Appendix — Lombardi v. Dow Chemical Co.

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD COPY

AT THE TIME OF FILMING, IF AND WHEN A

BETTER COPY CAN BE OBTAINED, A NEW FICHE

WILL BE ISSUED,

‘y | Supreme Court, U.S. | |

‘ ) FILED

8,7 “43 SEP. 15 987

IN THE JOSEPH F. SPANIOL, JR. |

Supreme Court of the United —

OCTOBER TERM, 1987

VINCENT C. LOMBARDI, et al, Petitioners,

V.

DOW CHEMICAL COMPANY, et al., Respondents.

RICHARD PINKNEY, et al., Petitioners,

Vv.

DOW CHEMICAL COMPANY, et al., Respondents.

CLARA FRATICELLI, ef al., Petitioners,

v.

DOW CHEMICAL COMPANY, et al., Respondents,

and

GERALD HOGAN, Petitioner,

e

DOW CHEMICAL COMPANY, et al., Respondents.

In re “Agent Orange” Product Liability Litigation

SINGLE APPENDIX

(Volume I, Pages 1a-620a)

WAYNE MICHAEL MANSULLA

(Counsel of Record)

ASHCRAFT & GEREL

2000 L Street, N.W., Suite 700

Washington, D.C. 20036

(202) 783-6400

Counsel for Petitioners

9 OE ARN ERRAND RT SEE PEST AAR TIE ET NINE IITA 8 EN EIEN LOSER DE IRI

CASILLAS PRESS INC. — 1717 K STREET NW WASHINGTON DC 20036 — 223-1220

ere! = ep

ora

(i)

INDEX

Volume I

Description Page

District Court Opinion: Jn re “Agent Orange” Product

Liability Litigation, 506 F.Supp. 762 (1980) .................. la

District Court Opinion: Jn re “Agent Orange” Product

Liability Litigation, 534 F.Supp. 1046 (1982) ................ 76a

District Court Opinion: Jn re “Agent Orange” Product

Liability Litigation, 565 F. Supp. 1263 (1983) .............. 102a

District Court Opinion: Jn re “Agent Orange” Product

Liability Litigation, 597 F.Supp. 740 (1984) ................ 135a

District Court Opinion: Jn re “Agent Orange” Product

Liability Litigation, 100 F.R.D. 718 (1983) ................ 456a

District Court Opinion: Jn re “Agent Orange” Product

Liability Litigation, 611 F.Supp. 1223 (1985) ............... 492a

District Court Opinion: /n re “Agent Orange” Product

Liability Litigation, Lilley v. Dow Chemical Co.,

ee a kde os wae 580a

Volume II

District Court Opinion: Jn re “Agent Orange” Product

Liability Litigation, Fraticelli v. Dow Chemical Co.,

ee RRR AR eae a ai Pg ee 621la

District Court Opinion: /n re “Agent Orange” Product

Liability Litigation, Hogan v. Dow Chemical Co.,

ee ee re cae eA A KAA axa cas 630a

District Court Opinion: Jn re “Agent Orange” Product

Liability Litigation, 635 F.2d 987 (1980) ................... 641la

Court of Appeals Opinion: Jn re Diamond Shamrock

Chemticgts Co., 725 F 20 Coe CIPO) wn cc ci ccc wees ences 668a

(ii)

Page

Court of Appeals Opinion: In re “Agent Orange” Product

Liability Litigation, 818 F.2d 145 Pee ert nr Tee 676a

Court of Appeals Opinion: Jn re “Agent Orange” Product

Liability Litigation, 818 F.2d 187 i SEE Pee em 752a

Court of Appeals Opinion: Jn re “Agent Orange” Product

Liability Litigation, Hogan v. Dow Chemical Co.,

Fraticelli v. Dow Chemical Co., 818 F.2d 210 (1 i ate? 766a

Court of Appeals Orders Denying Petitions for

seein ihe RT 777a

Court of Appeals Orders Staying Issuance of the

ON edie 5x05 Comeau Ieee et ee 780a

List of Parties Below:

Opt-Out Plaintiffs

la

In re ‘AGENT ORANGE” PRODUCT LIABILITY

LITIGATION.

MDL No. 381.

United States District Court,

E.D. New York.

Dec. 29, 1980

Victor J. Yannacone, Jr., Yannacone & Yannacone, Patch-

ogue, N. Y., Schlegel & Trafelet, Ltd., L. Steven Platt,

Daniel C. Sullivan, Sullivan Associates, Ltd., Chicago, IIl.,

Hy Mayerson, Spring City, Pa., David Jaroslawicz, New

York City, Newton B. Schwartz, P. C., Benton Mussle-

white, Inc., Houston, Tex., Dorothy Thompson, Los

Angeles, Cal., W. T. McMillan, W. T. McMillan & Co., as-

sociated counsel for Australian plaintiffs, Brisbane, Queens-

land, Australia, Jerry G. Wieslander, Frank G. Wieslander,

Altoona, Iowa, Lewis A. Royal, Samuel Zelden, Des

Moines, Iowa, David C. Anson, Deconcini, McDonald,

Brammer, Yetwin & Lacy, Tucson, Ariz., Phillip E. Brown,

Hoberg, Finger, Brown, Cox & Molliga, San Francisco,

Cal., Melvin Block, Brooklyn, N. Y., Marshall A. Berns-

tein, Bernstein, Bernstein & Harrison, Philadelphia, Pa.,

Louis B. Merhige, New Orleans, La., Dennis M. O'Malley,

Grant & Artesani, Boston, Mass., Leslie Hulnick, Wichita,

Kan., Sidney W. Gilreath, Knoxville, Tenn., Stephen J.

Cavanaugh, Bellaire, Tex., Robert P. Schuster, Spence, Mor-

iarty & Schuster, Jackson, Wyo., Alton C. Todd, Brown &

Todd, Alvin, Tex., Jules B. Olsman, Southfield, Mich.,

Gerald J. Adler, Crow, Lytle, Gilwee, Donoghue, Adler &

Weninger, Sacramento, Cal., Jack E. London, Miami, Fla.,

David J. Ghilardi, Madison, Wis., William G. Morgan, De-

nver, Colo., Dante Mattioni, Philadelphia, Pa., Elgin L.

Crull, Louisville, Ky., Charles J. Traylor, Grand Junction

2a

Colo., Victor L. Marcello, Talbot, Sotile, Carmouche,

Waquespack & Marchand, Donaldsonville, La., Janet T.

Phillips, Rodgers, Monsley, Woodbury & Berggreen, Las

Vegas, Nev., William D. Nelsch, William A. Cohan, Den-

ver, Colo., William J. Risner, Tucson, Ariz., James L. Wit-

zel, McKelvey, Cottom & Witzel, East Lansing, Mich.,

Robert I. P. Pasternak, Jane R. Kaplan, Berkeley, Cal., Nor-

ton Frickey, Denver, Colo., Robert C. Huntley, Jr., Racine,

Huntley & Olson, Pocatello, Idaho, Jacque B. Pucheu,

Pucheu & Pucheu, Eunice, La., Jeffrey M. Stopford, Litvin,

Blumberg, Matusow & Young, Philadelphia, Pa., Joseph

D. Jamail, Jamail & Kolius, Houston, Tex., Leonard W.

Schroeter, J. Kathleen Learned, Schroeter, Goldmark &

Bender, P. S., Seattle, Wash., Bennett, DiFilippo, Davison,

Henfling & Alessi, East Aurora, N. Y., James A. George,

George & George, Baton Rouge, La., Robert M. Salzman,

Pfeffer, Becker, Gabric & Cerveny, Chicago, Ill., Arden C.

McClelland, McClelland Law Offices, Missoula, Mont.,

Daniel E. Becnel, Jr., Becnel & Faucheux, Reserve, La.,

Don S. Willner, Willner, Bennett, Bobbitt & Hartman,

Portland, Or., Robert A. Taylor, Jr., Ashcraft & Gerel,

Washington, D. C., John J. Lowrey, Chicago, Ill., Donald

H. Dawson, Harvey, Kruse & Westen, P. C., Detroit,

Mich., Jonathan N. Garver, Cleveland, Ohio, Dennis B.

Francis, Gillenwater, Whelchel & Nichol, Knoxville, Tenn..,

Russell L. Cook, Jr., Fisher, Roch & Gallagher, Houston,

Tex., Irwin E. Schermer, Schermer, Schwappach, Borkon &

Ramstead, Minneapolis, Minn., David D. Noel, Jenkins &

Jenkins, Knoxville, Tenn., Thomas E. Allen, Curtis, Cross-

en, Hensley, Allen, Curtis & Altman, St. Louis, Mo., Ken-

neth N. Molberg, Dallas, Tex., Phil M. Cartmell, Jr., Gage

& Tucker, Kansas City, Mo., Wayne B. Harbarger, III,

Littlefield, McDermand & Harbarger, Sacramento, Cal.,

William T. Jorden, Eris, Pa., Devine & Morris, Atlanta,

Ga., Byron N. Fox and Gary K. Hoffman, Brown & Fox,

3a

Kansas City, Mo., Ernest L. Caulfield, New Orleans, La.,

Thomas E. Connolly, Schneider, Reilly, Zabin, Connolly &

Costello, P.C., Boston, Mass.,.Gary W. Anderson, Erler,

Taylor & Anderson, Louisville, Ky., John F. Vecchio, Hous-

ton, Tex., Caenen & Niederhauser, Mission, Kan., John T.

Golden, Robert F. Stein and William J. Stradley, Stradley,

Barnett & Stein, Houston, Tex., Douglass D. Hearne & As-

sociates, Austin, Tex., Lawrence M. Ludwig and Kirby G.

Upright, Scranton, Pa., Epstein & Kesselman, Chicago, IIll.,

Brenda S. Jenkins, Werner & Rusk, Houston, Tex., Richard

R. Ravreby, Ravreby & Connolly, Carlsbad, Cal., Robert A.

McNess, III, and Robert W. Knolton, Layton & McNess, P.

C., Oak Ridge, Tenn., Henry E. Weil and Ronald S.

Canter, Belli, Weil & Jacobs, Rockville, Md., Cletus E.

Amlung and J. Michael Poole, Louisville, Ky., Synchef &

Synchef, Chicago, Ill., Percy J. Blount, Saul, Blount &

Martin, P. C., Augusta, Ga., Richard C. McLean, Denver,

Colo., Carlton T. Wynn, Hare, Wynn, Newell & Newton,

Birmingham, Ala., Owen J. Bradley, New Orleans, La., El-

liot E. Brown, Metairie, La., James R. Dawson, Johnston,

Thornton, Dawson & Hunter, Shreveport, La., Roger J.

Larue, Jr., Metairie, La., William M. Beasley, Mitchell, Es-

kridge, Voge, Clayton & Beasley, Tupelo, Miss., Avram G.

Adler, Adler, Barish, Levin & Creskoff, Philadelphia, Pa.,

Ned W. Johnson, Benckenstein, McNicholas, Oxford, Rad-

ford, Johnson & Nathan, Beaumont, Tex., Paul D. Rhein-

gold, New York City, Fred D. Shapiro, Shapiro, Turoff &

Gisser, Cleveland, Ohio, for plaintiffs.

Leonard L. Rivkin, Rivkin, Leff & Sherman, Garden

City, N.Y., for Dow Chemical.

Morton B. Silberman, Clark, Gagliardi & Miller, White

Plains, N.Y., Baker & McKenzie, Chicago, Ill, for

Thompson-Hayward.

4a

Wendell B. Alcorn, Jr., Cadwalader, Wickersham &

Taft, New York City, for Diamond Shamrock.

Townley & Updike, New York City, for Monsanto.

Bud G. Holman and William Krohley, Kelley, Drye &

Warren, New York City, for Hercules, Inc.

Joan Bernott, Dept. of Justice, Washington, D.C., for

third-party defendant U.S.

Roy L. Reardon, James P. Barrett and Michael V. Corri-

gan, Simpson, Thacher & Bartlett, New York City, for

Ansul Co.

Armand E. Capanna, Lewis, Overbeck & Furman,

Chicago, Ill., for Riverdale Chemical Co.

Lawrence D. Lenihan, Thomas B. Kinzler and Alfred H.

Hemingway, Jr., Arthur, Dry & Kalish, P. C., New York

City, for Uniroyal.

Les J. Weinstein, McKenna & Fitting, New York City, for

Occidental Petroleum Co.

William H. Sanders, William A. Lynch and Paul G.

Lane, Blackwell, Sanders, Matheny, Weary & Lombardi,

Kansas City, Mo., for N. A. Phillips.

John M. Fitzpatrick, Dilworth, Paxson, Kalish, Lelvy &

Kauffman, Philadelphia, Pa., for Hooker Chemical Co.

TABLE OF CONTENTS

Document Page

INTRODUCTION 26s cccdsabineee enbase setapsedserseccsens Ta

I. SUMMARY OF CEA ba ci cccasrccccrsenenseevcees 8a

Sa

Il. GOVERNMENT’S MOTION TO DISMISS

THIRD PARTY COMPLAINTS ..... Nee .. Ba

A. FTCA as a General Waiver of Sovereign

SIRES tata ar as erg eee te 9a

a eeeeacesueneseen= 9a

C. Third Party Actions Against the

i Cee cee eek heer aeee oe een anrwons l4a

D. Feres/Stencel inthe Context of This Action ..... .. 1Sa

E. Should Feres/Stencel Apply to This Action? ........ 17a

F. Did Plaintiffs’ Injuries Arise Out of or

Incident to Military Service? ..............20.2008: 20a

I 21a

2. Application of Feres/Stence/ to Plaintiffs’

se ee Ne ns ob ge bis oe db 24a

(a) Plaintiff Veterans’ Claims of Exposure ...... 24a

(b) Post-Discharge Failureto Warn ............ 26a

(c) The Australian Veterans’ Claims ............ 32a

(d) Derivative Claims of Spouses, Parents

and Children ......... Paeiaich ak 6 oie hs we ae

(e) Claims of Direct Injury to Veterans’

ag es ag Sa kek

G. Defendants’ Remaining Claims Against the

I 78S oi Gly a pa gn wigs U a%e-8's Vaauweeeanei 36a

Ses GU I ET os ccc tc cnccncsacsces 37a

Il. THE CASE MANAGEMENT PLAN ............. ... 38a

CMe psn e6¢a6s0.e4s so. Sago a Whe Gwaiate’ 47a

A. Prerequisites of Rule 23(a) ....... ~ saa ee 48a

hs. WOES 6 nod 605 a Gbbhss debe kd cadences 48a

i EE Cac ind k's eee dade ut Avéee een rann 48a

ie ES i od oe an.b-005 loka kek dowel ., 49a

i ai iss sew ide btikensdeeasaundncwods 50a

5. Additional Requirements .................... . Sla

B. Prerequisites of Rule 23(b) ....................... Sla

1. Rule 23{b)(1) .... Ape AUN nde ATRL, i tot

2. Rule 23(b),(2) ........ seater ao Lee S4a

NRE SAS nf eee aA ea SSa

C. Notice ......... PRAT pang: Fa ae eer year S7a

V. SUMMARY JUDGMENT ........ ne re ae 89a

A. The Government Contract Defense ... . 60a

B. The Positions of the Parties . aS 6Sa

C. Summary Judgment Denied ......... cued .. 67a

Was. EE oo cA dbcccddaci SP RAE PP ... a

Vil. STATUTES OF LIMITATIONS ..................... 72a

Deeds SEED cs bho occ des ba éaCh aka cae ecan .. 12a

RASA aac Rae DOR eB agi Neiie s Men Aion. 72a

INTRODUCTION

GEORGE C. PRATT, District Judge.

Plaintiffs, Vietnam war veterans and members of their fam-

iles claiming to have suffered damage as a result of the vet-

erans’ exposure to herbicides in Vietnam’ , commenced these

actions against the defendant chemical companies.? Defen-

dants, seeking indemnification or contribution in the event

they are held liable to plaintiffs, then served third party com-

plaints against the United States.‘ Five motions are now con-

sidered: (1) the government’s motion to dismiss the third

party complaint on grounds of sovereign immunity; (2) plain-

tiffs’ motion for class action certification; (3) defendants’ mo-

' 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 collectively as

“Agent Orange”.

> At the present time 19 companies or divisions have been named as

defendants in actions consolidated before this court as MDL 381. Al-

phabetically listed, the defendants named to date are: Agrisect, Inc.; Am-

chem Products, Inc.; Ansul Company; AKA Wormald America, Inc.; Di-

amond Alkali Company; Diamond Shamrock Corporation; Dow Chemi-

cal Company; GAF Corporation; Hercuies, Inc.; Hoffman-Taff, Inc.;

Hooker Chemical Company; Monsanto Company; North American Phil-

lips Corporation; Northwest Industries, Inc.; Occidenta! Petroleum Com-

pany; Private Brands, Inc.; Riverdale Chemical; Syntex Corporation; Un-

iroyal, Inc. Although an individual action may name some of the chemi-

cal companies and not others, the court will refer to these companies col-

lectively as “defendants”.

Additionally, some of these named defendants have sought dismissal

form some actions on the ground that they did not manufacture any of the

herbicides in question. In some cases, plaintiffs have consented to a con-

ditional dismissal of those defendants.

’ As part of an on-going effort to avoid the service and filing of exces-

sive quantities of duplicate papers, the court has deemed the answers

and third party complaints of the defendants to be served in all actions.

8a

tion 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 nui-

sance. Plaintiff veterans seek to recover for personal injuries

caused by their exposure to Agent Orange. The family mem-

bers 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 re-

cover in their own right for miscarriages.

In their third party complaints against the government de-

fendants allege negligence, misuse of product, post-discharge

failure to warn, implied indemnity, denial of due process and

failure to comply with herbicide registration laws.

Il. GOVERNMENT’S MOTION TO DISMISS THIRD

PARTY COMPLAINTS

Moving to dismiss under F.R.C.P. 12(b)(6), the govern-

ment claims “intra-military immunity” under the rule of

Feres yv. 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 applicability of three

Statutory exceptions to federal court jurisdiction under the

Federal Tort Claims Act: (1) the discretionary function excep-

tion, 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).

9a

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 jurisdiction

over such claims exclusively in the United States District

Courts. 28 U.S.C. § 1346(b). Its legislative history reveals

two dominant congressional objectives. First, Congress

sought to relieve itself of the overwhelming pressures and

time consuming burdens of considering and passing upon the

numerous private relief bills sought by claimants 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 provide a judicial re-

medy for deserving claimants who had suffered injuries or

losses at the hands of government officials and employees. |

Jayson, Handling Federal Tort Claims § 65.01 at 3-3 (1980).

Although the FTCA “waives the Government’s immun-

ity 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 consi-

10a

dered three separate cases, two claims of medical malprac-

tice and the claimed negligent quartering of a serviceman in

a barracks containing a defective heating unit. All three pre-

sented the same basic question: whether a serviceman who

sustained injury due to the negligence of others in the armed

forces could maintain suit under the FTCA. The Court recog-

nized its task as one of statutory interpretation, stating: “The

only issue of law raised is whether the Tort Claims Act ex-

tends its remedy to one sustaining ‘incident 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 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.

eae

lla

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 consider-

ations over which they have no control and to laws

which fluctuate in existence and value. 340 U.S. at

143, 71 S.Ct. at 158.

Second, the Court examined Congress’ failure to integrate a

serviceman’s possible remedy in tort with the statutory “no

fault” compensation scheme provided under the Veterans

Benefits Act and conchided that

If Congress had contemplated that this Tort Act

would be held to apply in cases of this kind [where

a serviceman sued the government], it is difficult to

see why it should have omitted any provision to ad-

just these two types of remedy [FTCA and Veterans

Benefit Act] to each other. The absence of any such

adjustment if persuasive that there was no aware-

ness that the Act might be interpreted to permit re-

covery for injuries incident to military service.

340 U.S. at 144, 71 S.Ct. at 158.

A third factor supporting the “Feres doctrine” was later

enunciated in United States v. Brown, 348 U.S. 110, 75 S.Ct.

141, 99 L.Ed. 139 (1954), where the Supreme Court consid-

ered “(t]he peculiar and special relationship of the soldier to

his superiors, the effects of the maintenance of such suits on

[military] discipline, and the extreme results that might ob-

tain if suits under the Tort Claims Act were allowed for negli-

gent orders given or negligent acts committed in the course ‘

of military duty.” 348 U.S. at 112, 75 S.Ct. at 143; see also

12a

Stencel Aero Engineering Corp. v. United States, 431 U.S.

666, 671-72, 97 S.Ct. 2054, 2057, 52 L.Ed.2d 665 (1977).

Although it concluded that Congress did not intend to in-

clude in the FTCA’s waiver of sovereign immunity injuries

sustained by a serviceman incident to his service, the Feres

Court freely admitted that the issue was not free from doubt,

and it invited congressional correction by calling attention to

Congress’ ability to legislatively remedy any erroneous in-

terpretation of the statute. 340 U.S. at 138, 71 S.Ct. at 155.

Many courts have questioned the wisdom of the Feres deci-

sion,* but its continued vitality is beyond dispute even to

them.* Moreover, Congress’s failure for 30 years to amend

the FTCA and legislatively “correc,” the Feres holding is a

sub silentio “acquiesc[ence] in the holding of Feres’, United

States v. Lee, 400 F.2d 558, 561 (CA9 1968), cert. denied,

393 U.S. 1053, 89 S.Ct. 691, 21 L.Ed.2d 695 (1969), that

strongly suggests that the Supreme Court correctly inter-

preted congressional intent’

* See, e.g. Peluso v. United States, 474 F.2d 605, 606 (CA3), cert. de-

nied, 414 U.S. 879, 94 S.Ct. 50, 38 L.Ed.2d (1973) (“If the matter were

open to us we would be receptive to appellants’ argument that Feres

should be reconsidered, and perhaps restricted’); Thomason v. Sanchez,

398 F.Supp. 500, 503 (D.N.J.1975) (“we previously expressed reserva-

tions about the continued validity of the broad Feres doctrine. Upon re-

considertion we reiterate that concern.”)

* See Peluso v. United States, supra, at 606 (“[Feres] is controlling.

Only the Supreme Court can reverse it.”); Thomason v. Sanchez, 539

F.2d 955, 957 (CA3 1976) (“[W]e are powerless to jettison Feres or to

dislodge it sufficiently to create and exception [here].””) See also Watkins

v. United States, 462 F.Supp. 980 (S.D.Ga.1977), aff'd on opinion below,

587 F.2d 279 (CAS 1979).

° This conclusion follows even though later decisions have repudiated

some of the clues to intent that the Supreme Court relied upon in reach-

ing that decision. See Schwager v. United States, 279 F.Supp. 262, 263

(E.D.Pa.1968).

l3a

Any doubt as to the validity of the Feres doctrine was

laid to rest in Stencel Aero Engineering Corp. v. United

States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665

(1977), which extended the reach of the “well established

doctrine of Feres v. United States” to third party claims

against the government, 431 U.S. at 670, 97 S.Ct. at 2057,

see discussion, infra.’ Even the Third Circuit Court of Ap-

peals, the court most critical of the Feres doctrine’ concedes

Feres’ continuing validity and broad application:

Although the current climate of academic and

judicial thought finds governmental immunity from

Suit in disfavor, a plausible explanation appears for

its continued application to members of the armed

forces injured while in the course of active duty, re-

gardless of whether that injury is caused by the

negligence of a superior officer or by a direct com-

mand. If claims for injuries sustained by members

of the armed forces in the execution of military or-

ders were subjected to the scrutiny of courts of jus-

tice, then the civil courts would be required to

examine and pass upon the propriety of military de-

cisions. The security and common defense of the

country would quickly disintegrate under such

meddling. “[{A]ctions and essential military disci-

pline would be impaired by subjecting the com-

mand to the public criticism and rebuke of any

’ See also Jaffee v. United States, 592 F.2d 712, 717 (CA3 1979), cert.

denied, 441 U.S. 961, 99 S.Ct. 2406, 60 L.Ed.2d 1066 (1979); Dilworth vy.

United States, 387 F.2d 590, 591 (CA3 1967); Buckingham v. United

States, 394 F.2d 483, 484 (CA4 1968).

* See e.g., Thomason v. Sanchez, 539 F.2d 955 (CA3 1976); Peluso v.

United States, 474 F.2d 605 (CA3), cert. denied, 414 U.S. 879, 94. S.Ct. 50,

38 L.Ed.2d 124 (1973).

(iiieiinteiiiani

14a

member of the armed forces who chose to bring a

suit against the United States”. Jefferson v. United

States, 178 F.2d 518, 520 (4th Cir. 1949), aff'd sub

nom., Feres v. United States, 340 U.S. 135 (71

S.Ct. 153, 95 L.Ed. 152] (1950). Even if we were

inclined to reconsider the doctrine in connection

with an injury sustained as a result of a deliberate

military command, we are foreclosed from so

doing by the Supreme Court’s recent reiteration of

the doctrine, although in a different context in

United States v. Testan, 424 U.S. 392, 96 S.Ct.

948, 47 L.Ed.2d 114 (1976). ;

Jaffe v. United States, 592 F2d 712, 717 (CA3

1979) (citations and footnote omitted).

C. THIRD PARTY ACTIONS AGAINST THE GOVERN-

MENT

The same court that determined in Feres that the FTCA

did not waive sovereign immunity with respect to claims by

servicemen arising out of activities incident to their military

service also decided United States v. Yellow Cab Company,

340 U.S. 543, 71 S.Ct. 399, 95 L.Ed. 523 (1951), which

held that the FTCA permits a tort defendant to implead the

United States as a third party defendant under a theory of in-

demnity or contribution. This created a new question:

whether such a third party claim may be maintained when

plaintiff's direct claim against the government would be bar-

red by the principles of Feres.

The Supreme Court did not consider this question until

1977, when, in Stencel Aero Engineering Corp. v. United

States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665

(1977), it resolved the “tension between Feres and Yellow

Cab” by holding that third party claims against the govern-

15a

ment are barred

for essentially the same reasons that the direct ac-

tion [against the government by plaintiff] is barred

by Feres . * * * [T}he right of a third party to re-

cover in an indemnity action against the United

States recognized in Yellow Cab, must be held lim-

ited by the rationale of Feres where the injured

party is a serviceman. 431 U.S. at 670, 673-4, 97

S.Ct. at 2058.

To permit recovery against the government, the Court ob-

served, “‘would be to judicially admit at the back door that

which has been legislatively turned away at the front door”.

431 U.S. at 673, 97 S.Ct. at 2058, quoting Laird v. Nelms,

406 U.S. 797, 802, 92 S.Ct. 1899, 1902, 32 L.Ed.2d 499

(1972).

D. FERES/STENCEL IN THE CONTEXT OF THIS

ACTION .

To the extent that plaintiffs’ complaints seek recovery

against the defendant chemical companies, of course, the

Feres doctrine has no application. | Jayson, Handling Fed-

eral Tort Claims § 15502 at 5-66 n.9 and 5-77 n.24. Under

Stencel Aero Engineering Corp. v. United States, however,

any damages recovered by plaintiffs against defendants that

plaintiffs could not recover directly from the United States

may not be the subject of a third party complaint against the

United States. | Jayson, Handling Federal Tort Claims § 164

at 5-220.

[NJeither contribution nor indemnity may succeed

without the support of the initial negligence. * * *

[A]s the claimed contribution and indemnity must

depend for success upon the alleged negligence of

16a

the Government towards plaintiffs, and that is a

negligence which is not actionable, the claim must

fail. Drumgoole v. Virginia Electric and Power

Company, 170 F.Supp. 824, 825-26 (E.D. Va.

1952).

See also Stencel Aero Engineering Corp. v. United States,

431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977); Cer-

tain Underwriters at Lloyds v. United States, 511 F.2d 159

(CAS 1975); Barr v. Brezina Construction Company, 464

F.2d 1141 (CA 10 1972). For the sake of clear presentation in

this opinion, however, the court will consider plaintiffs’

claims as if they were asserted directly against the United

States government, for, to the extent that plaintiffs may not

maintain actions directly against the United States govern-

ment under the principles of Stencel Aero, the defendants’

third party claims against the government must fail as well?

At the outset, it is clear that Feres applies to suits

against individual servicemen,” claims by servicemen who

served in Vietnam,'' claims of intentional torts,'? and claims

* For convenience the court will refer to the principle that the govern-

ment is immune from third party claims that would be barred by Feres if

directly asserted against the government as “Feres/Stencel’’.

Tirrill v. MacNamara, 451 F.2d 579 (CA9 1971); Bailey v. De-

Quevedo, 375 F.2d 72 (CA3 1967), cert. denied, 389 U.S. 923, 88 S.Ct.

247, 19 L.Ed.2d 274 (1967); Misko v. United States, 453 F.Supp. 513,

514 (D.D.C.1977), aff'd, 593 F.2d 1371 (C.A.D.C.1979); Pisciotta v. Fer-

rando, 428 F. Supp. 685, 686 (S.D.N.Y.1977).

'' Rotko v. Abrams, 338 F.Supp. 46, 47 (D.Conn.1971), aff'd, 455 F.2d

992 (CA2 1972); 1 Jayson, Handling Federal Tort Claims § 155.-

08[4][i] at 5-138.

’ Citizen National Bank of Waukegan v. United States, 594 F.2d 1154

(CA7 1979); Jaffee v. United States, 592 F.2d 712 (CA3 1979), cert. de-

17a

styled as constitutional torts.'* This leaves two issues: first,

whether the court should apply the principles of Feres/

Stencel to this action at all; and second, whether plaintiffs’

injuries arose out of or were suffered “in the course of activ-

ity incident to service.” Feres v. United States, 340 U.S. at

146, 71 S.Ct. at 159.

E. SHOULD FERES/STENCEL APPLY TO THIS AC-

TION?

The government seeks to dismiss the third party com-

plaints on the ground that the claims of the defendant chemi-

cal companies are barred by a straightforward application of

Feres/Stencel principles. Defendants, however, argue that the

court should undertake “a detailed and fresh examination of

the rationale underlying those holdings [Feres and Stencel] in

the light of other great and * * * superceding policy consid-

erations’, Hercules/ Diamond Shamrock/Monsanto Memo-

randum at 10, to determine if the Feres doctrine should be

applied in this case.'* In support, defendants cite the “number

of occasions [the Supreme Court has] reexamined and rede-

fined or abandoned certain reasons for its holding in [the

Feres| case.” Hercules/Diamond Shamrock/Monsanto

Memorandum at 7."°

nied, 441 U.S. 961, 99 S.Ct. 2406, 60 L.Ed.2d 1066 (1979): Everrett v.

United States, 492 F.Supp. 318, 321 (S.D.Ohio 1980); Schmid vy.

Rumsfeld, 418 F.Supp. 19, 21 (N.D.Cal.1979).

'’ Everett v. United States, 492 F.Supp. 318, 322 (S.D. Ohio 1980);

Nagy v. United States, 471 F.Supp. 383, 384 (D.D.C.1979); Misko v.

United States, 453 F.Supp. 513, 515 (D.D.C. 1978), aff'd, 593 F.2d 1371

(C.A.D.C.1978); Calhoun v. United States, 475 FSupp. 1, 4-5

(S.D.Cal.1977), aff'd on opinion below, 604 F.2d 647 (CA9 1979), cert.

denied, 444 U.S. 1078, 100 S.Ct. 1029, 62 L.Ed.2d 761 (1980).

“See also Dow’s Memorandum at 28; Thompson-Hayward’s

Memorandum at 12; Hooker’s Memorandum at 6.

'S See also Dow’s Memorandum at 16.

_ 18a

[7] Defendants’ attempts to reargue the underlying

rationale of Feres must be rejected, however, for two

reasons. First, Feres was a case of statutory interpretation.

340 U.S. at 138, 71 S.Ct. at 155. Adams v. General

Dynamics Corp., 385 F.Supp. 890, 891 (N.D.Cal.1974),

aff'd, 535 F.2d 489 (CA9), cert. denied, 432 U.S. 905, 97

S.Ct. 2949, 53 L.Ed.2d 1077 (1976). Even were this court to

believe the Supreme Court’s reasoning to be erroneous,"

neither the Court nor Congress itself has altered Feres’ basic

holding, that in enacting the FTCA Congress did not intend

to waive sovereign immunity with respect to injuries or loss

suffered by servicemen in the course of activity incident to

their service."

'° Although some of the principles relied upon by the Feres Court have

since been discredited or repudiated, see | Jayson, Handling, Federal

Tort Claims, § 155.05 at 5-86 through 5-91, much of the Court's reason-

ing remains valid and persuasive. Stencel Aero Engineering Corp. v.

United States, 431 U.S. 666, 672-73, 97 S.Ct. 2054, 2058, 52 L.Ed.2d

665 (1977); Jaffee v. United States, 592 F.2d 712, 717(CA3 1979), cert.

denied, 441 U.S. 961, 99 S.Ct. 2406, 60 L.Ed.2d 1066 (1979); Coffee v.

United States, 324 F.Supp. 1088, 1087, 1088 (S.D.Cal.1971, aff d,455

F.2d 1380 (CA9 1972).

’ That Congress, despite ample opportunity, has failed to right any

possible judicial misinterpretation indicates the soundness of the Feres

conclusion regardless of whether specific elements of the court's reason-

ing remain valid. See United States v. Lee et al., 400 F.2d 558 (CA9

1968), cert. denied, 393 U.S. 1053, 89S.Ct. 691, 21 L.Ed.2d 695 (1969),

wherein the court found that

Congress has acquiesced in the holding of Feres {by] per-

mitting the decision to remain undisturbed for eighteen

years * * * “[W]hen the questions are of statutory construc-

tion, not of constitutional import, Congress can rectify our

mistake, if such it was, Or change its policy at any time,

and in these circumstances reversal is not readily to be

made.”

400 F.2d at 561, quoting United States v. South Buffalo

Railway Company et al., 333 U.S. 771, 774-75, 68 S.Ct.

868, 870, 92 L.Ed. 1077 (1948).

The reasoning of Lee is now twelve years stronger.

19a

Second, in holding the government immune from claims

by servicemen the Supreme Court was concerned with more

than the effects of servicemen recovering against the govern-

ment; the Court was also concerned about the disruptive ef-

fects caused by the very commencement of actions by ser-

vicemen complaining about the conduct of superiors. As the

Court later observed in United States v. Brown, 348 U.S.

110, 75 S.Ct. 141, 99 L.Ed. 139 (1954):

The peculiar and special relationship of the soldier

to his superiors, the effects of the maintenance of

such suits on discipline, and the extreme resuits

that might obtain if such suits under the Tort

Claims Act were allowed for negligent orders given

or negligent acts committed in the course of milit-

ary duty, led the [Feres] court to read [the Federal!

Tort Claims] Act as excluding claims of [service-

men for injuries incident to their service]. 348 U.S.

at 112, 75 S.Ct. at 143.

Thus, it is the suit itself as much as the possibility of re-

covery, that the Supreme Court feared would disrupt military

discipline and the orderly conduct of military affairs. Hen-

ninger v. United States, 473 F.2d 814, 815-16 (CA9), cert.

denied, 414 U.S. 819, 94 S.Ct. 43, 38 L.Ed.2d 51 (1973). To

reexamine the Feres rationale in light of the circumstances of

this case as defendants suggest, would itself defeat one of the

very factors defendants seek to have the court reconsider. As

the Supreme Court noted long ago in discussing the relation-

ship between a soldier and his superiors:

An army is not a deliberate body. It is the execu-

tive arm. Its law is that of obedience. No question

can be left open as to the right to command in the

officer, or the duty of obedience in the soldier.

Vigor and efficiency on the part of the officer and

confidence among the soldiers in one another, are

20a

impaired if any question be left open as to their at-

titude to each other. United States v. Grimley, 137

U.S. 147, 153, 11 S.Ct. 54, 55, 34 L.Ed. 636

(1890).

For these reasons, this court will neither reconsider the un-

derlying rationale of the Feres decision nor weigh the cir-

cumstances here presented against the “Feres factors”."

Right or wrong, the Supreme Court’s conclusion that Con-

gress did not intend passage of the FTCA to act as a waiver

of sovereign immunity as to claims of servicemen injured in-

cident to their service remains the law of the land. The

Feres/Stencel doctrine bars defendants’ attempt to seek con-

tribution or indemnity from the United States based on any

recovery plaintiffs may obtain for injuries that arose out of or

were suffered incident to service.

F. DID PLAINTIFFS’ INJURIES ARISE OUT OF OR INCI-

DENT TO MILITARY SERVICE?

The second issue is whether the claims of particular plain-

tiffs arose out of or in the course of activity incident to serv-

ice. As Professor Jayson has noted, “neither the [Federal Tort

Claims] Act nor the opinions of the Supreme Court have indi-

'§ Other courts have rejected similar attempts to reargue the “Feres

factors” on a case-by-case basis. See e.g., Torres v. United States, 621

F.2d 30, 32 (CA7 1980) (Feres applies even without nexus between milit-

ary discipline and injury); Joseph v. United States, 50S F.2d 525, 527

(CA7 1974) (denial of veterans benefits “completely independent” from

consideration of applicability of Feres doctrine); Henninger v. United

States, 473 F.2d 814, 94 S-Ct.-43, 38 L.Ed.2d 51 (1973) (although

negligence at discharge does not affect military discipline, Feres still

applies); Healy v. United States, 192 FSupp.325, 328 (S.D.N.Y.1961),

aff d on opinion below, 295 F.2d 958 (CA2 1961) (availability of veterans

benefits not controlling); Morgan v. United States, 366 F.Supp. 938, 939

(N.D.Fla.1973) (Feres bars claim even though plaintiff not subject to

military discipline at time of injury); see also, 1 Jayson, Handling Fed-

eral Tort Claims § 155.02 at 5-74.

LS

2la

cated definitively the full meaning of the phrase ‘incident to

service’. 1 Jayson, Handling Federal Tort Claims § 155.01

at 5-65." This lack of definition complicates the task of ap-

plying the standard considerably, 1 Jayson Handling Federal

Tort Claims § 155.01 at 5-65, but certain principles do

emerge from an examination of the cases.

1. General Principles

First, the phrase “incident to service” is not to be nar-

rowly applied or “restricted to actual military operations such

as field maneuvers or small arms instruction.” Hass v. United

States, 518 F.2d 1138, t141 (CA4 1975). Rather, “incident to

service” is a broad concept that depends on a rational con-

nection between the plaintiff's claim or loss and his status as

a member of the armed forces. Woodside v. United States,

606 F.2d 134, 141 (CA6 1979); Harten v. Coons, 502 F.2d

1363, 1365 (CA 10 1974), cert. denied, 420 U.S. 963, 95

S.Ct. 1354, 43 L.Ed.2d 441 (1975). Professor Jayson sum-

marizes this concept:

[I]f the serviceman’s injury or loss, when viewed in

all the surrounding circumstances, has a real and

substantial relationship to his military service, it

will be regarded as incident to service and con-

sequently barred under the Feres doctrine. |

Jayson, Handling Federal Tort Claims § 155.02 at

5-66.”

" “The Brooks-Feres-Brown line of cases illustrates that the incident

to service test is not easy to define and apply.” Woodside v. United States,

606 F.2d 134, 141 (CA6 1979).

*” See also Healy v. United States, 192 FSupp. 325, 327 n.8

(S.D.N.Y.1961), aff'd, 295 F.2d 958 (CA1 1961) (“special soldier-Govern-

ment relationship which embraces the incident-to-service concept covers

those wrongs which, although not sustained in the course of active duty,

are so closely related to it that they may be deemed ‘incident’ to that

22a

Second, the cases applying the Feres doctrine empha-

size that “it is the status of the claimant as a serviceman

rather than the legal theory of his claim which governs.”

Rotko v. Abrams, 338 F.Supp. 46, 47 (D.Conn.1971) (em-

phasis added), affd on opinion below, 455 F.2d 992 (CA2

1972).*' Thus, the Feres doctrine has barred the claims of off

duty servicemen injured before leaving their military base,

Watkins vy. United States, 462 F.Supp. 980, 988-89

(S.D.Ga.1977), aff'd on opinion below, 587 F.2d 279 (CAS

1979), of off duty serviceman injured while “hitching” a ride

home on military aircraft, Archer v. United States, 217 F.2d

548, 552 (CA9 1954), cert. denied, 348 U.S. 953, 75 S.Ct.

441, 99 L.Ed. 745 (1955); Homlitas v. United States, 202

F.Supp. 520 (D.Ore.1962); Fass. v. United States, 191

F.Supp. 367 (E.D.N.Y.1961), and the wrongful death claim

of the widow of a serviceman killed in an air crash while re-

ceiving flight instruction toward a commercial pilot’s license.

Woodside v. United States, 606 F.2d 134 (CA6 1979).

Third, at the time of his injury plaintiff need not be

on any military mission. Feres v. United States, 340 U.S.

135, 71 S.Ct. 153, 95 L.Ed. 152 (1950) (serviceman died

when barracks he was sleeping in burned due to defective

duty”). | Jayson, Handling Federal Tort Claims § 155.02 at 5-79

through S5— 80 (“‘in order for a claim to be service-incident, there does

not have to be any proximate causation in the common-law tort sense, be-

tween the military service or employment in the damage. All that is re-

quired is that as an incident of his service or employment the claimant is

placed in a position wheres he is surrounded with conditions giving rise

to the claim”’).

* See also U.S. v. Lee, 400 F.2d 558, 562 (CA9 1968), cert. denied,

393 U.S. 1053, 89S8.Ct. 691, 21 L.Ed.2d 695 (1969); Knoch v. United

States, 316 F.2d 532, 534 (CA9 1963); Frazier v. United States, 372

F.Supp. 208, 210 (M.D.Fla.1973).

23a

heating unit), nor subject to military discipline, Hall v.

United States, 451 F.2d 353, 354 (CAI 1971) (no “connec-

tion between the activity which injured plaintiff and [milit-

ary] discipline” necessary).”’

Professor Jayson concisely and fairly synthesizes the “inci-

dent to service” cases as follows:

The duty status of the serviceman-claimant is of

particular significance in determining whether the

injury or loss was incident to service. The [Su-

preme Court’s rationale in Fernes/Stencel] applies

to almost every situation which can be envisaged in

which the injury or loss was sustained by a service-

man while on duty (as distinguished from one who

is on leave or furlough), and it seems safe to say

that the Feres doctrine will always apply in such

circumstances. | Jayson, Handling Federal Tort

Claims § 155.02 at 5-59 through 5-71.

[I]f the serviceman’s injury or loss occurs while he

is off duty, while he is not within the physical con-

fines of his military base, while he is not engaged

in any military mission, and is not directly under

military discipline, it is likely that the Brooks doc-

trine allowing Tort Claims Act recovery will

apply:* in other words, that the injury or loss will

** See Also Hass v. United States, 518 F.2d 1138, 1141 (CA4 1975)

(Feres bars claim of off-duty serviceman injured while riding a danger-

ous horse rented from a Marine Corps stable).

** See also Hass v. United States, 518 F.2d 1138, 1140

(CA41975);James v. United States, 358 F.Supp. 1381 (D.R.1.1973), aff d,

530 F.2d 962 (CA1), cert. denied, 429 U.S. 998, 97 S.Ct. 523, 50

L.Ed.2d 608 (1976).

** In Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed.

1200 (1949), the Supreme Court held that a serviceman may recover

'

24a

be regarded as not incident to service. It should be

noted, however, that the application of Brooks gen-

erally requires all of the mentioned factual ele-

ments to be present. Contrariwise, if the injury or

loss occurs while the serviceman is on duty, or—

without regard to whether he is on or off duty —if

it occurs on the military base where he is stationed

or on a military aircraft where he is directly under

military control and discipline, or if it occurs while

he is engaged in a military mission, it is likely that

the Feres doctrine excluding the claim will apply.

Again speaking generally, the presence of any one

of the mentioned factual elements will bring appli-

cation of the Feres doctrine. Jayson, Handling Fed-

eral Tort Claims § 155.02 at 5-67 through 5-68.

2. Application of Feres/Stencel to Plaintiffs’ Claims

(a) Plaintiff Veterans’ Claims of Exposure

The veterans’ claims of injury clearly arise from their

alleged exposure to Agent Orange during their military serv-

ice. While virtually all of the veterans allege that their expo-

sure took place in southeast Asia as a direct result of govern-

ment efforts to defoliate the forests during the Vietnam war,

the circumstances of each veteran’s claimed exposure may

vary. Some claim to have been directly sprayed with Agent

Orange; some claim to have come into contact with Agent

under the FTCA on claims which have no relationship to his military

service. Anticipating the issues ultimately considered in Feres one term

later, the Court stated:

we are dealing with an accident which had nothing to do with

the Brooks’ army careers, injuries not caused by their service

except in the sense that all human events depend upon what

has transpired. Were the accident incident to the Brooks’ serv-

ice, a wholly different case would be presented. We express

no opinion as to it * * *. 337 U.S. at 52, 69 S.Ct. at 920.

25a

Orange as a result of being transported through sprayed

areas; others claim to have been exposed to Agent Orange by

ingesting water or food contaminated with the herbicide; and

still others claim exposure during the transportation and

handling of Agent Orange or its containers.

Whatever the facts surrounding a particular veteran’s claim

of exposure may be,” each veteran’s presence in southeast

Asia resulted solely from their military service, and, as to

each veteran, “as an incident to his service or employment

[he was] placed in a position where he [was] surrounded

with conditions giving rise to the claim” of exposure. See |

Jayson Handling Federal Tort Claims § 155.02 at 5-78

through 5-79. Even veterans who claim injury as the result

of exposure to Agent Orange while off duty are within the

parameters of the Feres doctrine because “when viewed in

all the surrounding circumstances”, a veteran’s exposure in

southeast Asia to a herbicide used for military purposes “has

a real and substantial relationship to his military service * *

* and consequently [his claim] is barred under the Feres doc-

trine.” 1 Jayson, Handling Federal Tort Claims § 155.02 at

5-66.*°

The analysis is similar for those veterans who claim that

their exposure to Agent Orange occurred within the United

** Defendants’ attempts in connection with this motion to require indi-

vidual factual hearings on the circumstances of each verteran’s exposure

to Agent Orange must be rejected. Such rejection, however, does not pre-

clude later examination of individual plaintiffs concerning the cir-

cumstances of their exposure to the extent that they may bear on other is-

sues, e.d., individual liability or damage questions.

*° See also Woodside v. United States, 606 F.2d 134, 141 (CA6 1979)

(“Where the two [the injury causing activity and the Armed Forces] are

closely associated or naturally related, the activity will be deemed “inci-

dent to service” even though not an essential or integral part of the mis-

sion of the Armed Forces and even though not directly involving a com-

mand relationship between the soldier and the military’).

26a

States or places other than southeast Asia during their milit-

ary service. Their handling, transportation or distribution of

Agent Orange during the course of their military duties was

incident to their service, and their claims are equally barred

under the Feres doctrine.

(b) Post-Discharge Failure to Warn

Only one of plaintiff veterans’ claims does not fall easily

under this analysis, e.g., that defendants breached a post-dis-

charge duty to the veterans by failing to notify them of new

scientific information concerning the possible harm that

could result from exposure to Agent Orange. Plaintiff vete-

rans allege that defendants’ failure to inform them of possible

dangers associated with exposure to Agent Orange prevented

them from seeking more frequent medical examinations and

thereby insuring early detection and treatment of disease. De-

fendants seek indemnity and contribution from the govern-

ment on this claim too.

Defendants rely on three cases in opposition to the govern-

ment’s motion to dismiss these “post-discharge” claims:

Schwartz v. United States, 230 F.Supp. 536 (E.D.Pa. 1964);

Thornwell v. United States, 471 F.Supp. 344 (D.D.C.1979);

Everett v. United States, 492 F.Supp. 318 (S.D.Ohio 1980).

In Schwartz v. United States a serviceman treated for a

sinus condition during the course of his military service had

a radioactive dye, umbrathor, inserted into his sinus. After

discharge from the military, plaintiff sought additional medi-

cal treatment for his sinus difficulties, but the Veterans Ad-

ministration hospital that considered his treatment failed to

obtain and examine his medical records, and, as a result of

the hospital’s negligence, the continued presence of the ear-

lier-inserted umbrathor went undetected. As a result p!aintiff

contracted cancer. The court held that Feres did not bar

plaintiff's claim against the government, because plaintiff's

: 27a

claim of negligence lay not in the original insertion of the

umbrathor at the time he was in the military; rather, the court

found that the actionable negligence was the hospital’s failure

to take reasonable steps to diagnose and solve plaintiff's

problem, the continued presence of the umbrathor in his

sinus. 230 F.Supp. at 539-40. The court further opined that

the government was negligent for its failure to followup its

umbrathor patients in order to inform them of newly discov-

ered dangers associated with the drug. 230 F.Supp. at 540.

In the second case relied on by the defendants, Thornwell

v. United States, a former serviceman alleged that he was in-

tentionally drugged with LSD as part of a secret government

experiment and that the government negligently failed to

warn plaintiff that his exposure to the drug subjected him to

certain medical risks. The Thornwell court, noting the dif-

ficulties that courts encounter when the acts complained of

commence while plaintiff is on active duty and then continue

until well after discharge, 471 F.Supp. at 350, held that

Thornwell’s claim against the government was not barred by

the principles of Feres because he did not allege merely con-

tinuing negligence. Rather,

[hje claim[ed] that he was intentionally harmed

while he was on active duty and he further

claim[ed] that, after he became a citizen [left the

military], thes defendants failed to exercise their

duty of care by neglecting to rescue him from the

position of danger which they had created, * * *

two distinctly separate patterns of conduct, one in-

tentional and [one] negligent. 471 F.Supp. at 351.

The Thornwell court then found that plaintiff had alleged

“two entirely different torts’, and since the “complaint [was]

perfectly clear in its allegation that the negligent act occur-

red, in its entirety, after [plaintiff] attained civilian status”,

28a

471 F.Supp. at 351 (emphasis in original), plaintiff's claim of

governmental negligence was not barred by Feres. Id. The

Thornwell court divided the cases involving servicemen’s

claims of post-discharge negligence into three types:

To summarize the relevant precedent, it appears

that there are three types of personal injury cases

which involve post-discharge negligence. In the

first case, the military performed separate negligent

acts (i.e., two improper operations), one before,

and one after, discharge; United States v. Brown,

348 U.S. 110 [75 S.Ct. 141, 99 L.Ed. 139], and

Hungerford v. United States, 192 FSupp. 581

(N.D. Cal.1961), rev'd on other grounds, 307 F.2d

99 (9th Cir. 1962), both clearly indicate that the in-

jured veteran may recover for the iater act. In the

second case, a single negligent act occurs and its

effects linger after discharge; Feres v. United

States, 340 U.S. 135 [71 S.Ct. 153, 95 L.Ed. 152]

(1950), holds that, under some circumstances, this

one act is subject to intra-military immunity. Third,

the military may commit an intentional act and

then negligently fail to protect a soldier turned civi-

lian from the dire consequences which will flow

from the original wrong. This Court holds that,

under such circumstances, the injured civilian may

have a valid claim against the tortfeasors. The

later negligence is a separate wrong, a new act or

omission occurring after civilian status is attained;

the perpetrators of this wrong must be held ac-

countabie for their conduct. 471 F.Supp. at 352.

In defendants’ third case, Everett v. United States, 492

F.Supp. 318 (S.D.Ohio 1980), the wife of a deceased service-

man sued the government claiming that her husband’s death

by cancer was the result of his being intentionally exposed to

29a

large doses of radiation when he was forced to participate as

an Air Force enlisted man in military maneuvers in a nuclear

blast area less than one hour after detonation of the nuclear

device. Plaintiff argued that her husband’s march through the

hazardous area was part of an experimental project to test the

effects of nuclear radiation. Refusing to dismiss plaintiff's

claim of post-discharge negligence, the Everett court found

that the fact picture “properly falls in the third category” of

the Thornwell analysis—intentional act incident to service,

plus a separate wrong of post-discharge negligence. 492

F.Supp. at 325.

These cases are distinguishable from the facts at bar in

several important respects. First, unlike the Schwartz case,

the post-discharge negligence asserted here is not separate

and distinct from the numerous acts of negligence alleged

to have occurred incident to plaintiff’s service. Schwartz,

who sought medical treatment after his discharge, had a

predischarge condition that was improperly diagnosed

and negligently treated after discharge. That the condition

arose due to government installation of the umbrathor in

plaintiff's sinus while he was a serviceman does not alter the

fact that the governmental negligence occurred, in its en-

tirety, long after plaintiff became a civilian. Unsupported

dicta aside, Schwartz stands only for the proposition that re-

covery for negligent performance of post-discharge medical

treatment is not barred merely because the original condition

arose from medical treatment that is not actionable under

Feres.

Thus, Schwartz properly falls under Thornwell’s “first

case’, where “the military performed separate negligent acts

(i.e., two improper operations), one before, and one after,

discharge”. 471 FSupp. at 352. Here, plaintiffs claim of

post-discharge failure to warn does not present a separate and

30a

distinct act of post-discharge negligence on the part of the

government. Of course, any veteran in this case who faces a

situation analogous to Schwartz, that is, who seeks post-dis-

charge medical assistance from the government for an Agent

Orange related malady and is negligently treated at a govern-

ment hospital, may prosecute his claim for negligent treat-

ment without the Feres impediment.

Second, unlike the Thornwell and Everett cases, plaintiffs

here do not allege that the government caused them inten-

tional harm by subjecting them to a form of human ex-

perimentation. Thornwell, joined by Everett, emphasized the

distinction between cases of predischarge torts that were in-

tentional and those that were negligent:

Mr. Thornwell * * * does not allege a mere con-

tinuing negligent omission [which would be barred

by Feres]. He claims he was intentionally harmed

while he was on active duty and he further claims

that, after he became a civilian, the defendants

failed to exercise their duty of care by neglecting to

rescue him from the position of danger which they

had created. * * * Mr. Thornwell’s claims for in-

service, and out-of-service, injuries, certainly in-

volve two distinctly separate patterns of conduct,

one intentional and [one] negligent. 471 F.Supp. at

351 (emphasis in original)

Thus, both the Thornwell and Everett courts were pre-

sented with the “third case” in the Thornwell analysis,

where the military “commit[s] an intentional act and then

negligently fail[s] to protect a soldier turned civilian from

the dire consequences which will flow from the original

fintentional] wrong.” 471 F.Supp. at 352. Here, the parties

do not dispute that the government’s motives in using

Agent Orange in southeast Asia were valid military objec-

tives: defoliate jungle growth to deprive enemy forces of

3la

ground cover and destroy enemy crops to restrict enemy’s

food supplies. Unlike Thornwell and Everett, plaintiffs

here do not allege that the government committed “an in-

tentional act and then negligently failfed] to protect

[them]”, Thornwell v. United States, 471 F.Supp. at 352;

Everett v. United States, 471 F.Supp. at 352; Everett v.

United States, 492 F.Supp. at 325. Accordingly, the facts

at bar do not present the “third case” of the Thornwel/

analysis.

If this case fits within the Thornwell analysis at all, it is

the “second case”, where “a single negligent act occurs and

its effects linger after discharge.” 471 F.Supp. at 352. De-

spite all the inconsistencies pervading this difficult area of

analysis, “it is clear, at the very least, that a mere act of

negligence which takes place while the plaintiff is on active

duty and which then remains uncorrected after discharge, 1s

not grounds for suit”. Thornwell v. United States, 471

F.Supp. at 351.

Plaintiffs’ complaints here neither allege nor support a con-_

clusion that the post-discharge failure to warn was suffi-

ciently separate and distinct from the underlying “incident to

service’ tort claims. Moreover, the Feres doctrine bars

claims that are not only “incident to service” but also those

which, like these, “arise out of” military service. The in-

juries here alleged are “inseparably entwined” with, and di-

rectly related to, plaintiffs’ military service, see Healy \.

United States, 192 F.Supp. 325, 328 (S.D.N.Y.1961), aff'd

on opinion below, 295 F.2d 958 (C.A.2, 1961); Kilduff v.

United States, 248 FSupp. 310, 312 (E.D.Va.1960): |

Jayson, Handling Federal Tort Claims § 155.08(3][5] at 5-

124. The important and well established principles of the

Feres doctrine cannot be circumvented by inventive presenta-

tion or artful pleading which attempts to create an actionable

post-discharge claim out of what is in reality a claim of con-

‘ ”

32a

tinuing neglect. See Thornwell v. United States, 471 F.Supp.

at 352.

(c) The Australian Veterans’ Claims

The above analysis applies with equal force to the claims

of the Australian veterans.2”7 The only reported case on

point, Daberkow vy. United States, 581 F.2d 785 (C.A.9,

1978), reached a similar conclusion. There, the claims of a

West German serviceman, killed performing duties incident

to joint military activity conducted by the United States and

West German governments, were held barred under Feres.

The Daberkow court undertook an analysis of the three

_ “Feres factors” and concluded that Feres applies with equal

force to foreign servicemen injured incident to joint military

activities because: (1) the scope of the United States govern-

ment’s liability should not depend on the fortuity of the loca-

tion of any serviceman’s duty station, whether that service-

man is an American or foreign serviceman; (2) the foreign

government there involved had provided a means of compen-

sating veterans and their families for injuries incident to serv-

ice; and (3) the possible disruption of military discipline re-

sulting from servicemens’ Claims is similar whether the ser-

viceman is American or not. 581 F.2d at 788.

Here, the claims of the Australian plaintiffs clearly fall

within the Daberkow analysis. The Australian plaintiffs con-

cede that their pres#®ce in southeast Asia during the period

in question was the direct result of their country’s participa-

tion in joint military operations with the United States,

memorandum of Australian plaintiffs at 3, and they acknowIl-

edge the existence of a compensation scheme for Australian

27 In McMillan v. Dow, CV 80-1143 (EDNY GCP), and Elder v.

Dow, CV 80-1241 (EDNY GCP), 270 plaintiffs, all claiming to have

been Australian war veterans who had served jointly with American

Forces in Vietnam, seek damages for injuries caused by Agent Orange.

33a

veterans similar to that provided by the United States govern-

ment. Memorandum of Australian plaintiffs at 8. Moreover,

to rule that the United States government has waived

sovereign immunity with respect to the tort claims of foreign

servicemen but not with respect to the claims of American

servicemen would distort the underlying purposes of the

FTCA, defy common sense, and almost certainly be contrary

to the intent of an elected Congress. Since the court deter-

mines that the Australian veterans could not maintain an ac-

tion directly against the United States, defendants in turn

may not maintain their third party action for indemnity or

contribution based on any recovery the Australian veterans

may obtain from them., Stence/ Aero Engineering Corp. y.

United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665

(1977).

(d) Derivative Claims of Spouses, Parents and Children

Although the Feres doctrine does not apply to the ser-

vicemen’s next of kin insofar as their own direct injuries or

deaths are concerned, | Jayson, Handling Federal Tort

Claims § 156 at 5-142 through 5-143 and cases cited

therein, Feres does bar suits by a serviceman’s family for

damages resulting from injuries the serviceman suffered inci-

dent to service, | Jayson, Handling Federal Tort Claims §

156 at 5—144, even where the derivative action is technically

personal in character (e.g.. wrongful death, loss of consor-

tium). Van Sickel v. United States, 285 F.2d 87, 91 (CA9

1969). This principle is demonstrated by Feres itself, where

two of the three suits barred in that decision were wrongful

death actions instituted on behalf of widows of servicemen

who had died from injuries suffered incident to their service.

Feres v. United States, United States v. Griggs, 340 U.S.

135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). (Deciding appeals

from Feres v. United States, 177 F.2d 535 (CA2 1949), and

Griggs v. United States, 178 F.2d 1 (CA10 1949).

34a

Further, application of this rule bars claims of mental an-

guish suffered by family members, DeFont v. United States,

453 F.2d 1239, 1240 (CAI 1972), cert. denied, 407 U.S.

910, 92 S.Ct. 2436, 32 L.Ed.2d 684 (1972) (wife’s mental

anguish over inadequate care provided serviceman husband

not separate and distinct claim under Feres), and also bars

the claims of veterans’ spouses who allege damages that ac-

tually were the result of harm done to servicemen, Harten v.

Coons, 502 F.2d 1363, 1365 (CA 10 1974), cert. denied, 420

U.S. 963, 95 S.Ct. 1354, 43 L.Ed.2d 441 (1975) (mother of

accidentally conceived child cannot recover for negligent vas-

ectomy performed on serviceman husband).

Applying these principles to the case at bar, it is clear that

members of the veterans’ families may not maintain actions

against the United States based on their derivative claims

(e.g., loss of society, comfort, companionship, services, con-

sortium, guidance and support), cr claims that result from a

serviceman’s injury (e.g., miscarriage). Accordingly, under

the principles of Stencel Aero, the defendants may not seek

indemnity or contribution from the United States for any lia-

bility imposed on them for claims of this nature.

(e) Claims of Direct Injury to Veterans’ Children

Only the veterans’ children’s claim of direct injury requires

additional analysis. Here, children of Vietnam veterans al-

lege that they have suffered genetic and somatic injury as a

result of a parent having beet exposed to Agent Orange. This

presents the difficult question of whether the injuries suffered

by these children, who are not and never were members of

the military, are derivative injuries suffered incident to or

arising out of military service’, or whether they are direct in-

juries independent of those of their parents.

The closest precedent is Monaco v. United States, No. C

79-0860 (N.D.Cal. Nov. 2, 1979), where plaintiff, the

RANA ir Hi CA" SE A

35a

daughter of a serviceman exposed to radiation during his

military service, claimed the government’s negligence to-

wards her father caused her to be affected with

“chromosomal and genetic change” which in turn resulted in

her being born with a birth defect. Monaco v. United States,

slip op. at 3. There, the court held that [t]he test of Feres is

whether plaintiff's injuries have as their genesis injuries al-

legedly sustained incident to the performance of military

service”, slip op. at 3, and found plaintiffs claim barred

under this standard because “[plaintiff’s] injuries are directly

related to and arise out of the injury sustained by her father

at the time he was a member of the United States Army.”

Slip op. at 4.

In the case at bar, the children’s claims of genetic and

physical harm are indirect because they arise only as the re-

sult of injuries to their veteran parents.” The injuries alleged

by the children had their genesis in the exposure of their par-

ents and, assuming that Agent Orange could produce the

genetic changes alleged. the injuries were inflicted on the

serviceman at the time of exposure. Thus, although Agent

Orange may ultimately be found to have caused injuries in

subsequently conceived children, those injuries, nevertheless,

arose out of and were incident to the service of the parent.

To hold otherwise might open the door for governmental lia-

bility to countless generations of claimants having ever di-

minishing genetic relationship to the person actually injured.

For these reasons, the court holds that the children’s

claims for genetic injury and birth defects from Agent

* Somewhat analogous is Harten vy. Coons, 502 F.2d 1363 (CA 10

1974), cert. denied, 420 U.S. 963, 95 S.Ct. 1354, 43 L.Ed.2d 441

(1975), where a serviceman and his wife sued the United States for the

costs of raising a child accidentally conceived after a negligent vasec-

tomy on the husband. There, the court considered only the damage done

to the husband and dismissed the complaint under Feres without regard

to the wife's claim of independent jury. 520 F.2d at 1364.

36a

Orange exposure of their veteran parents are injuries suffered

“incident to and arising out of service” under Feres and can-

not be recompensed in an action maintained directly against

the government. Consequently, the defendants may not seek

indemnity or contribution against the United States for any

liability they ultimately may incur as a result of these claims.

Stencel Aero Engineering Corp. v. United States, 431 U.S.

666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977).

G. DEFENDANTS’ REMAINING CLAIMS AGAINST THE

UNITED STATES

Defendants have sought to style the remaining claims of

their third party complaints in terms of constitutional depriva-

tion and torts committed directly against them by the United

States. This appears to be another exercise in pleading in an

attempt to avoid statutory jurisdictional problems because,

notwithstanding the defendants’ characterizations, these re-

maining claims against the government are not tort claims;

rather, they are essentially contractual in nature and must be

so treated.

Congress has conferred on the courts jurisdiction over

contract claims that is different from that over tort claims.

Under the Tucker Act, 28 U.S.C. § 1491, jurisdiction

for any claim founded upon an express or implied contract

with the United States is conferred on the Court of Claims,

where cases sounding in tort may not be maintained. The

United States District Courts have concurrent jurisdic-

tion over contract claims, but only when the claim does

not exceed $10,000. 28 U.S.C. § 1346(a)(2). Here, it is

beyond dispute that defendants’ remaining third party

claims against the government involve more than $10,000

that deprives this court of jurisdiction over them. Conse-

quently, the government’s motion to dismiss must be

granted as to the remaining claims. Of course, dismissal of

37a

defendant’s third party claims here is without prejudice to

defendants’ right to pursue their claims against the govern-

ment in the proper forum.

H. OTHER CLAIMS OF IMMUNITY

Arguing in the alternative, the United States seeks to

dismiss defendants’ third party complaints under three

statutory exceptions to the FTCA: the combatant excep-

tion, 28 U.S.C. § 2680(j) (immunity not waived for “fa]ny

claim arising out of the combatant activities of the military

** * during time of war”); the foreign country exception,

28 U.S.C. § 2680(k) (immunity not waived for “any claim

arising in a foreign country”); and the discretionary func-

tion exception, 28 U.S.C. § 2680(a) (immunity continues

for “act or omission of an employee of the government * * *

based upon the exercise or performance or the failure to

exercise or perform a discretionary function or duty on the

part of [the government]”).

Notwithstanding the apparent application of these ex-

ceptions to some of the claims here asserted, the court’s

determination that the Feres/Stence/ doctrine operates to

bar all tort claims advanced in the third party complaint

makes if unnecessary to consider whether these exceptions

do apply.

For all these reasons, the government’s motion to

dismiss the third party complaints is granted, and the third

party complaints against the government deemed to have

been made in all actions under MDL 381, are dismissed?

?*Plaintiffs are cautioned that the issues here are, to some extent,

novel, and the strong arguments advanced by all parties should make

it clear that the views expressed and rulings made in this decision are

not entirely free from doubt. Accordingly, any plaintiff who believes

that [s]he may have a valid claim against the United States government

in the event that one or more of the above rulings are ultimately

38a

-

Ill. THE CASE MANAGEMENT PLAN

There have been pending for some time motions by

various parties urging the court to make various orders af-

fecting the overall management of this action, including

such matters as class action treatment, summary judg-

ment, discovery, and divison of the action into various

parts for pretrial and trial purposes. The court has reserv-

ed decision on all these motions pending resolution of two

major questions that greatly affect how the case might be

managed efficiently: (1) whether the United States was to

be a party to the action, and (2) whether jurisdiction lies

under federal common law or whether the principles and

consequences of diversity jurisdiction must be considered.

Now that both of these questions have been answered,°° it

reversed On an appeal from this court’s decision, should protect

his/her interésts to the greatest extent possible by filing a notice of

claim form (Standard Form 95) with the proper agency of the United

States government and taking whatever additional steps may be

necessary to protect his/her rights.

3° The first question is answered by the earlier part of this memoran-

dum and order. The second question was answered by a decision and

order of the Second Circuit Court of Appeals dated November 24,

1980 (Feinberg, C. J. dissenting) which held that this litigation should

not be governed by federal common law, but rather must be con-

trolled by the laws of the several states applied under diversity of

citizenship principles. Technically, that question is still open because

plaintiffs have filed a petition for en banc consideration by the Second

Circuit. In addition, plaintiffs have indicated their desire to have the

issues reviewed by the United States Supreme Court. However,

enough light has not been shed on the problems to permit substantial

progress in the trial court regardless of future actions by the Second

Circuit or the Supreme Court. Managing this case under diversity of

citizenship principles is by far the more difficult route to travel, but

the court feels that it can develop a plan for efficient management

even without the aid of federal common law for jurisdiction and for

substantive law purposes. If further review of the federal common law

issue produces a change, then the remaining work of the court and of

all parties will be simplified and the management plan can be easily

adapted at that time.

is.

39a

is time to get on with orderly discovery and ultimate dis-

position of the litigation.

In developing the case management plan described in

this section, the court has weighed and considered many

problems presented by this litigation. Some of them are:

1. There are a large number of plaintiffs and potential

plaintiffs who claim to have been injured by exposure to

Agent Orange. There are now approximately 167 suits

pending in the Eastern District of New York involving

over 3,400 plaintiffs. The court has been informed that

there are many thousands more who have, at the court’s re-

quest and pending decision of the class action motion,

refrained from bringing individual actions.

2. There are numerous chemical companies named as

defendants.*! The fact that they may have had differing

degrees of involvement in manufacturing and supplying

Agent Orange for the government may or may not cause

differing levels of responsibility for the effects of Agent

Orange on plaintiffs.

3. The present plaintiffs come from most of the 50

states and from Australia. This may require consideration

of varving standards of conduct, rules of causation and

principles of damages that may substantially affect the

results in individual cases.

4. The causation issues are difficult and complex.

Clearly this is not the “simple” type of “disaster” litigation

such as an airplane crash involving a single incident, 1av-

ing a causation picture that is readily grasped through con-

ventional litigation techniques, and presenting compara-

tively small variations among the claimants as to the ef-

' See footnote 2 supra.

40a

fects upon them of the crash. With the Agent Orange liti-

gation, injuries are claimed to have resulted from exposure

to a chemical that was disseminated in the air over south-

east Asia during a period of several years. Each veteran

was exposed differently, athough undoubtedly patterns of

exposure will emerge. The claimed injuries vary signi-

ficantly. Moreover, there is a major dispute over whether

Agent Orange can cause the injuries in question, and there

are separate disputes over whether the exposure claimed in

each case did cause the injuries claimed. The picture is fur-

ther complicated by the use in Vietnam of other chemicals

and drugs that also are claimed to be capable of causing

many of the injuries attributed to Agent Orange.

5. The litigation presents numerous questions of law

that lie at the frontier of modern tort jurisprudence.

Among them are questions of enterprise liabililty, strict

products liability, liability for injuries that appear long af-

ter original exposure to the offending substances, and lia-

bility for so-called genetic injuries.

6. Many of the people exposed to Agent Orange may

not even yet have experienced the harm it may cause.

7. Numerous scientific and medical issues are pre-

sented, and there are serious questions of whether there is

adequate data to reach scientifically sound conclusions

about them. There is the further question of whether legal-

ly permissible conclusions may nevertheless be reached on

data that would not permit “scientific” conclusions.

8. Various agencies of the government have expresed

concern but as yet have shown little tangible action about

the problems claimed to have been caused by the govern-

ment’s use of Agent Orange.

9. There are important and conflicting public policies

‘

4la

that run as crosscurrents through many phases of both the

substantive and procedural problems of this litigation.

10. There is a wide choice available among the many

procedural devices that could be used for addressing and

ultimately deciding this controversy.

All of these problems are compounded by the practical

realities of having on one side of the litigation plaintiffs

who seek damages, but who have limited resources with

which to press their claims and whose plight becomes more

desperate and depressing as time goes on, and having on

the other side defendants who strenuously contest their

liability, who have ample resources for counsel and expert

witnesses to defend them, and who probably gain signifi-

cantly, although immeasurably, from every delay that they

can produce.

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

bility for the harm caused our soldiers and their families

by its use of Agent Orange in southeast Asia.

Out of these and other problems it is this court’s task as

the transferee judge in this multidistrict litigation to super-

vise and manage the action so as to bring it to a “just,

speedy and inexpensive determination,” Rule | FRCP, ei-

ther in this court, or if that is not possible, then in the

Iransferor courts after completion here of as much of the

litigation as may fairly and reasonably be resolved under

the supervision of this single judge.

With the foregoing and other problems in mind, the

court has considered a variety of possibilities for manag-

ing this multidistrict litigation. Each possibility has both

advantages and disadvantages. Among the numerous pos-

sibilities are the following:

42a

1. Transfer all actions to the-Eastern District of New

York for trial before this court.

a. Advantages: All parties would know precisely where

thev stand, and how the action would be handled. There

would tend to be consistency in the results to the extent

permitted by the varying applicable laws.

b. Disadvantages: Handling the cases would take the

full time of this court, which would be able to handle no

other cases, a result that would be unfair not only to the

other judges in the Eastern District of New York who are

already overburdened with one of the heaviest criminal

workloads in the nation, but also to other civil litigants in

the Eastern District, who would be further delayed in get-

ting their cases to trial. Moreover, to separately try these

actions would take far too long a time; probably neither

the litigants nor this court would live long enough to see

the last case tried.

2. Supervise all discovery, prepare a pre-trial order, and

then remand the cases for separate trials in the transferor

districts around the country.

a. Advantages: This is by far the easiest course of ac-

tion for this court to take. In many MDL cases this is an

acceptable and proper technique and achieves all of the

MDL. benefits available to those cases. It accomplishes

coordinated discovery, a single plan for processing up

through the pretrial order, and a shared workload in the

actual trial of the individual actions.

b. Disadvantages: This technique would require sepa-

rate trials of each action in the transferor courts, a

.echnique that would be repetitious and wasteful with

respect to the issues that are common to all actions.

Although testimony of key expert witnesses might be made

available to each of the transferor courts through use of

43a

videotape so that the need for those witnesses to personal-

ly appear at each trial would thereby be eliminated, the op-

portunity to cross-examine the experts on special problems

that relate to the individual plaintiffs would still be lost.

The greatest disadvantage of this method is that it would

place unnecessary burdens on each of the transferor

judges, each of whom would have to struggle with iden-

tical legal and factual issues, and it would thus fail to

reach the level of judicial efficiency and economy that

MDL procedures were designed to achieve.

3. Coordinate discovery and other pre-trial work, con-

solidate the actions for trial of the common issues of fact

and law, and then remand to the transferor districts for

separate trials of the individual issues such as specific

causation and damages.

a. Advantages: A single trial of common issues has ob-

vious benefits in economy and efficiency. Spreading to

other courts the workload of trying individual cases at

least makes a judicial solution to this litigation possible in

terms of time and workloads.

b. Disadvantages: The consolidatio:) technique ad-

dresses only the pending actions, that is, 1t involves those

situations where the plaintiff has seized the initiative and

brought suit. However, there are many people with valid

claims who for one reason or another have not asserted

them by bringing suit and who would there:ore not

recover for damages inflicted, including damages of which

thev might not yet even be aware.

4. Certify the litigation as a class action, using all the

flexibility of that device, including subclasses, to deter-

mine common issues before this court and ultimately

determine the individual issues either under the direct

supervision of this court or after remand to other courts.

44a

a. Advantages: Class action treatment would give this

court full control over the entire litigation. Any determina-

tions reached in the class action would bind all defendants as

well as all members of the class except those who chose to

opt out, and as to them, their suits could be consolidated for

joint trial with the class action. By use of subclasses to be

certified as the need later arises, additional trials on issues

common to identified subclasses may be conducted either

here in the Eastern District of New York, or by the transferor

courts after remand, or by a combination of both. This

method provides the greatest flexibility and the greatest op-

portunity for judicial efficiency and economy of time, and

money.

b. Disadvantages: The disadvantages with class action

treatment lie largely in technical and procedural problems

that have arisen with the class action device in other con-

texts. Such problems have proved particularly troublesome in

the context of mass tort cases. Having considered carefully

the nature of those technical problems, this court is satisfied

that they can be overcome by following the case management

plan described in this section and the steps described under

the section entitled “Class Action”.

After considering the submissions and arguments of the

parties and after weighing all of the foregoing and many

other considerations, the court has developed the following

plan for management of the Agent Orange litigation assigned

to it under MDL No. 381:

|. Class action. The Agent Orange litigation will be cer-

uified as a class action under F.R.C.P. 23(b)(3). (See discus-

sion below entitled “Class Action’’).

2. Statutes of limitations. The court will take up im-

mediately the problems of statutes of limitations. (See dis-

cussion below entitled Statutes of Limitations”).

45a

3. Separate trials of some issues. Whenever common

issues are presented, a common trial should be had, if prac-

ticable. These trials will be held as promptly as possible in

the Eastern District of New York, preserving at all times the

parties’ right to a jury trial when properly demanded. Plain-

tiffs have moved for so-called “serial” trials, describing in

some detail the issues they would like tried and the order in

which they should be tried. Except insofar as plaintiffs’ plan

is adopted by this decision, that motion is denied. As ap-

pears in the discussion below entitied “Summary Judgment”

there is an issue that can be separately tried at the threshold

of this action: whether the defendants are protected by the

“government contract defense”. The court intends to try that

issue separately. After that, if needed, there may be an addi-

tional trial addressing liability questions such as negligence,

product liability, and general causation, where a jury will be

able to hear all of the evidence relating to the development,

manufacture and use of Agent Orange, and the scientific and

medical evidence relating to its potential effects, and report

its findings in carefully drafted special verdicts. Those spec-

ial verdicts can then serve as a framework for later disposi-

tion of the issues of individual causation (whether a particu-

lar veteran was exposed, to what degree, and with what re-

sults) and damages. The court has not yet determined

whether the individual issues can be best resolved under the

direct supervision of this court or by remand of subclass ac-

tions to transferor courts for processing in ways appropriate

to the circumstances of the subclasses. Those determinations

necessarily must be made at a later date.

4. Discovery. Until now the court has stayed all discovery

except that conducted voluntarily. That stay will now be

lifted, and mandatory discovery shall now proceed according

to the plan described in the section below entitled “Discov-

””

ery”.

46a

5. Miscellaneous.

a. Plaintiffs’ motion to amend the complaint by adding

the United States government and many of its officials on

theory of constitutional tort is denied. The issues sought

to be raised by plaintiffs through the amendment are suffi-

ciently different from those presented by this already com-

plex litigation to require that the constitutional claims against

government officials and the government itself be pursued by

one or more separate actions, if plaintiffs are so inclined. De-

nial of the motion, therefore, is without prejudice to what-

ever rights plaintiffs may have to assert those claims in sepa-

rate proceedings.

b. Jurisdiction and pleadings. There is some confusion as

to the precise state of the pleadings in the many pending ac-

tions. The court has not yet determined what precise disposi-

ton will be made of the various individual actions in light of

the class certificaion. Unless a party files in a particular ac-

tion a notice disclaiming the benefit afforded by the follow-

ing, all of the pleadings in all cases now or hereafter filed

under MDL 381 are deemed amended as follows:

1. The complaints are deemed amended to allege the resi-

dence of the plaintiffs, and to name and allege the residence

of each of the defendants whose citizenship is diverse from

that of the plaintiff. All plaintiffs are deemed to have joined

all diverse defendants as defendants in their individual ac-

wions.

2. All defendants are deemed to have answered all com-

plaints brought against them, with general denials plus all af-

firmative defenses thus far raised in filed answers to any of

the Agent Orange MDL cases. All answers are deemed to in-

clude crossclaims for indemnification and contribution

against all other defendants. All crossclaims are deemed de-

nied.

47a

The court recognizes that (1) any case management plan

may have to be changed in order to adapt to new or unfore-

seen circumstances; (2) not every facet of the plan adopted

for this Agent Orange litigation will please everyone; and (3)

this litigation presents problems of a type and magnitude that

differ substantially from the established precedents so that it

cannot proceed in one of the well established patterns for

lawsuits. Under these circumstances, it is the court’s obliga-

tion to control the case, seeking always the goal of a “just,

speedy and inexpensive determination” of the litigation.

Lawsuits, of course, must be guided and decided by the

principles of substantive law and rules of procedure estab-

lished by Congress, by the legislatures of the various states,

and by the principles of common law where applicable. The

rules of procedure, however, are not intended to require rigid

adherence to preordained steps; instead, they are standards

and requirements to be used, molded and adapted so as to

achieve just, speedy and inexpensive determination of law-

suits. Although “speedy” and “inexpensive” are relative

terms having almost ironic implications in the context of the

Agent Orange litigation, this court is satisfied that the plan

described will, with the cooperation of counsel, attain at

least a “just” determination of these lawsuits, and will do so

at less cost and in less time than would a more conventional

approach.

IV. CLASS ACTION

Contending that many of the issues here presented are

best determined by class action to avoid duplicitous litiga-

tion by the individual members of the proposed class, plain-

tiffs have moved for a conditional order pursuant to

F.R.C.P. 23 permitting the suit to proceed as a class action

on behalf of all persons exposed to Agent Orange and vari-

ous members of their families. Under Rule 23(c)(1) and

48a

23(d}, the order would be subject to such later modification

as the court may find appropriate and necessary in light of

future developments in the case.

Before a class action may be maintained under Rule 23,

the action must meet the prerequisites of Rule 23(a) and

one set of the alternative requirements of Rule 23(b). Defen-

dants oppose class treatment, but continue to advance some

Outrageous arguments in the name of advocacy; detracting

from whatever valid arguments they might otherwise have.

they argue that plaintiffs fail to satisfy even one of the ele-

ments necessary under Rule 23. Plaintiffs, equally undis-

criminating in their advocacy, argue that every element of

every alternative of Rule 23 is met here.

The court he. ;arefully read and considered the volumin-

ous submissions:of the parties and has heard and considered

oral arguments of counsel on this issue. After due consider-

ation, the court determines that plaintiffs have demonstrated

that a class action is appropriate under Rule 23(b)(3). Ac-

cordingly, plaintiffs’ motion for conditional class action cer-

tification is granted as herein provided. Certain specific find-

ings are required.

A. THE PREREQUISITES OF RULE 23(a)

1. Numerosity

The members of the plaintiff class here are so numerous

that joinder of all members of the class in the same action is

impracticable. Rule 23(a)(1). Indeed, if the only members of

the class were the plaintiffs in the 167 actions now pending

in this court. “numerosity” would be satisfied.

2. Commonality

Rule 23(a)(2) states that a class action may only be main-

tained if “there are questions of law or fact common to the

49a

class.” Here, the action raises numerous questions of law

and fact common to the class. Whatever may be the indi-

vidual questions relating to the manner and extent of each

vetervan’s exposure to Agent Orange, and relating to the par-

ticular effects of Agent Orange on the veteran when consi-

dered along with his/her medical history, circumstances,

lifestyle and ‘her unique conditions, all of these claims

share a common ground when proceeding through the many

factual and legal issues relating to the government contract

defense, negligency by the defendants, whether Agent

Orange was a “defective product”, and the many questions

embodied in the concept of “general causation’. In part, the

requirement of commonality is one aimed. at determining

whether there is a need for combined treatment and a benefit

to be derived therefrom. Here the need is compelling, and

the benefits are substantial.

3. Typicality

Rule 23(a)(3) requires that in a class action “the claims or

defenses of the representative parties [be] typical of the

claims or defenses of the class.” As already noted, plaintiffs’

claims of negligence, products liability and general causa-

tion, as well as the defendants’ government contract defense

are not just “typical” of the entire class, they are identical. In

a few areas, such as the rules governing liability and the ap-

plication of various statutes of limitations, the claims may

fall into groups that are “typical”, but even there the different

groups’ claims can be efficiently managed either on a sub-

class basis or directly by way of separately determining the

issues. Although the named plaintiffs for purposes of the

class action are yet to be designated, the court is satisfied

that out of the extremely large pool available representative

plaintiffs can be named who will present claims typical of

those of the class. As already indicated, the issues of specific

causation and damages will, of course, ultimately require in-

50a

dividual consideration, but until that point in the litigation is

reached, a class action appears to be the only practicable

means for managing the lawsuit.

4. Adequacy

Rule 23(a)(4) provides that a class action may only be

maintained if “the representative parties will fairly and

adequately protect the interests of the class.” Adequacy of

representation depends on the qualifications and interests of

counsel for the class representatives, the absence of an-

tagonism or conflicting interests, and a sharing of interests

between class representatives and absentees. 7 Wright & Mil-

ler Federal Practice and Procedure §§ 1765-1769 at 615-—

657. Here, the court will select from among the hundreds of

plaintiffs representative persons who have a substantial stake

in the litigation, who lack conflicts, antagonisms or reasons

to be motivated by factors inconsistent with the motives of

absentee ciass members, and who will fairly and adequately

protect the interests of the class. Further the class will be rep-

resented by experienced, capable counsel, Yannacone and

Associates,*? who have shown themselves willing to under-

take the considerable commitment of time, energy and

money necessary for the vigorous prosecution of the claims

here asserted.

* Yannacone and Associates is a consortium of lawyers who have

banded together for purposes of this lawsuit under the leadership of Vic-

tor Yannacone, who brought the initial actions and who was designated

as lead counsel for the plaintiffs shortly after the cases were transferred to

this court by the multidistrict panel. Some of the lawyers in the consor-

tium represent plaintiffs in one or more of the component Agent Orange

actions; others apparently have been brought into the group because of

special expertise and experience. This case is too complex and too de-

manding for any single attorney to handle it on behalf of plaintiffs. Yan-

nacone and Associates has already demonstrated that the combined ef-

forts of its twenty or so members will fairly and adequately protect the in-

terests of the class and that together they have the expertise and desire to

prosecute this demanding action properly.

Sla

5. Additional Requirements

Courts have implied two additional prerequisites to class

action certification that are not specifically mentioned in

Rule 23: (1) there must be an identifiable class, and (2) the

class representatives must be members of the class. 7 Wright

and Miller Federal Practice and Procedure §§ 1760, 1761 at

579-592. Here, the plaintiff class can be readily identified:

they are persons who claim injury from exposure to Agent

Orange and their spouses, children and parents who claim di-

rect or derivative injury therefrom. The court has intention-

ally defined the class in broad terms consistent with the de-

mands of this litigation. If we begin with the broadest possi-

ble class, the issues common to all members of that class can

be resolved. It may later prove advantageous to create sub-

classes for various purposes, e.g., for resolving statute of

limitations claims, for determining liability in “negligence”

as opposed to “product liability” states, and finally, perhaps,

for preserving the class action format prior to remand to the

transferor judges so as to provide them with the greatest pos-

sible flexibility in ultimately determining the issues remain-

ing after multidistrict treatment has ended.

THE REQUIREMENTS OF RULE 23(b)

Plaintiffs seek certification of a plaintiff class under Rule

23(b)(1)(A), (b)(1)(B), (b)(2) & (b)(3).9*? For the reasons set

Rule 23(b) provides that an action may be maintained as a class ac-

tion if the prerequisites of subdivision (a) are satisfied, and in addition:

(1) the prosecution of separate actions by or against individual mem-

bers of the class would create 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, or

(B) adjudications with respect to individual members of the class

which would as a practical matter be dispositive of the interests of the

52a

+

forth below, however, the court concludes that class certifica-

tion is appropriate only under Rule 23(b)(3).

1. Rule 23(b)(1)

Rule 23(b)(1), the “prejudice” class action provision, au-

thorizes class action treatment if some prejudice would result

to any party if members of the class were required to litigate

their claims in a series of individual actions, and the result-

ing prejudice can be obviated by using a class action. The

provision is broken down into two separate clauses.

Rule 23(b)(1)(A) authorizes a class action when the pro-

secution of separate actions would create a risk of “incon-

sistent or varying adjudications with respect to individual

members of the class which would establish incompatible

standards of conduct for the party opposing the class”. This

section focuses on the difficulties that class action certifica-

tion may visit on the party opposing the class action. It is de-

Signed to prevent situations in which different courts estab-

lish “incompatible standards of conduct” for that party.

other members not parties to the adjudications or substantially impair or

impede their ability to protect their interests; or

(2) the party opposing the class has acted or refused to act on grounds

generally applicable to the class, thereby making appropriate final injunc-

tive relief or corresponding declaratory relief with respect to the class as

a whole; or

(3) the court finds that the questions of law or fact common to the

members of the class predominate over any questions affecting only indi-

vidual members; and that a class action is superior to other available

methods for the fair and efficient adjudication of the controversy. The

matters pertinent to the findings include: (A) the interest of members of

the class in individually controlling the prosecution or defense of separate

actions: (B) the extent and nature of any litigation concerning the con-

troversy already commenced by or against members of the class; (C) the

desirability or undesirability of concentrating the litigation of the claims

in the particular forum; (D) the difficulties likely to be encountered in the

management of a class action.

53a

Rule 23(b)(1)(A) is not meant to apply, however, where

the risk of inconsistent results in individual actions is merely

the possibility that the defendants will prevail in some cases

and not in others, thereby paying damages to some claimants

and not others. McDonneli Douglas Corporation v. United

States District Court, Central District of California, 523

F.2d 1083, 1086 (CA9 1975), cert. denied sub nom., Flana-

gan v. McDonnell Douglas Corporation, 425 U.S. 911, 96

S.Ct. 1506, 47 L.Ed.2d 761 (1976). “The risk of paying

money [damages] to some and not others is not what the

rulemakers intended by the words ‘incompatible standards of

conduct”. A. Miller, An Overview of Federal Class Actions:

Past, Present and Future at 43 [1977]. Since the only effect

of inconsistent decisions here would be the payment of dam-

ages to some claimants and not others, class certification

under Rule 23(b)(1)(A) would be inappropriate.

Rule 23(b)(1)(B) authorizes a class action when sepa-

rate actions would create a risk of “adjudications with re-

spect to individual members of the class which would as a

practical matter be dispositive of the interest of the other

members not parties to the adjudications or substantially i1m-

pair or impede their ability to protect their interest.” This

rule emphasizes possible undesirable effects on the class

members, rather than on the opposing party, and permits a

class action if separate suits might have undesirable effects

on the class members. “The paradigm Rule 23(b)(1)(B) case

is One in which there are multiple claimants to a limited fund

* * * and there is a risk that if litigants are allowed to pro-

ceed on an individual basis those who sue first will deplete

the fund and leave rothing for the late-comers.” A. Miller, An

Overview of Federal Class Actions: Past, Present and Future

at 45 (1977). See also Administrative Committee's Note, Rule

23, 39 FR.D. 69, 101 (1966).

54a

However large the potential damages may appear

here, plaintiffs offer no evidence of the likely insolvency of

defendants and apparently do not, in defendant Dow’s words,

“have the temerity to argue that the aggregate claims of the

purported class exceed the total assets of the five named de-

fendants.”* Defendant Dow’s memorandum in opposition to

class certification at 20. For good measure, Dow adds

“{s]uch an argument would be ludicrous on its face.” Id. As

one court has noted, “without more, numerous plaintiffs and

a large ad damnum clause should [not] guarantee (b)(1)(B)

certification.” Payton et al. v. Abbott Labs et al., 83 F.R.D.

383, 389 (D.Mass. 1979). Thus, certification under Rule

23(b)(a)(B) is not appropriate.

2. Rule 23(b)(2)

Rule 23(b)(2) authorizes class action treatment where

“the party opposing the class has acted or refused to

act on grounds generally applicable to the class, thereby

making appropriate final injunctive relief or corresponding

declaratory relief with respect to the class as a whole.” This

subdivision “does not extend to cases in which the approp-

riate final relief relates exclusively or predominately to

money damages”, Advisory Committee’s Note, Rule 23, 39

F.R.D. 69, 102 (1966); rather, it applies when injunctive re-

lief or declaratory relief on which injunctive relief could be

based is proper. Eisen v. Carlisle & Jacquelin, 391 F.2d 555,

564 (CA2 1968), vacated on other grounds, 417 U.S. 156, 94

S.Ct. 2140, 40 L.Ed.2d 732 (1974). Here, the relief re-

“ Since that statement was made the number of named defendants has

increased, see footnote 2 supra, thus rendering class certification under

Rule 23(b)(1)(B) even more inappropriate.

55a

quested relates predominantly to money damages so the class

may not be certified under Rule 23(b)(2).*°

3. Rule 23(b)(3)

Rule 23(b)(3) authorizes a class action when the court

finds “that the questions of law or fact common to the mem-

bers of the class predominate over any questions affecting

only individual members, and that a class action is superior

to all other available methods for the fair and efficient adjudi-

cation of the controversy.” The rule lists four matters perti-

nent to a consideration of these issues: “(A) the interest of

members of the class in individually controlling the prosecu-

tion or defense of separate actions; (B) the extent and nature

of any litigation concerning the controversy already com-

menced by or against members of the class; (C) the desirabil-

ity or un-desirability of concentrating the litigation of the

claims in the particular forum; (D) the difficulties likely to be

encountered in the management of a class action.”

Ccnsidering the circumstances of this action, and bearing

in mind the manner in which the class action will proceed,

the court determines that the interest of class members in in-

dividually controlling the prosecution of separate actions Is

minimal, especially at this early stage of the litigation when

the issues under consideration concern the relationship be-

tween the defendants and the government, issues that impact

equally on every plaintiffs claim. Rule 23(b)(3)(A). Later

stages of this litigation, especially those concerned with indi-

vidual causation and damages, may require reconsideration

of this element and possibly decertification, but at this stage,

* The court is aware that plaintiffs have requested that a trust be estab-

lished to apply defendants’ future profits for the benefits of the plainutt

class. While this possible relief has not been excluded from the case. it

does not serve as a sufficient basis for class certification pursuant to

F.R.C.P. 23(b)(2).

56a

individual class members have almost no interest in individu-

ally controlling the prosecution of separate actions. Indeed,

the problems inherent in every one of the individual actions

are so great that it is doubtful if a single plaintiff represented

by a single attorney pursuing an individual action could

ever succeed.

With respect to the extent and nature of currently pending

litigation, almost all the Agent Orange litigation currently

pending is before this court under the multidistrict litigation

procedures. All those cases are advancing simultaneously,

and certification of a class action will serve the goals of judi-

cial economy and reduce the possibility of multiple lawsuits.

Rule 23(b)(3)(B). In addition, it will signficantly expedite

final resolution of this controversy.

With respect to the desirability of concentrating the litiga-

tion of the claims in this forum, the actions have already

been concentrated before this court through the use of MDL

procedures. Allowing it to proceed as a class action will

minimize the hazards of duplicate efforts and inconsistent re-

sults. Moreover, given the location of present counsel and

the widely varying citizenships of the interested parties, this

court 1S aS appropriate a place to settle the controversy as

any. Rule 23(b)(3)(C).

With respect to the difficulties likely to be encountered in

the management of a class action, the court has carefully and

humbly considered the management problems presented by

an action of this magnitude and complexity, and concluded

that great as they are, the difficulties likely to be encountered

by managing these actions as a class action are significantly

outweighted by the truly overwhelming problems that would

attend any other management device chosen. While the bur-

dens on this court might be lessened by denying class certifi-

cation, those imposed collectively on the transferor courts

57a

ates cemand of Gee moitadestskct cases would be soreased

may tomrs-

Have cascfally comsadeved te shove factors and ail otfeer

cxcamstances of tus action. te court ts satesfied that at thes

tame the questions of law and fact common to the members

of the class predommate over questions of law or fact affect-

mg only mdividual members. and that a class action is

superior to any other available method for the fair and effi-

cient adjudication of the controversy. *

Because over a year ago this court requested plaintiffs not

to file actions pending decision on the class action motion,

because the facts and issues in all of the pending and future

cases are to a great degree identical, or at least parallel, and

because this action presents a variety of questions in rela-

tively untested areas of the law, this court sees the objectives

of FR.C.P. Rule | and Rule 23, as well as the interests of

justice. best served by determining here. and for all parties.

as many legal and factual issues as may properly be decided.

To achieve those ends the court will certify this to be a class

action under FR.C.P. 23(b). Formal certification will be by

separate order to be processed under the court's instructions.

C. NOTICE

Rule 23(c)(2) states that “In any class action maintained

under subdivison (b)(3), the court shall direct to the mem-

bers of the class the best notice practicable under the cir-

cumstances, including individual notice to all members who

can be identified through reasonable effort,”

Two problems with notice must be considered; how the

notice shall be given and what the notice shall say, In the

" There being no need to certify subelasses of plaintiffs at this time,

the court will postpone consideration of the subelags issues to a later

line When the most efficient and logieal course to follow will be clearer,

38a

ondes to be prepused and segued winch wih offaczally cestthy

the class. tee cont will Geet bots Ge mes ad content

of mote.

As to the manner of notice. bots the rule and the court de-

cisions display a preference for individual notice whenever

possible. and ordmarily the financial burden of givimg notice

falls on the plamtiffs. Individual notice to all members of the

broad class to be certified may be impossible. The rule re-

quires, however, only “the best notice practicable under the

circumstances”. Counsel are invited to submit suggestions in

writing as to how “the best notice practicable” may be given

to the over two million Vietnam veterans and their families

who are included in the class by January 23, 1981. Certain

possibilities have already been suggested, including having

the Veterans Administration mail copies of the notice to all

Vietnam veterans on their mailing list, and soliciting the aid

of veterans’ organizations around the country to circularize

their memberships.

It may be that other persons or organizations are willing to

assist in resolving the notice probiem. The news media in

particular might volunteer space or time to assure “the best

notice practicable” to veterans and their families. Still other

means by which the notice requirement can be fairly and

reasonably fulfilled may exist. After considering all sugges-

tions received by January 23, 1981, the court will determine

how notice shall be given.

As to the form of notice, Yannacone and Associates is di-

rected to serve and file by January 7, 1981 a proposed form

of notice which shall include at least the following informa.

tion in as simple and direct a form as possible:

|, It shall state briefly the nature of plaintiffs’ suit, their

causes of aetion and their claims for relief,

Wa

2. it shea set ont hee defemation of the plazenttll class aed om

general terms the wawes hat will be to be determumed.

3 Ie shall motthy tee recopicat teat at loser request te

court will exclude Ieowler from te class so long as te re-

quest ts recenved by 2 date specified m the notice that coun-

sel and the court will set. Rule 23¢c 2 A).

4. It shall make clear that any findings. whether favorable

or not, will be binding on all class members who do not re-

quest exclusion. Rule 23(c)(2)(B).

5. It shall explain that any class member who does not re-

quest exclusion may enter an appearance through his/her

counsel. Rule 23(c)(2)(C).

Counsel for defendants shal] meet on or before January 16,

1981 to discuss and, if possible, agree upon suggested mod-

ifications to plaintiffs’ proposed form of notice and serve and

file their suggested changes, if any, with the court by January

23. 1981. To the extent that agreement among defense coun-

sel is not possible, they may make separate submissions.

By January 16. 1981 Yannacone and Associates shall sub-

mit to the court a list of no more than 12 persons whom they

propose as representative plaintiffs for the class action. De-

fendants may, if they choose, submit any comments, objec-

tions or suggestions with respect to the proposed representa-

tive plaintiffs by January 23, 198]. The court will then deter-

mine who will be the named plaintiffs in the class action,

and plaintiffs’ attorneys will be directed by further order of

this court to prepare an appropriate class action order and

class action complaint,

V, SUMMARY JUDOMENT

On this motion, defendants argue that they are entitled to

summary judgment against plaintiffs becuse, acting under

60a

compulsson of federal law, they were forced to manufacture

Agen Orange wader circumstances carefully controlled by the

goverment. Cases analyzing similar arguments have utilized

variows termmmology to describe this defense, the most com-

mon bemg that defendants seek to “share in the government's

mumunity”. Green v. ICI America, Inc., 362 F.Supp. 1263,

1264 (E.D. Tenn.1973), or that defendants assert a “govern-

ment contract defense”. See Merritt, Chapman & Scott Cor-

poration v. Guy F. Atkinson Company, 295 F.2d 14, 16 (CA9

1961).

A. THE GOVERNMENT CONTRACT DEFENSE

Whatever its label, the government contract defense’’in

this case essentially seeks to avoid manufacturer liability on

the ground that the circumstances surrounding Agent

Orange’s manufacture and use were controlled and dictated

by the United States government acting in a capacity in

which the government is protected from liablity by sovereign

immunity and the Feres/Stencel doctrine.

In the seminal case of Yearsley et al. v. W.A. Ross Con-

struction Company, 309 U.S. 18, 60 S.Ct. 413, 84 L.Ed. 554

(1940), the Supreme Court recognized the possibility that

contractors who properly perform their work pursuant to con-

tracts with the United States government might avoid liaiblity

for injuries resulting from the work done. Plaintiff, who

sought to recover damages for erosion of his waterfront prop-

erty caused by defendant's construction of dikes in the Mis-

souri River, conceded that defendant had acted “pursuant to a

contract with the United States Government, under the direc-

tion of the Secretary of War and the supervision of the Chief

of Engineers of the United States, for the purpose of improv-

ing navigation of the Missourt River.” 309 U.S. at 19, 60

For purposes of eonvenience this defense will be called the “govern-

Hient conteaet defense” for the remainder of this decision.

6la

S.Ct. at 414. The Court held that the contractor was not li-

able, because the work done had been properly authorized

and properly performed, Summarizing the relevant princi-

ples, the Court stated

[I]t is clear that if [the] authority to carry out the

project was validly conferred * * there is no liabil-

ity on the part of the contractor for executing [the

government's} will. (citations omitted). Where an

agent or officer of the Government purporting to

act on its behalf has been held to be liable for his

conduct causing injury to another, the ground of

liability has been found to be either that he ex-

ceeded his authority or that it was not validly con-

ferred, 309 U.S. at 20-21, 60 S.Ct. at 414,

Following these principles, subsequent cases have stated

the rule in various ways:

To the extent that the work performed by [the

contractor] was done under its contract with the

[government], and in conformity with the terms of

said contract, no liablity can be imposed upon it

for any damages claimed to have been suffered by

[plaintiffs]. Myers v. United States, 323 F.2d 580,

583 (CA9 1963): The [contract work] was pursuant

to validly conferred authority under a contract

[with the government]. The question of foreseeabil-

ity of harm and the possible need to protect against

it arose when the Government framed its terms.

There is no charge that what the contractor did was

not what it was required to do. * * [The question

of taking measures to safeguard against harm

caused by the plans] was a decision which rested

with the Government. The Government did not pro-

vide for such additional precautions in the plans,

62a

and the [contractor] is not to be held liable for this

omission, Dolphin Gardens, Inc. v. United States,

243 F.Supp. 824, 827 (D.Conn,1965);

Where the act, or failure to act, which causes an

injury is one which the [government] contractor

was employed to do, and the injury results not

from the negligent manner of doing the work, but

from the performance thereof or failure to perform

it at all, the contractor is entitled to share the im-

munity from liability which the public enjoys, but

* * * the contractor is not entitled to the immunity

of the public body from liability where the injury

arises from the tortious manner of performing the

work."Green v, ICI] America, Inc,, 362 F. Supp.

1263, 1265 (E.D,Tenn.1973) quoting 9 A.L.R.3d

382, 385 (1966)

Behind this rule lie considerations of fairness and

public policy. First, tort liability principles properly seek to

impose liability on the wrongdoer whose act or omission

caused the injury, not on the otherwise innocent contractor

whose only role in causing the injury was the proper perfor-

mance of a plan supplied by the government. The imposition

of tort liability on a wrongdoer can have a strong prophylac-

“ See also Merritt, Chapman & Scott Corp. v. Guy F. Atkinson, Com-

pany, 295 F.2d 14, 16 (CA9 1961) (“where the plans and specifications

were drawn and adopted prior to the contract * * * the contractor is enti-

tled to follow such plans and specifications, exercising due and proper

care and skill, and require parties damaged to look to the government.

which has required such a contract, for relief.”) (emphasis in original);

O'Grady v. City of Montpelier, 474 F.Supp. 186 (D.Vt. 1979), rev'd on

other grounds, 573 F.2d 747 (CA2 1978) (no action lies against contrac-

tor who entered contract with city, performed work in accordance with

detailed specifications provided by the city, did not act outside scope of

authority, and performed work in non-negligent manner).

ee ee ae |

63a

tic effect; tortfeasors held liable for damages that flow from

their wrongdoing have a strong incentive to prevent the oc-

currence of future harm, See W. Prosser, Law of Torts § 4 at

23 (4th ed, 1971). Before any societal benefit can be derived

from the deterrent effects of tort liability, however, the party

in a position to correct the tortious act or omission must be

held accountable for the damages caused and thus motivated

to prevent future torts.

Second, the policy considerations that lend continuing

vitality to governmental immunity argue for “extension” of

that freedom from liability to some government contractors.

As one court put it:

To impose liability on the contractor [for the

government's planning failures] would render the

Government immunity * * * meaningless, for if the

contractor was held liable, contract prices to the

Government would be increased to cover the con-

tractor’s risk of loss from possible harmful effects

of complying with decisions of [governmental] of-

ficers authorized to make policy judgments. Dol-

phin Gardens, Inc. v. United States, 243 F.Supp.

824, 827 (D.Conn.1965).” ©

These considerations take on increased significance when

the government contracts with manufacturers of military

ordnance in war time. Where, as here, manufacturers claim

* This may even understate the effect of imposing liability on govern-

ment contractors so situated, because those contractors would presumably

seek to insure against possible liability for the government’s inadequacies

and insurance companies do not spread the risk of loss without some fi-

nancial benefit to themselves. If taken to the extreme, the government

might ultimately find it less expensive to waive immunity under the cir-

cumstances, accept liability for injuries caused by its planning failures,

and thereby avoid the expensive middleman.

64a

to have been compelled by federal law to produce a weapon

of war without ability to negotiate specifications, contract

price or terms, the potential for unfairly imposing liability

becomes great. Without the government contract defense a

manufacturer capable of producing military goods for govern-

ment use would face the untenable position of choosing be-

tween severe penalties for failing to supply products neces-

sary to conduct a war, and producing what the government

requires but at a contract price that makes no provision for

the need to insure against potential liability for design flaws

in the government’s plans.

A recent New York State court decision, Casabianca v.

Casabianca, 104 Misc.2d 348, 428 N.Y.S.2d 400 (S.Ct.

Bronx County 1980), recognized the problem of a manufac-

turer who provides products necessary to conduct a war

under contract with the government. In Casabianca the court

held that, as a matter of public policy, a manufacturer who

supplies equipment to the United States Army in a time of

war pursuant to government specifications may not be held li-

able for any inadequacy in the plans because

A supplier to the military in time of war has a

right to rely on such specifications and is not obli-

gated to withhold from the United States armed

forces material believed by the latter to be neces-

sary because the manufactuer considers the design

to be imprudent or even dangerous. His confor-

mance, under such circumstances,-to the specifica-

tions provided to him should be, and is, a complete

defense to any action based on design, whether

faulty or not. Casabianca v. Casabianca, 104

Misc.2d 348, 428 N.Y.8.2d 400, 401-402 (S.Ct.

Bronx County 1980) (Stecher, J.).

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Although some courts ignore or deny its existence,*°

the Supreme Court’s recognition of the defense in Yearsley v.

W. A. Ross Construction Company and the application of the

defense in numerous other decisions certifies its continuing

viability. *

B. THE POSITIONS OF THE PARTIES

As defendants would apply the government contract de-

fense here, plaintiffs’ claims against the corporate defendants

could not be actionable because the United States Govern-

ment (1) invented Agent Orange, (2) experimented with her-

bicides for military use for over 20 years; (3) knew dioxin

would be a byproduct of the manufacture of 2,4,5-T, an in-

gredient in Agent Orange; (4) knew the toxicity of dioxin as

early as 1962; (5) compelled the defendants to manufacture

Agent Orange using the mandatory provisions of the Defense

Production Act, 50 U.S.C.App. § 2061 ef seg., and various

economic and “informal” pressures to coerce defendants; (6)

refused to allow defendants to produce phenoxy herbicides

for their civilian markets; (7) unilaterally determined the

terms and specifications of the contracts under which the de-

fendants manufactured Agent Orange, including complete

control over the chemical composition, volume, weight, pur-

ity, acidity, appearance, quality, inspection, testing proce-

dures, packaging, marking and method of shipment used; (8)

visited defendants’ plants regularly to conduct inspections

and tests to ensure the defendants’ compliance with the con-

tract terms; (9) assured the availability to defendants of the

“ See Foster v. Day & Zimmerman, Inc., 502 F.2d 867, 873-74 (CA8

1974); Whitaker v. Harvell-Kilgore Corp., 418 F.2d 1010, 1013-15 (CAS

1969).

*" See e.g., A.J. Myers v. United Stsates, 323 F.2d 580, 583 (CA9

1963); Meritt. Chapman & Scott Corp. v. Guy F. Atkinson Company, 295

F.2d 14, 16 (CA9 1961).

66a

raw materials needed to produce Agent Orange on a high

priority basis; (10) unilaterally determined the nature and ex-

tent of the use in southeast Asia of the Agent Orange produc-

ed, with concentrations of component herbicides far in ex-

cess of any commercially manufactured product; and (11)

exercised exclusive control over the use of Agent Orange in

southeast Asia.

Defendants argue (1) that they merely manufactured and

supplied Agent Orange to the government pursuant to validly

authorized contracts, (2) that Agent Orange was not manufac-

tured before and has not been manufactured since; (3) that

they completed their compelled manufacture of Agent

Orange in strict compliance with the specifications supplied

by the government, specifications that contained no obvious

or “glaring” defects that would have alerted the defendants of

any impending danger in following them; and (4) that they

manufactured Agent Orange without any negligence on their

part.

In short, the defendants claim to have served their coun-

try’s military needs without any shortcomings in their perfor-

mance. They contend that but for the government’s decision

to use Agent Orange in southeast Asia the defendants would

not have manufactured Agent Orange and the harm claimed

to have been caused by the herbicide would never have oc-

curred. Defendants further note that they were in no position

to question the government's military judgment to use the

herbicide as a tactical weapon during the Vietnam war, and

had no choice under federal law but to comply with the gov-

ernment’s order to produce Agent Orange.

Thus, defendants argue that they were merely agents of

the government acting under the compulsion of federal law in

patriotic furtherance of the Vietnam war effort. They claim to

have produced an effective product that met, in every re-

67a

spect, the government's detailed specifications and expecta-

~ tions. Defendants argue that well established legal principles,

sound social policy, and general principles of fairness dictate

that they not be held liable for injuries resulting solely from

their strict compliance with government contracts for war re-

lated products that performed exactly as expected in their

military uses.

Plaintiffs argue (1) ihat defendants should not be permitted

to “hide” behind government specifications to avoid liability,

and (2) that summary judgment is inappropriate because the

defendants’ “bald assertion that the [government] specifica-

tions were, in fact, complied with” cannot be accepted by the

court as true without a trial to determine whether defendants’

allegations with respect to the government contract defense

are factually correct.

C. SUMMARY JUDGMENT DENIED

The standards for consideration of a motion for sum-

mary judgment pursuant to F.R.C.P. 56 are well established

and need not be repeated here except to note that on a mo-

tion for summary judgment the court “cannot try issues of

fact; it can only determine whether there are issues to be

tried”, American Manufacturers Mutual Insurance Company

v. American Broadcasting-Paramount Theatres, Inc., 388

F.2d 272, 279 (CA2 1967), cert. denied, 404 U.S. 1063, 92

S.Ct. 737, 30 L.Ed.2d 752 (1972) and the court “must re-

solve any doubts in favor of the party opposing the summary

judgment motion”. SEC v. Research Automation Corp., 585

F.2d 31 (CA2 1978).

Having considered all the authorities cited and the argu-

ments of counsel, the court is satisfied that a government

contract defense exists and has possible application to the

facts at bar. Plaintiffs are correct, however, to the extent that

they argue the presence of fact issues which preclude sum-

68a

mary judgment since any application of the government con-

tract defense in this context will require that defendants

prove that their relationship with the government and perfor-

mance under the government contract was essentially as they

describe it. In short, whatever the minimum showing neces-

sary to support a finding for defendants on the government

contract defense may be, allegations with respect to their

contract performance and relationship with the government

present issues of fact requiring trial.

Resolution of the fact issues by separate trial will deter-

mine whether defendants have a complete defense to the

claims asserted against them. This is the reason the court has

chosen the government contract defense for the Phase I trial

as discussed .in section III above. The elements of the de-

fense will be uniquely adapted to consideration and adjudica-

tion, separate and apart from the issues of liability, causation

and damages. As a practical matter, discovery as to these dis-

crete issues will be rather narrow compared to the discovery

that some of the other fact issues presented by this action

may require.

Although satisfied that the government contract defense

exists and has possible application here, however, the court

is not satisfied that the parties have sufficiently focused their

attention on the precise standards applicable and the specific

facts defendants need to prove to make out the defense under

the circumstances of this action.*? Accordingly, the parties

* For example, some courts view the government contract defense as

~ coupling the government’: sovereign immunity with the contractor's obli-

gation to follow the government’s directions, see Green v. ICI America,

Inc., 362 F.Supp. 1263, 1265 (E.D.Tenn.1973). It may well be that the

sovereign’s immunity from suit is not an essential element of the defense.

See Dolphin Gardens, Inc. v. United States, 243 F.Supp. 824, 827

(D.Conn.1965); A.J. Myers v. United States, 323 F.2d 580, 583 (CA9

1963). Similarly, other courts frame the elements of the defense in terms

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69a

are to prepare (1) briefs focusing on this issue, and (2) prop-

osed special verdicts to be presented to the jury in the Phase

I trial. Of course, the proposed special verdicts will not be

binding at this stage, rather they are to assist counsel and the

court in focusing upon the issues that require discovery and

trial in Phase I. These items are to be served and filed by

January 23, 1981. The court will hear argument on the stan-

dards and elements of the government contract defense

applied to this case and will discuss the proposed special ver-

dicts at the pretrial conference to be held January 30, 1981 at

9:00 a.m.

As noted above, the court believes that early resolution of

this potentially dispositive issue will serve the interests of

justice and judicial efficiency. Although justice is always

served by the efficient management of any action, this is

especially true in this case where any other procedure

adopted might subject the parties to years of discovery and

trial only to have later generations of judges, lawyers, and

litigants discover that an early trial of the government con-

tract defense might have preempted the need for almost all of

the discovery undertaken and saved thousands of person-

hours and millions of dollars associated with those unneces-

sary efforts. The parties here are entitled to have this action

handled as efficiently and expeditiously as possible and, in

the court’s considered view, the approach here outlined bal-

ances the numerous interests in a way that will best serve

those goals.

of military necessity. See Casabianca v. Casabianca, 104 Misc.2d 348,

428 N.Y.S.2d 400, 401-402 (S.Ct. Bronx County 1980) (Stecher, J.).

Whether these elements are essential to the successful assertion of the

government contract defense, however, need not be determined because

the court has determined that the sovereign is immune under the cir-

cumstances here presented, see discussion Section II supra, and it is

beyond dispsute that the Agent Orange produced by defendants here was

manufactured in time of war.

70a

VI. DISCOVERY

Under the case management plan set forth in section III of

this pretrial order, it is appropriate for discovery to proceed

now as efficiently and expeditiously as possible on all Phase

I issues. Most of the material necessary to support the defen-

dants’ government contract defense is in defendants’ own

control. Plaintiffs have continually urged an early trial, and

lead counsel has repeatedly represented to the court that dep-

ositions of a limited number of Dow employees are the only

discovery necessary before proceeding to trial. Although the

government is no longer a party to this action, the Depart-

ment of Justice has promised the court cooperation with all

parties in facilitating full and complete discovery of all mate-

rial within the government's control.

To date, very little discovery has taken place. By practice

and procedure order dated May 18, 1979, this court stayed all

discovery proceedings until further court order; by order

dated February 5, 1980, this stay was modified to allow the

parties to “conduct voluntary discovery by agreement among

themselves”. In addition to whatever voluntary discovery has

taken place, the court on specific motions has permitted the

depositions of certain plaintiffs with a “high risk of unavail-

ability for trial” to be taken. E.g., Hartz v. Dow Chemical

Company, 79 C 2752 (EDNY GCP) (memorandum and order

of January 18, 1980).

The first wave of Phase I discovery is to commence

immediately, and the stay is vacated, but only for this pur-

pose. The first wave of discovery, as defined in § 1.50 of the

Manual for Complex Litigation, is designed to disclose all

preliminary matters necessary before proceeding to discovery

on the merits, specifically:

(1) the names and location of witnesses whose

written interrogatories or depositions upon oral in-

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71a

terrogatories may be sought on the merits; (2) the

existence, location and custodian of documents and

other physical evidence, the production of which

may be sought on the merits; and (3) information

concerning the transactions upon which the claims

for relief are based.

The parties are directed to serve and file first wave inter-

rogatories by January 15, 1981. Any objections to these inter-

rogatories shall be served and filed on or before January 23,

1981. Defendants shall confer and submit joint interrogatories

and objections. Failure to timely object will operate as a

waiver of any and all objections. The objections will be dis-

cussed and ruled on at the conference scheduled for January

30, 1981. The court does not anticipate frivolous objections

to any interrogatories, but any objections made without a

good faith basis will be summarily denied as well as subject

their proponent to sanctions. The answers to all first wave in-

terrogatories are to be served and filed by February 13, 1981.

The court has previously received and reviewed several

suggestions for orderly discovery advanced by the parties.

However, those proposals were made without the benefit of

the court's case management plan. Counsel are to submit

memoranda outlining their thoughts and proposals for the re-

mainder of Phase I discovery by Janaury 23, 1981. Proposals

should focus on the-scope and type of material to be discov-

ered, as well as the sequence and timing that discovery

shouid take. Those proposals should have as their goal the

expeditious, free and open exchange of information con-

templated by the Federal Rules of+Civil Procedure and re-

quired by this court in all cases before it. At the January 30,

1981 conference the court will hear argument about the vari-

Ous proposals and soon thereafter will establish a comprehen-

sive discovery and trial schedule to govern the remainder of

Phase I.

72a

VII. STATUTES OF LIMITATIONS

In light of the Second Circuit’s decision that federal ques-

tion jurisdiction is inappropriate in the context of this ac-

tion, Jn re Agent Orange, 2 Cir., 635 F.2d 987 (1980), diver-

sity jurisdiction under 28°U.S.C. § 1332 may provide the

sole basis for subject matter jurisdiction. Since federal

courts sitting in diversity apply state law on questions in-

volving the statute of limitations, Guarantee Trust Com-

pany of New York vy. York, 326 U.S. 99, 109, 65 S.Ct.

1464, 1469, 89 L.Ed. 2079 (1945), and since this action will

ultimately involve the statute of limitations of most, if not

all, of the states, counsel shall submit briefs setting forth

the applicable law of each state on the subject. Even if the

pending petition for rehearing before the Second Circuit en

banc is granted and federal question jurisdiction is

ultimately determined to be a valid ground for subject mat-

ter jurisdiction, this survey would be helpful, even

necessary, in determining what the federal common law is

or should be. The briefs shall be served and filed by

January 30, 1981, and reply briefs, if necessary, shall be

served and filed by February 6, 1981.

VIII. CONCLUSIONS

Government’s Motion to Dismiss:

The government's motion to dismiss is granted, and the

third party complaints against the government deemed to

have been made in all actions under MDL 381 are dismissed.

Case Management Plan:

The case will be tried in “phases” and in accordance with

the procedures and principles outlined above in the section of

this order entitled “The Case Management Plan”.

73a

Plaintiffs’ Motion for “Serial Trials”:

Plaintiffs’ motion for serial trials is denied except insofar

as the case management plan adopted by the court incorp-

orates the suggestion to use “phased” trials. The denial of the

motion is without prejudice to renewal at some future date

when the court may seek additional input as to the future

course of this litigation.

Plaintiffs’ Motion to Amend the Complaint:

Plaintiffs’ motion to amend the complaint by adding the

United States government and many of its officials on a

theory of constitutional tort is denied without prejudice to the

commencement of a separate action.

Class Action:

Plaintiffs’ motion for class action certification is granted to

the extent of conditional class action certification pursuant to

F.R. C.P.23(b)(3). In all other respects the motion is denied.

In addition:

By January 23, 1981 counsel are to submit their

Suggestions as to how “the best notice available”

may be given to the members of plaintiff class.

By January 7, 1981 counsel for plaintiffs shall

serve and file a proposed form of notice. Counsel

for defendants shall meet by January 16, 1981 to

discuss and, if possible, agree upon suggested

modifications to the proposed notice. Defendants’

suggested modifications, if any, shall be served and

filed by January 23, 1981.

By January 16, 1981 counsel for plaintiffs shall

submit a list of no more than 12 persons as pro-

posed class representatives. By January: 23, 1981

defendants shall serve and file any suggestions, ob-

74a

jections or comments they have with respect to the

proposed representative plaintiffs. At the January

30, 1981 conference the court will determine who

the named plaintiffs will be.

Defendants’ Motion for Summary Judgment:

Defendants’ motion for summary judgment is denied be-

cause the defendants’ assertion of the government contract

defense presents fact issues requiring trial. In addition:

By January 23, 1981 the parties are to serve and

file (1) briefs focusing on the precise standards

applicable and the specific facts defendants need to

prove in order to successfully establish the govern-

ment contract defense, and (2) proposed special

verdicts to be presented to the jury in the Phase I

trial. The court will hear argument on the standards

and elements of the government contract defense as

applied to this case and will discuss the proposed

special verdicts at the pretrial conference to be held

January 30, 1981. |

Discovery:

The stay of discovery previously imposed is vacated to the

extent that the parties are to engage in first wave discovery of

Phase I issues. In addition:

The parties are to serve and file first wave inter-

rogatories by January 15, 1981. Any objections to

those interrogatories shall be served and filed on or

before January 23, 1981. Defendants are to confer

and submit joint interrogatories and objections.

Failure to file timely objections will operate as a

waiver of any and all objections. The objections

will be discussed and ruled upon at the January 30,

1981 conference. The answers to all first wave in-

7 Ee

75a

terrogatories are to be served and filed by February

13, 1981.

Counsel are to submit memoranda outlining their

thoughts and proposals regarding a comprehensive

plan and timetable for Phase I discovery by January

23, 1981. The court will hear argument about the

various proposals for Phase I discovery at the Janu-

ary 30, 1981 conference.

Statutes of Limitations:

Counsel shall serve and file briefs setting forth

the applicable law relating to the statutes of limita-

tions of every state by January 30, 1981. Reply

briefs, if necessary, shall be served and filed by

February 6, 1981.

Next Conference:

The next pretrial conference wil! be held before the under-

signed at the Long Island Courthouse on January 30, 1981 at

9:00 a.m. Any party wishing to propose additions to the

agenda should do so by letter to the court received no later

than January 27, 1981.

SO ORDERED.

76a

In re “AGENT ORANGE” PRODUCT

LIABILITY LITIGATION.

MDL No. 381.

United States District Court,

E.D. New York.

Feb. 24, 1982.

Victor J. Yannacone, Jr., Yannacone & Yannacone,

Patchogue, N.Y., Schlegel & Trafelet, Ltd., L. Steven

Platt, Daniel C. Sullivan, Sullivan Associates, Lid.,

Chicago, Ill., Hy Mayeson, Spring City, Pa., David

Jaroslawicz, New York City, Newtown B. Schwartz, P.C..,

Benton Musslewhite, Inc., Houston, Tex., Dorothy

Thompson, Los Angeles, Cal., W.T. McMillan, W.T. Mc-

Millan & Co., associated counsel for Australian plaintiffs,

Brisbane, Queensland, Australia, Jerry G. Wieslander,

Frank G. Wieslander, Altoona, lowa, Lewis A. Royal,

Samuel Zelden, Des Moines, lowa, David C. Anson,

Deconcini, McDonald, Brammer, Yetwin & Lacy, Tuc-

son, Ariz., Phillip E. Brown, Hoberg, Finge, Brown, Cox

& Molliga, San Francisco, Cal., Melvin Block, Brooklyn,

N.Y., Marshall A. Bernstein, Bernstein, Bernstein & Har-

rison, Philadelphia, Pa.. Louis B. Merhige, New Orleans,

la.. Dennis M. O’Malley, Grant & Artesani, Boston,

Mass., Leslie Hulnick, Wichita, Kan., Sidney W. Gil-

reath, Knoxville, Tenn., Stephen J. Cavanaugh, Bellaire,

Tex., Robert P. Schuster, Spence Moriarty & Schuster,

Jackson, Wyo., Alton C. Todd, Brown & Todd, Alvin,

Tex., Jules B. Olsman, Southfield, Mich., Gerald J.

Adler, Crow, Lytle, Gilwee, Donoghue, Adler & Wen-

inever, Sacramento, Cal., Jack E. London, Miami, Fla.,

David J. Ghilari, Madison, Wis., William G. Moran,

Denver, Colo., Dante Mationi, Philadelphia, Pa., Elgin

1. Crull, Louisville, Ky., Charles J. Traylor, Grand Junc-

tion, Colo., Victor L. Marcello, Talbot, Sotile, Car-

motche, Waquespack & Marchand, Donaldsonville, La.,

aoe eee

T7a

Janet T. Phi'lips, Rodgers, Monsley, Woodbury & Berg-

green, Las Vegas, Nev., William D. Nelsch, William A.

Cohan, Denver, Colo., William J. Risner, Tucson, Ariz.,

James L. Witzel, McKelvey, Cotton & Witzel, East Lans-

ing, Mich., Robert I.P. Pasternak, Jane R. Kaplan,

Berkeley, Cal., Norton Frickey, Denver, Colo., Robert C.

Huntley, Jr., Racine, Huntley & Olson, Pocatello, Idaho,

Jacque B. Pucheu, Pucheu & Pucheu, Eunice, La., Jeffrey

M. Stopford, Litvin, Blumberg, Matusow & Young, Phi-

ladelphia, Pa., Joseph D. Jamail, Jamail & Kolius, Hous-

ton, Tex., Leonard W. Schroeter, J. Kathleen Learned,

Schroeter, Goldmark & Bender, P.S., Seattle, Wash.,

Bennett, Di-Filippo, Davison, Henfling & Alessi, East

Aurora, N.Y., James A. George, George, George &

George, Baton Rouge, La., Robert M. Salzman, Pfeffer,

Becker, Gabric & Cerveny, Chicago, Ill., Arden C. Mc-

Clelland, McClelland Law Offices, Missoula, Mont.,

Daniel E. Bechnel, Jr., Bechnel & Faucheux, Reserve, La.,

Don S. Willner, Willner, Bennett, Bobbitt & Hartman,

Portland, Or., Robert A. Taylor, Jr., Ashcraft & Gerel,

Washington, D.C., John J. Lowrey, Chicago, Ill., Donald

H. Dawson, Harvey, Kruse & Westen, P.C., Detroii,

Mich., Jonathan N. Garver, Cleveland, Ohio, Dennis B.

Francis, Gillenwater, Whelchel & Nichol, Knoxville,

Tenn., Russell L. Cook, Jr., Fisher, Roch & Gallagher,

Houston, Tex., Irwin E. Schermer, Schermer, Schwap-

pach, Borkon & Ramstead, Minneapolis, Minn., David D.

Noel, Jenkins & Jenkins, Knoxville, Tenn., Thomas E.

Allen, Curtis, Crossen, Hensley, Allen, Curtis & Altman,

St. Louis, Mo., Kenneth N. Molberg. Dallas, Tex.. Phil

M. Carmell, Jr., Gage & Tucker, Kansas City, Mo.,

Wavne B. Harbarger, III, Littlefield, McDermand & Har-

barger, Sacramento, Cal., William T. Jorden, Erie, Pa.,

Devine & Morris, Atlanta, Ga., Byron N. Fox and Gary

K. Hoffman, Brown & Fox and Gary K. Hoffman, Brown

78a

& Fox, Kansas City, Mo., Ernest L. Caulfield, New

Orleans, La., Thomas E. Connolly, Schneider, Reilly,

Zabin, Connolly & Costello, P.C., Boston, Mass., Gary

W. Anderson, Erler, Taylor & Anderson, Louisville, Ky.,

John F. Vecchio, Houston, Tex., Caenen & Niederhauser,

Mission, Kan, John T. Golden, Robert F. Stein and Wil-

liam J. Stradley, Stradley, Barnett & Stein, Houston,

Tex., Douglass D. Hearne & Associates, Austin, Tex.,

Lawrence M. Ludwig and Kirby G. Upright, Scranton,

Pa., Epstein & Kesselman, Chicago, Ill., Brenda S.

Jenkins, Werner & Rusk, Houston, Tex., Richard R.

Ravreby, Ravreby & Connolly, Carlsbad, Cal., Robert A.

McNess, III, and Robert W. Knolton, Layton & McNess,

P.C., Oak Ridge, Tenn., Henry E. Weil and Ronald S.

Canter, Belli, Weil & Jacobs, Rockville, Md., Cletus E.

Amlung and J. Michael Poole, Louisville, Ky., Synchef &

Synchef, Chicago, Ill., Percy J. Blount, Saul, Blount &

Martin, P.C., Augusta, Ga., Richard C. McLena, Denver,

Colo., Carlton T . Wynn, Hare, Wynn, Newell & Newton,

Birmingham, Al., Owen J. Bradley, New Orleans, La.,

Elliot E. Brown, Metaire, La., James R. Dawson, Johns-

ton, Thornton, Dawson & Hunter, Shreveport, La., Roger

J. Larue, Jr., Metaire, La., William M. Beasley, Mitchell,

Eskridge, Voge, Clayton & Beasley, Tupelo, Miss., Avram

G. Adler, Adler, Barish, Levin & Creskoff, Philadelphia,

Pa., Ned W. Johnson, Benckenstein, McNicholas, Ox-

ford, Radford, Johnson & Nathan, Beaumont, Tex., Paul

D. Rheingold, New York City, Fred D. Shapiro, Shapiro,

Turoff & Gisser, Cleveland, Ohio, for plaintiffs.

Leonard L. Rivkin, Rivkin, Leff & Sherman, Garden

City, N.Y., for Dow Chemical.

Morton B. Silberman, Clark, Gagliardi & Miller, White

Plains. N.Y., Baker & McKenzie, Chicago, Ill., for

Thompson-Hayward.

8

Pana) wn oes oe) SOR See Ke EN ee ate AAS Sst ‘i Te ee seat ~ pase aioe : ark “ :

ho SSO te

79a

Wendell B. Alcorn, Jr., Cadwalader, Wickersham &

Taft, New York City, for Diamond Shamrock.

Townley & Updike, New York City, for Monsanto.

Bud G. Holman and William Krohley, Kelley, Drye &

Warren, New York City, for Hercules, Inc.

Joan Bernott, Dept. of Justice, Washington, D.C., for

third-party defendant U.S.

Roy L. Reardon, James P. Barrett and Michael V. Cor-

rigan, Simpson, Thacher & Bartlett, New York City, for

Ansul Co.

Armand E. Capanna, Lewis, Overbeck & Furman, Chi-

cago, Ill., for Riverdale Chemical Co.

Lawrence D. Lenihan, Thomas B. Kinzler and Alfred

H. Hemmingway, Jr., Arthur Dry & Kalish, P.C., New

York City, for Uniroyal.

Les J. Weinstein, McKenna & Fitting, New York City,

for Occidental Petroleum Co.

William H. Sanders, William A. Lynch and Paul G.

| ane, Blackwell, Sanders, Matheny, Weary & Lombardi,

Kansas City, Mo., for N.A. Phillips.

John M. Fitzpatrick, Dilworth, Paxson, Kalish, Lelvy &

Kauffman, Philadelphia, Pa., for Hooker Chemical Co.

GEORGE C. PRATT, District Judge.

This memorandum and order addresses the following

subjects:

1. Dow’s Motion for Reargument.

Il. Defendants’ Motion for Entry of Final Judgemnet

or Certification.

II. Dow’s Motion to Amend its Third Party Complaint

Against the Government.

80a

—

IV. Motions by Defendants Riverdale, Ansul, Hooker

& Occidental.

V. Motion by Some Plaintiffs’ Counsel for a Steering

Committee.

VI. Dow’s Motion to Decertify the Class.

VII. Statute of Limitations.

VIII. The Government Contract Defense.

IX. Narrowing Claims.

X. Discovery.

XI. Class Notice.

I. Dow’s Motion for Reargument

Dow Chemical Company moves for reargument of

that portion of the court’s December 29, 1980 order which

dismissed defendants’ third party complaints against the

United States. 506 F.Supp. 762. Much of what Dow ar-

gues on this motion has been considered and explicitly re-

jected by the court’s earlier rulings, and the arguments are

equally unpersuasive the second time around. Nor is the

court persuaded to change its view by the subsequent cases

brought to its attention by the parties. Eg., Broudy v.

U.S., 661 F.2d 125 (CA9 1981) (independent post-service

torts actionable including, in some circumstances, post-

discharge failure to warn claim); Lawel/ v. Brown, 524

F.Supp. 8478 (W.D.Mo.1981); Hinkie v. U.S., 524

F.Supp. 277 (E.D.Pa. 1981). Cf. Monaco v. U.S., 661

F.2d 129 (CA9 1981); Jaffee v. U.S., 663 F.2d 1226 (CA3

1981); Lombard v. U.S., 530 F.Supp. 918 (D.C.C.1981).

Finally, contrary to defendants’ assertions, the court an-

ticipates no unusual difficulty in obtaining discovery from

the government as a non-party. The government has une-

8la

quivocally promised complete cooperation and liberal dis-

covery, and despite some apparent misunderstandings, the

government has done nothing to date to cause the court to

doubt its willingness and ability to keep that promise. The

motion is denied.

Il. Defendants’ Motion for Entry of Final Judgment

or Certification.

On December 26, 1980 this court granted the govern-

ment’s motion to dismiss defendants’ third party claims.

Defendants now move for entry of a final judgment of

dismissal of the government pursuant to FRCP 54(b) or, in

the alternative, for an order pursuant to 28 U.S.C.

§ 1291(b) certifying for interlocutory appellate review ques-

tions concerning the dismissal of the United States on

defendants’ third party complaint.

FRCP 54(b) prohibits interlocutory appeals on multiple

claims or by multiple parties without court certification,

but provides that when more than one claim for relief is

presented in an action,

the court may direct the entry of a final judgment

as to one or more but fewer than all of the claims

or parties only upon an express determination

that there is no just reason for delay and upon an

express direction for the entry of judgment.

FRCP 54(b).

Such certification rests in the sound discretion of the

COUrE:

The District Court may, by the exercise of its

discretion in the interest of sound judicial ad-

ministration, release for appeal final decisions

upon one or more, but less than all, claims in

82a

multiple claims actions. The timing of such a

release is, with good reason, vested by the rule

primarily in the discretion of the District Court

as the one most likely to be familiar with the case

and with any justifiable reasons for delay.

Sears, Roebuck & Co. v. Mackey, 351 U.S. 427,

437, 76 S.Ct. 895, 900, 100 L.Ed. 1297 (1956)

(emphasis in original).

Section 1292(b) of 28 U.S.C., the other statute upon

which defendants rely in their quest for interlocutory re-

view, provides that:

When a district judge, in making in a civil action

an order not otherwise appealable under the sec-

tion, shall be of the opinion that such order in-

volves a controlling question of law as to which

there is substantial ground for difference of opi-

nion and that an immediate appeal from the or-

der may materially advance the ultimate termi-

nation of the litigation, he shall so state in wri-

ting in such order. 28 U.S.C. § 1292(b).

Both Rule 54(b) and § 1292(b) wisely contemplate that

the usual course of events will be a single appeal from a

final judgment entered by a district court. This litigation

has already given rise to one round of interlocutory ap-

peals pursuant to § 1292(b), which effectively has caused

nearly two years of delay. Nearly every issue decided in

this massive litigation will impact on numerous parties,

and a different resolution of many of the issues could

have significant ramifications on other steps in the ac-

tion. However, the litigation cannot proceed on an issue-

appeal basis; otherwise, it might never end. The wis-

dom of the general rule — one appeal from a final judg-

ment — is evident here. Later events may obviate the

83a

need for an appeal. Even if plaintiffs ultimately prevail,

defendants may then on appeal test this court’s dismissasl

of the third party claims and, if successful, pursue their

remedies against the government at that time in an appro-

priate non-jury trial. The court concluded, therefore, that

the interests of justice are best served if defendants’ appeal

from dismissal of their claims against the government are

resolved later.

Accordingly, defendants’ motions for entry of final

judgment of dismissal of the government pursuant to

FRCP 54(b), and defendants’ motion for an order pur-

suant to 28 U.S.C. § 1292(b) certifying aspects of this

court’s December 26, 1980 order to the Court of Appeals

for interlocutory review are denied.

lil. Dow’s Motion to Amend its Third Party Complaint

Against the Government.

Defendant Dow moves to amend its previously dis-

missed third party complaint against the government.

pointing out that certain governmental acts may, because

of their nature or the circumstances of their timing, cir-

cumvent the bar of Feres and Stencel Aero with respect to

defendants’ third party claims against the government.

However, at this stage of the litigation, when the court is

being bombarded with numerous multidistrict actions con-

laining virtually every possible theory of recovery, it is dif-

ficult to determine which, if anv, of the alleged govern-

mental acts might give rise to a valid third party action

against the government.

That such claims may be validly asserted at some time in

ihe future does not alter the thrust of the court’s decision

dismissing defendants’ third party claims against the gov-

ernment. Those separate claims have nothing to do with

the common issues at this stage of the MDL litigation, and

84a

they can be fully and fairly considered at a later tirne.

Moreover, Dow is not prejudiced by the government’s ab-

sence at this stage, because it may assert such claims

against the government even after judgment against Dow

in the plaintiff’s actions. If these various individual

theories of recovery are to have impact on this litigation at

all, the impact would come at a time when the causation

issues are being considered. Furthermore, as noted

previously, discovery from the government with respect to

Phase I issues will be unaffected by disposition of this mo-

tion.

For these reasons, defendant Dow’s motion to amend its

third party complaint against the government is denied,

without prejudice to possible renewal after the Phase I is-

sues have been tried and decided, and after the full range

of theories asserted by plaintiffs are better known.

IV. Motions by Defendants Riverdale, Ansul, Hooker

and Occidental.

Defendants Riverdale, Ansul, Hooker, and Occi-

dental have all moved to dismiss all claims against them

on the ground that they never designed, manufactured or

marketed Agent Orange or any phenoxy herbicide for use

in southeast Asia. Nothing has been presented to the court

to establish that any of these defendants did in fact supply

Agent Orange or other herbicides to the government.

Since its motion was filed, defendant Riverdale has in-

dicated its desire to withdraw the motion without pre-

judice, apparently preferring to proceed by way of stipula-

tions with individual plaintiffs that preserve the plaintiffs’

rights to later assert claims should evidence surface to

establish that Riverdale produced Agent Orange or other

phenoxy herbicides for the government’s use in southeast

Asia.

85a

With specific reference to Hooker and Occidental, some

plaintiffs have argued that those companies produced

some of the component chemicals used by other defen-

dants in manufacturing Agent Orange, and that until it

can be determined which materials or processes, if any, ac-

tually caused the harm complained of by plainiffs, it

would be inappropriate to grant summary judgment to the

manufacturer of a component chemical.

At this stage of these actions no practical purpose is

served by having these defendants remain parties on the

possibility that later acquired knowledge may establish a

theory of liability against them. When and if plausible

hases for such liability can be established, there will be am-

ple opportunity to bring in these or other defendants to

participate in the proceedings. On the other hand, the

defendants may wish to participate now on the possibility

that at a later time they may be brought in.

Accordingly, the motions by Ansul, Hooker, and Occi-

dental to dismiss all of the plaintiffs’ complaints against

them are granted as to those defendants who, within 20

days of the date of this order, file with the court a con-

sent to renewal of the action against them by anv present

or future Agent Orange plaintiffs or class members in the

event that evidence should surface during this litigation

that the defendant did manufacture or sell Agent Orange

or some other herbicide to the government, directly or in-

directly, for use in southeast Asia during the period of the

Vietnam war, and agreeing not to raise any statute of

limitations defense that includes any time that passes be-

iween the date of commencement of the first of these

Avent Orange actions and any possible renewal of plain-

iiffs’ claims against it. The waiver of the statute of limita-

Hions must also include any other claim against the defen-

dants’ products which might reasonably be involved in this

86a

litigation.

Any defendant who does not file the consent and waiver

will remain a party defendant in the action. Upon the fil-

ing of such a consent and waiver all of these actions are

dismissed against the filing defendant.

V. Motion by Some Plaintiffs’ Counsel for Steering

Committee.

Attorneys for some plaintiffs move to have the court

establish a steering committee composed of represen-

tatives of veterans’ groups and a combination of attor-

neys from the different “camps” that seem to have arisen

among plaintiffs’ counsel. The court has previously desig-

nated Yannacone & Associates as lead counsel for plain-

tiffs in the many separate actions filed in this MDL liti-

gation. In pretrial order no. 26, 506 F.Supp. 762, 763 (ED-

NY 1980), the court granted plaintiffs’ application to pro-

ceed as a class action and named Yannacone & Associates

as counsel for the c

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