# Petition — Diamond Shamrock Chemicals Co. v. Ryan > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1111%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1984 - **Citation:** 465 U.S. 1067 ## Text 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 pr [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1111%3A1. Public record. Not legal advice.