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Stebbings v. The University of Chiago

March 14, 2000

JAMES STEBBINGS, PLAINTIFF-APPELLANT
V.
THE UNIVERSITY OF CHICAGO, DEFENDANT-APPELLEE



Appeal from the Circuit Court of Cook County No. 96 L 013461 The Honorable David G. Lichtenstein, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Cousins

The plaintiff, Dr. James Stebbings, was employed as a medical researcher by the University of Chicago. He claims to have discovered that, in the course of an experiment, human test subjects were exposed without their permission to levels of radiation much higher than had been approved. Dr. Stebbings alleges that he was fired for insisting that the matter be reported to the National Institutes of Health, the federal government agency that had funded the experiment.

In 1992, Dr. Stebbings brought a retaliatory discharge action against the University of Chicago. After voluntarily dismissing the action once, he filed it again in 1996. The trial court eventually dismissed the fourth amended complaint with prejudice on the grounds that Stebbings had failed to state a valid claim for retaliatory discharge.

Stebbings now appeals arguing that the trial court erred in rejecting his claim that his firing violated: (1) a clearly mandated public policy of protecting the lives and property of the state's citizens from the hazards of radiation; and (2) a clearly mandated public policy of informed consent in medical research.

We reverse and remand.

BACKGROUND

The University of Chicago (the University) hired Dr. Stebbings on April 1, 1981, to work in the Argonne Center for Human Radiobiology at Argonne National Laboratory (Argonne). In 1984, the University applied to the National Institutes of Health (NIH) for a grant to conduct a study on the interaction between passive smoking and contact with radioactive materials. Stebbings was to be in charge of the project, which the NIH approved for two years.

As initially conceived and implemented, the project was a descriptive field study. But, Stebbings alleges, due to the University's failure to provide the support it had committed for the study, it could not be carried out as planned. The University, Stebbings claims, ordered him over his objections to apply for the second year of NIH funding. In order to rescue the study, the researchers had to make fundamental changes.

The application for funding for the second year of the study proposed that human subjects be exposed in several sittings to radon gas and its progeny in the laboratory. The NIH and Argonne's "Review Committee for Research Involving Human Subjects" approved the experiments at specified levels of radiation exposure. The levels of exposure were limited for safety reasons to the amount that was as low as reasonably achievable. Twelve volunteers were chosen for the study, and after complete disclosure concerning the experiment and the risks associated with it, they consented to be exposed to the radon.

According to Stebbings, Robert Schlenker, an Argonne acting section head, oversaw this experiment. Stebbings claims that, under Schlenker's supervision, the test subjects were exposed on at least one occasion to radiation at levels 10 to 15 times as intense as had been agreed upon. Shortly thereafter Schlenker left his research position to take an administrative job at Argonne. Stebbings discovered the overexposure in reviewing the data in preparation for the final progress report for the study. He reported the situation to the head of Argonne's "Review Committee for Research Involving Human Subjects," Edwin Westbrook. A month later, when no action had been taken, Stebbings reported the matter to Eli Huberman, an Argonne division head. Huberman prepared a report that went to the United States Department of Energy (DOE). On July 20, 1990, after it received the report, the DOE issued a stop-work order for all human subjects research in the National Laboratory System while the DOE reviewed the laboratory assurance procedures for the protection of human subjects.

Stebbings, noting that a report had not been made to the NIH, wrote a memo expressing his belief that such a report was necessary. Stebbings alleges that federal regulations for the protection of human research subjects (45 C.F.R. §46.103 (1997)), as well as the University's written assurance that it would comply with those regulations, legally mandated a report to NIH.

On August 14, 1990, the University discharged Stebbings, effective September 30, 1990.

In January 1992, Stebbings filed an action against the University alleging wrongful termination. He claimed that his discharge violated the policy behind such statutes as section 5851 of the Energy Reorganization Act of 1974 (42 U.S.C. §5851 (1994)); the Radon Mitigation Act (420 ILCS 50/1 et seq. (West 1996)); and the Radiation Protection Act of 1990 (420 ILCS 40/1 et seq. (West 1996)). The University moved to dismiss the complaint on the grounds that Stebbings' termination did not violate any clearly mandated public policy. Judge Willard Lassers denied the motion. In November 1995, Stebbings voluntarily dismissed his complaint pursuant to section 2-1009 of the Code of Civil Procedure. 735 ILCS 5/2-1009 (West 1996).

A year later, Stebbings, represented by new counsel, re-filed the action before Judge David Lichtenstein. In April 1997, the University again moved to dismiss. In September 1997, Stebbings filed an amended complaint. The trial court dismissed the complaint without prejudice as legally insufficient.

Stebbings then filed a second amended complaint. The University moved to dismiss. Stebbings moved for leave to amend once again. Stebbings' motion was granted, and Stebbings filed a third amended complaint. The trial court dismissed the third amended complaint with leave to amend. On February 5, 1999, Stebbings filed the fourth amended complaint. On May 7, 1999, the trial court dismissed the complaint, this time with prejudice, under section 2-615 of the Code of Civil Procedure, for the reasons that the University gave in the memorandum accompanying its motion to dismiss. 735 ILCS 5/2-615 (West 1996).

ANALYSIS

Introduct ...


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