Petition — Diamond Shamrock Chemicals Co. v. Ryan
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Supresre Cour
‘ ’ 4 } t- 6
$0 No. 83- LAN 16 19
IN THE
Supreme Court of the United States
OCTOBER TERM, 1983
DIAMOND SHAMROCK CHEMICALS
COMPANY, ef ai.,
Petitioners,
Vv.
MICHAEL F. RYAN, et al.,
Respondents.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE SECOND CIRCUIT
PETITION FOR WRIT OF CERTIORARI
WENDELL B. ALCORN, Jr.
GeorGce D. REYCRAFT
One Wall Street
New York, New York 10005
(212) 908-7000
Attorneys for Petitioners
Diamond Shamrock Chemicals
Company, The Dow Chemical
Company, Hercules Incorporated,
Monsanto Company,
T H Agriculture & Nutrition
Company, Inc.
Of Counsel:
CADWALADER, WICKERSHAM & TAFT
Attorneys for Diamond Shamrock Chemicals Company
One Wall Street
New York, New York 10005
RIVKIN, LEFF, SHERMAN & RADLER
Attorneys for The Dow Chemical Company
100 Garden City Plaza
Garden City, New York 11530
KELLEY DryeE & WARREN
Attorneys for Hercules Incorporated
101 Park Avenue
New York, New York 10178
TOWNLEY & UPDIKE
Attorneys for Monsanto Company
405 Lexington Avenue
New York, New York 10017
CLARK, GAGLIARDI & MILLER
Attorneys for T H Agriculture & Nutrition Company
The Inns of Court
99 Court Street
White Plains, New York 10601
Questions Presented
1. Can a federal transferee court, which for pretrial
purposes presides over hundreds of personal injury actions
based on diversity jurisdiction, bind all Vietnam War
veterans and their families from the United States, Australia
and New Zealand by certifying for trial a single, mass
products liability class action where there are no common
issues that predominate and no adequacy of representation?
2. Can that court ignore the due process requirements of
Eisen by ordering media announcements in lieu of individual
notice to absent class members who can be identified
through reasonable efforts?
ii
Parties Below
The parties to the proceeding below, as required by
Supreme Court Rules 21.1 and 28.1, are listed in the follow-
ing footnote.*
* Michael F. Ryan, Maureen Ryan, Kerry Ryan, Charlotte Black-
mon, Orville E. Blackmon, Rebecca Blackmon, Brent Blackmon,
Valerie Blackmon, Karen Blackmon, Carolyn Champion, Thomas B.
Champion, Jr., Joy Champion, Dedrie Champion, George Ewalt,
Sheila Ewalt, Tara Ewalt, David G. Lambiotte, Carol Quinn, Brian
T. Quinn, Kevin Quinn, Dan G. Jordan, Donna Jordan, Chad
Jordan, Michae! Jordan, Earlie Robinson, Jr., Sheila Robinson,
Michael Robinson, William Singley, Diane Singley, William Singley,
Jr. and Steve Zardis; respondents.
The class of all persons who were in the United States, New
Zealand or Australian Armed Forces injured while in or near Vietnam
by exposure to Agent Orange or other phenoxy herbicides, including
those compounds composed in whole or in part of 2,4,5-trichloro-
phenoxyacetic acid or containing some amount of 2,3,7,8-tetrachloro-
dibenzo-p-dioxin. The class also includes spouses, parents and
children of the veterans born before January 1, 1984, directly or
derivatively injured as a result of the exposure; respondents.
Diamond Shamrock Chemicals Company, petitioner. The parent
company, subsidiaries and affiliates of Diamond Shamrock Chemicals
Company are as follows:
Diamond Shamrock Holding Company, A.L.A. Chemicals
Limited, ARC Technologies Systems B.V., ARC Technologies
Systems Corporation, ARC Technologies Systems -Licensing
B.V., ARC Technologies Systems, Ltd., Agil Agroquimica In-
dustrial Ltda., Amalgamated Curacao Patents Company N.V.,
Ancom Sdn. Berhad, Anglonor Limited, Anglonor S.A. Ark-
wright Chemicals Limited, Arkwright Chemie G.m.b.H., Carbo-
cloro S.A. Industrias Quimicas, Chemby Chemicals Limited,
DSAG Corporation, Dacral, $.A., Diamond Shamrock (Africa)
(Pty) Ltd., Diamond Shamrock Alberta Gas Ltd., Diamond
Shamrock (India) Ltd., Diamond Shamrock Italia S.p.A., Dia-
mond Shamrock Polychem AB, Diamond Shamrock Trading
Corporation, Diaspa S.p.A., Duolite International GmbH, Elec-
trode Corporation, Eltech Electrosearch $.A., Eltech Research
B.V., Eltech Resources B.V., Eltech Systems Corporation, El-
tech Systems B.V., Eltech Systems International Sales Corp.,
Eltech Systems Limited—(Barbados), Eltech Systems Limited
iil
—(Bermuda), Eltech Sysiems N.V., Hamada Agricultural Com-
pany Limited, Hawkeye Coal Company, Heraeus Elektroden
GmbH, Herbitecnica Defensivos Agricolas Ltda., Industrial
Furnace Services, Inc., Inmuebles Industriales del Pacifico, S.A.
de C.V., Insecticidas del Pacifico § A. de C.V., Kolloid Chemie
GmbH, Korea Potassium Chemical Co., Ltd., MDS Corpora-
tion, Magma Geysers, Inc., Muenzing Chemie GmbH, NEC
Acquisition Co., NNA Trading Co., Natomas Company, Nato-
mas Energy Company, Natomas Exploration of Canada, Ltd.,
Natomas (Far East) Limited, Natomas Financial Services, Inc.,
Natomas International Corporation, Natomas International Trad-
ing Co., Natomas International (U.K.) Limited, Natomas
(Java) Limited, Natomas (Java Sea) Limited, Natomas (Kali-
mantan) Limited, Natom . Marine Sales, Inc., Natomas North
America, Inc., Natomas of Australia, Inc., Natomas of Canada
Ltd., Natomas Offshore Exploration, Inc., Natomas of Singa-
pore, Inc., Natomas Overseas Finance N.V., Natomas Petroleum
(Bahamas) Ltd., Natomas Petroleum International, Inc., Nato-
mas Petroleum Oman, Inc., Natomas Petroleum Tunisia, Inc.,
Natomas Pipeline Company, Natomas Services, Inc., Natomas
Trading Company, Neopur Limited, Neopur Technologien
G.m.b.H., Nippon Dacro Shamrock Co., Ltd., Nopco Argentina
S.A.LC. y F., Nopco Colombiana S.A., Nopco Industrial S.A.
de C.V., Parel Limited, Parel S.A., Permascand A.B., Permelec
International, Ltd., Petroclor Limited, Polypren S.r.1., SDS Bio-
tech Corporation, San Nopco Limited, Semilera del Noroeste S.A.
de C.V., Seahorse Reinsurance Limited, Showa Diamond Chemi-
cal K.K., Sirotherm, Inc., Societe de Recherches Scientifiques
N.V., Thai Diamond Shamrock Co., Ltd., Thermal Power Com-
pany, Tongue River Holdings, Inc., Transworld Egypt Petroleum
Corporation, Transworld Petroleum Corporation, Transworld
Petroleum (U.K.) Limited, Diamond Shamrock Corporation.
The Dow Chemical Company, petitioner. The parent company,
subsidiaries and affiliates of The Dow Chemical Company are as
follows:
Alamo Land Company, Inc., Compagnie des Services Dowell
Schlumberger, Cordis Dow Corporation, Dow Banking Corpora-
tion, Dow Scandia Banking Corporation, Ltd., Dow Chemical
Iberica S.A., Dow Corning Corporation, Dowell Schlumberger
Corporation, El Dorado Terminals Company, Gruppo Lepetit
S.p.A., Ivon Watkins-Dow Limited, Joliet Marine Terminal,
Ecuatorianos LIFE, Long Beach Marine Terminal, Oronzio de
Nora Impianti Elettrochimici S.A., Pacific Chemicals Berhad,
Sinor Corradini Navarra S.A., Societe Industrielle de Plastic et
de L’acier S.A., Technovast, The Cynara Company, The Kart-
ridg Pak Co.
iv
Hercules Incorporated, petitioner. The parent company, subsidi-
aries and affiliates of Hercu!cs Incorporated are as follows:
Abieta Chemie G.m.b.H., A. C. Hatrick Chemicals Pty. Ltd.,
A. C. Hatrick (N.Z.) Ltd., Australian Chemical Holdings Limi-
ted, Ceratonia Sociedad Anonima, Compauahia Brasileira de
Productos Quimicos Bononia, Compano Lombarda S.r.l., Da-
wood Hercules Chemicals Limited, DIC—-Hercules Chemicals
Inc., Erbamont N.V., Finance Company of Hercules Incorpo-
rated N.V., Genu Products Philippines Inc., Hercofina, Hercofina
(Delaware), Hercofina Europe, Hercules Chemicals Australia
Pty. Ltd., Hercules de Centroamerica $.A., Hercules France,
S.A., Hercules Islands Corporation, Herdillia Chemicals, Ltd.,
Hercor Chemical Corporation, HIMONT Belgium N.V.,
HIMONT Canada, Inc., HIMONT Incorporated, HIMONT
Italia, Sr.l., HIMONT Overseas Corporation, HIMONT U:S.A.,
Inc., Indian Gum Industries Ltd., Infinetics Incorporated, Japan
Magnetics, Ltd., Lextar, NASCO International, Nelsons Acetate
Limited, Neofil S.p.A., Pakistan Gum Industries, Ltd., Petrocel
S.A., PPH—Companhia Industrial de Polipropileno, Polo—In-
dustria E Comercio Ltda., Procedyne Corp., Quimproc S.A.,
Rika—Hercules K.K., St. Croix Petrochemical Corp., Societe
Europeenne de Fibres et Composites, S.A., Sumika—Hercules
Co. Ltd., Spurway Cooke Holdings Limited, T & C Chemicals
(Pty.) Limited, Taiwan Hercules Chemicals Inc., Taiwan Poly-
propylene Co. Ltd., Taloquimia, S.A., Teijin Hercules Chemical
Company Limited, Texas Alkyl Belgium S.A., Texas Alkyls, Inc.
Monsanto Company, petitioner. The parent company, subsidiaries
and affiliates of Monsanto Company are as follows:
ACM Services, Inc., Advent Eurofund Limited, Agerquim, S.A.
de C.V., Australian Fluorine Chemicals Pty. Limited, Biogen
N.V., Collagen Corporation, Companhia Brasileira de Estireno
(CBE), Companhia Brasileira de Plasticos Monsanto, Control
Specialists (Proprietary) Limited, Daishin Kogyo K.K., Goyana,
S.A. Industrias Brasileiras de Materias Plasticas (GOYANA),
Hydrocarbon Products Pty. Ltd., Industrias Resistol, S.A.
(IRSA), K.K. Astro-Gelande, Kibi Kasei K.K., Korag Company
Limited, Korsil Company, Ltd., Mitsubishi Monsanto Chemical
Company (MMK), Monsanto Chemicals of India Limited
(MCIL), Monsanto (Malaysia) Sdn. Berhad (MONAYSIA),
Nippon Cooper Kabushiki Kaisha, Nippon Fisher Company,
Ltd., Plagon S.A.—Plasticos Goyana do Nordeste, Revertex In-
dustries (Aust.) Pty. Ltd., Revertex Industries (N.Z.) Ltd.,
Revinex Australia Limited, Sankyo Kasei Sangyo K.K., Soperton
Gum Market, Inc., Taiyo Kogyo Kabushiki Kaisha, 102957
Canada Limited, Titan Chemicals Limited.
T H Agriculture & Nutrition Company, Inc., petitioner. The parent
company, subsidiaries and affiliates of T H Agriculture & Nutrition
Company are as follows:
North American Philips Corporation, Daitom, Inc.
Thompson Chemical Company, respondent.
Uniroyal, Inc., respondent.
United States of America, respondent.
Vil
TABLE OF CONTENTS
i ae ee aes wi
a a Ae AAS Ree PE a en pe
SE SG Ni-o bekuse Coes sas enawes es
Ne a a ln Wire be bee i.e en ae
Oe IIE <5 oo Weccnaccdpvscceccea
Reasons for Granting the Writ:
I.
Il.
II.
The Class Action Ruling Contravenes This
Court’s Holding in Eisen and Violates Prin-
CHEES GE EOD FUGUGES onc ccccececcccecs
The Class Action Ruling Conflicts With
Decisions in Other Federal Circuits and Does
Not Satisfy the Prerequisites of Rule 23 ...
Denial of Class Certification Will Not Pre-
clude Fair Resolution of These Claims
Which Involve Issues of Great Public Im-
DN cb cechiceneen sds eeeeneness
11
TABLE OF AUTHORITIES
Cases
American Pipe & Construction Co. v. Utah, 414
Rh PO CE Ee) chuckeatananewuen anmaen
Amswiss International Corp. v. Heublein, Inc., 69
Pe COP CPE CA ESTO? oc cccreccesewes
Blackie v. Barrack, 524 F.2d 891 (9th Cir. 1975),
cert. denied, 429 U.S. 816 (1976) ...........
Coca-Cola Bottling Co. v. Coca-Cola Co., 95 F.R.D.
ie Ca TO. SD 6c es ebavcaut ee eeeue eas
Delaney Vv. Borden, Inc., 99 F.R.D. 44 (E.D. Pa.
ot) PA eee ere ere ee ee
Eisen v. Carlisle & Jacquelin, 417 U.S. 156
CIBTOD: 6 bciécivs.vac ke eee eee eae teneess
Elster v. Alexander, 76 F.R.D. 440 (N.D. Ga.
1977), appeal dismissed, 608 F.2d 196 (Sth Cir.
SGD 64 caw keen woe deen oan cee
Erie Railroad Co. v. Tompkins, 304 U.S. 65 (1928)
Hansberry v. Lee, 311 U.S. 32 (1940) .........
In re “Agent Orange” Product Liability Litigation,
635 F.2d 987 (2d Cir. 1980), cert. denied sub
nom. Chapman v. Dow Chemical Co., 454 U.S.
Die CEE) 00.00.65 heuee cae eneeeens
In re “Agent Orange” Product Liability Litigation,
565 F. Supp. 1263 (E.D.N.Y. 1983) ........
In re “Agent Orange” Product Liability Litigation,
534 F. Supp. 1046 (E.D.N.Y. 1982) ........
In re “Agent Orange” Product Liability Litigation,
506 F. Supp. 762 (E.D.N.Y. 1980) ........
PAGE
ix
PAGE
In re U.S. Financial Securities Litigation, 64 F.R.D.
ee 16
In re Nissan Motor Corp. Antitrust Litigation, 552
ee ) 11
In re Northern District of California “Dalkon Shield”
IUD Products Liability Litigation, 693 F.2d 847
(9th Cir. 1982), cert. denied sub nom. A.H.
Robins, Inc. v. Abed, US. , 103 S. Ct.
I 12, 13,
16
Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S.
ce Skt ccc os ccccccs 15
Malchman v. Davis, 706 F.2d 426 (2d Cir. 1983) 14-15
McDaniel y. Johns-Manville Sales Corp., No. 76-
Pa cee meee Oh, 1979) .........0-. 12
McMerty v. Burtness, 72 F.R.D. 450 (D. Minn.
I 16
Mertens v. Abbott Laboratories, 99 F.R.D. 38 (D.
ESS 12, 14
Payton v. Abbott Laboratories, Nos. 76-1514-S et
EE) 12
Payton v. Abbott Laboratories, 83 F.R.D. 382 (D.
eee bssec bcccecccccce ll
Ryan v. Eli Lilly & Co., 84 F.R.D. 230 (D.S.C.
eats ccccecece des 12
Schlesinger v. Reservists Committee to Stop the
POD oo occ ccc ccc ces 14
Schmidt v. Interstate Federal Savings & Loan Ass'n,
Cs ) 16
Sprogis v. United Airlines, Inc., 444 F.2d 119@( 7th
Cir.), cert. denied, 404 U.S. 991 (1971) ..... 10
Thompson v. Procter & Gamble Co., No. C-80-3711
ES ee 12
x
PAGE
Yandle v. PPG Industries, Inc., 65 F.R.D. 566
Ce Bs GON cau tea Wha eeéeties chee 12
Statutes and Rules
28 U.S.C. (1976)
BMSDE: bacnes ciebeu eke caaann es caceeen ee 5
Be: err errr re eee 3
BEGET cccedbsasvenseeiencenedeeeeecese 3,17
es es PS ERED: one Kéna 4 eakedrir renee 7
, 2 Se ee: Serre rere rere passim
De a Mae Be MRO occ cbo bekee cuss keane 17
Veterans’ Health Care, Training, and Small Business
Loan Act of 1981, Pub. L. No. 97-72, Section
401, 95 Stat. 1047, 1061 (1981) ........... 18
Veterans Health Programs Extension and Improve-
ment Act of 1979, Pub. L. No. 96-151, Section
307, 93 Stat. 1092, 1097 (1979) ........... 18
Federal Bills
S. 374, 98th Cong., let Sess. (1963) ........ 17
S. 786, 98th Cong., Ist Sess. (1983) ........ 17
S. 991, 98th Cong., Ist Sess. (1983) ........ 17
H.R. 1135, 98th Cong., Ist Sess. (1983) ..... 17
H.R. 1961, 98th Cong., Ist Sess. (1983) ..... 17
H.R. 2017, 98th Cong., Ist Sess. (1983) ..... 17
Books, Articles, Etc.
Advisory Committee Notes to the 1966 Amend-
ments, 39 F.R.D. 69 (1966) .............. 11
Hearings Before The Senate Committee on Veterans’
Affairs, 98th Cong., \st Sess. (June 16, 1983) .. 18
IN THE
Supreme Court of the Hnited States
October Term, 1983
oe
-
DIAMOND SHAMROCK CHEMICALS COMPANY, ef al.,
Petitioners,
Vv.
MICHAEL F. RYAN, et al.,
Respondents.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE SECOND CIRCUIT
s
i
PETITION FOR WRIT OF CERTIORARI
Petitioners Diamond Shamrock Chemicals Company,
The Dow Chemical Company, Hercules Incorporated,
Monsanto Company, and T H Agriculture & Nutrition
Company, Inc. respectfully pray that a writ of certiorari
issue to review the judgment of the United States Court of
Appeals for the Second Circuit entered on January 9, 1984
in In re Diamond Shamrock Chemicals Company, et al.,
No. 83-3065.
Opinions Below
The order of the court of appeals denying a writ of
mandamus to the Eastern District of New York appears
in the Appendix at Al. No opinion was issued with that
order, but the court’s order states that an opinion will be
forthcoming “in due course.”
The order of the court of appeals recalling its mandate
and reinstituting the stay of the district court’s order pend-
ing petition for a writ of certiorari appears in the Appendix
at A3.
2
The order of the court of appeals granting a stay of
the district court’s order pending determination of the
mandamus petition appears in the Appendix at AS.
The opinion of the district court granting class certifica-
tion and directing the form and content of class notice
appears in the Appendix at A7.
Jurisdiction
The judgment of the court of appeals was entered on
January 9, 1984. The jurisdiction of this Court is invoked
under 28 U.S.C. § 1254(1).
Statutes and Rules
Section 1407 of Title 28 of the United States Code
appears in the Appendix at A159.
Rule 23 of the Federal Rules of Civil Procedure appears
in the Appendix at A160.
Statement of the Case
This dispute stems from the continuing controversy over
the alleged health effects of Agent Orange and related
herbicides used by the United States military in Southeast
Asia during the Vietnam War.' Those herbicides were
1 Agent Orange was a 50:50 mixture of the n-butyl esters of 2,4-
dichlorophenoxyacetic acid and 2,4,5-trichlorophenoxyacetic acid.
The name “Agent Orange” derives from the orange band painted on
the containers in which the herbicide was delivered to the govern-
ment. Respondents’ claims have focused on the allegedly harmful
effects of minute quantities of 2,3,7,8-tetrachlorodibenzo-p-dioxin
that may have been present in varying amounts in the herbicide.
Unless the context requires otherwise, the term “Agent Orange” will
refer collectively to the several formulations of phenoxy herbicides
that contained any amount of 2,4,5-trichlorophenoxyacetic acid or
2,3,7,8-tetrachlorodibenzo-p-dioxin.
considered essential by the military to defoliate the dense
vegetation that surrounded roads and other areas in order
to protect American soldiers from ambush.
This proceeding is comprised of numerous actions filed in
various state and federal courts which are now pending
in the Eastern District of New York for coordinated or
consolidated pretrial proceedings pursuant to 28 U.S.C.
§ 1407 (1976), and has been designated as MDL No. 381.
Jurisdiction in the transferee district court is based on
diversity of citizenship under 28 U.S.C. § 1332.
The petitioners are the government contractors that
manufactured Agent Orange. Respondents, members of a
purported class of individuals that their counsel assert may
number in the millions, include veterans of the armed forces
of the United States, Australia and New Zealand who
served in Vietnam at any time from 1961 to 1972, as well
as their spouses, parents and children. The United States
is also a defendant in certain MDL No. 381 cases brought
by non-military personnel.
The veterans allege a great variety of personal injuries
from exposure to Agent Orange, including numerous types
of cancer, dermatological effects, neurological difficulties,
gastrointestinal disturbances, impotence, and psychological
and behavioral problems. Their children assert claims for
genetic injuries and birth defects. Wives of veterans seek
to recover in their own right for miscarriages and loss of
consortium. Respondents, whose claims are governed by
state law, advance various theories of liability, including
common-law negligence, strict products liability, breach of
implied warranty, intentional tort and nuisance. Punitive
damages are also sought for petitioners’ alleged misconduct
in furnishing Agent Orange to the United States military.
Petitioners deny any causal connection between respond-
ents’ alleged injuries and Agent Orange, and have also
raised a number of defenses recognized under various states’
laws. These include, among others, statutes of limitations,
contributory negligence, assumption of risk, misuse and the
government contract defense.? Trial has been set to com-
mence on May 7, 1984.
The specific issues on this petition relate to the class cer-
tification ruling of the district court under Rule 23 of the
Federal Rules of Civil Procedure.
On December 16, 1983, the district court issued an order
certifying a plaintiffs’ class on all issues in these diverse
proceedings under Rule 23(b) (3) in part because “a single
class-wide determination on the issue of causation will focus
the attention of Congress, the Executive branch and the
Veterans Administration on their responsibility, if any, in
this case” (A9).3 The court defined the class to include
all persons
2 While the parameters of the government contract defense have
yet to be finalized by the court for purposes of trial, under a
previous articulation of the defense any petitioner would be en-
titled to judgment if it could show that (1) the government es-
tablished the specifications for Agent Orange; (2) the Agent Orange
it manufactured complied with the specifications; and (3) the gov-
ernment knew as much as or more than a petitioner about the hazards
to people that accompanied use of Agent Orange. 534 F. Supp. 1046,
1055 (1982). Subsequently the court ruled that issues of “general
causation” and liability could not be tried separately from the govern-
ment contract defense. 565 F. Supp. 1263. 1275-77 (E.D.N.Y.
1983).
3 The court also granted class certification under Rule 23(b)(1)
(B) with respect to claims for punitive damages. This conclusion
was not based on a determination that a “limited fund” exists, but
on the court’s view that for policy reasons punitive damage awards
must be limited (A24-27).
who were in the United States, New Zealand or
Australian Armed Forces at any time from 1961 to
1972 who were injured while in or near Vietnam by
exposure to Agent Orange or other phenoxy herbi-
cides, including those composed in whole or part of
2,4,5-trichlorophenoxyacetic acid or containing
some amount of 2,3,7,8-tetrachlorodibenzo-p-di-
oxin. The class also includes spouses, parents, and
children of the veterans born before January 1,
1984, directly or derivatively injured as a result of
the exposure.
In making its ruling, the court glossed over the prere-
quisites of Rule 23 without determining the typicality of
the claims of the then undesignated class representatives.
The court also ruled that the concept of “general causation”
—or whether Agent Orange could have caused the injuries
claimed—is a common question of sufficient significance
that a determination would bind the absent class members
(A14-15).
The court also determined that common questions of
law predominate despite the fact that various respondents’
claims are necessarily dependent upon the various states’
laws governing products liability issues. This determina-
tion of predominance was based on the court's stated in-
tention to define a “national consensus” law of products
liability (A17).4
4 At an earlier stage in this litigation the district court ruled that a
federal common law of products liability governed these actions and,
therefore, that respondents’ claims were maintainable under 28 U.S.C.
$1331. See 506 F. Supp. 737, 744 (E.D.N.Y. 1979). The court
of appeals reversed that determination and this Court denied review.
See 635 F.2d 987 (2d Cir. 1980), cert. denied sub nom, Chapman v.
Dow, 454 U.S. 1128 (1981) (A116).
To inform potential class members of the action, the
court ordered a three-part notice campaign that contem-
plates mailing individual notice to only certain of the puta-
tive class members even though a far greater number of
persons are specifically identifiable.*
It also ordered dissemination of two forms ~‘ n-
nouncements to the general public in an attempr ‘ify
other absent class members. Respondents’ counsel were di-
rected to request broadcast on network radio and television
and to publish in a number of periodicals “special announce-
ments” stating that all persons who believe they, or members
of their families, were injured as a result of exposure to
defoliants used by the military in Vietnam are members
of the class. The announcements would also inform: those
persons to inquire for details about their rights, by either
calling a toll-free number obtained by plaintiffs’ counsel
or writing to a post office box for information.‘
5 The court directed plaintiffs’ counsel to mail a copy of individual
notice to: (i) all persons who have filed actions as plaintiffs in the
district courts of the United States, or filed actions in state courts
which were removed to federal court and transferred to the Eastern
District of New York for consolidation under 28 U.S.C. § 1407; (ii)
all persons who have moved to intervene; (iii) all persons presently
represented by plaintiffs’ counsel who have not commenced an action
or sought intervention; and (iv) all persons who have listed their
names on the “Agent Orange Registry” with the Veterans Administra-
tion (A29-30).
6 The television “special announcements” are to be served upon
ABC, CBS, NBC and the “Public Broadcasting and Television Net-
works.” The radio “special announcements” are to be served upon
stations with a combined coverage of at least 50% of the listener
audience in each of the top 100 markets in the United States. “News-
paper and Magazine Notice” is to be published in periodicals dis-
tributed nationally in the United States, including The New York
Times, U.S.A. Today, and Time Magazine, as well as in the ten
largest newspapers in circulation in Australia, and the five largest
newspapers in New Zealand (A30-32).
The district court stayed its order for seven days to
afford petitioners time to seek review from the court of
appeals. On December 22, 1983 petitioners filed in that
court a petition for writ of mandamus and a motion to stay.
A stay was issued on December 23, 1983 pending determi-
nation of the petition (A5). The court of appeals heard oral
argument on January 4, 1984, and issued an order on
January 9, 1984 denying the petition and vacating the stay
(Al). The order was filed without opinion, but stated that
one would be filed in “due course” (A2). Upon motion by
petitioners, the court of appeals recalled its mandate on
January 11, 1984 and issued an order under Rule 41(b) of
the Federal Rules of Appellate Procedure reinstituting the
stay through Sunday, January 15, 1984, pending application
to this Court for a writ of certiorari (A3).
The instant petition was filed with the Clerk on January
15, 1984.
Summary of Argument
By refusing to issue a writ of mandamus, the court of
appeals has allowed to stand the district court’s unprece-
dented decision which represents a sweeping distortion of
Rule 23. The decision is directly contrary to holdings of
this Court in Eisen and of all courts in other circuits that
have ruled on these issues. There are no common questions
of law or fact that predominate. The provisions for notice
to absent class members are patently deficient and violate
principles of due process.
The decision is not based on fundamental legal precepts
but on broad considerations of policy that are more properly
matters for congressional action. The court’s complete dis-
regard of due process requirements and the prerequisites
of Rule 23 evidence the court’s intention to certify a class
at any Cost.
Reasons for Granting the Writ
The Class Action Ruling Contravenes This Court’s
Holding in Eisen and Violates Principles of Due Pro-
cess.
In Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974),
this Court set forth the notice required under Rule 23:
[I]ndividual notice to identifiable class members is
not a discretionary consideration to be waived in a
particular case. It is, rather, an unambiguous re-
quirement of Rule 23. As the Advisory Committee’s
Note explained, the Rule was intended to insure that
the judgment, whether favorable or not, would bind
all class members who did not request exclusion
from the suit.
417 U.S. at 176. This Court rejected publication as a
permissible substitute for individual notice where class mem-
bers were reasonably identifiable. Thus, the Court held
that comparing the teletype transactions of two odd-lot
firms’ computerized records with general-service brokerage
addresses would be required to obtain the names and
addresses of the two million putative class members in that
action.
In the present case, the class action order disregards the
mandate of Eisen requiring notice to the more than 2.4
million U.S. military personnel who, respondents’ counsel
assert, could be in the class.’ Individual mailed notice has
? This figure does not include the veterans’ spouses, parents or
children, or the members of the Australian and New Zealand armed
forces or their families.
been ordered to only the approximately 120,000 persons
who volunteered their names to the Veterans Administration
for listing on the Agent Orange Registry, and to the 20,000
who have already filed actions, moved to intervene or other-
wise retained counsel associated with plaintiffs’ management
committee. As to the remainder, the court has authorized
a domestic media campaign based in large part on free
radio and television announcements that it expects will be
broadcast as a public service by miscellaneous radio and
television stations throughout the United States.
Numerous other absent class members, however, are
identifiable through reasonable effort. Edwin R. Matthews,
counsel for defendant Thompson Chemical Company, sub-
mitted an affidavit to the court on January 29, 1981, sum-
marizing sources from which a mailing list of hundreds of
thousands of Vietnam veterans could readily be compiled
by the representative plaintiffs (A152). In his affidavit,
which is uncontroverted, Mr. Matthews points out, for
example, that:
(1) a computerized listing of all Vietnam veterans dis-
charged after 1973 is available from the Veterans
Administration (4 2);
(2) the states of Illinois, Louisiana, Michigan, Mis-
souri, North Dakota, Pennsylvania, Washington
and Wisconsin can provide lists of approximately
600,000 veterans who served in Vietnam (€ 10);
(3) the Air Force Reserve Records Center can generate
a list of 50,000 to 80,000 Vietnam veterans at a
cost of under $500 (€ 7);
(4) the Navy can generate a list of approximately
134,000 Vietnam veterans at a cost not in excess
of $2,000 (4 7); and
10
(5) the Marine Corps can provide a list of the approxi-
mately 50,000 Marines currently on active duty
who served in Vietnam (4 7).
Yet respondents have not undertaken—and the district
court has not required—any effort to verify or act on the
information furnished in Mr. Matthews’ affidavit more than
two years ago.
In addition, the court has unilaterally rejected individual
notice to the Australian and New Zealand class members
without even inquiring into the feasibility of identifying
those persons. The only provision for notice calculated
to reach the Australian and New Zealand class members
is publication of a written version of the truncated radio
and television announcement in those nations’ newspapers.
The notice provisions here do not meet this Court’s
mandate in Eisen. Moreover, the due process concerns
underlying the “best notice practicable” requirement of
Rule 23 will not be satisfied, thus creating the danger of
successful collateral attack by class members on any judg-
ment in favor of defendants. See Eisen, supra, 417 U.S.
at 176. This Court has expressly recognized the unfairness
of allowing a putative class member to secure the benefits
of a class action without imposing the corresponding burden
of accepting an adverse judgment. Eisen, supra, 417 U.S.
at 177-78; American Pipe & Construction Co. v. Utah,
414 U.S. 538, 547 (1974). See also Sprogis v. United
Air Lines, Inc., 444 F.2d 1194, 1207 (7th Cir.) (Stevens,
J. dissenting) (a “procedure which permits a claim to be
treated as a class action if plaintiff wins, but merely as
an individual claim if plaintiff loses, is strikingly unfair”),
cert. denied, 404 U.S. 991 (1971).
Here, the court purports to bind a large class of people,
many of whom claim serious physical injury. Unlike the
11
situation in Eisen, the value of each individual claim is not
de minimis. The effort to identify and properly notify those
absent class members must, therefore, be greater than in
Eisen, not less. See, e.g., 1n re Nissan Motor Corp. Antitrust
Litigation, 552 F.2d 1088 (Sth Cir. 1977); Payton v.
Abbott Laboratories, 83 F.R.D. 382 (D. Mass. 1979).
Absent binding notice to all class members, the most
basic goal of class action litigation—expeditious resolution
of all claims within one case—cannot be achieved. The
court’s failure to provide “the best notice practicable” in
the present case will permit putative class members who
have not opted out of the litigation to avoid the conse-
quences of a determination unfavorable to the class because
of the constitutionally infirm notice sanctioned by the court.
This procedure will result in irreparable injury to peti-
tioners.
The Class Action Ruling Conflicts With Decisions
in Other Federal Circuits and Does Not Satisfy the
Prerequisites of Rule 23.
Rule 23 of the Federal Rules of Civil Procedure provides
a vehicle that enables a single court to adjudicate numerous
common claims by trying the cases of a few plaintiffs who
fairly ensure the adequate representation of all. The binding
effect of a single judgment on a number of persons acliieves
the “economies of time, effort, and expense” that are basic
purposes of Rule 23. See Advisory Committee Notes to the
1966 Amendments, 39 F.R.D. 69, 103 (1966). The re-
quirements in Rule 23 of typicality, adequacy of represen-
tation, predominance of common questions of law or fact,
and notice to absent class members combine to ensure that
class certification is granted only where, consonant with the
12
requirements of due process, the class can be bound and
the preclusive effect of res judicata applied. Hansberry v.
Lee, 311 U.S. 32 (1940); Blackie v. Barrack, 524 F.2d
891, 910-11 (9th Cir. 1975), cert. denied, 429 U.S. 816
(1976).
The federal courts, adhering to the above principles, have
uniformly rejected efforts to certify classes under Rule 23
(b)(3) in mass tort cases involving latent diseases of
multifactorial origins. In each instance, the court rejected
the class action device because the disparate factual and
legal questions that lie at the heart of such cases precluded
classwide adjudication of claims or significant issues. See,
e.g., In re Northern District of California “Dalkon Shield”
IUD Products Liability Litigation, 693 F.2d 847 (9th Cir.
1982), cert. denied sub nom. A.H. Robins, Inc. v. Abed,
US. , 103 S. Ct. 817 (1983); Payton v, Abbott
Labs, Nos. 76-1514-S, et seq. (D. Mass., Oct. 3, 1983);
Delaney v. Borden, Inc., 99 F.R.D. 44 (E.D. Pa. 1983);
Mertens v. Abbott Laboratories, 99 F.R.D. 38 (D.N.H.
1983); Thompson v. Procter & Gamble Co., No. C-80-
3711 (N.D. Cal., Dec. 7, 1982); Ryan v. Eli Lilly & Co.,
84 F.R.D. 230 (D.S.C. 1979); McDaniel v. Johns-Manville
Sales Corp., No. 76-735 (N.D. Ill., May 31, 1979); Yandle
Vv. PPG Industries, Inc., 65 F.R.D. 566 (E.D. Tex. 1974).
In Dalkon Shield, supra, the most recent court of appeals
opinion on point, the Court of Appeals for the Ninth Circuit
reversed certification of a statewide liability class under
Rule 23(b)(3) and a nationwide punitive damages class
under Rule 23(b)(1) comprised of individuals allegedly
injured by the Dalkon Shield intrauterine device. In that
case the court concluded that the “inherent obstacles to
personal injury class actions [whereby] commonality begins
to be obscured by individual case histories” preciuded class
13
certification under Rule 23(b)(3). 693 F.2d at 852, 854
(emphasis added). The court noted that the “common
nucleus of operative facts” relative to design and production
could not support class-wide adjudication of liability:
In product liability actions, however, individual
issues may outnumber common issues. No single
happening or accident occurs to cause similar types
of physical harm or property damages. No one set
of operative facts establishes liability. No single
proximate cause applies equally to each potential
class member and each defendant. Furthermore,
the alleged tortfeasors’ affirmative defenses . . . may
depend on facts peculiar to each plaintiff's case.
* * *
Robins’ overall liability, under some of the theories,
cannot be proved unless each plaintiff also proves
that Robins’ breach of its duty proximately caused
her particular injury.
Id. at 853, 856 (citation omitted) (emphasis added).
The court's class certification in this litigation stands in
direct conflict with the decision in Dalkon Shield. Like
Dalkon Shield, this mass products liability proceeding in-
volves no one set of operative facts, no single proximate
cause. Rather, Agent Orange and other herbicides were
used in Vietnam over a period of ten years, from 1961 to
1971. Each veteran was exposed, if at all, to different
herbicides, manufactured under varying processes by one
or more of seven government contractors, at different times,
in different places, for different lengths of time and in
different concentrations.
The court of appeals has allowed circumvention of the
due process concerns recognized in Dalkon Shield by con-
doning the unprecedented and purportedly distinct legal
14
concept of “general causation.” Under this approach a
jury would be asked to determine in the abstract, but in
the factual context peculiar to the “representative” plaintiff,
whether Agent Orange could cause injury to any class mem-
ber under any circumstances. Thus, if it were found that a
representative’s injuries were (or were not) caused by Agent
Orange, that conclusion, so the theory goes, would apply
equally to all plaintiffs claiming “similar” injuries. The
issue of legal causation, however, can not properly be ad-
dressed without thorough examination of each plaintiff's
claimed exposure to Agent Orange as well as exposures and
susceptibilities to other potential causes or cogenerators of
the diseases alleged. Varied etiology makes extrapolation
from one plaintiff to the class impossible, and renders a
separate trial of “general causation” an exercise in futility.
No generalization regarding causation can be made from
the examination of the causes of disease in one sentinel
case. There is no scientific hypothesis that supports the
selection of “representative” plaintiffs solely on the basis
of the particular disease claimed. No common denominator
of causation is identifiable here. See Mertens v. Abbott
Laboratories, 99 F.R.D. 38 (D.N.H. 1983).
Had the court examined, as required under Rule 23,
whether the representative plaintiffs’ claims were typical
of those of the class in order to ensure adequacy of rep-
resentation, the house of cards upon which certification
here is based would have fallen. Indeed, the numerous
variations in exposure, medical and environmental history,
as well as the myriad disparate diseases at issue, make it
impossible for any class representative to “possess the same
interest and suffer the same injury” as the class members.
Schlesinger v. Reservists Committee To Stop the War, 418
U.S. 208, 216 (1974). Accord, Malchman v. Davis, 706
15
F.2d 426 (2d Cir. 1983); Amswiss International Corp. Vv.
Heublein, Inc., 69 F.R.D. 663, 667 (N.D. Ga. 1975).
Instead, consistent with its view of Rule 23 as an un-
bounded case control mechanism, the court dismissed the
requirements of adequacy of representation and typicality
in perfunctory fashion (A146-51). Yet, the class represen-
tatives were designated by respondents’ counsel after certifi-
cation (Al5). The court acknowledged that there was no
effort to address the typicality of the claims or adequacy of
the representative plaintiffs (A146-51).
The court attempts to avoid application of the laws
of the different states to the different class members’ claims
by positing an unspecified “national substantive rule” to
govern the main issues in the litigation (A17). This “na-
tional rule” is to be based on a yet to be demonstrated,
and in fact non-existent, “consensus” among the states with
respect to the rules of conflicts and applicable substantive
law. The court’s decision represents a startling rejection
of Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938),
and Klaxon Co. v. Stentor Electric Mfg. Co., 313 USS.
487 (1941), and of the need to determine and apply
the appropriate state’s choice of law rules in order to ascer-
tain the substantive law applicable to each claim. The
“national substantive rule” envisioned by the court is little
more than another term for the federal common law which
the court of appeals has already determined does not govern
here. See In re “Agent Orange” Product Liability Litiga-
tion, 635 F.2d 987 (2d Cir. 1980), cert. denied sub nom.
Chapman v. Dow Chemical Co., 454 U.S. 1128 (1981)
(A116).
The court may not avoid application of those various
states’ substantive laws, including choice of law rules, simply
by certifying these cases as a class action. Rule 23, a rule
16
of federal procedure, can not be employed consistent with
Erie to effect a change in applicable state law. If the act
of certifying a class in this mass tort litigation could prop-
erly reduce to a single rule the variety of choice of law
determinations presented, then the predominance require-
ment of Rule 23 would be rendered meaningless. To hold
otherwise would allow the result of certification to constitute
the prerequisite of predominance. It is clear that the neces-
sary application of the differing laws of perhaps fifty states
and two foreign countries precludes class certification here.
See, e.g., In re Northern District of California “Dalkon
Shield” IUD Products Liability Litigation, 693 F.2d 847
(9th Cir. 1982), cert. denied sub nom. A.H. Robins v.
Abed, U.S. ——-, 103 S. Ct. 817 (1983); Coca-Cola
Bottling Co. v. Coca-Cola Co., 95 F.R.D. 168 (D. Del.
1982); Schmidt Vv. Interstate Federal Savings & Loan Ass'n,
74 F.R.D. 423 (D.D.C. 1977); Elster v. Alexander, 76
F.R.D. 440 (N.D. Ga. 1977), appeal dismissed, 608 F.2d
196 (Sth Cir. 1979); McMerty v. Burtness, 72 F.R.D. 450
(D. Minn. 1976); /n re U.S. Financial Securities Litigation,
64 F.R.i>. 443 (S.D. Cal. 1974).
The court’s attempt to contort what are essentially in-
dividual personal injury actions into a class action violates
the due process safeguards incorporated in Rule 23. The
trial of the representative plaintiffs’ claims will accomplish
little more than adjudication of those claims, and will have
no significant effect on the claims of the thousands of other
plaintiffs whose actions are included in this multidistrict
litigation.
17
Denial of Class Certification Will Not Preclude Fair
Resolution of These Claims Which Involve Issues of
Great Public Importance.
The class certification determination here is predicated on
the flawed premise that if this multidistrict proceeding does
not proceed as a class action, respondents’ claims may never
be resolved. The fear apparently is that plaintiffs in
the suits constituting MDL No. 381 will have no effective
remedy without a class action. This simply is not so.
These proceedings do not present a situation where small
claims need to be combined in order to provide an incentive
to prosecute. The very number of individual actions al-
ready initiated, as well as the amount of damages sought,
amply demonstrates this.
In addition, federal adjudication of the subject claims may
be accomplished without gerrymandering Rule 23 and deny-
ing the parties’ due process rights. For example, 28 U.S.C.
§ 1407 was invoked effectively here to allow consolidated
and coordinated pretrial proceedings. Other procedures
exist to produce further efficiencies following remand to the
transferor forums. E.g., Fed. R. Civ. P. 42(a).
Moreover, Congress is actively engaged in addressing
Agent Orange and related questions.’ Besides proposed
legislation aimed at resolving Agent Orange problems, Con-
8 Cf. Eisen, supra, 417 U.S. at 161 (“A critical fact in this litiga-
tion is that petitioner's individual stake in the damages award he
seeks is only $70.”)
9 See, e.g., S. 374, 98th Cong., Ist Sess. (1983); S. 786, 98th
Cong., Ist Sess. (1983); S. 991, 98th Cong., Ist Sess. (1983); H.R.
1135, 98th Cong., Ist Sess. (1983); H.R. 1961, 98th Cong., Ist Sess.
(1983); H.R. 2017, 98th Cong., Ist Sess. (1983).
18
gress has acted to investigate and promote medical-scientific
studies designed to determine the multifaceted issues of
causation between Agent Orange exposure and alleged
diseases.'°
Both the court of appeals and the district court in MDL
No. 381 have expressly acknowledged that Congress has a
central role to play in regard to Agent Orange questions
(AS, 131-32). Yet, the intention of the district court to sup-
plant that role is evidenced by the court’s treatment of Rule
23 and the requirements of Eisen, and by its espoused inten-
tion to apply federal common law under the rubric of
“national consensus law.” The magnitude of the class ruling
raises a matter of grave public importance as it purports to
affect individual rights on an international scale, well beyond
the court’s jurisdiction.
Since the early 1970's America has struggled to come to
terms with its military involvement in Vietnam. The cir-
cumstances surrounding the use of herbicides in Vietnam
has become one of the focal issues associated with that
emotional period of American history. In addition, ad-
vances of scientific and medical technology have brought the
Agent Orange and dioxin issues into the consciousness of
the people of this country and the world.
The class ruling here would permit a single proceeding
to adjudicate the personal injury claims of every Australian,
New Zealander and American who alleges injury from
Agent Orange by trying the claims of only a few persons
0 F.g., Veterans Health Programs Extension and Improvement
Act of 1979, Pub. L. No. 96-151, Section 307, 93 Stat. 1092,
1097 (1979); Veterans’ Health Care, Training, and Small Business
Loan Act of 1981, Pub. L. No. 97-72, Section 401, 95 Stat. 1047,
1061 (1981); Hearings Before the Senate Committee on Veterans’
Affairs, 98th Cong., Ist Sess. (June 16, 1983).
19
who do not adequately represent them. The necessity for
review by this Court is compelling.
Conclusion
For the reasons set forth above, petitioners respectfully
pray that a writ of certiorari be granted to review the judg-
ment of the Court of Appeals for the Second Circuit.
Dated: January 15, 1983
Respectfully submitted,
WENDELL B. ALCORN, JR.
GEORGE D. REYCRAFT
One Wall Street
New York, New York 10005
(212) 908-7000
Attorneys for Petitioners
Diamond Shamrock Chemicals
Company, The Dow Chemical
Company, Hercules Incorporated,
Monsanto Company,
T H Agriculture & Nutrition
Company, Inc.
20
Of Counsel:
CADWALADER, WICKERSHAM & TAFT
Attorneys for Diamond Shamrock Chemicals Company
One Wall Street
New York, New York 10005
RIVKIN, LEFF, SHERMAN & RADLER
Attorneys for The Dow Chemical Company
100 Garden City Plaza
Garden City, New York 11530
KELLEY Dre & WARREN
Attorneys for Hercules Incorporated
101 Park Avenue
New York, New York 10178
TOWNLEY & UPDIKE
Attorneys for Monsanto Company
405 Lexington Avenue
New York, New York 10017
CLARK, GAGLIARDI & MILLER
Attorneys for T H Agriculture & Nutrition Company
The Inns of Court
99 Court Street
White Plains, New York 10601
~~?
APPENDIX
Order of the Court of Appeals
Filed January 9, 1984
UNITED STATES COURT OF APPEALS
SECOND CIRCUIT
Docket No. 83-3065
At a Stated Term of the United States Court of Appeals,
in and for the Second Circuit, held at the United States
Courthouse, in the City of New York, on the ninth day of
January, one thousand nine hundred and eighty-four.
Before
Hon. JON O. NEWMAN,
Hon. RALPH K. WINTER,
Circuit Judges
Hon. LLoyp F. MACMAHON,
District Judge
,%
v
IN RE: DIAMOND SHAMROCK CHEMICALS COMPANY, THE
Dow CHEMICAL COMPANY, MONSANTO COMPANY, HER-
CULES INCORPORATED, and T.H. AGRICULTURE & Nvu-
TRITION COMPANY, INC.,
Petitioners.
IN RE: AGENT ORANGE,
Product Liability Litigation
a
vv
On consideration of the petition for a writ of mandamus
and further consideration of the order granting a stay pend-
ing determination of the petition for mandamus, it is
ORDERED that the said petition be, and it hereby is,
denied; and it is further
A2
Order of the Court of Appeals Filed January 9, 1984
ORDERED that the said stay pending determination of the
petition for mandamus be, and hereby is, vacated.
An opinion will be filed in due course.
A. DANIEL FusAro, Clerk
by /s/ FRANCIS X. GINDHART
Chief Deputy Clerk
Filed Jan. 9, 1984
A3
Order of the Court of Appeals
Filed January 11, 1984
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Docket No. 83-3065
+
In re
DIAMOND SHAMROCK CHEMICALS COMPANY, ef al.,
Petitioners
a
v
NOTICE OF MOTION
RELIEF REQUESTED:
A recall of this Court’s order filed January 9, 1984 and
reinstitution of stay is requested under Rule 41(b) pending
application by petitioners to the Supreme Court for a writ
of certiorari.
By: /s/ WENDELL B. ALCORN, JR.
Wendell B. Alcorn, Jr.
FOR
DIAMOND SHAMROCK CHEMICALS Co.
Petitioner-Defendant
January 10, 1984
A4
Order of the Court of Appeals Filed January 11, 1984
ORDER
Before:
Hon. JON O. NEWMAN, CJ,
RALPH K. WINTER, CJ,
and
Lioyp F. MAcMaon, DJ.
It Is HEREBY ORDERED that the motion to recall the man-
date and reinstitute the stay previously granted by this court
be and it hereby is granted. The said stay shall expire on
January 15, 1984.
Filed Jan 11 1984
A True Cory
A. DANIEL FusArRo, Clerk
A. DANIEL Fusaro, Clerk
/s/ EDWARD J. GUARDARO
By: EDWARD J. GUARDARO
Deputy Clerk
By /s/ FRANCIS X. GINDHART
Chief Deputy Clerk
Filed Jan. 11, 1984
AS
Order of the Court of Appeals
Filed December 23, 1983
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Docket No. 83-3065
a
¥
In re
DIAMOND SHAMROCK CHEMICALS COMPANY, ef al.,
Petitioners
s
¥
NOTICE OF MOTION
RELIEF REQUESTED:
Petitioners request a stay of the Order of the District
Court until such time as the Court of Appeals rules on their
Petition for a Writ of Mandamus.
By: /s/ WENDELL B. ALCORN, Jr.
Wendell B. Alcorn, Jr.
FOR
DIAMOND SHAMROCK CHEMICALS Co.
Petitioner-Defendant
December 22, 1983
A6
Order of the Court of Appeals Filed December 23, 1983
ORDER
It Is HEREBY ORDERED that the motion be and it hereby
is granted.
Filed Dec 23 1983
/s/ THOMAS MICHAELS
Thomas Michaels
A7
Opinion of the District Court (Weinstein, J.)
Dated December 16, 1983
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MDL No. 381
In re “AGENT ORANGE”
Product Liability Litigation
--
¥
MEMORANDUM AND PRETRIAL ORDER No. 72
(Class Action)
APPEARANCES:
David J. Dean, Dean, Falanga, Sinrod & Rose, Carle
Place, New York; Stephen J. Schlegel, Schlegel &
Trafelet, Ltd., Chicago, Illinois; Thomas W. Hender-
son, Pittsburgh, Pennsylvania; Benton Musselwhite,
Houston Texas
Attorneys for Plaintiffs
Leonard Rivkin, Rivkin, Leff, Sherman & Radler, Garden
City, New York; Philip Pakula, Townley & Updike,
New York, New York; Wendell B. Alcorn, Jr.,
Cadwalader Wickersham & Taft, New York New
York; William Krohley, Kelley, Drye & Warren, New
York, New York; Thomas Beck, Arthur, Dry &
Kalish, New York, New York; David R. Gross, Budd,
Larner, Kent, Gross, Picillo & Rosenbaum, New York,
New York; Paul V. Esposito, Lewis, Overbeck &
Furman, Chicago, Illinois; Morton B. Silberman,
Clark, Gagliardi & Miller, White Plains, New York
Attorneys for Defendants
WEINSTEIN, Ch. J.:
A8
Opinion of the District Court Dated December 16, 1983
Plaintiffs, Vietnam War veterans and members of their
families, claims to have suffered damages as a result of the
veterans’ exposure to herbicides in Vietnam. Defendants
allegedly produced these herbicides.
Some years ago this court ruled that the litigation would
proceed as a class action pursuant to Rule 23(b)(3) of
the Federal Rules of Civil Procedure. In re Agent Orange
Product Liability Litigation, 506 F.Supp. 762, 787 ff.
(E.D.N.Y. 1980). No certification order was, however,
entered. The court noted that later stages of this litigation,
especially those concerned with individual causation and
damages, “may require reconsiderat.on” of the certification.
Id. at 790. Those later stages have now been reached.
The questions to be decided are whether the class should
be certified, which of the types of classes described by
Rule 23 should be utilized, how the class should be de-
scribed, and for what issues. For the reasons indicated
below, the class is certified for all issues under 23(b) (3),
and on the issue of punitive damages under 23(b)(1)(B).
This certification requires a number of decisions on the
mechanics of notice described in the following discussion.
INTRODUCTION
Plaintiffs have increasingly sought to use class actions
to redress injuries caused by a single product manufactured
for widespread use. A number of courts have seen the class
action as the only alternative “to trying . . . virtually iden-
tical lawsuits, one-by-one,” resulting in the “bankruptcy
of both the state and federal court systems.” Williams,
Mass Tort Class Actions, 98 F.R.D. 323, 324 (1983).
Three factors in the instant litigation make the desirability
of class certification even greater than it would be in most
mass tort litigation.
A9
Opinion of the District Court Dated December 16, 1983
The first is size. The potential size of plaintiffs’ class
in this litigation numbers in the tens of thousands. If the
claims are dealt with individually, the result might “result
in a tedium of repetition lasting well into the next century.”
In re No. Dist. of Cal. “Dalkon Shield” IUD Product
Liability Litigation, 526 F.Supp. 887 (N.D. Cal.), rev'd,
693 F.2d 847 (9th Cir. 1982), cert. denied sub nom.
A. H. Robins v. Abed, — U.S. —, 103 S.Ct. 817 (1983).
By way of contrast, there were only several hundred plain-
tiffs in the class certified by the district court in Jn re Federal
Skywalk Cases, 93 F.R.D. 415 (W.D. Mo.), vacated, 680
F.2d 1175 (8th Cir. 1982), cert. denied sub nom. Johnson
v. Stover, — U.S. —, 103 S.Ct. 342 (1983) and less than
4,000 in the “Dalkon Shield’ litigation.
Second is the need to assure that the financial burden
will ultimately fall on the party which, it may be found,
should as a matter of fairness bear it. As this court pointed
out:
Overarching the entire dispute is a feeling on both
sides that whatever existing law and procedures may
technically require, fairness, justice and equity in
this unprecedented controversy demand that the
government assume responsibility for the harm
caused our soldiers and their families by its use of
Agent Orange in Southeast Asia.
In re Agent Orange Product Liability Litigation, 506
F.Supp. 762, 784 (E.D.N.Y. 1980). A class action is the
best vehicle for achieving that end. A single class-wide
determination on the issue of causation will focus the atten-
tion of Congress, the Executive branch and the Veterans
Administration on their responsibility, if any, in this case.
By contrast, possibly conflicting determination made over
many years by different juries make it less likely that ap-
Al10
Opinion of the District Court Dated December 16, 1983
propriate authorities and the parties will arrive at a fair
allocation of the financial burden, if any.
Third, certification may encourage settlement of the
litigation. In a situation where there are potentially tens
of thousands of plaintiffs, the defendants may naturally be
reluctant to settle with individual claimants on a piecemeal
basis.
LAW
Rule 23(a) contains four prerequisites to the mainte-
nance of a ciass action. They are:
(1) the class is so numerous that joinder of all
members is impracticable, (2) there are questions
of law or fact common to the class, (3) the claims
. . of the representative parties are typical of the
claims of the class, and (4) the representative
parties will fairly and adequately protect the in-
terests of the class.
The four prerequisites as they applied to this litigation
have already been carefully analyzed by the court and found
to exist. See In re “Agent Orange” Product Liability
Litigation, 506 F. Supp. 762, 787 (E.D.N.Y. 1980).
Present as well as prior counsel for plaintiffs appear ade-
quate to their complex task. The only matter on which
further elaboration is needed is the second prerequisite,
the requirement that there be “questions of law or fact
common to th class.” Discussion of this point will be com-
bined with a discussion of Rule 23(b) (3).
Rule 23(b)(3)
Rule 23(b)(3) states that if the four prerequisites of
23(a) are met, the class will be certified if, in addition,
All
Opinion of the District Court Dated December 16, 1983
the court finds that the questions of law or fact common to
the members of the class predomi ite over any questions
affecting only individual members, and that a class action
is superior to other available methods for the fair and
efficient adjudication of the controversy. Thus, the issues
to be decided are (1) do questions of law or fact common
to the class predominate over any questions affecting only
individual members, and (2) is a class action the best
method for resolution of the litigation.
This court’s prior finding that the government contract
defense and the affirmative defense of misuse are common
to the class is not contested by the parties. Defendants
strongly contend, however, that the heart of any product
liability claim, causation, can never be common to the
class since each veteran, spouse and offspring who has in-
stituted a lawsuit claiming direct or derivative injuries from
the veteran’s exposure to Agent Orange brings to this case
a unique history upon which his or her claim for damages
is predicated. Each veteran was exposed, if at all, at dif-
ferent times, at different places and under different circum-
stances. Therefore, the argument continues, a determina-
tion on the issue of causation, whether made as a finding
of general causation or as a result of a finding in “test”
cases, can never be dispositive of the claims of the other
class members and as a result common questions do not
“predominate.”
Defendants support their argument by citing the Ad-
visory Committee’s Notes on Rule 23 and a number of
recent cases that have denied (b)(3) certification in mass
tort cases. See, e.g., In re No. Dist. of Cal. “Dalkon Shield”
IUD Product Liability Litigation, 593 F.2d 847 (9th Cir.
1982), cert. denied sub nom. A. H. Robins v. Abed, —
U.S. —, 103 S. Ct. 817 (1983); Payton v. Abbott Labs,
Al2
Opinion of the District Court Dated December 16, 1983
Civil Action No. 76-1514-5, slip opinion (D. Mass. Oc-
tober 3, 1983) (DES Claims); Boring v. Medusa Portland
Cement Co., 63 F.R.D. 78 (M.D. Pa. 1974) (county
residents seeking damages for air pollution); Yandle v.
PPG Industries, Inc., 65 F.R.D. 566 (E.D. Tex. 1974)
(employees of asbestos plant).
Without setting forth the details and analysis of each
case, it is fair to say that the reasoning of all of the cases
they rely upon is the same as that of the Advisory Com-
mittee and is supportive of defendants’ reasoning. The
drafters’ notes state:
A ‘mass accident’ resulting in injuries to numerous
persons is ordinarily not appropriate for a class
certification because of the likelihood “that sig-
nificant questions not only of damages but~of-i-
ability and defenses to liability, would be present,
affecting the individuals in different ways. In these
circumstances an action nominally conducted as a
class action would degenerate in practice into mul-
tiple lawsuits separately tried.
Advisory Committee Notes to Proposed Rules of Civil
Procedure, 39 F.R.D. 69, 103 (1966). The defendants
insist that the Agent Orange situation is even worse in that
the focus of the litigation is not a “mass accident,” but a
mass products liability based upon a series of discrete
events.
Following defendants’ analysis, the District Court in
Texas, in denying certification of a (b) (3) class consisting
of all former employees and survivors of former employees
of the defendant’s asbestos plant, stated that the litigation
is very different from the single mass accident cases
that have in the past alowed a class action to pro-
Al3
Opinion of the District Court Dated December 16, 1983
ceed on the liability issues. Those cases have nor-
mally involved a single tragic happening which
caused physical harm or property damage to a group
of people, and affirmative defenses are absent.
Usually, one set of operative facts will establish
liability . . . The Court is in agreement with the
defendant that there is not a single act of negligence
Or proximate cause which would apply to each
potential class member and each defendant in this
case.
Yandle v. PPG Industries, Inc., 65 F.R.D. 566, 571 (E.D.
Tex. 1974). Similarly, the District Court of New Hamp-
shire denied (b) (3) certification to a class consisting of all
New Hampshire women claiming injury from DES. Plain-
tiffs sought a blanket determination that DES causes injurv
in utero. The court stated that “such a determination
[would] do nothing to advance the cause of class members
as a group.” Mertens v. Abbott Laboratories (D.N.H.
July 27, 1983) C-80-223, slip opinion at 9. If the class is
certified, defendants suggest that the certification and class
trial should be limited to the only issue which they see as
common to the entire class, that is, the government con-
tract defense.
The force of the defense contention is substantial since
commonality is critical to certification. Nevertheless, it is
not conclusive. In deciding whether common questions
predominate, a pragmatic evaluation of the interest of the
class members is given great weight. As Professors Wright
and Miller put it:
“In general, a Rule 23(b) (3) action is appropriate
whenever the actual interests of the parties can be
served best by a single action. ... [T]he proper
standard under Rule 23(b) (3) is a pragmatic one,
Al4
Opinion of the District Court Dated December 16, 1983
which is in keeping with the basic objectives of the
Rule 23(b)(3) class action. Thus, when common
questions represent a significant aspect of the case
and they can be resolved for all members of the
class in a single adjudication, there is a clear justi-
fication for handling the dispute on a representative
rather than on an individual basis.”
7A C. Wright & A. Miller, Federal Practice and Procedure
§§ 1777, 1778 (1972). See also id. at § 1783. Wright &
Colussi, The Successful Use of the Class Action Device
in the Management of the Skywalk Mass Tort Litigation,—
Univ. of Missouri-Kansas City L. Rev.—(1984) (forth-
coming) (noting the successful use of a 23(b)(3) class
in the Skywalk litigation). Litigation economies are also
relevant. One commentator has gone so far as to suggest
that “the chief purpose of the predomination inquiry is not
to measure the compatibility of class action procedures
with substantive law but to determine whether a class action
will in fact realize any litigation economies.” Note,
Developments in the Law—Class Actions, 89 Harv. L. Rev.
1318, 1505 (1976).
Unlike litigations such as those involving DES, Dalkon
Shield and asbestos, the trial is likely to emphasize critical
common defenses applicable to the plaintiffs’ class as a
whole. They will include such matters as that the sub-
stances manufactured could not have caused the injuries
claimed; that if any injuries were caused by defendants’
product it was because of the particular use and misuse
made by the government; and that the government, not the
manufacturers were wholly responsible because the former
knew of all possible dangers and assumed full responsibility
for any damage. No “defenses to liability [are] present
affecting the individuals in different ways.” Advisory Com-
Al5
Opinion of the District Court Dated December 16, 1983
mittee Notes, 39 F.R.D. at 103. It is anticipated that a
very substantial portion of a prospective four-month trial
will be devoted to just those defenses. Certification would
be justified if only to prevent relitigating those defenses
over and over again in individual cases.
Defendants’ proposal to limit the class trial to the issue
of the government contract defense is not a workable one.
As this court has already noted, the issue of the government
contract defense is inextricably interwoven with the issue
of causation. /n re Agent Orange Product Liability Litiga-
tion, 565 F. Supp. 1263, 1275-76 (E.D.N.Y. 1983). It
would be impossible to try the former without litigating
and reaching conclusions as to the latter.
Even more persuasive is the extraordinary size of plain-
tiffs’ class and the posture of the dispute. Unlike a case
such as Mertens or “Dalkon Shield”, a determination on
the issue of causation would do much to resolve the indi-
vidual claims of the class members. The plaintiffs have
indicated that there are a number of types of injuries which
Agent Orange allegedly caused. The court has, therefore,
ordered that, for purposes of the causation issue, plaintiffs’
counsel will choose representative claimants for each type
of injury alleged. A determination adverse to the plain-
tiffs in all categories could resolve the litigation and save
considerable judicial and lawyers’ time. Even if there is a
finding of no causation as to less than all of the types of
damage alleged, that determination alone would be likely
to resolve tens of thousands of individual claims. Cf. Jn re
Antibiotic Antitrust Actions, 333 F. Supp. 278, 281,
modified, 333 F. Supp. 291; 333 F. Supp. 299 (S.D.N.Y.
1971).
Were there a finding of causation favorable too the
plaintiffs across the board, that, too, will help resolve the
Al6
Opinion of the District Court Dated December 16, 1983
individual claims of the class members. Unlike the asbestos,
DES, Dalkon Shield, and Federal Skywalk cases, defendants
contest liability not just as to individual members of the
class, but as to any members of the class. Thus, unlike other
mass product liability cases, a determination of general
causation will serve both the interests of judicial economy
and assist in the speedy and less expensive resolution of
individual class member’s claims. Cf. Thompson v. Proctor
& Gamble Co., No. C-80-3711 EFL (N.D. Cal. December
7, 1982), slip op. at 4; Mertens v. Abbott Laboratories,
slip op. at 12. See also Note, Class Actions in a Products
Liability Context—The Predomination Requirement and
Cause-In-Fact, 7 Hofstra L. Rev. 859 (1979).
Finally, the court may not ignore the real world of dis-
pute resolution. As already noted, a classwide finding of
causation may serve to resolve the claims of individual
members, in a way that determinations in individual cases
would not, by enhancing the possibility of settlement among
the parties and with the federal government.
The considerations already described make it clear why
effective case management would not be possible were the
court to pursue the alternative of allowing individual plain-
tiffs to intervene in a single case. A verdict in such a case
either as to the affirmative defenses or causation might
not be binding on the tens of thousands of plaintiffs not
parties to the suit. A class action is, therefore, “superior
to other available methods for the fair and efficient adjudica-
tion of the controversy.”
Defendants further object that even if the litigation is
otherwise suited for (b)(3) certification, the need to
apply the law of dozens of different states would preclude
certification or at least require different subclasses for each
state. In most cases, this argument would have considerable
Al7
Opinion of the District Court Dated December 16, 1983
force. As this court’s opinions dealing with the choice-of-
law problem in diversity cases and the law applicable to
manufacturers’ liability will show, it is of relatively little
significance in this litigation. There is, as will be demon-
Strated, a consensus among the states with respect to the
rules of conflicts and applicable substantive law that pro-
vides, in effect, a national substantive rule governing the
main issues in this case. Since, in the main, one law applies
to all the claims, certification of one class is appropriate.
Cf. In re No. Dist. of Calif. “Dalkon Shield” IUD Product
Liability Litigation, 693 F.2d 847, 850 (9th Cir. 1982),
cert. denied sub nom. A. H. Robins v. Abed. — U.S. —,
103, S. Ct. 817 (1983).
Should there subsequently develop a need for creation
of subclasses as the litigation develops and applicable sub-
stantive or procedural law requires application of individual
states’ laws, further subclasses can be created. See, e.g.,
Halderman vy. Pennhurst State School & Hospital, 612
F.2d 84, 110 (3d cir. 1979), rev’d on other grounds, 451
U.S. 1 (1981); Kaufman v. Dreyfus Fund, Inc., 434 F.2d
727, 737 (3d Cir. 1970); Eisen v. Carlisle & Jacquelin,
391 F.2d 555, 566 (2d Cir. 1968); In re Caesars Palace
Securities Litigation, 360 F. Supp. 366, 398 (S.D.N.Y.
1973).
The last objection the defendants have to (b)(3) cer-
tification is that a class-wide trial on causation violates their
right to have a single jury rule on the question of the de-
fendants’ liability to each Agent Orange plaintiff. Issues
may not be bifurcated for trial, they point out, unless it
appears that the issues are “so distinct and separable” that
they may be tried separately “without prejudice.” Gasoline
Products Co. v. Champlin Refining Co., 283 U.S. 494, 500,
501 (1931); Franchi Construction Co. v. Combined Ins.
Co., 580 F.2d 1, 8 (1st Cir. 1978). If the issues are so
Al8
Opinion of the District Court Dated December 16, 1983
interwoven that separate trials would cause confusion and
uncertainty, a litigant is denied his right of fair trial. As
applied to the Agent Orange litigation, defendants contend
that advising a jury in a subsequent trial on “specific” causa-
tion that there has already been a “general” determination
that Agent Orange could cause plaintiff's illness would
unfairly prejudice the jury in plaintiff's favor. Defendants’
argument is not persuasive. It is common in product liability
suits for there to be a tacit admission that the defendant’s
product could have caused the injury alleged with the ques-
tion for the jury being whether it actually did cause it.
Juries often distinguish between general and specific
causation.
In sum, the court finds (1) that the affirmative defenses
and the question of general causation are common to the
class, (2) that those questions predominate over any ques-
tions affecting individual members, and (3) given the
enormous potential size of plaintiffs’ case and the judicial
economies that would result from a class trial, a class action
is superior to all other methods for a “fair and efficient
adjudication of the controversy.”
Rule 23(b)(1)(A)
Certification is sought pursuant to Rule 23(b)(1)(A).
The rule requires a risk of
(A) inconsistent or varying adjudications with
respect to individual members of the class which
would establish incompatible standards of conduct
for the party opposing the class.
The court has already stated that “Rule 23(b)(1)(A)
is not meant to apply . . . where the risk of inconsistent
results in individual actions is merely the possibility that
Al9
Opinion of the District Court Dated December 16, 1983
the defendants will prevail in some cases and not in others,
thereby paying damages to some claimants and not others.”
506 F. Supp. at 789 (citations omitted). If the risk of
paying money damages to some and not others were suffi-
cient for (b)(1)(A) certification, almost every class action
could be certified under (b)(1)(A). See McDonnell
Douglas Corporation v. United States District Court, Cen-
tral District of California, 523 F.2d 1083, 1086 (9th Cir.
1975), cert. denied sub nom. Flanagan v. McDonnell
Douglas Corporation, 425 U.S. 911 (1976); see also A.
Miller, An Overview of Federal Class Actions: Past, Pres-
ent and Future 43 (1973). ;
Plaintiffs attempt to distinguish the current litigation by
expressing concern that if different courts decide differently
future contractors will not know the possible extent of their
responsibility and whether they should bid on government
defense or war contracts. Their concern is commendable,
but misplaced. Any inconsistent or erroneous theories of
law applied by trial courts in Agent Orange cases will cer-
tainly be rectified in the highest courts. It is unlikely that
the Supreme Court would avoid clarifying the law on the
subject. Rule 23(b)(1)(A) is not applicable.
Rule 23(b)(1)(B)
Plaintiffs also seek certification of a mandatory class
under Rule 23(b)(1)(B). Under that section, when the
four prerequisities of 23(a) are met, the class will be cer-
tified if, in addition, as a practical matter, individual ad-
judications would prevent or greatly impede the ability of
other members to protect their interests. It reads in part:
adjudications with respect to individual members
of the class . . . would as a practical matter be dis-
positive of the interests of the other members not
A20
Opinion of the District Court Dated December 16, 1983
parties to the adjudications or substantially impair
or impede their ability to protect their interests...
The rationale for using (b)(1)(B) in mass tort litigation
is that of the “limited fund.” As Professor Miller put the
matter:
The paradigm Rule 23(b)(1)(B) case is one in
which there are multiple claimants to a limited
funds . . . and there is a risk that if litigants are
allowed to proceed on an individual basis those who
sue first will deplete the fund and leave nothing for
latecomers.
A. Miller, An Overview of Federal Class Actions: Past,
Present and Future 45 (1977).
As applied to mass tort litigation, the “limited fund” is
generally construed to be the assets of the defendants as
extended by insurance coverage and the assets of the in-
surers. The “fund” may also have a more limited bearing,
as where the first judgments may take ali of a limited puni-
tive damage award. If earlier claimants proceed on an in-
dividual basis, it is urged, they will deplete the defendants’
assets and leave nothing for later claimants. See, e.g., Note,
Mechanical and Constitutional Problems in the Certification
of Mandatory Multistate Mass Tort Class Actions under
Rule 23, 49 Brooklyn L. Rev. 517 (1983); Note, Class
Actions for Punitive Damages, 81 Mich. L. Rev. 1787
(1983); Note, Class Certification in Mass Accident Cases
Under Rule 23(b)(1), 96 Harv. L. Rev. 1143 (1981).
Before determining whether to certify the plaintiffs’ class
under (b)(1)(B), two threshold questions must be ad-
dressed. The first is whether (b)(1)(B) should ever be
applied in mass tort litigation. The second, assuming that
A21
Opinion of the District Court Dated December 16, 1983
it should, is what standard to use in determining whether
there is a risk that earlier litigants will deplete the fund and
leave nothing for latecomers.
Although the matter is not free from doubt, most courts
that have considered the issue have concluded that, in the
proper circumstances, Rule (b)(1)(B) may be used in
mass tort cases. See, e.g., Green Vv. Occidental Petroleum
Corp., 541 F.2d 1335, 1340 n.9 (9th Cir. 1976); Coburn
v. 4-R Corp., 77 F.R.D. 43 (E.D. Ky. 1977), petition for
mandamus denied sub nom. Union Light, Heat & Power
Co. v. United States Dist. Court, 588 F.2d 543 (6th Cir.
1978), cert. dismissed, 443 U.S. 913 (1979); Hernandez
v. Motor Vessel Skyward, 61 F.R.D. 558 (S.D. Fla. 1973).
See also, Seltzer, Punitive Damages in Mass Tort Litigation:
Addressing the Problem of Fairness, Efficiency and Control,
52 Fordham L. Rev. 37 (1983).
Two recent circuit courts reversed after certifications of
a Rule (b)(1)(B) class in mass tort litigation. See “Dalkon
Shield,” 693 F.2d 847 (9th Cir. 1982); Federal Skywalk
Cases, 680 F.2d 1175 (8th Cir. 1982). Both courts rec-
ognized the applicability of (b) (1) (B) certification in mass
tort cases. In “Dalkon Shield,” the court stated that “[we]
are not necessarily ruling out the class action tool as a
means for expediting multi-party product liability actions
in appropriate cases.” 693 F.2d at 851. The court’s deci-
sion was based largely on the fact that no plaintiff or de-
fendant supported class certification. In In re Federal
Skywalk cases, the court’s decision was expressly based on
the narrow grounds that the district court’s certification
violated the Anti-Injunction Act. 680 F.2d at 1183. Neither
of the considerations apply here.
Courts that have considered the issue disagree over how
to determine when the danger of fund exhaustion is great
A22
Opinion of the District Court Dated December 16, 1983
enough to justify certification. All conclude that “without
more, numerous plaintiffs and a large ad damnum clause
should not guarantee (b)(1)(B) certification.” Payton v.
Abbot Labs, 83 F.R.D. 382, 389 (D. Mass. 1979). The
Ninth Circuit has held that (b)(1)(B) certification is
proper only when “separate punitive damage claims neces-
sarily will affect later claims.” “Dalkon Shield,” 693 F.2d
at 852 (emphasis supplied). Strict adherence to the Ninth
Circuit certainty standard would mean either the elimination
of (b)(1)(B) certification in mass tort actions (which is
the position at least one court has taken (see Payton, 83
F.R.D. 382, 389) ), or require a pretrial determination on
the merits, which the Supreme Court has frowned on in
another class action context. See Eisen v. Carlisle &
Jacquelin, 417 U.S. 156, 177-78 (1974); cf. Dolgow v.
Anderson, 438 F.2d 825 (2d Cir. 1971) (no minitrial on
the merits). This strict Ninth Circuit standard flies in
the face of the language of Rule 23, which requires only
that there be a “risk” of impairment, not that there be
a conclusive determination of impairment. See Note, Class
Certification in Mass Accident Cases Under Rule 23(b)(1),
96 Harv. L. Rev. 1143, 1158 (1983).
In Coburn, 77 F.R.D. at 46, one of three unreversed
mass tort cases where (b)(1)(B) certification was actually
granted, the court did not articulate what standard it was
using, stating merely that it found a “risk” of impairment.
Given the speculative nature of many of the rulings that
must be made at the time of a class certification when the
facts have not been fully developed, such as typicality of
representative claims and adequacy of representation, the
probable risk standard appears most useful.
How high the probability needs to be requires an evalua-
tion of the advantages and disadvantages of class certifica-
A23
Opinion of the District Court Dated December 16, 1983
tion to the actual and prospective parties. We must, for ex-
ample, remember that the court is in the position of protect-
ing a large group of war veterans against the possibility
that after possibly winning a long-sought after victory in
the courts, they will not be able to collect on a judgment
in their favor. Without now rehearsing all those effects, it
is enough to say that considering the particular facts of
the instant litigation, the proper standard is whether there
is substantial probability—that is less than a preponderance
but more than a mere possibility—that if damages are
awarded, the claims of earlier litigants would exhaust the
defendants’ assets. Considering the needs and problems of
parties aligned both as plaintiffs and defendants, the proba-
bility assessed at this time on the basis of limited informa-
tion is somewhat less than 50 percent. The less-than-pre-
ponderance test is well recognized in procedural matters.
See, e.g., Rogers v. Missouri Pacific Railroad, 352 U.S. 500,
509-10 (burden of coming forward in F.E.L.A. cases);
Fitzgerald v. A. L. Burbank & Co., 451 F.2d 670, 681
(2d Cir. 1971) (“reasonable probability” of employer's
negligence in F.E.L.A. cases); Bush v. United States, 389
F.2d 485 (Sth Cir. 1968) (in forfeiture case “less than
prima facie legal proof . . . more than mere suspicion. . .
reasonable under all the circumstances”); United States v.
One 1975 Lincoln Continental, 72 F.R.D. 535, 540 (S.D.
N.Y. 1976) (“probable cause” in forfeiture case); Note,
F.E.L.A., Negligence and Jury-Trials-Speculation Upon a
Scintilla, 11 Wes. Res. L. Rev. 123, 136 (1959) (inter-
pretation supported by the “spirit of the statute”). Cf.
Calvert v. Katy Taxi, Inc., 413 F.2d 841 (2d Cir. 1969)
(naked proof of collision enough to go to jury); Morgan
& Maguire, Cases and Materials on Evidence, 1076-79,
1088-94, 1106-12 (7th ed. 1983); United States v. Schi-
A24
Opinion of the District Court Dated December 16, 1983
pani, 289 F. Supp. 43 (E.D.N.Y. 1968), aff'd, 414 F.2d
1296 (2d Cir. 1969), cert. denied, 397 U.S. 922 (1970);
United States v. Fatico, 458 F. Supp. 388, aff'd, 603 F.2d
1053 (2d Cir. 1979), cert. denied, 444 U.S. 1073 (1980).
To determine whether that substantial probability exists
in this case, the Special Master, Sol Schreiber, was directed
to conduct a limited evidentiary hearing. Cf. “Dalkon
Shield,” 693 F.2d at 852 (“the district court erred by order-
ing certification without . . . even a preliminary fact-
finding inquiry concerning [the defendant’s] actual assets,
insurance, settlement experience and continuing expo-
sure.”). At the hearing, defendants’ counsel submitted
certified copies of their most recent balance sheets. The
plaintiffs’ counsel selected a cross-section of their cases and
made a brief presentation as to the nature of the damage
alleged. The Master found that the combined net assets of
the defendants, including insurance, total approximately $9
to $16 billion. Collection of judgments, if any, would be
spread over a number of years and payment could probably
be handled from year-to-year and paid out of earnings. The
Master also found that, based on the information presently
available, his best estimate is that the number of claims may
total 40,000 to 50,000. He concluded that the evidence
now before the court does not support the view that prov-
able claims will exhaust the defendants’ assets.
The court has carefully reconsidered the Master’s findings
and all other information before the court. It is convinced
that the risks as reasonably evaluated at this stage of the
litigation allow (b)(1) certification on the issue of punitive
damages only. The power of the court to certify the class
under more than one section is not contested by the parties.
See Manual for Complex Litigation § 1.43 (1982).
A25
Opinion of the District Court Dated December 16, 1983
Plaintiffs contend that the limited fund can be found here
in one of two ways. First, they contend that compensatory
damages will exceed the net worth of the defendants. Sec-
ond, they contend that even if the compensatory damages
do not satisfy (b)(1), punitive damages will.
As to their first contention, the information elicited at
the hearing and in appearances before this court indicates
that sufficient assets are and will be available to respond
to any probable judgments. Without the aid of a full trial,
on the basis of facts presently available, it cannot be said
that there is a substantial probability that if plaintiffs’ claims
are successful, the compensatory recovery will exceed de-
fendants’ assets.
Based on information thus far supplied to the court, it
aiso cannot be found, as a preliminary matter, that there
is a substantial probability that punitive damages, if allowed
will, when added to compensatory damages, exceed defend-
ants assets. Apart from the equivocal nature of the evidence
on the claimed callous disregard by the defendants of the
effect of their product, also militating against a trial on
award on punitive damages is the fact that prejudicial evi-
dence is likely to be introduced on the punitive damage
issue. Finally, there may be a policy against substantial
punitive damages in a case such as this. An award of huge
punitive damages might discourage government contractors
from bidding for defense contracts and manufacturing mate-
rial vitally needed for the national defense and might
“seriously impair” the government’s “ability to formulate
policy and make judgments pursuant to its war powers.”
Sanner V. Ford Motor Co., 144 .N.J. Super. 1, 364 A.2d 43
(1976), aff'd, 154 N.J. Super. 407, 381 A.2d 805 (1977),
cert. denied, 75 N.J. 616, 384 A.2d 846 (1978).
A26
Opinion of the District Court Dated December 16, 1983
Evidence that the government had almost as much, if
not more, knowledge of the dangers posed by Agent Orange,
and control by the government of its use are among the
additional factors that would argue against punitive dam-
ages. It would be unfair to punish the defendants while
the government, which might be equally, or even more,
culpable, avoided all liability. Finally, merely instructing
the jury as to punitive damages may distort the juror per-
ceptions and make the case even more difficult to control.
See Koufakis v. Carvel, 425 F.2d 892, 905 (2d Cir. 1970).
Nevertheless, there is a substantial probability that li-
mited punitive damages may be allowed. If they are, it
would be equitable to share this portion of the possible
award among all plaintiffs who ultimately recover com-
pensatory damages. Yet, if no class is certified under Rule
(b)(1)(B), non-class members who opt out under Rule
23(b)(3) would conceivably receive all of the punitive
damages or, if their cases are not completed first, none at
all.
It is axiomatic that the purpose of punitive damages is
not to compensate plaintiffs for their injury, but to punish
defendants for their wrongdoing. In theory, therefore,
when a plaintiff recovers punitive damages against a de-
fendant, that represents a finding by the jury that the de-
fendant was sufficiently punished for the wrongful conduct.
There must, therefore, be some limit, either as a matter
of policy or as a matter of due process, to the amount of
times defendants may be punished for a single transaction.
See, e.g., Roginsky v. Richardson-Merrell, Inc., 378 F.2d
832, 838-42 (2d Cir. 1967); Putz & Astiz. Punitive Dam-
age Claims of Class Members Who Opt Out: Should They
Survive?, 16-U. San, Fran. L. Rev. 1, 18-40 (1981). At
the very least, a trial court in passing on future claims may
A27
Opinion of the District Court Dated December 16, 1983
admit evidence as to the payment of prior awards which
may be used by a jury to reduce an award to a party seeking
additional punishment for the same misconduct. See, e.g.,
State ex rel. Young v. Crookham, 290 Or. 61, 618 P.2d
1268, 1272-73 (1980); Redden, Punitive Damages, § 4.8
(1980); Restatement (Second) of Torts, § 909 (1977);
Morris, Punitive Damages in Tort Cases, 44 Harv. L. Rev.
1173, 1195 (1931). There is, therefore, a substantial
probability that “adjudication with respect to individual
members of the class . . . would as a practical matter be
dispositive of the interests of the other members not parties
to the adjudication.” Accordingly, a class of all those
described as members of the (b)(3) class are also certified
under (b)(1)(B). The (b)(1)(B) certification is for the
award of punitive damages.
How this decision under (b)(1)(B) affects plaintiffs’
rights to opt out under Rule (b)(3) need not be decided
now. In the first place, it is not clear that any appreciable
number of plaintiffs will exercise their right to opt out
under (b)(3). Nor is it clear that any punitive damages
will be awarded. Thus, it seems sensible to allow exercise
of opt-out powers, with the ultimate effect of that decision
to be left for resolutions on motion, full briefing and argu-
ment.
Assessment of possible damages is for the purpose of a
class certification ruling only. It does not constitute a
determination of what damages will be allowed after trial.
CLASS DEFINITION AND NOTICE
There remain the questions of defining the class and
notice to the class. The defendants’ contention that the
class as the court has defined it is unworkable because it
is subjective (“all veterans who were injured . . . by ex-
A28
Opinion of the District Court Dated December 16, 1983
posure to Agent Orange’’) is a non sequitur. Subjectiveness
does not affect the applicability of the class trial’s findings
to members of the class and it does not prejudice the de-
fendants in any way. The class is, therefore, adequately
defined and clearly ascertainable. See lhrke v. Northern
States Power Company, 459 F.2d 566 (8th Cir. 1972).
Federal Rule 23(c)(2) provides that, in a class action
maintained under Rule 23(b)(3),
the court shall direct to the members of the class
the best notice practicable under the circumstances,
including individual notice to all members who can
be identified through reasonable effort.
When members of the class can be identified through
reasonable effort, individual notice is required; the expense
of giving the notice must be paid by the plaintiffs. See
Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974);
Abrams Vv. Interco, Inc., 83-715, slip op. at 6680 (2d Cir.,
September 28, 1983).
What is “the best notice practicable under the circum-
stances” and what constitutes “reasonable effort’ is a deter-
mination of fact to be made in the individual litigation.
In re Franklin National Bank Securities Litigation, 599
F.2d 1109 (2d Cir. 1978); see also In re Nissan Motor
Corp. Antitrust Litigation, 552 F.2d 1088, 1098 n.11
(5th Cir. 1977) (and cases cited therein); C. Wright &
A. Miller, Federal Practice & Procedure, at § 1786; Manual
for Complex Litigation, § 1.45 (1982).
Accordingly, it is ORDERED:
1. Certification of this matter as a class action under
Federal Rule of Civil Procedure 23(b)(3) is granted.
Judge Pratt’s decision certifying the class action status of
A29
Opinion of the District Court Dated December 16, 1983
this litigation under Rule 23(b)(3) is modified and con-
firmed. Plaintiffs’ motion seeking certification under Rule
23(b)(1)(B) is granted only with respect to the claim for
punitive damages.
2. The plaintiff class is defined as those persons who
were in the United States, New Zealand or Australian
Armed Forces at any time from 1961 to 1972 who were
injuted while in or near Vietnam by exposure to Agent
Orange or other phenoxy herbicides, including those com-
posed in whole or in part of 2,4,5-trichlorophenoxyacetic
acid or containing some amount of 2,3,7,8-tetrachlorodi-
benzo-p-dioxin. The class also includes spouses, parents,
and children of the veterans born before January 1, 1984,
directly or derivatively injured as a result of the exposure.
The definition does not imply a conclusion that anyone
within the class was injured as a result of exposure to any
herbicide.
3. Notice to the members of the class shall be provided
as follows:
(a) Plaintiffs’ counsel, at their own expense, shall cause
a copy of the written notice, attached as Exhibit A, to be
mailed by first class United States mail to all persons who
have filed actions as plaintiffs in the District Courts of the
United States, or filed actions in state courts later removed
to a federal court, which are pending in or have been
transferred to this court for consolidated proceedings by the
Panel on Multi-District Litigation, together with all persons
who have moved to intervene or are intervenors, and each
class members presently represented by counsel associated
with plaintiffs’ management committee who has not yet
commenced an action or sought intervention. Mailing of
the notice shall take place within 30 days of this Order.
A30
Opinion of the District Court Dated December 16, 1983
(b) Plaintiffs’ counsel, at their own expense, shall cause
to be mailed a copy of the written notice to all persons
who are currently listed on the United States Government's
Veteran’s Administration “Agent Orange Registry.” This
mailing shall take place within 50 days of this Order.
(c) Notice shall be mailed in envelopes that are printed
only with the names of the addressee and the Clerk of this
Court. Plaintiffs’ counsel shall maintain a record of the
name and address of each person to whom the notice is
mailed. The record shall be filed with the Clerk of the Court
not later than 70 days after the issuance of this Order.
(d) Plaintiffs’ counsel, at their own expense, shall ob-
tain a post office box in Smithtown, New York, 11787, in
the name of the Clerk of the Court, and advise the court
and the parties of the box number not later than 15 days
after the issuance of this Order. The box shall be rented
until further order of the court. Plaintiffs’ counsel shall
on a daily basis review the contents of the post office box
and prepare a listing of all exclusion requests received,
which shall be available to the court and the parties for
inspection and copying, together with the exclusion re-
quests. Plaintiffs’ counsel shall send a copy of the notice
and the exclusion request form to each person who writes
to the Clerk of the Court requesting them. Each day plain-
tiffs’ counsel shall transmit to the court and the parties
copies of any communications (other than exclusion re-
quests or requests for forms) that are received at the post
office box. Plaintiffs’ counsel shall maintain a record, to-
gether with the originals, of all mail returned as undelivered.
(e) Plaintiffs’ counsel, at their own expense, shall serve
a radio and television announcement notice in the form
of Exhibit B on the nationwide networks of the American
A31
Opinion of the District Court Dated December 16, 1983
Broadcasting Company, the Columbia Broadcasting Sys-
tem, the Mutual Broadcasting System, the National Broad-
casting Company, and the Public Broadcasting and Televi-
sion Networks and on radio stations with a combined cover-
age of at least 50 percent of the listener audience in each
of the top one hundred radio markets in the United States
within 50 days of this Order.
Along with the radio and television notice served upon
the nationwide radio and television broadcasting systems
and radio stations, plaintiffs’ counsel shall request that the
notice be read as set forth in Exhibit B without interruption
or comment, either alone or in conjunction with the show-
ing on television of the text of Exhibit B. Plaintiffs’ counsel
shall request that each participating radio and television
broadcasting station advise them of the dates and times
at which the notice was broadcast or shown.
Within 90 days of this Order, plaintiffs’ counsel shall
furnish to the court and the parties a report identifying
the name and location of each radio station broadcasting
the announcement, if known, and the date and time of each
announcement. The court will then determine if further
notice is required.
(f) Plaintiffs’ counsel, at their own expense, shall pub-
lish in the following newspaper and magazines an announce-
ment in two successive weeks (but if publication is monthly,
only once) in the form of Exhibit C: the nationwide edi-
tion of The New York Times, U.S.A. Today, Time Maga-
zine, the American Legion Magazine, VFW Magazine, Air
Force Times, Army Times, Navy Times, and the Leather-
neck; the ten largest circulation newspapers in Australia,
including The Australian; and the five largest daily circula-
tion newspapers in New Zealand, including The Dominion.
Publication shall be completed as soon as practicable, but
A32
Opinion of the District Court Dated December 16, 1983
no later than March 1, 1984. The size of the notice shall
be not less than one-eighth, nor more than one-third, of the
newspaper or magazine page.
(g) Plaintiffs’ counsel shall, at their own expense, obtain
a toll-free “800” telephone number in the name of the
Clerk of the Court. The number shall be in effect no later
than January 1, 1984 to at least May 1, 1984. The number
shall be manned on a daily basis, from at least Monday to
Friday, 9:00 a.m. to 5:00 p.m., E.S.T., with knowledgeable
persons (or a recorded announcement and recording de-
vice) who shall tell callers where to write for further in-
formation, but who shall not give advice concerning rights
and responsibilities in this litigation. A record of those
calling and giving their names and addresses shall be kept.
Those requesting a copy of Exhibit A shall be sent one.
No oral exclusion request shall be taken. Plaintiffs’ counsel
shall give written instructions to those answering the phone.
A copy of such instructions and any recorded announce-
ment shall be filed with the Clerk.
(h) The Clerk of the Court shall send this order and
notice to the Governor of each of the states of the United
States. He shall respectfully request each Governor to refer
the notice to any state organization created by the executive
or legislative branches dealing with the problems of Viet-
nam veterans and request that the notice be sent to all
those known Vietnam veterans who may be members of
the class described in the Order, or that a list of names
and addresses be supplied to this court so that notice may
be mailed by the plaintiffs’ counsel. The Clerk shall re-
specfully request a list of those to whom notice has been
sent by any state agency.
A33
Opinion of the District Court Dated December 16, 1983
(i) The notice provided for in this Order is the best
reasonable and practicable notice under the circumstances
of this litigation.
This Order is stayed for seven days to permit an applica-
tion for a further stay to the Court of Appeals.
So Ordered.
/Ss/ JACK B. WEINSTEIN
Chief Judge
United States District Court
Eastern District of New York
DATED: Brooklyn, New York
December 16, 1983
A34
Opinion of the District Court Dated December 16, 1983
EXHIBIT A
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MDL No. 381
*
In re “AGENT ORANGE”
Product Liability Litigation
¢
LEGAL NOTICE TO CLASS MEMBERS OF
PENDENCY OF CLASS ACTION
This notice is given to you pursuant to an Order of the
United States District Court for the Eastern District of New
York and Rule 23(c)(2) of the Federal Rules of Civil
Procedure. It is to inform you of the pendency of a class
action in which you may be a member of the class, and
of how to request exclusion from the class if you do not
which to be a class member. None of the claims described
below have been proven. It is contemplated that a trial by
court and jury will take place in this court beginning in
May, 1984.
1. There are now pending in the United States District
Court for the Eastern District of New York claims brought
by individuals who were in the United States, New Zealand,
or Australian Armed Forces assigned to or near Vietnam
at any time from 1961 to 1972, who allege personal injury
from exposure to “Agent Orange” or other phenoxy herbi-
cides, including those composed in whole or in part of
2,4,5-trichlorophenoxyacetic acid or containing some
amount of 2,3,7,8-tetrachlorodibenzo-p-dioxin (collectively
referred to as “Agent Orange”).
A35
Opinion of the District Court Dated December 16, 1983
2. The plaintiffs include spouses, parents, and children
born before January 1, 1984, of the servicepersons who
claim direct or derivative injury as a result of exposure.
Plaintiffs include children asserting claims in their own
right for genetic injury and birth defects caused by their
parents’ exposure to “Agent Orange” and other phenoxy
herbicides. Wives of veterans exposed to “Agent Orange”
in Vietnam seek to recover in their own right for miscar-
riages. Plaintiffs’ theories of liability include negligence,
Strict products liability, breach of warranty, intentional tort
and nuisance. Damage claims of family members include
pecuniary loss for wrongful death, loss of society, comfort,
companionship, services, consortium, guidance and support.
In addition, plaintiffs seek punitive damages for defendants’
alleged misconduct in furnishing herbicides to the United
States Government.
3. The defendants, who are alleged to have manufac-
tured or sold “Agent Orange” to the United States Govern-
ment, are Dow Chemical Company, Monsanto Company,
T. H. Agriculture & Nutrition Company, Inc., Diamond
Shamrock Chemicals Company, Uniroyal, Inc., Hercules
Incorporated, and Thompson Chemical Corporation. All
the defendants deny that the plaintiffs’ alleged injuries were
in any way caused by “Agent Orange.” They assert that
injury, if any, was not caused by a product produced by
them. The defendants have challenged these suits on various
other grounds including plaintiffs’ lack of standing to sue,
lack of jurisdiction, statutes of limitation, insufficiency in
law, plaintiffs’ contributory negligence, and plaintiffs’ as-
sumption of known risks. Each has also asserted such
affirmative defenses as the “government contract defense”
and the Government's misuse of its product. In third-party
complaints, the defendants asserted claims against the
A36
Opinion of the District Court Dated December 16, 1983
United States of America seeking indemnification or con-
tribution in the event the defendants are held liable to the
plaintiffs. The Government has asserted its power to pre-
vent anyone from suing it.
4. The court has certified a class action in this proceed-
ing under Rule 23(b)(3) of the Federal Rules of Civil
Procedure. The plaintiff class consists of those persons who
were in the United States, New Zealand, or Australian
Armed Forces assigned to Vietnam at any time from 1961
to 1972 who were injured while in or near Vietnam by
exposure to “Agent Orange” or other phenoxy herbicides
including those composed in whole or in part of 2,4,5-
trichlorophenoxyacetic acid or containing some amount of
2,3,7,8-tetrachlorodibenzo-p-dioxin. The class also includes
spouses, parents, and children born before January 1, 1984,
directly or derivatively injured as a result of the exposure.
The court may reconsider this decision, by decertifying,
modifying the definition of the class, or creating subclasses
in the light of future developments in the case. The defini-
tion does not imply a conclusion that anyone within the
class was injured as a result of exposure to any herbicide.
5. The court has also certified a Rule 23(b)(1)(B)
class limited to claims for punitive damages. The class
includes the same persons as are in the Rule 23(b)(3)
class. The court has decided not to permit members of the
class to seek exclusion on the issue of punitive damages.
You will therefore be bound by the court’s rulings on
punitive damages whether or not you seek exclusion on
the issue of compensatory damages.
6. Trial of the representative plaintiffs’ claims is
scheduled to commence before Jack B. Weinstein, Chief
Judge of the United States District Court for the Eastern
District of New York, and a jury on May 7, 1984.
A37
Opinion of the District Court Dated December 16, 1983
7. If you are a member of the plaintiff class you will
be deemed a party to this action for all purposes unless you
request exclusion from the Rule 23(b)(3) class action
covering compensatory damages.
8. If you do not request exclusion from the class by
May 1, 1984, you will be considered one of the plaintiffs
of this class action for all purposes. You may enter an
appearance through counsel of your own choice. You will
be represented by counsel for the class representatives unless
you choose to enter an appearance through your own legal
counsel.
9. Class members who do not request exclusion will
receive the benefit of, and will be bound by, any settlement
or judgment favorable to the class covering compensatory
damages. The class representatives’ attorneys fees and
costs will be paid out of any recovery of compensatory and
other damages obtained by the class members. You will
not be charged with costs or expenses whether or not you
remain a member of the class. However, if you choose to
enter an appearance through your own legal counsel, you
will be liable for the lega! fees of your personal counsel.
10. Class members who do not request exclusion will
be bound by any judgment adverse to the class, and will
not have the right to maintain a separate action even if
they have already filed their own action.
11. If you wish to remain a member of the class for all
purposes, you need do nothing at this stage of the pro-
ceedings.
12. If you wish to be excluded from the class for com-
pensatory damages, you must submit a written request for
exclusion. For your convenience, the request for exclusion
A38
Opinion of the District Court Dated December 16, 1983
may be submitted on the attached form, entitled “Request
for Exclusion.” If you received this notice by mail, a Re-
quest for Exclusion form should have accompanied it. If
you did not receive a Request for Exclusion form, you may
obtain a copy by writing to the Clerk of the Court, P.O.
Box —, Smithtown, New York 11787. A written Request
for exclusion may be submitted without using the Request
for Exclusion form, but it must refer to the litigation as
“in re ‘Agent Orange’ Product Liability Litigation, MDL
No. 381”; include your name and address in your state-
ment requesting exclusion. Any request for exclusion must
be received on or before May 1, 1984 by the Clerk of the
United States District Court for the Eastern District of New
York at Post Office Box—, Smithtown, New York, 11787
or at a federal courthouse in the Easern District of New
York.
13. Under the court’s Order, all potential plaintiffs are
deemed to be members of a Rule 23(b)(1)(B) class on
the issue of punitive damages. At the time of trial the
court will determine whether the facts presented warrant
the submission of a punitive damage claim to the jury. In
the event that there is a recovery for punitive damages,
it will be shared by those plaintiffs who are successful in
prosecuting their claims in this or other suits on an appro-
priate basis to be determined by the court. If you choose
to exclude yourself from this class action on the issue of
compensatory damages, you may do so without necessarily
losing your right to share in any punitive damages.
14. The plaintiffs in this class action are represented
by a group of attorneys who have been tentatively approved
by the Court as the Agent Orange Plainiffs’ Management
Committee. Members of this committee include:
A39
Opinion of the District Court Dated December 16, 1983
Phillip E. Brown, Esq.
Hoberg, Finger, Brown, Cox & Molligan
703 Market Street (18th Floor)
San Francisco, California 94103
Stanley M. Chesley, Esq.
Waite, Schneider, Bayless and Chesley Co. L.P.A.
1513 Central Trust Tower
Fourth and Vine Streets
Cincinnati, Ohio 45202
David J. Dean, Esq.
Dean, Falanga & Rose
One Old Country Road
Carle Place, New York 11514
Thomas W. Henderson, Esq.
Baskin & Sears
Frick Building (10th Floor)
Pittsburgh, Pennsylvania 15219
Benton Musselwhite, Esq. &
John O. O’Quinn, Esq.
609 Fannin (Suite 517)
Houston, Texas 77002
Stephen J. Schlegel, Esq.
Schlegel & Trafelet, Ltd.
One North LaSalle Street
Suite 3900
Chicago, Illinois 60602
Newton B. Schwartz, Esq.
Houston Bar Center Building
723 Main (Suite 325)
Houston, Texas 77002
A40
Opinion of the District Court Dated December 16, 1983
David J. Dean, Esq. has been designated by the court as
plaintiffs’ spokesman. The Management Committee is being
aided in its duties of representing the interests of the plain-
tiffs by other law firms in the United States and abroad.
15. Examination of pleadings and papers. This notice
is not all inclusive. References to pleadings and other papers
and proceedings are only summaries. For full details con-
cerning the class action and the claims and defenses which
have been asserted by the parties, your or your counsel may
review the pleadings and other papers filed at the office of
the Clerk of the United States District Court for the Eastern
District of New York, 225 Cadman Plaza East, Brooklyn,
New York 11201, on any business day from 9:00 a.m. to
5:00 p.m.
16. Interpretation of this Notice. Except as indicated in
the order and decisions of the United States District Court
for the Eastern District of New York, no court has yet ruled
on the merits of any of the claims or defenses asserted by
the parties in this class action. This notice is not an ex-
pression of an opinion by the court as to the merits of any
claims or defenses. This notice is being sent to you solely
to inform you of the nature of the litigation, your rights
and obligations as a class member, the steps required should
you desire to be excluded from the class, the court’s certi-
fication of the class, and the forthcoming trial.
Robert C. Heinemann
Clerk, United States District Court
for the Eastern Distirct
New York
DATED: Brooklyn, New York
January 12, 1984
A4l
Opinion of the District Court Dated December 16, 1983
EXCLUSION REQUEST FORM
Clerk
United States District Court
for the Eastern District of New York
P.O. Box
Smithtown, New York 11787
Re: In re “Agent Orange” Product Liability
Litigation MDL No. 381
I hereby request to be excluded from the class action in
the above-captioned matter.
aww one ee OO ee Be eeoeeoee eee eee ee e868
(signature )
Sh chi GS 99 400 00.60 00-0 0:6
cove apesceeue
tin ee eee ees eee eee ee eee eee ee ee 8 ©
If not a member of the armed forces who served in
or near Vietnam, how are you related to such a
ET EEL TEEPE LER
Armed forces unit of serviceperson ............
Armed forces identifying number of serviceperson
een eee eee ee ee eeeeoaeseeeeseoeeese eee 8 ©
A42
Opinion of the District Court Dated December 16, 1983
Exhibit B (Radio and Television Communication)
SPECIAL ANNOUNCEMENT
Were you or anyone in your family on military duty in or
near Vietnam at any time from 1961 to 1972? If so, listen
carefully to this important message about a pending “Agent
Orange” lawsuit that may affect your rights.
If you or anyone in your family claim injury, illness,
disease, death, or birth defect as a result of exposure to
“Agent Orange,” or any other herbicide in or near Vietnam
at any time from 1961 to 1972, you are now a member of a
class in an action brought on your behalf in the United
States District Court for the Eastern District of New York,
unless you take steps to exclude yourself. The class is
limited to those who were injured by exposure to Agent
Orange or any other herbicide while serving in the armed
forces in or near Vietnam at any time from 1961 to 1972.
The class also includes members of families who claim
derivative injuries such as those to spouses and children.
The court expresses no opinion as to the merit or lack
of merit of the lawsuit. It has ordered that this message
be transmitted to give as many persons as is practicable
notice of this suit.
For details about your righis in this “Agent Orange”
class action lawsuit call 1-800- , or write to the
Clerk of the United States District Court, Box —, Smith-
town, New York 11787. That adress again is Clerk of the
United States District Court, P.O. Box —, Smithtown, New
York 11787, or call 1-800-
A43
Opinion of the District Court Dated December 16, 1983
Exhibit C (Newspaper and Magazine Notice)
To ALL PERSONS WHO SERVED IN OR NEAR VIET-
NAM AS MEMBERS OF THE ARMED FORCES OF
THE UNITED STATES, AUSTRALIA AND NEW ZEa~-
LAND FROM 1961-1972
If you or anyone in your family can claim injury, illness,
disease, death or birth defect as a result of exposure to
“Agent Orange” or any other herbicide while assigned in
or near Vietnam at any time from 1961 to 1972, you are a
member of a class in an action brought on your behalf in
the United States District Court for the Eastern District of
New York unless you take steps to exclude yourself from
the class. The class is limited to those who were injured by
exposure to “Agent Orange” or any other herbicide while
serving in the armed forces in or near Vietnam at any time
during 1961-1972. The class also includes members of
families who claim derivative injuries such as those to
spouses and children.
The court expresses no opinion as to the merit or lack
of merit of the lawsuit.
For details about your rights in this “Agent Orange”
class action lawsuit, call 1-800 , Or write to Clerk
of the Court, Box —, Smithtown, New York 11787.
eeeoeoeeeeeoeeseeeeseeeseeeeeeeosee ene e 6 C
Robert C. Heinemann
Clerk, United States District Court for the
Eastern Districtt of New York
Dated: Brooklyn, New York
December , 1983
A44
Opinion of the District Court
(Pratt, J.) Dated December 29, 1980
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
In re “AGENT ORANGE” PRODUCT LIABILITY LITIGATION
INTRODUCTION
GEORGE C. PRATT, District Judge
Plaintiffs, Vietnam war veterans and members of their
families claiming to have suffered damage as a result of
the veterans’ exposure to herbicides in Vietnam’, com-
menced these actions against the defendant chemical com-
panies.?, Defendants, seeking indemnification or contribu-
tion in the event they are held liable to plaintiffs, then served
1 Plaintiffs’ complaints allege injury as a result of their exposure to
a variety of herbicides including Agents Orange, Pink, Purple and
Green. For convenience, the court will refer to these herbicides col-
lectively as “Agent Orange”.
2 At the present time 19 companies or divisions have been named
as defendants in actions consolidated before this court as MDL 381.
Alphabetically listed, the defendants named to date are: Agrisect,
Inc.; Amchem Products, Inc.; Ansul Company; AKA Wormald
America, Inc.; Diamond Alkali Company; Diamond Shamrock Cor-
poration; Dow Chemical Company; GAF Corporation; Hercules,
Inc.; Hoffman-Taff, Inc., Hooker Chemical Company; Monsanto
Company; North American Phillips Corporation; Northwest Indus-
tries, Inc.; Occidental Petroleum Company; Private Brands, Inc.;
Riverdale Chemical; Syntex Corporation; Uniroyal, Inc. Although an
individual action = name some of the chemical companies and not
others, the court will refer to these companies collectively as “de-
fendants”’.
Additionally, some of these named defendants have sought dis-
missal from some actions on the ground that they did not manu-
facture any of the herbicides in = In some cases, plaintiffs
have consented to a conditional dismissal of those defendants.
A45
Opinion of the District Court Dated December 29, 1980
third party complaints against the United States.’ Five
motions are now considered: (1) the government’s motion
to dismiss the third party complaint on grounds of sovereign
immunity; (2) plaintiffs’ motion for class action certifica-
tion; (3) defendants’ motion for summary judgment; (4)
plaintiffs’ motion to proceed with “serial trials”; and (5)
plaintiffs’ motion to serve and file a fifth amended verified
complaint.
I. SUMMARY OF CLAIMS
There are four groups of plaintiffs: Vietnam veterans,
their spouses, their parents, and their children. They assert
numerous theories of liability, including strict products lia-
bility, negligence, breach of warranty, intentional tort and
nuisance. Plaintiff veterans seeks to recover for personal
injuries caused by their exposure to Agent Orange. The
family members seek to recover on various derivative claims;
some of the children assert claims in their own right for
genetic injury and birth defects caused by their parents’
exposure to the Agent Orange; and some of the veterans’
wives seek to recover in their own right for miscarriages.
In their third party complaints against the government
defendants allege negligence, misuse of product, post-dis-
charge failure to warn, implied indemnity, denial of due
process and failure to comply with herbicide registration
laws.
3 As part of an on-going effort to avoid the service and filing of
excessive quantities of duplicative papers, the court has deemed the
answers and third party complaints of the defendants to be served
in all actions.
A46
Opinion of the District Court Dated December 29, 1980
II. GOVERNMENT'S MOTION TO DISMISS
THIRD PARTY COMPLAINTS
Moving to dismiss under F.R.C.P. 12(b)(6), the gov-
ernment claims “intra-military immunity” under the rule
of Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95
L. Ed. 152 (1950), questions defendants’ standing to assert
some of their claims, urges that other claims may only be
considered in the Court of Claims, and argues the applica-
bility of three statutory exceptions to federal court juris-
diction under the Federal Tort Claims Act; (1) the discre-
tionary function exception, 28 U.S.C. § 2680(a); (2) the
combatant exception, 28 U.S.C. § 2680(j); and (3) the
foreign country exception, 28 U.S.C. § 2680(k).
A. FTCA As A GENERAL WAIVER OF SOVEREIGN IMMUNITY
Under the Federal Tort Claims Act (FTCA), 28 U.S.C.
§§ 1346(b) et seq., the United States government waives
its sovereign immunity from suits in tort, and vests jurisdic-
tion over such claims exclusively in the United States
District Courts. 28 U.S.C. § 1346(b). Its legislative his-
tory reveals two dominant congressional objectives. First,
Congress sought to relieve itself of the overwhelming pres-
sures and time consuming burdens of considering and pass-
ing upon the numerous private relief bills sought by claim-
ants barred by the doctrine of sovereign immunity. Feres v.
United States, 340 U.S. 135, 139-140, 71 S. Ct. 153, 156,
95 L. Ed. 152 (1950). Second, Congress sought to pro-
vide a judicial remedy for deserving claimants who had
suffered injuries or losses at the hands of government offic-
ials and employees. 1 Jayson, Handling Federal Tort Claims
§ 65.01 at 3-3 (1980).
A47
Opinion of the District Court Dated December 29, 1980
Although the FTCA “waives the Government's immunity
from suit in sweeping language”, United States v. Yellow
Cab Company, 340 U.S. 543, 547, 71 S. Ct. 399, 402, 95
L. Ed. 523 (1951), the waiver is limited by the terms of
the act’s exceptions. If a claim falls within any exception
to the FTCA, sovereign immunity has not been waived and
the court is without jurisdiction to hear the case. United
States v. Orleans, 425 U.S. 807, 814, 96 S. Ct. 1971, 1975,
48 L. Ed.2d 390 (1976); Dalehite v. United States, 346
U.S. 15, 30-31, 73 S. Ct. 956, 965, 97 L. Ed. 1427 (1953).
B. THE Feres DocTRINE
In Feres v. United States, 340 U.S. 135, 71 S. Ct. 153,
95 L. Ed. 152 (1950), the Supreme Court determined that
the FTCA did not waive sovereign immunity with respect
to claims of servicemen arising out of activities incident to
or arising out of their military service. The Feres Court
considered three separate cases, two claims of medical mal-
practice and the claimed negligent quartering of a service-
man in a barracks containing a defective heating unit. All
three presented the same basic question: whether a service-
man who sustained injury due to the negligence of others
in the armed forces could maintain suit under the FTCA.
The Court recognized its task as one of statutory interpreta-
tion, stating: “The only issue of law raised is whether the
Tort Claims Act extends its remedy to one sustaining ‘in-
cident to the service, what under other circumstances would
be an actionable wrong.” 340 U.S. at 138, 71 S. Ct. at 155.
After carefully considering the limited legislative history
on point, the Feres Court concluded that “the Government
is not liable under the Federal Tort Claims Act for injuries
to servicemen where the injuries arise out of or are in the
course of activity incident to service.” 340 U.S. at 146, 71
A48
Opinion of the District Court Dated December 29, 1980
S. Ct. at 159. Since much of the government’s immunity
defense turns on the Supreme Court’s decision in Feres,
a more detailed analysis of that case is appropriate.
At the outset, the Feres Court recognized the difficulty
of interpreting a statute having so little legislative history:
There are few guiding materials for our task of
statutory construction. No committee reports or
floor debates disclose what effect the statute was
designed to have on the problem before us, or that
it even was in mind. Under these circumstances, no
conclusion can be above challenge, but if we misin-
terpret the Act, at least Congress possesses a ready
remedy. 340 U.S. at 138, 71 S. Ct. at 155.
Digging deeper, the Court uncovered two clues to Congress’
intent in enacting the FTCA. First, because the relationship
between the government and members of the armed forces is
“distinctively federal in character”, 340 U.S. at 143, 71 S.
Ct. at 158, the Court determined that Congress did not
intend the government’s liability to members of the armed
services to depend upon the law of the place where the
soldier happened to be stationed at the time of injury:
It would hardly be a rational plan of providing for
those disabled in service by others in service to leave
them dependent upon geographic considerations
over which they have no control and to laws which
fluctuate in existence and value. 340 U.S. at 143,
71 S. Ct. at 158.
Second, the Court examined Congress’ failure to integrate a
serviceman’s possible remedy in tort with the statutory “no
fault” compensation scheme provided under the Veterans
Benefits Act and concluded that
A49
Opinion of the District Court Dated December 29, 1980
If Congress had contemplated that this Tort Act
would be held to apply in cases of this kind [where
a serviceman sued the government], it is difficult to
see why it should have omitted any provision to ad-
just these two types of remedy [FTCA and Veterans
Benefit Act] to each other. The absence of any such
adjustment is persuasive that there was no awareness
that the Act might be interpreted to permit recovery
for injuries incident to military service.
340 U.S. at 144, 71 S. Ct. at 158.
A third factor supporting the “Feres doctrine” was later
enunciated in United States v. Brown, 348 U.S. 110, 75
S. Ct. 141, 99 L. Ed. 139 (1954), where the Supreme Court
considered “[t]he peculiar and special relationship of the
soldier to his superiors, the effects of the maintenance of
such suits on [military] discipline, and the extreme results
that might obtain if suits under the Tort Claims Act were
allowed for negligent orders given or negligent acts com-
mitted in the course of military duty.” 348 U.S. at 112, 75
S. Ct. at 143; see also Stencel Aero Engineering Corp. Vv.
United States, 431 U.S. 666, 671-72, 97 S. Ct. 2054, 2057,
52 L. Ed.2d 665 (1977).
Although it concluded that Congress did not intend to
include in the FTCA’s waiver of sovereign immunity in-
juries sustained by a serviceman incident to his service, the
Feres Court freely admitted that the issue was not free
from doubt, and it invited congressional correction by call-
ing attention to Congress’ ability to legislatively remedy
any erroneous interpretation of the statute. 340 US. at
138, 71 S. Ct. at 155. Many courts have questioned the
AS50
Opinion of the District Court Dated December 29, 1980
wisdom of the Feres decision,‘ but its continued vitality is
beyond dispute even to them.’ Moreover, Congress’s failure
for 30 years to amend the FTCA and legislatively “correct”
the Feres holding is a sub silentio “acquiesc[ence] in the
holding of Feres”, United States v. Lee, 400 F.2d 558, 561
(CA9 1968), cert. denied, 393 U.S. 1053, 89 S. Ct. 691,
21 L. Ed. 2d 695 (1969), that strongly suggests that the
Supreme Court correctly interpreted congressional intent.®
Any doubt as to the validity of the Feres doctrine was
laid to rest in Stencel Aero Engineering Corp. v. United
States, 431 U.S. 666, 97 S. Ct. 2054, 52 L. Ed. 2d 665
(1977), which extended the reach of the “well established
doctrine of Feres v. United States” to third party claims
against the government, 431 U.S. at 670, 97 S. Ct. at 2057,
see discussion, infra.’ Even the Third Circuit Court of
4 See, e.g., Peluso v. United States, 474 F.2d 605, 606 (CA3),
cert. denied, 414 U.S. 879, 94 S. Ct. 50, 38 L. Ed. 2d 124 (1973)
(“If the matter were open to us we would be receptive to appellants’
argument that Feres should be reconsidered, and perhaps restricted” ) ;
Thomason Vv. Sanchez, 398 F. Supp. 500, 503 (D.N.J. 1975) (“we
previously expressed reservations about the continued validity of the
broad Feres doctrine. Upon reconsideration we reiterate that con-
cern.” )
5 See Peluso v. United States, supra, at 606 (“[Feres] is controlling.
Only the Supreme Court can reverse it.”); Thomason v. Sanchez, 539
F.2d 955, 957 (CA3 1976) (“[W]e are powerless to jettison Feres
or to dislodge it sufficiently to create an exception [here].”) See also
Watkins v. United States, 462 F. Supp. 980 (S.D. Ga. 1977), aff'd
on opinion below, 587 F.2d 279 (CAS 1979).
6 This conclusion follows even though later decisions have repudi-
ated some of the clues to intent that the Supreme Court relied upon
in reaching that decision. See Schwager v. United States, 279 F.
Supp. 262, 263 (E.D. Pa. 1968).
? See also Jaffee v. United States, 592 F.2d 712, 717 (CA3 1979),
cert. denied, 441 U.S. 961, 99 S. Ct. 2406, 60 L. Ed. 2d 1066
(1979); Dilworth v. United States, 387 F.2d 590, 591 (CA3 1967);
Buckingham v. United States, 394 F.2d 483, 484 (CA4 1968).
ASI
Opinion of the District Court Dated December 29, 1980
Appeals, the court most critical of the Feres doctrine,®
concedes Feres’ continuing validity and broad application:
Although the current climate of academic and judicial
thought finds governmental immunity from suit in disfavor,
a plausible explanation appears for its continued applica-
tion to members of the armed forces injured while in the
course of active duty, regardless of whether that injury
is caused by the negligence of a superior officer or by a
direct command. If claims for injuries sustained by mem-
bers of the armed forces in the execution of military orders
were subjected to the scrutiny of courts of justice, then the
civil courts would be required to examine and pass upon
the propriety of military decisions. The security and com-
mon defense of the country would quickly disintegrate
under such meddling. “[AJctions and essential military
discipline would be impaired by subjecting the command
to the public criticism and rebuke of any member of the
armed forces who chose to bring a suit against the United
States”. Jefferson v. United States, 178 F.2d 518, 520
(4th Cir. 1949), aff'd sub nom. Feres v. United States,
340 U.S. 135 [71 S. Ct. 153, 95 L. Ed. 152] (1950) Even
if we were inclined to reconsider the doctrine in connection
with an injury sustained as a result of a deliberate military
command, we are foreclosed from so doing by the Supreme
Court’s recent reiteration of the doctrine, although in a
different context in United States v. Testan, 424 U.S. 392,
96 S. Ct. 948, 47 L. Ed. 2d 114 (1976).
Jaffe v. United States, 592 F.2d 712, 717 (CA3
1979) (citations and footnote omitted).
8 See e.g., Thomason Vv. Sanchez, 539 F.2d 955 (CA3 1976);
Peluso v. United States, 474 F.2d 605 (CA3), cert. denied, 414 U.S.
879, 94 S. Ct. 50, 38 L. Ed. 2d 124 (1973).
A52
Opinion of the District Court Dated December 29, 1980
C. THIRD PARTY ACTIONS AGAINST THE GOVERNMENT
The same court that determined in Feres that the FTCA
did not waive sovereign immunity with respect to claims
by servicemen arising out of activities incident to their
military service also decided United States v. Yellow Cab
Company, 340 U.S. 543, 71 S. Ct. 399, 95 L. Ed. 523
(1951), which held that the FTCA permits a tort defendant
to implead the United States as a third party defendant
under a theory of indemnity or contribution. This created
a new question: whether such a third party claim may be
maintained when plaintiff's direct claim against the govern-
ment would be barred by the principles of Feres.
The Supreme Court did not consider this question until
1977, when in Stencel Aero Engineering Corp. v. United
States, 431 U.S. 666, 97 S. Ct. 2054, 52 L. Ed. 2d 665
(1977), it resolved the “tension between Feres and Yellow
Cab” by holding that third party claims against the govern-
ment are barred
for essentially the same reasons that the direct
action [against the government by plaintiff] is bar-
red by Feres. * * * [T]he right of a third party to
recover in an indemnity action against the United
States recognized in Yellow Cab, must be held
limited by the rationale of Feres where the injured
party is a serviceman. 431 U.S. at 670, 673-4, 97
S. Ct. at 2058.
To permit recovery against the government, the Court ob-
served, “would be to judicially admit at the back door that
which has been legislatively turned away at the front door”.
431 US. at 673, 97 S. Ct. at 2058 quoting Laird v. Nelms,
406 U.S. 797, 802, 92 S. Ct. 1899, 1902, 32 L. Ed. 2d
499 (1972).
A53
Opinion of the District Court Dated December 29, 1980
D. FERES/STENCEL IN THE CONTEXT OF THIS ACTION
To the extent that plaintiffs’ complaints seek recovery
against the defendant cliemical companies, of course, the
Feres doctrine has no application. 1 Jayson, Handling
Federal Tort Claims § 155.02 at 5-66 n. 9 and 5-77 n.24.
Under Stencel Aero Engineering Corp. v. United States,
however, any damages recovered by plaintiffs against de-
fendants that plaintiffs could not recover directly from the
United States may not be the subject of a third party com-
plaint against the United States. 1 Jayson, Handling Fed-
eral Tort Claims § 164 at 5-220.
[NJeither contribution nor indemnity may succeed
without the support of the initial negligence. * * *
[A]s the claimed contribution and indemnity must
depend for success upon the alleged negligence of
the government towards plaintiffs, and that is a
negligence which is not actionable, the claim must
fail. Drumgoole v. Virginia Electric and Power
Company, 170 F. Supp. 824, 825-26 (E.D. Va.
1952).
See also Stencel Aero Engineering Corp. v. United States,
431 U.S. 666, 97 S. Ct. 2054, 52 L. Ed. 2d 665 (1977);
Certain Underwriters at Lloyds v. United States, 511 F.2d
159 (CAS5 1975); Barr v. Brezina Construction Company,
464 F.2d 1141 (CA 10 1972). For the sake of clear
presentation in this opinion, however, the court will con-
sider plaintiffs’ claims as if they were asserted directly
against the United States government, for, to the extent
that plaintiffs may not maintain actions directly against the
government, under the principles of Stencel Aero, the de-
A54
Opinion of the District Court Dated December 29, 1980
fendants’ third party claims against the government must
fall as well.’
At the outset, it is clear that Feres applies to suits against
individual servicemen,'® claims by servicemen who served
in Vietnam," claims of intentional torts,’ and claims styled
as constitutional torts."* This leaves two issues: first,
whether the court should apply the principles of Feres/
Stencel to this action at all; and second, whether plaintiffs’
injuries arose out of or were suffered “in the course of
activity incident to service.” Feres v. United States, 340
U.S. at 146, 71 S. Ct. at 159.
9 For convenience the court will refer to the principle that the
government is immune from third party claims that would be barred
by Feres if directly asserted against the government as “Feres/
Stencel”.
10 Tirrill v. MacNamara, 451 F.2d 579 (CA9 1971); Bailey v.
DeQuevedo, 375 F.2d 72 (CA3 1967), cert. denied, 389 U.S. 923,
88 S. Ct. 247, 19 L. Ed. 2d 274 (1967); Misko v. United States,
453 F. Supp. 513, 514 (D.D.C. 1977), aff'd 593 F.2d 1371 (C.A.
D.C. 1979); Pisciotta v. Ferrando, 428 F. Supp. 685, 686 (S.D.N.Y.
1977).
WW Rotko v. Abrams, 338 F. Supp. 46, 47 (D. Conn. 1971), aff'd,
455 F.2d 992 (CA2 1972); 1 Jayson, Handling Federal Tort Claims
§ 155.08[4][i] at 5—138.
12 Citizens National Bank of Waukegan v. Unitel States, 594 F.2d
1154 (CA7 1979); Jaffe v. United States, 592 F.2d 712 (CA3 1979),
cert. denied, 441 U.S. 961, 99 S. Ct. 2406, 60 L. Ed. 2d 1066
(1979); Everett v. United States, 492 F. Supp. 318, 321 (S.D. Ohio
1980); Schmid v. Rumsfeld, 418 F. Supp. 19, 21 (N.D. Cal. 1979).
13 Everett v. United States, 492 F. Supp. 318, 322 (S.D. Ohio
1980); Nagy v. United States, 471 F. Supp. 383, 384 (D.D.C. 1979);
Misko v. United States, 453 F. Supp. 513, 515 (D.D.C. 1978), aff'd,
593 F.2d 1371 (C.A.D.C. 1978); Calhoun v. United States, 475
F. Supp. 1, 4-5 (S.D. Cal. 1977), aff'd on opinion below, 604 F.2d
647 (CA9 1979), cert. denied, 444 U.S. 1078, 100 S. Ct. 1029, 62
L. Ed. 2d 761 (1980).
A55
Opinion of the District Court Dated December 29, 1980
E. SHOULD FERES/STENCEL APPLY TO THIS ACTION?
The government seeks to dismiss the third party com-
plaints on the ground that the claims of the defendant
chemical companies are barred by a straightforward ap-
plication of Feres/Stencel principles. Defendants, however,
argue that the court should undertake “a detailed and fresh
examination of the rationale underlying those holdings
[Feres and Stencel] in the light of other great and * * *
superceding policy considerations”, Hercules/Diamond
Shamrock/Monsanto Memorandum at 10, to determine if
the Feres doctrine should be applied in this case. In sup-
port, defendants cite the “number of occasions [the Supreme
Court has] reexamined and redefined or abandoned certain
reasons for its holding in [the Feres] case.” Hercules/
Diamond Shamrock/Monsanto Memorandum at 7."
Defendants’ attempts to reargue the underlying rationale
of Feres must be rejected, however, for two reasons. First,
Feres was a case of statutory interpretation. 340 U.S. at
138, 71 S. Ct. at 155. Adams v. General Dynamics Corp.,
385 F. Supp. 890, 891 (N.D. Cal. 1974), aff'd, 535 F.2d
489 (CAQ), cert. denied, 432 U.S. 905, 97 S. Ct. 2949, 53
L. Ed. 2d 1077 (1976). Even were this court to believe
the Supreme Court’s reasoning to be erroneous,"* neither
4 See also Dow’s Memorandum at 28; Thompson-Hayward’s
Memorandum at 12; Hooker’s Memorandum at 6.
15 See also Dow’s Memorandum at 16.
16 Although some of the principles relied upon by the Feres Court
have since been discredited or repudiated, see 1 Jayson, Handling
Federal Tort Claims, § 155.05 at 5-86 through 5-91, much of the
Court’s reasoning remains valid and persuasive. Stencel Aero En-
gineering Corp. Vv. United States, 431 U.S. 666, 672-73, 97 S. Ct.
2054, 2058, 52 L. Ed. 2d 665 (1977); Jaffe v. United States, 592
F.2d 712, 717 (CA3 1979), cert. denied, 441 U.S. 961, 99 S. Ct.
2406, 60 L. Ed. 2d 1066 (1979); Coffey v. United States, 324 F.
Supp. 1088, 1087, 1088 (S.D. Cal. 1971), aff'd, 455 F.2d 1380
(CA9 1972).
AS6
Opinion of the District Court Dated December 29, 1980
the Court nor Congress itself has altered Feres’ basic hold-
ing, that in enacting the FTCA Congress did not intend
to waive sovereign immunity with respect to injuries or
loss suffered by servicemen in the course of activity incident
to their service.”
Second, in holding the government immune from claims
by servicemen the Supreme Court was concerned with more
than the effects of servicemen recovering against the gov-
ernment; the Court was also concerned about the disrup-
tive effects caused by the very commencement of actions by
servicemen complaining about the conduct of superiors. As
the Court later observed in United States v. Brown, 348
U.S. 110, 75 S. Ct. 141, 99 L. Ed. 139 (1954):
The peculiar and special relationship of the soldier
to his superiors, the effects of the maintenance of
such suits on discipline, and the extreme results that
might obtain if such suits under the Torts Claims
Act were allowed for negligent orders given or negli-
gent acts committed in the course of military duty,
7 That Congress, despite ample opportunity, has failed to right any
possible judicial misinterpretation indicates that the soundness of
the Feres conclusion regardless of whether specific elements of the
Court’s reasoning remain valid. See United States v. Lee et al., 400
F.2d 558 (CA9 1968), cert. denied, 393 U.S. 1053, 89 S. Ct. 691,
21 L. Ed. 2d 695 (1969), wherein the court found that
Congress has acquiesced in the holding of Feres [by] per-
mitting the decision to remain undisturbed for eighteen years.
* * * “(W)hen the questions are of statutory construction, not
of constitutional import, Congress can rectify our mistake, if
such it was, or change its policy at any time, and in these
circumstances reversal is not readily to be made.
400 F.2d at 561, quoting United States v. South Buffalo
Railway Company et al., 333 U.S. 771, 774-75, 68 S. Ct. 868,
870, 92 L. Ed. 1077 (1948).
The reasoning of Lee is now twelve years stronger.
AS57
Opinion of the District Court Dated December 29, 1980
led the [Feres] Court to read [the Federal Tort
Claims] Act as excluding claims of [servicemen for
injuries incident to their service]. 348 U.S. at 112,
75 S. Ct. at 143.
Thus, it is the suit itself as much as the possibility of re-
covery, that the Supreme Court feared would disrupt mili-
tary discipline and the orderly conduct of military affairs.
Henninger v. United States, 473 F.2d 814, 815-16 (CA9),
cert. denied, 414 U.S. 819, 94 S. Ct. 43, 38 L. Ed.2d 51
(1973). To reexamine the Feres rationale in light of the
circumstanes of this case as defendants suggest, would itself
defeat one of the very factors defendants seek to have the
court reconsider. As the Supreme Court noted long ago in
discussing the relationship between a soldier and his su-
periors:
An army is not a deliberate body. It is the executive
arm. Its law is that of obedience. No question can
be left open as to the right to commend in the
officer, or the duty of obedience in the soldier. Vigor
and efficiency on the part of the officer and confi-
dence among the soldiers in one another, are im-
paired if any question be left open as to their
attitude to each other. United States v. Grimley,
137 U.S. 147, 153, 11 S. Ct. 54, 55, 34 L. Ed. 636
(1890).
For these reasons, this court will neither reconsider the
underlying rationale of the Feres decision nor weigh the
circumstances here presented against the “Feres factors”.”
% Other courts have rejected similar attempts to reargue the
“Feres factors” on a case-by-case basis. See e.g., Torres v. United
(footnote continued on following page)
AS58
Opinion of the District Court Dated December 29, 1980
Right or wrong, the Supreme Court’s conclusion that Con-
gress did not intend passage of the FTCA to act as a waiver
of sovereign immunity as to claims of servicemen injured
incident to their service remains the law of the land. The
Feres/Stencel doctrine bars defendants’ attempt to seek con-
tribution or indemnity from the United States based on any
recovery plaintiffs may obtain for injuries that arose out
of or were suffered incident to service.
F. Dip PLAINTIFFS’ INJURIES ARISE OuT OF OR INCIDENT
To MILITARY SERVICE?
The second issue is whether the claims of particular
plaintiffs arose out of or in the course of activity incident
to service. As Professor Jayson has noted, “neither the
[Federal Tort Claims] Act nor the opinions of the Supreme
Court have indicated definitively the full meaning of the
phrase ‘incident to service’”. 1 Jayson, Handling Federal
Tort Claims § 155.01 at 5-65.% This lack of definition
(footnote continued from preceding page)
States, 621 F.2d 30, 32 (CA7 1980) (Feres applies even without
nexus between military discipline and injury); Joseph v. United
States, 505 F.2d 525, 527 (CA7 1974) (denial of veterans benefits
“completely independent” from consideration of applicability of
Feres doctrine); Henninger v. United States, 473 F.2d 814, 815-16
(CA9), cert. denied, 414 U.S. 819, 94 S. Ct. 43, 38 L. Ed. 2d 51
(1973) (although negligence at discharge does not affect military
discipline, Feres still applies); Healy v. United States, 192 F. Supp.
325, 328 (S.D.N.Y. 1961), aff'd on opinion below, 295 F.2d 958
(CA2 1961) (availability of veterans benefits not controlling); Mor-
gan V. United States, 366 F. Supp. 938, 939 (N.D. Fla. 1973) (Feres
bars claims even though plaintiff not subject to military discipline at
time of injury); see also, 1 Jayson, Handling Federal Tort Claims
§ 155.02 at 5-74.
“The Brooks-Feres-Brown line of cases illustrates that the in-
cident to service test is not easy to define and apply.” Woodside v.
United States, 606 F.2d 134, 141 (CA6 1979).
AS59
Opinion of the District Court Dated December 2971980
complicates the task of applying the standard considerably,
1 Jayson Handling Federal Tort Claims § 155.01 at 5-65,
but certain principles do emerge from an examination of
the cases.
1. General Principles
First, the phrase “incident to service” is not to be nar-
rowly applied or “restricted to actual military operations
such as field maneuvers or small arms instruction.” Hass v.
United States, 518 F.2d 1138, 1141 (CA4 1975). Rather,
“incident to service” is a broad concept that depends on a
rational connection between the plaintiff's claim or loss
and his status as a member of the armed forces. Woodside v.
United States, 606 F.2d 134, 141 (CA6 1979); Harten v.
Coons, 502 F.2d 1363, 1365 (CA 10 1974), cert. denied,
420 U.S. 963, 95 S. Ct. 1354, 43 L. Ed.2d 441 (1975).
Professor Jayson summarizes this concept:
[I]f the serviceman’s injury or loss, when viewed in
all the surrounding circumstances, has a real and
substantial relationship to his military service, it
will be regarded as incident to service and conse-
quently barred under the Feres doctrine. 1 Jayson,
Handling Federal Tort Claims § 155.02 at 5-66.”
20 See also Healy v. United States, 192 F. Supp. 325, 327 n.8
(S.D.N.Y. 1961), aff'd, 295 F.2d 958 (CA2 1961) (“special soldier-
Government relationship which embraces the incident-to-service con-
cept covers those wrongs which, although not sustained in the course
of active duty, are so closely related to it that they may be deemed
‘incident’ to that duty”); 1 Jayson, Handling Federal Tort Claims
§ 155.02 at 5-79 through 5-80 (“in order for a claim to be service-
incident, there does not have to be any proximate causation in the
common-law tort sense, between the military service or employment
in the damage. All that is required is that as an incident of his service
or employment the claimant is placed in a position where he is sur-
rounded with conditions giving rise to the claim”).
A60
Opinion of the District Court Dated December 29, 1980
Second, the cases applying the Feres doctrine emphasize
that “it is the status of the claimant as a serviceman rather
than the legal theory of his claim which governs.” Rotko v.
Abrams, 338 F. Supp. 46, 47 (D. Conn. 1971) (emphasis
added), aff'd on opinion below, 455 F.2d 992 (CA?
1972).2" Thus, the Feres doctrine has barred the claims of
off duty servicemen injured before leaving their military
base, Watkins v. United States, 462 F. Supp. 980, 988-89
(S.D. Ga. 1977), aff'd on opinion below, 587 F.2d 279
(CAS 1979), of off duty serviceman injured while “hitch-
ing” a ride home on military aircraft, Archer v. United
States, 217 F.2d 548, 552 (CA9 1954), cert. denied, 348
U.S. 953, 75 S.Ct. 441, 99 L. Ed. 745 (1955); Homlitas
v. United States, 202 F. Supp. 520 (D. Ore 1962); Fass v.
United States, 191 F. Supp. 367 (E.D.N.Y. 1961), and the
wrongful death claim of the widow of a servicethan killed
in an air crash while receiving flight instruction toward a
commercial pilot’s license. Woodside v. United States, 606
F.2d 134 (CA6 1979).
Third, at the time of his injury plaintiff need not be on
any military mission. Feres v. United States, 340 U.S.
135, 71 S. Ct. 153, 95 L. Ed. 152 (1950) (serviceman died
when barracks he was sleeping in burned due to defective
heating unit),” nor subject to military discipline, Hall v.
United States, 451 F.2d 353, 354 (CA1 1971) (no “con-
21 See also U. S. v. Lee, 400 F.2d 558, 562 (CA9 1968), cert.
denied, 393 U.S. 1053, 89 S. Ct. 691, 21 L. Ed. 2d 695 (1969);
Knoch v. United States, 316 F.2d 532, 534 (CA9 1963); Frazier v.
United States, 372 F. Supp. 208, 210 (M.D. Fla. 1973).
22 See also Hass Vv. United States, 518 F.2d 1138, 1141 (CA4
1975) (Feres bars claim of off-duty serviceman injured while riding
a dangerous horse rented from a Marine Corps stable).
a atmaaamaaaaar caramel
A6l
Opinion of the District Court Dated December 29, 1980
nection between the activity which injured plaintiff and
[military] discipline” necessary) .”
Professor Jayson concisely and fairly synthesizes the
“incident to service” cases as follows:
The duty status of the serviceman-claimant is of par-
ticular significant in determining whether the injury
or loss was incident to service. The [Supreme
Court's rational in Feres/Stencel] applies to almost
every situation which can be envisaged in which
the injury or loss was sustained by a serviceman
while on duty (as distinguished from one who is on
leave or furlough), and it seems safe to say that
the Feres doctrine will always apply in such cir-
cumstances. 1 Jayson, Handling Federal Tort
Claims § 155.02 at 5-69 through 5-71.
[I]f the serviceman’s injury or loss occurs while he
is off duty, while he is not within the physical con-
fines of his military base, while he is not engaged
in any military mission, and is not directly under
military discipline, it is likely that the Brooks doc-
trine allowing Tort Claims Act recovery will apply;
23 See also Hass v. United States, 518 F.2d 1138, 1140 (CA4
1975); James v. United States, 358 F. Supp. 1381, 1385 (D.R.L
1973), aff'd, 530 F.2d 962 (CA1), cert. denied, 429 US. 998, 97
S. Ct. 523, 50 L. Ed. 2d 608 (1976).
24 In Brooks v. United States, 337 U.S. 49, 69 S. Ct. 918, 93 L. Ed.
1200 (1949), the Supreme Court held that a serviceman may recover
under the FTCA on claims which have no relationship to his military
service. Anticipating the issues ultimately considered in Feres one
term later, the Court stated:
we are dealing with an accident which had nothing to do with
the Brooks’ army careers, injuries not caused by their service
except in the sense that all human events depend upon what
(footnote continued on following page)
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Opinion of the District Court Dated December 29, 1980
in other words, that the injury or loss will be re-
garded as not incident to service. It should be noted,
however, that the application of Brooks generally
requires all of the mentioned factual elements to be
present. Contrariwise, if the injury or loss occurs
while the serviceman is on duty, or—without regard
to whether he is on or off duty—if it occurs on the
military base where he is stationed or on a military
aircraft whether he is directly under military control
and discipline, or if it occurs while he is engaged in
a military mission, it is likely that the Feres doctrine
excluding the claim will apply. Again speaking gen-
erally, the presence of any one of the mentioned
factual elements will bring application of the Feres
doctrine. Jayson, Handling Federal Tort Claims
§ 155.02 at 5-67 through 5-68.
2. Application of Feres/Stencel to Plaintiffs’ Claims
(a) Plaintiff Veterans’ Claims of Exposure
The veterans’ claims of injury clearly arise from their
alleged exposure to Agent Orange during their military
service. While virtually all of the veterans allege that their
exposure took place in southeast Asia as a direct result of
government efforts to defoliate the forests during the Viet-
nam war, the circumstances of each veteran’s claimed ex-
posure may vary. Some claim to have been directly sprayed
with Agent Orange; some claim to have come into contact
with Agent Orange as a result of being transported through
(footnote continued from preceding page)
has transpired. Were the accident incident to the Brooks’
service a wholly different case would be presented. We ex-
—— ee * *,. 337 US. at 52, 69 S. Ct. at
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Opinion of the District Court Dated December 29, 1980
sprayed areas; others claim to have been exposed to Agent
Orange by ingesting water or food contaminated with the
herbicide; and still others claim exposure during the trans-
portation and handling of Agent Orange or its containers.
Whatever the facts surrounding a particular veteran’s
claim of exposure may be,” each veteran’s presence in
southeast Asia resulted solely from their military service,
and, as to each veteran, “as an incident to his service or
employment [he was] placed in a position where he [was]
surrounded with conditions giving rise to the claim” of
exposure. See 1 Jayson Handling Federal Tort Claims
§ 155.02 at 5-78 through 5-79. Even veterans who claim
injury as the result of exposure to Agent Orange while off
duty are within the parameters of the Feres doctrine be-
cause “when viewed in all the surrounding circumstances”,
a veteran’s exposure in southeast Asia to a herbicide used for
military purposes “has a real and substantial relationship
to his military service * * * and consequently [his claim]
is barred under the Feres doctrine.” 1 Jayson, Handling
Federal Torts Claims § 155.02 at 5-66.%
The analysis is similar for those veterans who claim
that their exposure to Agent Orange occurred within the
25 Defendants’ attempts in connection with this motion to require
individual factual hearings on the circumstances of each veteran’s
exposure to Agent Orange must be rejected. Such rejection, however,
does not preclude later examination of individual plaintiffs concern-
ing the circumstances of their exposure to the extent that they may
bear on other issues, ¢.g., individual liability or damage questions.
26 See also Woodside v. United States, 606 F.2d 134, 141 (CA6
1979) (“Where the two [the injury causing activity and the Armed
Forces] are closely associated or naturally related, the activity will
be deemed “incident to service” even though not an or
integral part of the mission of the Armed Forces and even though
not directly involving a command relationship between the soldier
and the military”).
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Opinion of the District Court Dated December 29, 1980
United States or places other than southeast Asia during
their military service. Their handling, transportation or
distribution of Agent Orange during the course of their
military duties was incident to their service, and their
claims are equally barred under the Feres doctrine.
(b) Post-Discharge Failure to Warn
Only one of plaintiff veterans’ claims does not fall easily
under this analysis, i.e., that defendants breached a post-
discharge duty to the veterans by failing to notify them of
new scientific information concerning the possible harm
that could result from exposure to Agent Orange. Plain-
tiff veterans allege that defendants’ failure to inform them
of possible dangers associated with exposure to Agent
Orange prevented them from seeking more frequent medical
examinations and thereby insuring early detection and
treatment of disease. Defendants seek indemnity and con-
tribution from the government on this claim too.
Defendants rely on three cases in opposition to the
government’s motion to dismiss these “post-discharge”
claims: Schwartz v. United States 230 F. Supp. 536 (E.D.
Pa. 1964); Thornwell v. United States, 471 F. Supp. 344
(D.D.C. 1979); Everett v. United States, 492 F. Supp.
318 (S.D. Ohio 1980).
In Schwartz v United States a serviceman treated for a
sinus condition during the course of his military service had
a radioactive dye, umbarthor, inserted into his sinus. After
discharge from the military, plaintiff sought additional medi-
cal treatment for his sinus difficulties, but the Veterans
Administration hospital that considered his treatment failed
to obtain and examine his medical records, and, as a result
of the hospital’s negligence, the contifiued presence of the
earlier-inserted umbrathor went undetected. As a result
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Opinion of the District Court Dated December 29, 1980
plaintiff contracted cancer. The court held that Feres did
not bar plaintiff's claim against the government, because
plaintiff's claim of negligence lay not in the original inser-
tion of the umbrathor at the time he was in the military;
rather, the court found that the actionable negligence was
the hospital’s failure to take reasonable steps to diagnose
and solve plaintiff's problem, the continued presence of the
umbrathor in his sinus. 230 F. Supp. at 539-40. The court
further opined that the government was negligent for its
failure to followup its umbrathor patients in order to inform
them of newly discovered dangers associated with the drug.
230 F. Supp. at 540.
In the second case relied on by the defendants, Thornwell
v. United States, a former serviceman alleged that he was
intentionaily drugged with LSD as part of a secret govern-
ment experiment and that the government negligently failed
to warn plaintiff that his exposure to the drug subjected
him to certain medical risks. The Thornwell court, noting
the difficulties that courts encounter when the acts com-
plained of commence while plaintiff is on active duty and
then continue until well after discharge, 471 F. Supp. at
350, held that Thornwell’s claim inst the government
was not barred by the principles of Peres because he did
not allege merely continuing negligence. Rather,
{h]e claim[ed] that he was intentionally harmed
while he was on active duty and he further claim[ed]
that, after he became a citizen [left the military],
the defendants failed to exercise their duty of care
by neglecting to rescue him from the position of
danger which they had created, * * * two distinctly
separate patterns of conduct, one intentional and
[one] negligent. 471 F. Supp. at 351.
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Opinion of the District Court Dated December 29, 1980
The Thornwell court then found that plaintiff had al-
leged “two entirely different torts”, and since the “com-
plaint [was] perfectly clear in its allegation that the negli-
gent act occurred, in its entirety, after [plaintiff] attained
civilian status”, 471 F. Supp. at 351 (emphasis in original),
plaintiff's claim of governmental negligence was not barred
by Feres. Id. The Thornwell court divided the cases in-
volving servicemen’s claims of post-discharge negligence
into three types:
To summarize the relevant precedent, it appears that
there are three types of personal injury cases which
involve post-discharge negligence. In the first case,
the military performed separate negligent acts (i.e.,
two improper operations), one before, and one after
discharge; United States v. Brown, 348 U.S. 110
[75 S. Ct. 141, 99 L.Ed. 139], and Hungerford v.
United States, 192 F.Supp. 581 (N.D. Cal.1961),
rev'd on other grounds, 307 F.2d 99 (9th Cir.
1962), both clearly indicate that the injured veteran
may recover for the later act. In the second case,
a single negligent act occurs and its effects linger
after discharge; Feres v. United States, 340 U.S. 135
[71 S. Ct. 153, 95 L. Ed. 152] (1950), holds that,
under some circumstances, this one act is subject to
intra-military immunity. Third, the military may
commit an intentional act and then negligently fail
to protect a soldier turned civilian from the dire
consequences which will flow from the original
wrong. This Court holds that, under such circum-
stances, the injured civilian may have a valid claim
against the tort feasors. The later negligence is a
separate wrong, a new act or omission occurring
after civilian status is attained; the perpetrators of
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Opinion of the District Court Dated December 29, 1980
this wrong must be held accountable for their con-
duct. 471 F. Supp. at 352.
In defendants’ third case, Everett v. United States, 492
F. Supp. 318 (S.D. Ohio 1980), the wife of a deceased
serviceman sued the government claiming that her husband’s
death by cancer was the result of his being intentionally
exposed to large doses of radiation when he was forced to
participate as an Air Force enlisted man in military maneu-
vers in a nuclear blast area less than one hour after detona-
tion of the nuclear device. Plaintiff argued that her hus-
band’s march through the hazardous area was part of an
experimental project to test the effects of nuclear radiation.
Refusing to dismiss plaintiff's claim of post-discharge negli-
gence, the Everett court found that the fact picture “prop-
erly falls in the third category” of the Thornwell analysis—
intentional act incident to service, plus a separate wrong
of post-dicharge negligence. 492 F. Supp. at 325.
These cases are distinguishable from the facts at bar in
several important respects. First, unlike the Schwartz case,
the post-discharge negligence asserted here is not separate
and distinct from the numerous acts of negligence alleged
to have occurred incident to plaintiff's service. Schwartz,
who sought medical treatment after his discharge, had a
predischarge condition that was improperly diagnosed and
negligently treated after discharge. That the condition arose
due to government installation of the umbrathor in plain-
tiff’s sinus while he was a serviceman does not alter the fact
that the governmental negligence occurred, in its entirety,
long after plaintiff became a civilian. Unsupported dicta
aside, Schwartz stands only for the proposition that recovery
for negligent performance of post-discharge medical treat-
ment is not barred merely because the original condition
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Opinion of the District Court Dated December 29, 1980
arose from medical treatment that is not actionable under
Feres.
Thus, Schwartz properly falls under Thornwell’s “first
case”, where “the military performed separate negligent
acts (i.e., two improper operations), one before, and one
after, discharge”. 471 F. Supp. at 352. Here, plaintiff's
claim of post-discharge failure to warn does not present a
separate and distinct act of post-discharge negligence on
the part of the government. Of course, any veteran in this
case who faces a situation analogous to Schwartz, that is,
who seeks post-discharge medical assistance from the gov-
ernment for an Agent Orange related malady and is negli-
gently treated at a government hospital, may prosecute his
claim for negligent treatment without the Feres impediment.
Second, unlike the Thornwell and Everett cases, plain-
tiffs here do not allege that the government caused them
intentional harm by subjecting them to a form of human
experimentation. Thornwell, joined by Everett, emphasized
the distiction between cases of predischarge torts that were
intentional and those that were negligent:
Mr. Thornwell * * * does not allege a mere con-
tinuing negligent omission [which would be barred
by Feres]. He claims he was intentionally harmed
while he was on active duty and he further claims
that, after he became a civilian, the defendants
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