave been engaged in LSD research in 1952sponsored by TSD, or in which TSD wasinterested, and if so, I would have had con-tacts with him about the progress of hisresearch.’’ Id. White and Abramson, in Gott-lieb’s words, ‘‘regularly reported the[ ] re-sults’’ of their research to him. Id. Finally,Gottlieb and others within TSD self-adminis-tered LSD during 1951–1953, and Gottlieb‘‘believe[s] that one or more of these adminis-trations took place in a New York City hotelroom and TTT that Dr. Abramson may havebeen present during one of these administra-tions,’’ although he could ‘‘not recall specifi-cally if any self-administrations took place inNew York in 1952.’’ Id. ¶ 5.

We believe that these contacts with NewYork are sufficient to establish a prima facieshowing of personal jurisdiction over Gottliebinasmuch as Gottlieb’s activities in New Yorkwere aimed at laying the groundwork for theLSD testing program of which Glickmanclaims to have been one of the unwittingvictims. Apart from Gottlieb’s contacts withDr. Abramson, and his self-administration ofLSD with other TSD officials—both of whichbear some relationship to the development ofthe CIA’s LSD testing program, and henceto Glickman’s allegation that he was a victimof this program—Gottlieb’s New York con-tacts with George White are particularly sig-nificant. White’s project was aimed at theadministration of LSD to totally unwitting

persons, and may have included, according toGottlieb’s testimony before the KennedyCommittee, administration to an unwittingperson in a New York bar on one or moreoccasions. In the words of the Church Com-mittee Report, the administration of LSD to‘‘unwitting nonvolunteer subjects in normallife settings by undercover officers of theBureau of Narcotics’’ was important to theCIA because the ‘‘testing of materials underaccepted scientific procedures fails to dis-close the full pattern of reactions and attribu-tions that may occur in operational situa-tions.’’ Church Committee Report at 391(internal quotation marks and citation omit-ted). Accordingly, the fact that Gottlieb wasworking with White in New York in thelatter part of 1952 is significant, for purposesof establishing a nexus to Gottlieb’s allegeddrugging of Glickman in Paris in October1952, not only because White was experi-menting with LSD, but because White wasretained by Gottlieb, in part, for the purposeof performing the very type of ‘‘normal lifesetting’’ LSD experiment that Glickmanclaims to have experienced.13

In short, we believe that Gottlieb’s allegeddrugging of Glickman in Paris is sufficientlyrelated to Gottlieb’s work in New York tosatisfy plaintiff’s prima facie showing of long-arm jurisdiction over Gottlieb underN.Y.C.P.L.R. § 302(a)(1).

III.

In sum:

(1) We affirm the dismissal of Glickman’sFTCA claims against the United States asuntimely under the applicable two-year stat-ute of limitations;

(2) We affirm the dismissal of Glickman’sBivens claims against Gottlieb and Helms as

Documents

112 150 FEDERAL REPORTER, 3d SERIES · 2019. 2. 1. · 112 150 FEDERAL REPORTER, 3d SERIES broadcasts and markets them to a specific clientele. See, Pacific and Southern Co., Inc