      RECOMMENDED FOR FULL-TEXT PUBLICATION
           Pursuant to Sixth Circuit Rule 206
   ELECTRONIC CITATION: 2000 FED App. 0193P (6th Cir.)
               File Name: 00a0193p.06


UNITED STATES COURT OF APPEALS
             FOR THE SIXTH CIRCUIT
               _________________


                            ;
                             
ERNESTINE CARTER HUGHES,
                             
         Plaintiff-Appellant,
                             
                             
                                      No. 99-5499
          v.
                             
VANDERBILT UNIVERSITY,        >
WILLIAM J. DARBY, M.D.,      
                             
GOVERNMENT OF NASHVILLE 
THE METROPOLITAN

                             
                             
AND DAVIDSON COUNTY,

                             
TENNESSEE, THE NUTRITION
FOUNDATION, INC., and THE    
                             
      Defendants-Appellees, 
ROCKEFELLER FOUNDATION,

                             
                             
                 Defendant. 
THE STATE OF TENNESSEE,
                            1
     Appeal from the United States District Court
   for the Middle District of Tennessee at Nashville.
  No. 98-00770—Thomas A. Higgins, District Judge.
               Argued: March 6, 2000
           Decided and Filed: June 7, 2000




                           1
2       Hughes v. Vanderbilt University, et al.        No. 99-5499

         Before: SILER and GILMAN, Circuit* Judges;
                 O’MALLEY, District Judge.
                      _________________
                           COUNSEL
ARGUED: Phillip L. Davidson, Nashville, Tennessee, for
Appellant. Robert P. LoBue, PATTERSON, BELKNAP,
WEBB & TYLER, New York, New York, for Appellees.
ON BRIEF: Phillip L. Davidson, Nashville, Tennessee, for
Appellant. John S. Bryant, BASS, BERRY & SIMS,
Nashville, Tennessee, Francis H. Young, METROPOLITAN
DEPARTMENT OF LAW, Nashville, Tennessee, John L.
Chambers, STOKES & BARTHOLOMEW, Nashville,
Tennessee, John W. Wagster, HOLLINS, WAGSTER &
YARBROUGH, Nashville, Tennessee, for Appellees.
  GILMAN, J., delivered the opinion of the court, in which
SILER, J., joined. O’MALLEY, D. J. (p. 13), delivered a
separate opinion concurring in the result only.
                      _________________
                          OPINION
                      _________________
   RONALD LEE GILMAN, Circuit Judge. Ernestine Carter
Hughes contends that the defendants unlawfully subjected her
to dangerous medical tests in 1945 when she was a child. The
district court concluded that Hughes’s 1998 action was barred
by the statute of limitations. Hughes now challenges that
decision. For the reasons set forth below, we AFFIRM the
judgment of the district court.




    *
      The Honorable Kathleen M. O’Malley, United States District Judge
for the Northern District of Ohio, sitting by designation.
No. 99-5499      Hughes v. Vanderbilt University, et al.       3

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

In August of 1997, however, Henley admitted that at the time                        _______________________
of the study she was not enrolled in either the Caldwell or
Ransom elementary schools. This revelation was also                                     CONCURRENCE
reported by The Tennessean. Her case was dismissed on or                            _______________________
about July 8, 1998.
B. Procedural history                                                  KATHLEEN McDONALD O’MALLEY, District Judge,
                                                                    concurring. I respectfully concur in the result only. I do not
   On August 24, 1998, Hughes, on behalf of herself and all         agree that the allegations in Hughes’s complaint operate to
others similarly situated, filed suit against Vanderbilt, Darby,    bar her claim as a matter of law; the allegations to which the
the Metropolitan Government of Nashville and Davidson               majority and the district court cite are far too imprecise to be
County, NFI, Rockefeller, and the State of Tennessee. In            read as binding admissions on this important dispositive
addition to a request for class action certification, her           issue. I also cannot agree that, on the record presented,
complaint alleged violations of 42 U.S.C. §§ 1983 and 1985,         Hughes should be charged with the knowledge that what
and set forth claims of negligence, battery, and strict liability   happened to her as a child was wrongful, so as to bar her
(based on ultrahazardous activity). The factual allegations         claim at or near the time she reached majority. I concur solely
made by Hughes included the assertion that “Vanderbilt and          because I believe that, in the circumstances presented here –
Darby . . . intentionally forced plaintiff to ingest radioactive    where there were numerous newspaper articles and television
iron by forcibly holding her mouth open and instilling the          broadcasts regarding these events – Hughes should have
radioactive substance into her mouth against her will,              known of the injury which is the basis for her action. See
ignoring her protests.” She further alleged that, as a result of    Sevier v. Turner, 742 F.2d 262, 273 (6th Cir. 1984).
the ingestion, “she has suffered loss of weight, blood
problems, tumors, and other severe, physical problems.”                I further note that I do not believe that advertising alone
Hughes also addressed the timing of her suit:                       would necessarily, or even usually, be sufficient to begin the
                                                                    running of the statute of limitations. If the circumstances had
    On July 8, 1998, the plaintiff was first informed that she      been marginally different – if the media had been less
    was a subject of this radiation experiment by way of            comprehensive in its coverage, or if Hughes did not live in the
    learning that a lawsuit [that] was filed by Katherine           city where the media coverage occurred – I likely would be
    Henley on or about late April 1997 had been dismissed.          unwilling to conclude, at the summary judgment stage, that
    In late 1993 and early 1994, the first disclosures of many      Hughes had constructive knowledge of the event. I am,
    human radiation experiments came out in the press,              however, comfortable in the narrow circumstances presented
    including other experiments conducted by . . . Vanderbilt.      here agreeing with the majority’s conclusion that the
    However, plaintiff was not aware of these disclosures           “publicity was sufficient to charge Hughes with constructive
    until she learned that the Henley lawsuit . . . had been        knowledge of the events underlying her cause of action. . .”
    dismissed. . . .                                                See Op. at 9.
    The plaintiff and class members, in the exercise of
    reasonable diligence, did not know or have reason to
    know the true nature and dangers of the radioactive
    experimentation to which they were subjected to in the
    past, and plaintiff and class members did not know or
12    Hughes v. Vanderbilt University, et al.       No. 99-5499      No. 99-5499      Hughes v. Vanderbilt University, et al.        5

  in which the search for truth may be seriously impaired              have reason to know of their claims for relief against the
  by the loss of evidence, whether by death or                         defendants in regard to the Caldwell and Ransom
  disappearance of witnesses, fading memories,                         Schools radioactive iron experiment until about January
  disappearance of documents, or otherwise.                            14, 1994, and later. A great many members of the class
                                                                       still do not know about the experiment.
United States v. Kubrick, 444 U.S. 111, 117 (1979) (citations
and internal quotation marks omitted).                               (Emphasis added.)
   Our holding reflects these important principles. The                 In October and November of 1998, all of the defendants
Vanderbilt study occurred more than fifty years prior to the         filed dispositive motions based on the assertion that Hughes’s
filing of this lawsuit. Darby, the only researcher still alive, is   action was barred by the statute of limitations. Several
allegedly in poor health and would be unable to testify. The         affidavits and exhibits were submitted by the parties in
Rockefeller representatives who were involved in funding the         support of, and in response to, these motions.
program are apparently all deceased. It would also be
difficult, if not impossible, for a jury to fully understand the        On November 19, 1998, Hughes moved to amend her
scientific and ethical context in which these experiments took       complaint by changing the date cited in the excerpt
place. These circumstances illustrate why this court has             above—that is, the portion of her complaint alleging that she
observed as follows: “‘Statutes of limitations are vital to the      and the class members did not know or have reason to know
welfare of society and are favored in the law.’ Stale conflicts      of the existence of their claims “until about January 14, 1994,
should be allowed to rest undisturbed after the passage of           and later.” Hughes stated in an affidavit filed on December
time has made their origins obscure and the evidence                 1, 1998 that she did not know about the study “until July 8,
uncertain.” Dayco Corp. v. Goodyear Tire & Rubber Co.,               1998.” Her request to amend, however, was denied. The
523 F.2d 389, 394 (6th Cir. 1975) (quoting Wood v.                   docket entry of the district court’s decision states that “this
Carpenter, 101 U.S. 135, 139 (1879)).                                motion is unsupported other than [by] the assertion of counsel
                                                                     as to a ‘typographical’ error which is contradicted by his
                    III. CONCLUSION                                  having signed the pleading in the Henley action . . . .”
  For all of the reasons set forth above, we AFFIRM the                 All of the defendants’ motions were referred to a magistrate
judgment of the district court.                                      judge for a ruling. On January 19, 1999, the magistrate judge
                                                                     issued his report and recommendation. At the outset, the
                                                                     magistrate judge noted that he would consider the evidentiary
                                                                     materials filed by the parties and, in turn, treat the motions to
                                                                     dismiss as requests for summary judgment. Then, after
                                                                     setting forth the facts and the applicable standard of review,
                                                                     the magistrate judge addressed the apparent conflict between
                                                                     the January 14, 1994 date set forth in Hughes’s complaint and
                                                                     the July 8, 1998 date alleged in her affidavit. Citing the
                                                                     denial of Hughes’s motion to amend her complaint, the
                                                                     magistrate judge stated that he “does not deem [her]
                                                                     subsequent affidavit to create a material factual dispute . . . .”
6      Hughes v. Vanderbilt University, et al.        No. 99-5499    No. 99-5499     Hughes v. Vanderbilt University, et al.      11

The magistrate judge then discussed the applicable law               it does constitute an admission that a reasonable person
regarding the statute of limitations and concluded as follows:       should have been aware of the claims at issue by that date.
                                                                     This admission, moreover, was not an “accidental” inclusion.
    [B]y her own admission in her complaint, plaintiff cites         Henley, who was represented by Hughes’s attorney, used the
    that she was aware or reasonably should have been aware          same date in her earlier action.
    of her claims in [January], 1994 . . . . Plaintiff also states
    that there were public studies on the Caldwell project that         In point of fact, Hughes’s claim may have been barred
    were published in 1994, although she states that she was         decades ago, one year after she attained her majority. See
    not aware of them until July 8, 1998. . . . Moreover, the        TENN. CODE. ANN. § 28-1-106 (setting forth the accrual rule
    manner in which Hughes described her ingestion of this           for persons under the age of eighteen at the time a cause of
    liquid as “forced by the defendants against her will” . . .      action accrues). Hughes specifically alleged in her complaint
    also suggests Hughes[’s] longstanding awareness of the           that “Vanderbilt and Darby . . . intentionally forced plaintiff
    cited facts underlying her claims.                               to ingest radioactive iron by forcibly holding her mouth open
                                                                     and instilling the radioactive substance into her mouth
   After citing the media reports concerning the Vanderbilt          against her will, ignoring her protests.” (Emphasis added.)
study and Henley’s suit, the magistrate judge reiterated his         Although there may have been no way for her to know that
view that “[t]he existence of litigation on the same project and     she was being given a radioactive substance, her detailed
the attendant publicity would have placed a reasonable person        description of the manner in which Darby and his colleagues
on knowledge [sic] of her federal claims by July, 1994 and no        administered the test is probably sufficient to have obligated
later than July, 1995 when the Hensley action was filed and          her to investigate further once she reached the age of majority.
its prominent publicity was widespread.” The magistrate              We need not, however, answer this question because of the
judge then recommended that all of the defendants’ motions           extensive media publicity in the mid-1990s and because of
be granted.                                                          her judicial admission regarding when persons in her position
                                                                     should have learned of the studies.
  On March 9, 1999, the district court, without further
analysis, adopted the magistrate judge’s recommendation and            In light of Hughes’s alleged medical problems, we
dismissed Hughes’s complaint on the basis of the statute of          recognize that any procedural bar may at first blush seem
limitations. In this appeal, Hughes does not take issue with         unfair. There is, however, a broader principle at stake. As the
the district court’s denial of her motion to amend her               Supreme Court has stated:
complaint. Rather, Hughes asserts that (1) she was not aware
that she had been a subject of Darby’s tests until July 8, 1998,       [S]tatutes of limitations, which are found and approved
and (2) the issue of whether she had exercised reasonable care         in all systems of enlightened jurisprudence, represent a
and diligence in discovering her cause of action should have           pervasive legislative judgment that it is unjust to fail to
been submitted to a jury.                                              put the adversary on notice to defend within a specified
                                                                       period of time and that the right to be free of stale claims
                         II. ANALYSIS                                  in time comes to prevail over the right to prosecute them.
                                                                       These enactments are statutes of repose; and although
A. The nature of the motions being reviewed                            affording plaintiffs what the legislature deems a
                                                                       reasonable time to present their claims, they protect
  Although not raised as an issue of contention between the            defendants and the courts from having to deal with cases
parties, it is important to clarify the nature of the motions
10   Hughes v. Vanderbilt University, et al.     No. 99-5499      No. 99-5499     Hughes v. Vanderbilt University, et al.       7

used reasonable diligence is tested by an objective               being reviewed. Pursuant to the Federal Rules of Civil
standard.”).                                                      Procedure,
   Based on the undisputed facts concerning the media               [i]f, on a motion asserting the defense numbered (6) to
attention given to the Vanderbilt study in question, no             dismiss for failure of the pleading to state a claim upon
reasonable factfinder could find that Hughes’s cause of action      which relief can be granted, matters outside the pleading
accrued any later than January 19, 1995. This was the date          are presented to and not excluded by the court, the
that Nashville’s CBS affiliate reported the filing of Henley’s      motion shall be treated as one for summary judgment and
class action lawsuit against the same defendants involved in        disposed of as provided in Rule 56 . . . .
the present action. By this time there had been numerous
news reports both in print and on television discussing the       FED. R. CIV. P. 12(b).
facts supporting Hughes’s claims, beginning with The
Tennessean’s front-page story on January 13, 1994. Hughes            Here, the district court adopted the magistrate judge’s
filed her complaint on August 24, 1998, long after the one-       report and recommendation in which the magistrate judge
year period in which to file her cause of action had ended. As    explicitly noted that, pursuant to Rule 12(b), he was electing
such, her suit is untimely.                                       to consider the evidentiary materials submitted by the parties
                                                                  and treat the motions to dismiss as motions for summary
   Hughes’s own complaint in this case supports our               judgment. Nonetheless, both the magistrate judge in his
conclusion. As previously noted, the district court ruled that    recommendation, and the district court in its order, continued
Hughes’s claim accrued on January 14, 1994, the date she          to refer to “the motions to dismiss.” Despite these
cites in her complaint. Plaintiffs are bound by admissions in     misstatements, this court will treat the rulings below as
their pleadings, and a party cannot create a factual issue by     granting summary judgment. See United Bhd. of Carpenters
subsequently filing a conflicting affidavit. See Reid v. Sears,   v. Ohio Carpenters Health & Welfare Fund, 926 F.2d 550,
Roebuck & Co., 790 F.2d 453, 460 (6th Cir. 1986) (“A party        558 (6th Cir. 1991) (holding that the district court’s decision
may not create a factual issue by filing an affidavit, after a    should be viewed as one granting summary judgment, despite
motion for summary judgment has been made, which                  the fact that the district court committed an “error in
contradicts her earlier deposition testimony.”); Ferguson v.      nomenclature” by continuing to use the term “dismissal” even
Neighborhood Hous. Servs. of Cleveland, Inc., 780 F.2d 549,       after its consideration of an affidavit converted the proceeding
551 (6th Cir. 1986) (“Not only are such admissions                into one governed by Rule 56).
. . . binding before the trial court, but they are binding on
appeal as well.”). Moreover, such admissions can undermine        B. Standard of review
the timeliness of a plaintiff’s claim. See, e.g., Davis v. A.G.
Edwards & Sons, Inc., 823 F.2d 105, 107-08 (5th Cir. 1987)          We review de novo the district court’s grant of summary
(holding that the plaintiff was bound by admissions in his        judgment. See Smith v. Ameritech, 129 F.3d 857, 863 (6th
pleadings as to when he first discovered defendants’              Cir. 1997). Summary judgment is appropriate when there are
misconduct).                                                      no genuine issues of material fact in dispute and the moving
                                                                  party is entitled to judgment as a matter of law. See FED. R.
  Even if the relevant statement made in her complaint does       CIV. P. 56(c). In deciding a motion for summary judgment,
not establish that it was Hughes—as opposed to others in the      the court must view the evidence and draw all reasonable
potential class—who learned of the facts on January 14, 1994,     inferences in favor of the non-moving party. See Matsushita
                                                                  Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
8    Hughes v. Vanderbilt University, et al.     No. 99-5499      No. 99-5499      Hughes v. Vanderbilt University, et al.          9

(1986). The judge is not “to weigh the evidence and               1990s. Indeed, “[w]here events receive . . . widespread
determine the truth of the matter but to determine whether        publicity, plaintiffs may be charged with knowledge of their
there is a genuine issue for trial.” Anderson v. Liberty Lobby,   occurrence.” United Klans of Am. v. McGovern, 621 F.2d
Inc., 477 U.S. 242, 249 (1986). A genuine issue for trial         152, 154 (5th Cir. 1980). The facts of this case represent just
exists when there is sufficient “evidence on which the jury       such a situation. The press release issued by Vanderbilt in
could reasonably find for the plaintiff.” Id. at 252.             January of 1994 led to the publication of front-page stories in
                                                                  Nashville’s two leading newspapers. One year later, those
C. The district court did not err when it held that               same newspapers, as well as a major television network,
   Hughes’s suit was untimely                                     issued reports on a nearly identical lawsuit filed by Henley.
   Hughes does not dispute the magistrate judge’s use of            This publicity was sufficient to charge Hughes with
Tennessee’s one-year statute of limitations as the controlling    constructive knowledge of the events underlying her cause of
statute. Indeed, “[i]n all actions brought under § 1983           action, especially in light of the fact that, at all relevant times,
alleging a violation of civil rights or personal injuries, the    she resided in Nashville. See id. at 154-55 (holding that the
state statute of limitations governing actions for personal       plaintiffs should have known that they had a potential claim
injuries is to be applied.” Berndt v. Tennessee, 796 F.2d 879,    against the defendants when the defendants held a press
883 (6th Cir. 1986). Following this rule, the applicable          conference that revealed facts supporting such a claim and
limitations period in Tennessee is one year. See TENN. CODE       when the conference led to the publication of articles in at
ANN. § 28-3-104(a)(1).                                            least two newspapers circulated within the federal district in
                                                                  which the suit was eventually filed).
   The real dispute between the parties concerns when the one
year began to run. Both sides refer to McCroskey v. Bryant          In support of her appeal, Hughes asserts that she should not
Air Conditioning Co., 524 S.W.2d 487 (Tenn. 1975), as             be charged with constructive knowledge because she did not
setting forth Tennessee’s rule on that issue. Federal law,        hear or read any of the media reports discussed above. She
however, controls the determination of when a civil rights        argues in her brief as follows: “At the time of these articles,
action accrues. See Sevier v. Turner, 742 F.2d 262, 273 (6th      Mrs. Hughes did not take nor read the newspapers. Nor did
Cir. 1984). In Sevier, this court concluded as follows: “The      she watch Channel 5. Her husband with whom she had never
statute of limitations commences to run when the plaintiff        discussed her experience at Caldwell School did not take the
knows or has reason to know of the injury which is the basis      newspaper until 1995 or 1996.”
of his action. A plaintiff has reason to know of his injury
when he should have discovered it through the exercise of            The relevant inquiry in cases such as the one before us,
reasonable diligence.” Id. at 273 (citations omitted). This       however, is an objective one. See J. Geils Band Employee
court has also stated that “[i]n determining when the cause of    Benefit Plan v. Smith Barney Shearson, Inc., 76 F.3d 1245,
action accrues in section 1983 actions, we have looked to         1254 (1st Cir. 1996) (noting that the objective standard is the
what event should have alerted the typical lay person to          appropriate test for determining a “date of discovery”);
protect his or her rights.” Dixon v. Anderson, 928 F.2d 212,      Whirlpool Fin. Corp. v. GN Holdings, Inc., 67 F.3d 605, 609
215 (6th Cir. 1991).                                              (7th Cir. 1995) (“[T]o determine if inquiry notice has been
                                                                  triggered an objective ‘reasonable’ diligence standard must be
  As noted previously, the magistrate judge placed great          applied to the facts.”); Volk v. D.A. Davidson & Co., 816 F.2d
weight on the fact that the Vanderbilt experiments had            1406, 1417 (9th Cir. 1987) (“[T]he extent to which a plaintiff
received a significant amount of media attention in the mid-
