# Appendix — Lombardi v. Dow Chemical Co.

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0911%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1988
- **Citation:** 487 U.S. 1234

## Text

. | ae “oa Court, U.S.
87-4 36 | ,E1

FJ
No. SEP 15 1987
IN THE a

Supreme Court of the United States —

OCTOBER TERM, 1987

VINCENT C. LOMBARDI, et al, Petitioners,
Vv.

DOW CHEMICAL COMPANY, et al., Respondents.

RICHARD PINKNEY, et al., Petitioners,

Vv.

DOW CHEMICAL COMPANY, et al., Respondents.

CLARA FRATICELLI, et al., Petitioners,
Vv.

DOW CHEMICAL COMPANY, et al., Respondents,
and

GERALD HOGAN, Petitioner,
v.

DOW CHEMICAL COMPANY, et a/., Respondents.

In re “Agent Orange” Product Liability Litigation

SINGLE APPENDIX
(Volume II, Pages 621a-791a)

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

iene anne aeatneminaiien

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

a

Vi

Wy

(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) ................ 13Sa

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: Jn re “Agent Orange” Product
Liability Litigation, Lilley v. Dow Chemical Co.,
OO rs Caer I oh rere ke ee oR hahaa ea aens's 580a

Volume II

District Court Opinion: /n re “Agent Orange” Product
Liability Litigation, Fraticelli v. Dow Chemical Co.,
ee SN cw ai renee cd kiana bees 62la

District Court Opinion: /n re “Agent Orange” Produc!
Liability Litigation, Hogan v. Dow Chemical Co..,
ig em 8. ee ee ree 630a

District Court Opinion: /n re “Agent Orange” Product
Liability Litigation, 635 F.2d 987 (1980) ................... 641a

Court of Appeals Opinion: Jn re Diamond Shamrock
Chemicals Co., 725 F.2d 858 (1984) ............ ..... 668a

(ii)
Page

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

Liability Litigation, 818 F.2d 145 (1987) ................... 676a
Court of Appeals Opinion: Jn re “Agent Orange” Product

Liability Litigation, 818 F.2d 187 (1987) ................... 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 (1987) ........ 766a
Court of Appeals Orders Denying Petitions for

OL PIE ee Pee cies 777a
Court of Appeals Orders Staying Issuance of the

I 6 SS xs ca dctewt woratl as cue Cone ey On eee 780a

List of Parties Below:
Crees WED: bo ci exsvene eee oe oe 786a

i

621la

In re “AGENT ORANGE” PRODUCT
LIABILITY LITIGATION.

Clara FRATICELLI, et al., Plaintiffs,
Ve

The DOW CHEMICAL CO., et al.,
the United States of america, etc.,
Defendants.

MDL No. 381.
CVD-82-1734.

United States District Court,
E.D. New York

May 9, 1985.

Robert C. Taylor, Jr., Ashcraft & Gerel, Washington,
D.C., Michael R. Salling, Fernandes, Salling & Salling,
Kapaa. Kauai, Hawaii, for pla ntiffs.

Leonard Rivkin, Rivkin, Leff, Sherman & Radler,
Garden City, N.Y., Philip Pakula, Townley & Updike;
Wendell B. Alcorn, Jr., Cadwalader, Wickersham & Taft;
William Krohley, Kelley, Drye & Warren; Thomas Beck,
Arthur, Dry & Kalish; Bruce Hecker, She & Gould, New
York City, of counsel; David R. Gross, Budd, Larner,
Kent, Gross, Picillo & Rosenbaum, New York City; Paul
V. Esposito, Lewis, Overbeck & Furman, Chicago, III.;
Henry G. Miller, Clark, Gagliardi & Miller, White Plains,
N.Y.; Tany S. Horg, Atty. Gen.; Michael A. Lilly,
Lawrence K. Lau & Gerald C. Yoshi, Deputy Attys. Gen.,
Honolulu, Hawaii; Arvin Maskin, Robert C. Longstreth,
Dept. of Justice, Washington, D.C., for defendants.

622a

WEINSTEIN, Chief Judge.
I. INTRODUCTION

Defendants have moved to dismiss or in the alternative
for summary judgment. They are the seven manufacturers
of Agent Orange; its purchaser, the United States; and the
former Regents of the University of Hawaii which tested
the product. Plaintiffs Clara Fraticelli, wife of William
Fraticelli (deceased), James K. Oshita, and Masao Takat-
suki, sue on behalf of themselves and a class of 35,000 un-
named residents of Kauai County, Hawaii, alleging that
they were all harmed by exposure to Agent Orange.
Jurisdiction is premised on 28 U.S.C. §§ 1331, 1332, 42
U.S.C. § 1983, and the Federal Tort Claims Act, 28
U.S.C. §§ 1346(b), 2671-80. For the reasons stated below,
the motions must be granted.

Il. FACTS

Fraticelli, Oshita, and Takatsuki were civilians
employed at the University’s Kauai Experimental Station
for Tropical Agriculture. Fraticelli worked in the fields as
an Equipment Operator from 1946 until his retirement in
1972. Oshita was similarly employed from 1961 to 1982
and Takatsuki from 1961 to 1980.

In 1966 and 1967 the University, pursuant to a contract
with the United States Department of Defense, conducted
tests by spraying on its fields chemicals including arsenic,
benzol, beryllium, zirconium, cadmium, chrome, lead,
flourine, 2, 3, 7, 8-tetrachlorodibenzo-p-dioxin (“TCDD”
or “Dioxin”) and other herbicides.

All three employees claimed exposure during a 1967 in-
cident. They stood by their tractors, which had been mark-
ed with flags as targets for aerial herbicide spraying, and

623a

were “drenched” by a substance they believe was Agent
Orange manufactured by one or more of the defendants.
They also believe they were exposed on two other occa-
sions. No protective clothing or showers had been pro-
vided.

Fraticelli died in April 1981 as a result of lung and
kidney cancer. He had a history of bladder cancer (which
did not recur after surgery), a metastatic brain tumor,
priapism dating back to 1962, and migraine headaches
dating back to 1946. He drank “2 to 3 shots of whiskey per
day for many years,” had family problems to which he at-
tributed his headaches and tensions, and smoked over one
pack of cigarettes per day, which his doctors told him was
“excessive.” (Hospital Record 7/23/73.)

Oshita was diagnosed as having liver dysfunction in
1969. In 1971 he had a kidney stone and was diagnosed as
having cancer of the bladder, which has not recurred since
surgery at that time. In 1980 chronic hepatitis was present,
and he alleged that he aiso suffered from diabetes, anemia
and chioracne at one time or another. He claims he discon-
tinued “moderate” drinking in 1971 and smoked one pack
of cigarettes per day for over 30 years. His hospital
records indicate no chloracne but do show that he “smokes
at least 1% packs a day and used to drink quite a lot of
alcoholic drinks.” (Hospital Record 11/23/71.) His father
died of stomach cancer at age 60. His maternal grand-
father died of cancer, and his two brothers both have
histories of kidney trouble.

Takatsuki was diagnosed as having cancer involving the
undersurface of the tongue and floor of his mouth in late
1978. He has a 60-80 pack per year history of smoking and
also a moderate alcohol intake, “mostly bourbon.”
(Medical Center Record 10/10/78.) He was treated with

624a

radiation therapy and there has been no recurrence as of
February, 1985. This plaintiff also claims to suffer from
chloracne although there is no mention of this in his
medical records supplied to the court.

In none of the extensive medical records of treating
physicians and hospitals supplied by plaintiffs’ counsel
could the court find any reference to Agent Orange.
Nevertheless, plaintiffs’ expert, Dr. Samuel P. Epstein,
had no doubt that plaintiffs’ various complaints were
caused by Agent Orange even though he had never seen
any of the plaintiffs. See Epstein affidavit, March 9, 1985;
see also the full discussion of Dr. Epstein’s evidence in /n
re “Agent Orange” Product Liability Litigation, 611 F.
Supp. 1223 (E.D.N.Y. 1985). His is the only evidence sup-
porting plaintiffs’ case. The facts in the instant case re-
quire rejection of Dr. Epstein’s proposed testimony. /d.

All three plaintiffs filed workers’ compensation claims
in which they listed each other as witnesses to the claimed
1967 incident and asserted knowledge of the causal nexus
between their illnesses and exposure to chemicals:
Fraticelli’s claim, filed October 1, 1979, asserts knowledge
in September, 1979; Oshita’s claim, filed July 12, 1979,
asserts knowledge on July 11, 1979; and Takatsuki’s
claim, filed January 7, 1981, asserts knowledge at an
unspecified day in January, 1979. Mrs. Fraticelli field a
workers’ compensation death benefit claim on May 28,
1981.

In their workers’ compensation claims plaintiffs
characterize their injuries as having been caused by a host
of toxic substances:

latent slow acting diseases from occupational ex-
posure ito arsenic and/or benzol, and/or
beryllium, and/or zirconium, and/or cadmium,

625a

and/or chrome, and/or lead, and/or fluorine,
and/or other toxis chemicals including but not
limited to dibenzo-p-dioxin (TCDD or Dioxin)
and other toxic herbicides, including but not
limited to phenoxy herbicides.

(Emphasis supplied.)

On April 21, 1982 the State of Hawaii Department of
Labor issued its decision accepting liability in both
Fraticelli claims and awarding his widow compensation in
an aggregate amount of slightly more than $73,000. On
October 19, 1981, the Department awarded James Oshita
slightly more than $23,000 for a period of total disability,
for permanent partial disability, and for disfigurement
from surgical scars. Plaintiff Takatsuki has indicated only
that his workers’ compensation claims were pending;
based upon their common exposure and the Department
of Labor decision as regards Fraticelli and Oshita, it is
assumed, without objection from counsel, that Takatsuki
has also obtained workers’ compensation.

On January 16, 1979 plaintiffs’ Hawaiian counsel en-
tered into an agreement with the Agent Orange Plain-
tiffs’ Management Committee to join in the Agent Orange
Product Liability Litigation, MDL No. 381. Yet plaintiffs
did not file their complaint, Civ. No. 82-0021, in the
Hawaii district court until January 11, 1982. The
Multidistrict Litigation Panel then transferred the Hawaii
action to the Eastern District of New York.

All three plaintiffs submitted administrative claims to
the United States on January 7, 1981. There is no informa-
tion indicating that these claims have been acted upon by
the government.

626a

Ill. LAW
A. Class Action

Plaintiffs in this action fail to meet the prerequisites of a
class action in any respect save numerosity. Fed.R.Civ.
P.23. The population-at-large of Kauai County, Hawaii
cannot make any claim in common with that based on in-
juries sustained by these employees during experiments at
the University of Hawaii. No harm to the residents of
Kauai County from contaminated herbicides has been
shown. Plaintiffs have not demonstrated a common in-
terest with the populace relative to their own work ex-
periences at the Experimental Station. Class certification
was properly denied.

B. Stature of Limitations

Plaintiffs’ claim against the chemical companies and
the University’s Former Regents is governed by the two-
year Hawaii statute of limitations for tort actions, which
provides:

Actions for the recovery of compensation for
damage or injury to persons or property shall be
instituted within two years after the cause of ac-
tion accrued * * *.

Haw. Rev. Stat. § 657-7 (1976).

The Supreme Court of Hawaii has held that a claim ac-
crues when the plaintiff discovers, or reasonably should
have discovered, the “negligent act, the damage, and the
causal connection between the former and the latter.”
Yamaguchi v. Queen’s Medical Center, 65 Haw. 84, 648
P.2d 689, 693-94 (1982).

Plaintiffs Oshita and Takatsuki and plaintiff Fraticelli’s
husband all nnew of the act, the damage and the causal

627a

nexus more than two years prior to the filing of this action
on January 11, 1982. Oshita filed a workers’ compensation
claim for the injuries on July 12, 1979; he stated that he
knew “of his disability resulting from his exposure to”
phenoxy herbicides and dioxin on July 11, 1979. Takat-
suki filed a Workers’ Compensation claim for the injuries

1 January 7, 1981; he stated that he knew “of his disabili-
ty resulting from exposure to” phenoxy herbicides and
dioxin “in January, 1979.” When Fraticelli filed a
Workers’ Compensation claim on October 1, 1979 for his
alleged injuries, he stated that he knew “of his disability,
resulting from exposure” to phenoxy herbicides and dioxin
“in September 1979.”

The latest date on which plaintiffs may be said to have
“discovered” the causal connection was September 1979,
more than two years prior to institution of the Hawaii
district court action. These are all civilian claims. The
certification of veterans’ claims as a class action had no
effect in tolling the statute of limitations. There was no
tolling of the statute by any concealment.

Wrongful death claims must be filed within two years of
the date of death. Haw. Rev. Stat. § 663-3. Fraticeili died
on April 27, 1981. The wrongful death action was timely
filed on January 11, 1982. As indicated below, this claim
must be dismissed for other reasons.

Accordingly, all claims of plaintiffs Oshita and Takat-
suki against the chemical companies and the Former
Regents of the University of Hawaii and all claims of
plaintiff Fraticelli, other than for wrongful death, are bar-
red.

The Federal Tort Claims Act requires, as prerequisite to
suit against the United States, a filing of an administrative

-~

—~ That case did not decide whether potential defenses implicating fed-
eral interests such as the government contract defense would be governed
by federal or state law.

‘Rule 23(b)(1)(B) provides:

(b) Class Actions Maintainable. An action may be main-
tained as a class action if the prerequisites of subdivision (a)
are satisfied and in addition:

(1) the prosecution of separate actions by or against indi-
vidual members of the class would create a risk of

x* * Ke * K *

(B) adjudications with respect to individual members of the
class which would as a practical matter be dispositive of the
interests of the other members not parties to the adjudications
or substantially impair or impede their ability to protect their
interests.

674a

Master, he found that the defendants’ assets are at this time
sufficient to meet a judgment for compensatory damages. He
reasoned, however, that because punitive damages are de-
signed solely to punish rather than to compensate, courts ad-
judicating later individual claims would admit evidence as to
the payment of punitive damages in prior cases. Since this
might induce juries to reduce punitive awards to later claim-
ants, he found that an “adjudication with respect to indi-
vidual members of the class ... would as a practical matter
be dispositive of the interests of the other members not par-
ties to the adjudication.” He then certified a class under Rule
23(b)(1)(B) for the award of punitive damages. Given the
large number of potential claimants, estimated by the Special
Master to be over 40,000 and given the fact that punitive
damages ought in theory to be distributed among the indi-
vidual plaintiffs on a basis other than date of trial, the argu-
ment against his ruling does not justify issuance of a writ of
mandamus.*

Petitioners also attack Chief Judge Weinstein’s provi-
sions for notice to the class, which include written notice to
all plaintiffs and intervenors in actions brought in federal
courts and to all persons currently listed on the Veterans Ad-
ministration’s “Agent Orange Registry.” Provision is also
made for requests to radio and television networks and sta-
tions to broadcast notice, as well as notice by advertising in
a number of newspapers and magazines. Notice is also to be
given to the governors of each state who will be requested to
notify any state organizations dealing with the problems of
Vietnam veternas and then to notify Vietnam veterans ident-
ified by such organizations who may be a member of the
class.

* Subclasses may be necessary here because of variations in state law
governing the award of punitive damages.

675a

Chief Judge Weinstein found this to be the best notice
practicable under the circumstances, a conclusion which, if
not inexorable, is arguably correct, at least before the full re-

sults of the advertising and notice to the governors are
known.

Review of the many issues raised by the class certification
will be available when the ramifications of each aspect of the
ruling will be evident. We decide only that the petition for
mandamus is denied.

676a

In re “AGENT ORANGE” PRODUCT
LIABILITY LITIGATION
MDL NO. 381

Nos. 1140, 1141, 1097, 1139, 1081, 1134, 1135, 1100,
1101, 1098, 1099, 1105, 1106, 1102, 1103, 1115, 1119,
1136, 1122, 1123 1124, 1130, 1133, 1127, 1129, Docket
Nos. 84-6273, 84-6321, 85-6035, 85-6051, 85-6083,
85-6261, 85-6265, 85-6301, 86-6303, 85-6307, 86-6323,
86-6325, 86-6327, 86-6329, 85-6335, 85-6349, 85-6371,
85-6373, 85-6379, 85-6381, 85-6385, 85-6387, 85-6393,
85-6395, 85-6411

United States Court of Appeals,
Second Circuit.

Argued April 9, 1986.
Decided April 21, 1987.

Sherman L. Cohn, Robert A. Taylor, Jr., Washington,
D.C.; Richard L. Steagall, Peoria, Ill.; Benton
Musslewhite, Houston, Tex., Avram G. Adler, Francis
Kelly, Philadelphia, Pa. (Ashcraft & Gerel, Washington,
D.C.; Nicoara & Steagall, Peoria, IIl.; Adler & Kops,
Philadelphia, Pa.; James H. Brannon, Jamison & Bran-
non, Houston, Tex.; Joel Rome, Rome & Glaberson,
Philadelphia, Pa.; Marlene Penny Maynes, Cincinnati,
Ohio; Richard D. Heidemen, Louisville, Ky.; Stephen L.
Toney, Werner, Beyer, Lindgren & Toney, New London,
Wis.; Richard Ellison, Cincinnati, Ohio; James C. Barber,
Dallas, Tex.; William Beatty, Granite City, Ill; John T.
McKnight, Brunswick, Ga.;- Richard L. Gill, Gill &
Brinkman, St. Paul, Minn.; James H. Davis, Los Angeles,
Cal.; Kenneth R. Yoffey, Newport News, Va.; Richard L.
Powell, Augusta, Ga.; Joseph H. Latchum, Jr., Watkins,

677a

Chase, Latchum & Williams, Hampton, Va.; Lula Abdul-
Rahim, Duda, Rahim & Rotto, Oakland, Cal.; Robert D.
Gary, Gary & Duff, Lorain, Ohio; J. Edward Allen,
Forston, Bentley & Griffin, Athens, Ga.; Charles O.
Fisher, Walsh & Fisher, Westminster, Md.; William J.
Risner, Tucson Ariz.; Walter L. Blair, Blair & Starks,
Charles Town, W.Va.; Janet Frazier Phillips, Las Vegas,
Nev.; Russell Smith, Laybourne, Smith, Gore, Akron,
Ohio; H. Muldrow Etheredge, New Orleans, La.; Ford S.
Reiche, Barrett, Reiche & Sheehan, Portland, Me.; Sara
Hayes, Gage & Tucker, Kansas City, Mo.; William
Jorden, Jorden & White, Meadville, Pa.; Eugene P. Cicar-
do, Alexandria, La.; Carry R. Dettloff, Kistner, Schienke,
Staugaard, Warren, Michigan; James H. Bjorum, Cox,
Dodson & Bjorum, Corpus Christi, Tex.; Jack E. Lon-
don, Hollywood, Fla.; James T. Davis, Davis & Davis,
Uniontown, Pa.; Robert W. Kagler, Moundsville, W.Va.;
Michael Radbill, Philadelphia, Pa.; William T. Robinson,
III, Robinson, Arnzen, Parry, Covington, Ky.; William
Jarblum, Jarblum & Solomon, New York City; John R.
Mitchell, Charleston, W.Va.; Dennis A. Koltun, Miami,
Fla., of counsel), for plaintiffs-appellants objectors to the
class settlement.

John C. Sabetta, iownley & Updike, New York City
for appellee Monsanto Co.

George D. Reycraft, Cadwalader, Wickersham & Taft,
New York City, for appellee Diamond Shamrock
Chemicals Co.

Rivkin, Radler, Dunne & Bayh, Garden City, N.Y., for
appellee The Dow Chemical Co.

Kelley Drye & Warren, New York City, for appellee
Hercules Inc.

Clark, Gagliardi & Miller, White Plains, N.Y., for ap-
pellee TH Agriculture & Nutrition Co., Inc.

678a

Shea & Gould, New York City, for appellee Uniroyal,
Inc.

Budd Larner Kent Gross Picillo Rosenbaum Greenberg
& Sade, Short Hills, N.J., for appellee Thompson
Chemicals Corp.

Lawrence G. Sager, New York City; Stephen J.
Schlegel, Chicago, Ill. (Irving Like, Reilly, Like &
Scheneider, Babylon, N.Y.; Edward F. Hayes, III, Abruz-
zo, Clancy & Hayes, Huntington, N.Y.; Clayton P.
Gillette, Boston, Mass.; Thomas W. Henderson, Hender-
son & Goldberg, Pittsburgh, Pa.; David J. Dean, Dean,
Falanga & Rose, Carle Place, N.Y.; Gene Locks, Greitzer
& Locks, Philadelphia, Pa.; Stanley M. Chesley, Waite,
Schneider, Bayless & Chesley, Cincinnati, Ohio; Newton
B. Schwartz, Houston, Tex.; Phillip E. Brown, Hoberg,
Finger, Brown, Cox & Molligan, San Francisco, Cal.;
John O.Quinn, O’Quinn & Hagans, Houston, Tex., of
counsel), for appellee plaintiffs; Management Committee.

Before VAN GRAAFEILAND, WINTER, and
MINER, Circuit Judges.

WINTER, Circuit Judge:

This is the first of nine opinions, all filed on this date,
dealing with appeals from Judge Pratt’s and Chief Judge
Weinstein’s various decisions in this multidistrict litigation
and class action. This opinion begins with a section entitl-
ed “Overview and Summary of Rulings” that summarizes
the entire case and all of our decisions. The next section,
“Detailed History of Proceedings,” gives the background
for all of the appeals. Familiarity with this section may be
necessary to understand the various opinions that follow.
The present opinion also contains our rulings regarding
the certification of a class action and the approval of the
settlement between the plaintiff class and the defendant

679a

chemical companies. Two other opinions by this author
review the propriety of the distribution scheme for the
resultant fund and the grant of summary judgment against
those plaintiffs who opted out of the class action. Three
opinions by Judge Van Graafeiland resolve issues concern-
ing the liability of the United States to veterans, their
families, and the chemical companies. A fourth opinion
by Judge Van Graafeiland reviews the dismissal of actions
brought by civilian plaintiffs against the United States and
the chemical companies. Two opinions by Judge Miner
resolve issues concerning the validity of a fee agreement
among the members of the Plaintiffs’ Management Com-
mittee (“PMC”) and the district court’s award of attorneys’
fees.

Most of the appeals in this litigation were argued on
April 9-10, 1986. The appeal from the adoption of the
distribution scheme, however, was not taken until August
19, 1986 and was not argued until October 1. Because the
issues raised by the latter appeal were in many ways inter-
related with those argued in April, the panel had to sus-
pend consideration of these matters until it heard the
arguments in October.

I. OVERVIEW AND SUMMARY
OF RULINGS

By any measure, this is an extraordinary piece of litiga-
tion. It concerns the liability of several major chemicai
companies and the United States government for injuries
to members of the United States, Australian, and New
Zealand armed forces and their families. These injuries
were allegedly suffered as a result of the servicepersons’
exposure to the herbicide Agent Orange while in Vietnam.

Agent Orange, which contains trace elements of the
toxic by-product dioxin, was purchased by the United

680a

States government from the chemical companies and
sprayed on various areas in South Vietnam on orders of
United States Military commanders. The spraying genera-
ly was intended to defoliate areas in order to reduce the
military advantage afforded enemy forces by the jungle
and to destroy enemy food supplies.

We are a court of law, and we must address and decide
the issues raised as legal issues. We do take note, however,
of the nationwide interest in this litigation and the strong
emotions these proceedings have generated among Viet-
nam veterans and their families. The correspondence to
the court, the extensive hearings held throughout the na-
tion by the district court concerning the class settlement
with the chemical companies, and even the arguments of
counsel amply demonstrate that this litigation is viewed by
many as something more than an action for damages for
personal injuries. To some, it is a method of public protest
at perceived national indifference to Vietnam veterans; to
others, and organizational rallying point for those
veterans. Thus, although the precise legal claims is one for
damages for personal injuries, the district court accurately
noted that the plaintiffs were also seeking “larger remedies
and emotional compensation” that were beyond its power
to award. In re “Agent Orange” Product Liability Litiga-
tion, 597 F.Supp. 740, 747 (E.D.N.Y. 1984).

Central to the litigation are the many Vietnam veterans
and their families who have encountered grievous medical
problems. It is human nature for persons who have cancer
in themselves or serious birth effects in their children to
search for the causes of these personal tragedies. Well-
publicized allegations about Agent Orange have led many
such veterans and their families to believe that the her-
bicide is the source of their current grief. That grief is
hardly assauged by the fact that contact with the herbicide

68la

occurred while they were serving their country in cir-
cumstances that were unpleasant at best, excruciating at
worst.

When the case is viewed as a legal action for personal in-
jury sounding in tort, however — and we are bound by our
oaths to so view it — the most noticeable fact is the per-
vasive factual and legal doubt that surrounds the plain-
tiffs’ claims. Indeed, the clear weight of scientific evidence
casts grave doubt on the capacity of Agent Orange to in-
jure human beings. Epidemiological studies of Vietnam
veterans, many of which were undertaken by the United
States, Australian and various state governments
demonstrate no greater incidence of relevant ailments
among veterans or their families than among any other
group. To an individual plaintiff, a serious ailment will
seem highly unusual. For example, the very existence of a
birth defect may persuade grieving parents as to Agent
Orange’s guilt. However, a trier of fact must confront the
statistical probability that thousands of birth defects in
children born to a group the size of the plaintiff class
might not be unusual even absent exposure to Agent
Orange. A trier of fact must also confront the fact that
there is almost no evidence, even in studies involving
animals, that exposure of males to dioxin causes birth
defects in their children.

Both the Veterans’ Administration and the Congress
have treated the epidemiological! studies as authoritative.
Although such studies do not exclude the posibility of in-
jury and settle nothing at all as to future effects, they offer
little scientific basis for believing that Agent Orange caus-
ed any injury to military personnel or their families. The
scientific basis for the plaintiffs’ case consists of studies of
animals and industrial accidents involving dioxin. Dif-

682a

ference in the species examined and nature of exposure
facially undermine the significance of these studies when
compared with studies of the veterans themselves.

Proving that the ailments of a particular individual were
caused by Agent Orange is also extremely difficult. In-
deed, in granting summary judgment against those plain-
tiffs who opted out of the class action (the “optouts”.) the
district court essentially held that such proof was presently
impossible. The first evidentiary hurdle for such an in-
dividual is to prove exposure to Agent Orange an event
years past that at the time did not carry its current
significance. Such evidence generally consist only of oral
testimony as to an individual’s remembering having been
sprayed while on the ground and/or having consumed
food and water in areas where spraying took place. The
second and, in the view of the district court, insurmoun-
table hurdle is to prove that the individual’s exposure to
Agent Orange caused the particular ailment late en-
countered. Plaintiffs do not claim that Agent Orange
causes ailments that are not found in the population
generally and that cannot result from causes known and
unknown other than exposure to dioxin. Plaintiffs’ proof
of causation would consist largely of inferences drawn
from the existence of an ailment, exposure to Agent
Orange and medical opinion as to a causal relationship.
However, the difficulties in excluding known causes, such
as undetected exposure to the same or similar toxic
substances in civilian life, and the conceded existence or
unknown causes might make it difficult for any plaintiff
to persuade a trier of fact as to Agent Orange’s guilt.
Causation is nevertheless an absolutely indispensabie ele-
ment of each plaintiff’s claim.

The plaintiffs’ claims are further complicated by the fact
that an individual’s exposure to Agent Orange cannot be

683a

traced to a particular defendant because the military mix-
ed the Agent Orange produced by various companies in
identical, unlabeled barrels. No one can determine,
therefore, whether a particular instances of spraying in-
volved a particular defendant’s product. In addition, the
Agent Orange produced by some defendants had a con-
siderably higher dioxin content than that produced by
others. Because the alleged ailments may be related to the
amount of dioxin to which an individual was exposed, it is
conceivable that if Agent Orange did cause injury, only
the products of certain companies could have done so.

Difficult legal problems also arise from the considerable
uncertainty as to which product liability rules and statutes
of limitations apply to the various plaintiffs. The plaintiffs
come from throughout the United States, Australia, and
New Zealand, and each would face difficult choice of law
problems that might be resolved adversely to their claims.

Finally, doubt about the strength of the plaintiffs’
claims exists because of the so-called military contractor
defense. The chemical companies sold Agent Orange to the
United States government, which used it in waging war
against enemy forces seeking control of South Vietnam. It
would be anomalous for a company to be held liable by a
state or federal court for selling a product ordered by the
federal government, particularly when the company could
not control the use of that product. Moreover, military ac-
tivities involve high stakes, and common concepts of risk
averseness are of no relevance. To expose private com-
panies generally to lawsuits for injuries arising out of the
deliberately risky activities of the military would greatly
impair the procurement process and perhaps national
security itself.

An illustration of the many factual and legal difficulties
facing the plaintiffs is the dispute armong their counsel as

684a

to how many “serious” or “strong” claims there are. The
Plaintiffs’ Management Committee (“PMC”) estimates a
much smaller number than do counsel for the class
members who object to the settlement. Neither group has
hard evidence to support its estimates. If by “serious” or
“strong” one means a case likely to prevail on liability and
to result in a substantial damage award, then we believe
that every plaintiff would encounter difficulties in proving
causation and even graver problems in overcoming the
military contractor defense. If a case is considered
“serious” or “strong” because the plaintiff has grave
ailments or has died, then such cases do exist although
their numbers remain in doubt. What is not in doubt is
that the widespread publicity given allegations about
Agent Orange have led to an enormous number of claims
alleging a large variety of highly common ailments. The
illness claimants now attribute to Agent Orange include
not only heart disease, cancer, and birth defects, but also
confusion, fatigue, anxiety, and spotty tanning.

The procedural aspects of this litigation are also ex-
traordinary. Chief Judge Weinstein certified it as a class
action at the behest of most of the plaintiffs and over the
objections of all of the defendants. Certain issues, such as
the damage suffered by each plaintiff, were not, of course,
to be determined in the class action. Instead, they were to
be left to individual trials if the outcome of the class action
proceedings was favorable to the plaintiffs. Some plain-
tiffs opted out of the class action, but their cases remained
in the Eastern District of New York as part of a multidis-
trict referral.

The class certification and settlement caused the number
of claimants and the variety of ailments attributed to
Agent Orange to climb dramatically. It also has caused
disunity among the plaintiffs and increased the controver-

~ ssl |

685a

sy surrounding this case. Correspondence to this court in-
dicates that many of the original plaintiffs, most of whom
joined the motions for class certification, were never ad-
vised that use of the class action device might lead to their
being represented by counsel whom they did not select and
who could settle the case without consulting them. In the
midst of this litigation, original class counsel, Yannacone
& Associates, asked to be relieved for financial reasons.
Control of the class action soon passed to the PMC.Six of
the nine members of the PMC advanced money for ex-
penses at a time when the plantiffs’ case, already weak on
the law and the facts, was near collapse for lack of
resources. This money was furnished under an agreement
that provided that three times the amount advanced by
each lawyer would be repaid from an eventual fee award.
These payments would have priority, moreover, over
payments for legal work done on the case.

The trial date set by Chief Judge Weinstein put the par-
ties under great pressure, and just before the trial was to
start, the defendants reached a $180 million settlement
with the PMC. The size of the settlement seems extraor-
dinary. However, given the serious nature of many of the
various ailments and birth defects, plaintiffs attributed to
Agent Orange, the understandable sympathy a jury would
have for the particular plaintiffs, and the large number of

‘claimants, 240,000, the settlement was essentially a pay-

ment of nuisance value. Although the chances of the
chemical companies’, ultimately having to pay any dam-
ages may have been slim, they were exposed potentially to
billions of dollars in damages if liability was established
and millions in attorney’s fees merely to continue the
litigation.

The district judge approved the settlement. It is clear
that he viewed the plaintiffs’ case as so weak as to be vir-

686a

tually baseless. Indeed, shortly after the settlement, he
granted summary judgment against the plaintiffs who
opted out of the class action on the grounds that they
could not prove that a particular ailment was caused by
Agent Orange and that their claims were barred by the
military contractor defense.

In addition, Chief Judge Weinstein awarded counsel
fees in an amount that was considerably smaller than had
been requested by the attorneys involved. The size of the
award was clearly influenced by his skepticism about
whether the case should ever have been brought.

The final extraordinary aspect of this case is the scheme
adopted by Chief Judge Weinstein to distribute the class
settlement award. That scheme, which is described as
“compensation-based” rather than “tort-based,” allows
veterans who served in areas in which the herbicide was
sprayed and who meet the Social Security Act’s definition
of disabled to collect benefits up to a ceiling of $12,000.
Smaller payments are provided to the survivors of veterans
who served in such areas. No proof of causation by Agent
Orange is required, although benefits are available only
for non-traumatic disability or death. The distribution
scheme also provides for the funding of a foundation to
undertake projects thought to be helpful to members of
the class.

Many of the decisions of the district court were appeal-
ed, and we summarize our rulings here. In this opinion, we
reject the various challenges to the certification of a class
action. Although we share the prevalent skepticism about
the usefulness of the class action device in mass tort litiga-
tion, we believe that its use was justified here in light of the
centrality of the military contractor defense to the claims
of all plaintiffs. We also approve the settlement in light of
both the pervasive difficulties faced by plaintiffs in

687a

establishing liability and our conviction that the military
contractor defense absolved the chemical companies of
any liability. In a second opinion by this author, 818 F.2d
179, we afirm the distribution scheme’s provision for
disability and death benefits to veterans exposed to Agent
Orange and their survivors. We reverse the scheme’s
establishment of a foundation; however, the district court
may on remand fund and supervise particular projects it
finds to be of benefit to the class. A third opinion by this
author, 818 F.2d 187, affirms the grant of summary judg-
ment against the opt-out plaintiffs based on the military
contractor defense. On two grounds we hold that the
chemical companies did not breach any duty to inform the
government of Agent Orange’s hazardous properties.
First, at the time relevant here, the government had as
much information about the potential hazards of dioxin as
did the chemical companies. Second, the weight of present
scientific evidence does not establish that Agent Orange
caused injury to personnel in Vietnam. The chemical com-
panies did not breach any duty to inform the government
and are therefore not liable to the opt-outs.

In an opinion by Judge Van Graafeiland, 818 F.2d 194,
we affirm the district court’s dismissal of actions against
the United States by veterans on the grounds that they are
barred by the Feres doctrine and the discretionary func-
tion exception to the Federal Tort Claims Act. A second
opinion by Judge Van Graafeiland, 818 F.2d 204, affirms
the dismissal of an action against the United States by the
chemical companies seeking contribution or indemnity for
the $180 million they paid in settling with the plaintiff
class. A third opinion, 818 F.2d 210, affirms the dismissal
of civilian actions against the United States on discre-
tionary function grounds and of similar actions against the
chemical companies on statute of limitations and military

688a

_ contractor defense grounds.-A final opinion by the same

author, 818 F.2d 201, affirms the dismissal of the so-called
“direct” claims by families of veterans against the govern-
ment on Feres and discretionary function grounds.

An opinion by Judge Miner, 818 F.2d 216, invalidates
the PMC members’ agreement to repay on an “up front”
basis treble the expenses that any of them advanced. We
hold that this agreement creates a conflict of interest be-
tween the attorneys and the class by generating imper-
missible incentives to settle. A second opinion by Judge
Miner, 818 F.2d 226, affirms the district court’s award of
counsel fees except with regard to the abrogation of one
fee award.

Il. DETAILED HISTORY OF PROCEEDINGS
1) Early Proceedings

Plaintiffs allegedly were exposed to the herbicide Agent
Orange as a consequence of efforts undertaken by the
United States military forces to defoliate the jungle in
Vietnam. One purpose of this defoliation project, known
as “Operation Ranch Hand,” was to clear away foliage
near supply transport lines, power lines, and military
bases, and thus deprive enemy forces of protective cover.
The herbicide was also used to destroy crops available to
the enemy. Some plaintiffs claim to have been directly ex-
posed to the herbicide, while others claim that it conta-
minated the food and water they consumed or the ground
on which they slept.

Although various herbicides were used during the war,
Agent Orange was thought to be best suited for the
military’s purposes and was used most frequently. Agent
Orange was a mixture of the herbicides known as 2,4-D

ri

689a

and 2,4,5-T.' The manufacture of 2,4,5-T is said inevi-
tably to result in the production of dioxin, which is alleged
to be a highly toxic substance. Whether the trace elements
of dioxin in Agent Orange were hazardous to persons in
sprayed areas is sharply disputed. Indeed, the toxicity of
dioxin itself remains a controversial issue. See generally P.
Schuck, Agent Orange on Trial 16-21 (1986); M. Gough,
Dioxin, Agent Orange (1986).

The Agent Orange litigation began is July 1978, with the
filing of a lawsuit by Vietnam veteran Paul Reutershan,
now deceased, in Supreme Court, New York County. The
defendants were several chemical companies alleged to
have manufactured Agent Orange. That case was removed
to federal court and then transferred to the Eastern
District of New York. On January 8, 1979, Reutershan’s
estate filed an amended complaint seeking relief on behalf
of a class of veterans and their families injured by Agent
Orange. Several other complaints alleging similar class
claims were filed in late 1978 and early 1979. In March
1979, counsel for Reutershan’s estate and for defendant
Dow Chemical Co. jointly petitioned pursuant to 28
U.S.C. § 1407(c) (1982) for the establishment of a
multidistrict litigation proceeding. The Judicial Panel on
Multidistrict Litigation established Jn re In re “Agent
Orange” Product Liability Litigation, MDL No. 381, in
the Eastern District of New York. The first cases were
transferred to the Eastern District on May 8, 1979, and
nearly 600 cases have since been transferred. MDL No.
381 was assigned to then District Judge Pratt.

The third amended class complaint in the area des-
ignated by the court as the lead action alleged federal ques-
'“2,4-D” and “2,4,5-T” are the abbreviated names of 2,4-Dichlo-

rophenoxyacetic acid and 2,4,5-Trichlorophenoxyacetic acid respec-
tively.

690a

tion jurisdiction under the “common law and/or the
statuary laws of the United States.” Defendants moved to
dismiss this complaint for want of subject matter jurisdic-
tion. Judge Pratt adopted the federal common law theory
and accordingly denied the motion. Jn re In re “Agent
Orange” Product Liability Litigation, 506 F. Supp. 737,
743-49 (E.D.N.Y. 1979). However, a divided panel of this
court reversed. Jn re In re “Agent Orange” Product
Liability Litigation 635 F.2d 987 2d Cir. 1980), cert.
denied, 454 U.S. 1128, 102 S.Ct. 980, 71 L.Ed.2d 116
(1981). The class action thereafter proceeded in federal
court solely on the basis of diversity jurisdiction under 28
U.S.C. § 1332 (1982).

Defendants next moved for summary judgment based
on the so-called military contractor defense. The motion
contended that the plaintiffs’ claims against the chemical
manufacturers were barred on the grounds:

(1) that they merely manufactured and supplied
Agent Orange to the government pursuant to
validly authorized contracts[;] (2) that Agent
Orange was not manufactured before and has
not been manufactured since; (3) that they com-
pleted their compelled manufacture of Agent
Orange in strict compliance with the specifica-
tions 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 re “Agent Orange” Product Liability Litigation, 506
F. Supp. 762, 795 (E.D.N.Y. 1980).

Although Judge Pratt stated that this defense might be
available to the defendants, id. at 796, he denied defen-

69la

dants’ motion on the ground that their own descriptions of
their contract performance and their relationship to the
government raised issues of fact requiring a trial. Jd.

Judge Pratt planned to hold an initial trial on the
military contractor defense and allowed discovery on this
issue. He stated:

The elements of the defense will be uniquely
adapted to consideration and adjudication, se-
parate and apart from the issues of liability,
causation and damages. As a pract..al matter,
discovery as to these discrete issues will be rather
narrow compared to the discovery that some of
the other fact issues presented by this action may
require.

Id.

In addition, Judge Pratt stated his intention to certify a
class pursuant to Fed.R.Civ.P. 23(b)(3) of “persons who
claim injury from exposure to Agent Orange and their
spouses, children and parents who claim direct or
derivative injury therefrom.” /d. at 788. He noted that “it
may later prove advantageous to create subclasses for
various purposes.” Jd. Judge Pratt rejected plaintiffs’ re-
quest for certification of a “limited fund” class action pur-
suanht to Fed.R.Civ.P. 23(b)(1)(B), on the ground that
plaintiffs had failed to offer evidence that the defendants
were likely to become insolvent if held liable for plaintiffs’
injuries. Jd. at 789-90.

Following eleven months of discovery, defendants Her-
cules, Thompson Chemical, Riverdale Chemical,
Hoffman-Taft, Dow Chemical, TH Agriculture and
Nutrition, and Uniroyal again moved for summary judg-
ment on the military contractor defense. Defendants Mon-
santo and Diamond Shamrock did not join in the motion.
Judge Pratt granted summary judgment to Hercules,

—

692a

Thompson Chemical, Riverdale Chemical, and Hoffman-
Taft, but denied the motions of Dow Chemical, TH
Agriculture and Nutrition, and Uniroyal. Jn re “Agent
Orange” Product Liability Litigation 565 F. Supp. 1263
(E.D.N.Y. 1983). He also concluded that the planned
separate trial on the military contractor defense was not
desirable. He noted that discovery and argument of mo-
tions on the military contractor defense had revealed that
the defense implicated factual issues also central to both
liability and causation and thus should not be tried
separately. Subsequently, defendants Hercules and
Thompson Chemical were reinstated as defendants.

In 1980, Yannacone & Associates, a consortium of
lawyers who banded together for purposes of this litiga-
tion, was designated lead counsel for the representatives of
the plaintiff class. See 506 F. Supp. at 788 n. 32. In 1983,
the firm of Ashcraft & Gerel and attorneys Benton
Musslewhite, Steven Schlegel, and Thomas Henderson
joined Yannacone & Associates as lead counsel for the
representatives of the class. In September 1983, Yan-
nacone & Associates moved to be relieved of its duties as
class counsel, citing an inability to bear the costs
associated with the litigation. This motion was granted.
Ashcraft & Gerel sought to gain control of the case but
failed to do so and withdrew as class counsel. As we
describe infra, Musslewhite, Schlegel, and Henderson then
recruited additional attorneys to the PMC. See generally
Schuck, Agent Orange on Trial at 73-77, 94-95, 102-110.
Although not a member of the PMC, Ashcraft & Gerel has
continued to represent plaintiffs who have opted out of
the class action, certain civilian plaintiff, and certain class
members who object to the settlement.

2) Class Certification.

Judge Pratt’s duties as a newly-appointed member of

693a

this court precluded him from continuing as trial judge,
and in October 1983, Chief Judge Weinstein assumed
responsibility for MDL No. 381. After conferring with the
parties, he ordered the trial of the class claims to begin on
May 7, 1984. He formally certified a Rule 23(b)(3) class,
finding.

(1) that the affirmative defenses and the question
of general causation are common to the class, (2)
that those questions predominate over any ques-
tions affecting individual members, and (3) given
the enormous potential size of plaintiffs case and
the judicial economies that would result from a
class trial, a claim action is superior to all other
method for a “fair and efficient adjudication of
the controversy.”

In re “Agent Orange” Product Liability Litigation, 100
F.R.D. 718, 724 (E.D.N.Y. 1983) (“Class Certification
Opinion.”)

Chief Judge Weinstein defined the plaintiff class as

those persons who were in the United States,
New Zealand or Australian Armed Forces at any
time from 1961 to 1972 who were injured while in
or near Vietnam by exposure to Agent Orange or
other phenoxy herbicides, including those com-
posed in whole or in part of 2,4,5-tri-chloro-
phenoxyacetic acid or containing some amount
of 2,3,7,8-tetrachlorodibenzo-p-dioxin. The
class also includes spouses, parents, and children
of the veterans born before January 1, 1984,
directly or derivatively injured as a result of the
exposure.

Id. at 729.

In addition, Chief Judge Weinstein certified a Rule
23(b)(1)(B) mandatory class on the issue of punitive

694a

damages, though not on the ground, previously rejected
by Judge Pratt, that the claims against the defendants
could render them insolvent. Rather, he reasoned that
because the purpose of punitive damages is not to compen-
sate but to punish, some limits should be imposed on the
amount of punishment meted out to the defendants for a
single transaction. See Roginsky v. Richardson-Merrell,
Inc., 378 F.2d 832, 838 —42 (2d. Cir. 1967) (Friendly, J.)
Chief Judge Weinstein reasoned that punitive damages
might be awarded, if at all, only to the first plaintiffs to
receive a judgment. He concluded that

it would be equitable to share [a punitive damage
award] among all plaintiffs who ultimately
recover compensatory damages. Yet, if no class
is certified under Rule [23](b)(1)(B), non-class
members who opt out under Rule 123(b)(3) would
conceivably receive all of the punitive damages
or, if their cases are not completed first, none at
all.

F.R.D. at 728.

Chief Judge Weinstein also required that plaintiffs’
counsel, at their own expense, provide notice to the
members of the class as follows:

(1) Written notice was to be mailed to (a) all persons
who had filed actions in the federal district courts, or had
filed actions in state courts later removed to federal court,
that were pending in or transferred to the Eastern District;
(b) all persons who had intervened or sought to do so; (c)
each class member then represented by counsel associated
with the PMC who had not yet commenced an action or
sought to intervene; (d) all persons then listed on the
United States Government’s Veterans’ Administration
“Agent Orange Registry”;

(2) Announcements were to be sent to the major radio

” * * * *”

Exhibit A

LEGAL NOTICE TO CLASS MEMBERS
OF PENDENCY OF CLASS ACTION

This notice is given to you pursuant to an Order of the
United States District Court for the Eastern District of |
New York and Rule 23(c)(2) of the Federal Rules of Civil
Procedure. It is to inform you of the pendency of a class
action in which you may be a member of the class, and of
how to request exclusion from the class if you do not wish
to be a class member. None of the claims described below
have been proven. It is contemplated that a trial by court
and jury will take place in this court beginning in May,
1984.

1. There are now pending in the United States District
Court for the Eastern District of New York claims brought
by individuals who were in the United States, New Zea-
land, or Australian Armed Forces assigned to or near Viet-

743a

nam at any time from 1961 to 1972, who allege personal
injury from exposure to “Agent Orange” or other phenoxy
herbicides, including those composed in whole or in part
of 2,4,5-trichlorophenoxyacetic acid or containing some
amount of 2,3,7,8-tetrachlorodibenozo-p-dioxin (collec-
tively referred to as “Agent Orange”).

2. The plaintiffs include spouses, parents, and children
born before January 1, 1984, of the servicepersons who
claim direct or derivative injury as a result of exposure.
Plaintiffs include children asserting claims in their own
right for genetic injury and birth defects caused by their
parents’ exposure to “Agent Orange” and other phenoxy
herbicides. Wives of veterans exposed to “Agent Orange”
in Vietnam seek to recover in their own right for miscar-
riages. Plaintiffs’ theories of liabililty include negligence,
Strict products liability, breach of warranty, intentional
tort and nuisance. Damage claims of family members in-
clude pecuniary loss for wrongful death, loss of society,
comfort, companionship, services, consortium, guidance
and support. In addition, plaintiffs seek punitive damages
for defendants’ alleged misconduct in furnishing herbi-
cides to the United States Government.

3. The defendants, who are alleged to have manufactured
or sold “Agent Orange” to the United States Government,
are Dow Chemical Company, Monsanto Company, T.H.
Agriculture & Nutrition Company, Inc., Diamond Sham-
rock Chemicals Company, Uniroyal, Inc., Hercules Incor-
porated, and Thompson Chemical Corporation. All the
defendants deny that the plaintiffs’ alleged injuries were in
any way caused by “Agent Orange.” They assert that in-
jury, if any, was not caused by a product produced by
them. The defendants have challenged these suits on vari-
ous other grounds including plaintiffs’ lack of standing to
sue, lack of jurisdiction, statutes of limitation, insufficien-

744a

cy in law, plaintiffs’ contributory negligence, and plain-
tiffs’ assumption of known risks. Each has also asserted
such affirmative defenses as the “government contract
defense” and the Government’s misuse of its product. In
third-party complaints, the defendants asserted claims
against the United States of America seeking indemnifica-
tion or contribution in the event the defendants are held
liable to the plaintiffs. The Government has asserted its
power to prevent anyone from suing it.

4. This Court has certified a class action in this pro-
ceeding under Rule 23(b)(3) of the Federal Rules of Civil
Procedure. The plaintiff class consists of those persons
who were in the United States, New Zealand, or Austra-
lian Armed Forces assigned to Vietnam at any time from
1961 to 1972 who were injured while in or near Vietnam by
exposure to “Agent Orange” or other phenoxy herbicides
including those composed in whole or in part of 2,4,5-
trichlorophenoxyacetic acid or containing some amount of
2,3,7,8-tetrachlorodibenzo-p-dioxin. The class also in-
cludes spouses, parents, and children born before January
1, 1984, directly or derivatively injured as a result of the
exposure.

The court may reconsider this decision, by decertifying,
modifying the definition of the class, or creating sub-
classes in the light of future developments in the case. The
definition does not imply a conclusion that anyone within
the class was injured as a result of exposure to any her-
bicide.

5. The court has also certified a Rule 23(b)(1)(B) class
limited to claims for punitive damages. The class includes
the same persons as are in the Rule 23(b)(3) class. The
court has decided not to permit members of the class to
seek exclusion on the issue of punitive damages. You will

H
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7
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745a

therefore be bound by the court’s rulings on punitive dam-
ages whether or not you seek exclusion on the issue of
compensatory damages.

6. Trial of the representative plaintiffs’ claims is schedul-
ed to commence before Jack B. Weinstein, Chief Judge of
the United States District Court for the Eastern District of
New York, and a jury on May 7,1984.

7. If you are a member of the plaintiff class you will be
deemed a party to this action for all purposes unless you
request exclusion from the Rule 23(b)(3) class action
covering compensatory damages.

8. If you do not request exclusion from the class by May
1, 1984, you will be considered one of the plaintiffs of this
classs action for all purposes. You may enter an appear-
ance through counsel of your own choice. You will be rep-
resented by counsel for the class representatives unless you
choose to enter an appearance through your own legal
counsel.

9. Class members who do not request exclusion will
receive the benefit of, and will be bound by, any settle-
ment or judgment favorable to the class covering compen-
satory damages. The class representatives’ attorneys fees
and costs will be paid out of any recovery of compensatory
and other damages obtained by the class members. You
will not be charged with costs or expenses whether or not
vou remain a member of the class. However, if you choose
10 enter an appearance through your own legal counsel,
vou will be liable for the legal fees of your personal coun-
sel.

10. Class members who do not request exclusion will be
bound by any judgment adverse to the class, and will not
have the right to maintain a separate action even if they
have already filed their own action.

746a

11. If you wish to remain a member of the class for all
purposes, you need do nothing at this stage of the pro-
ceedings.

12. If you wish to be excluded from the class for compen-
satory damges, you must sumbit a written request for ex-
clusion. For your convenience, the request for exclusion
may be submitted on the attached form, entitled “Request
for Exclusion.” If you received this notice by mail, a Re-
quest for Exclusion form should have accompanied it. If
you did not receive a Request for Exclusion form, you
may obtain a copy by writing to the Clerk of the Court,
P.O. Box , Smithtown, New York 11787. A written
Request for Exclusion may be submitted without using the
Request for Exclusion form, but it must refer to the litiga-
tion as “In re ‘Agent Orange’ Product Liability Litigation,
MDL No. 381”: include your name and address in your
Statement requesting exclusion. Any request for exclusion
must be received on or before May 1, 1984 by the Clerk of
the United States District Court for the Eastern District of
New York at Post Office Box , Smithtown, New York
11787 or at a federal courthouse in the Eastern District of
New York.

13. Under the court’s Order, all potential plaintiffs are
deemed to be members of a Rule 23(b)(1)(B) class on the
issue Of punitive damages. At the time of trial the court
will determine whether the facts presented warrant the
submission of a punitive damage claim to the jury. In the
event that there is a recovery for punitive damages, it will
be shared by those plaintiffs who are successful in pro-
secuting their claims in this or other suits on a appropriate
basis to be determined by the court. If you choose to ex-
clude yourself from this class action on the issue of com-
pensatory damages, you may do so without necessarily
losing your right to share in any punitive damages.

747a

14. The plaintiffs in this class action are represented by a
group of attorneys who have been tentatively approved by
the Court as the Agent Orange Plaintiffs’ Management

Committee. Members of this committee include:

Phillip E. Brown, Esq.
Hoberg, Finger, Brown,
Cox & Molligan

703 Market St. (18th Floor)
San Francisco, CA 94103

Stanley M. Chesley, Esq.
Waite, Schneider, Bayless
and Chesley Co., L.P.A.
1513 Central Trust Tower
Fourth and Vine Streets
Cincinnati, Ohio 45202

David J. Dean, Esq.

Dean, Falanga & Rose

One Old Country Road

Carle Place, New York 11514

Thomas W. Henderson, Esq.
Baskin & Sears
Frick Building (10th FI.)

Pittsburgh, PA 15219

Benton Musslewhite

Genton Musslewhite, Esq. &
John O. O’Quinn, Esq.

609 Fannin (Suite 517)

Houston, Texas 77002

Stephen J. Schlegel, Esq.
Schlegel & Trafelet, Ltd.
One North LaSalle Street
Suite 3900

Chicago, Illinois 60602

Newton B. Schwartz, Esq.
Houston Bar Center Building
722 Main (Suite 325)
Houston, Texas 77002

David J. Dean, Esq. has been designated by the court as
plaintiffs’ spokesman. The Management Committee is be-
ing aided in its duties of representing the interests of the
plaintiffs by other law firms in the United States and
abroad.

15. Examination of pleadings and papers. This notice is
not all inclusive. References to pleadings and other papers
and proceedings are only summaries. For full details con-
cerning the class action and the claims and defenses which
have been asserted by the parties, you or your counsel may
review the pleadings and other papers filed at the office of

748a

the Clerk of the United States District Court for the East-
ern District of New York, 225 Cadman Plaza East, Brook-
lyn, New York 11201, on any business day from 9:00 a.m.
to 5:00 p.m.

16. Interpretation of this Notice. Except as indicated in
the orders and decisions of the United States District
Court for the Eastern District of New York, no court has
yet ruled on the merits of any of the claims or defenses
asserted by the parties in this class action. This notice is
not an expression of an opinion by the court as to the
merits of any claims or defenses. This notice is being sent
to you solely to inform you of the nature of the litigation,
your rights and obligations as a class member, the steps re-
quired should you desire to be excluded from the class, the
court’s certification of the class, and the forthcoming trial.

Robert C. Heinemann

Clerk, United States District
Court for the Eastern Districdt
of New York

DATED: Brooklyn, New York
January 12, 1984

749a

EXCLUSION REQUEST FORM

Clerk

United States District Court

for the Eastern District of New York
P.O. Box —_

Smithtown, New York 11787

Re: In re “Agent Orange” Product Liability
Litigation MDL No. 381

I hereby request to be excluded from the class action in the above-
captioned matter.

(signature)
ee
Address: Pa SMa

If not a member of the armed forces who served in or near Vietnam,
how are you related to such a serviceperson?

Armed Forces unit of serviceperson _ ag eae a ae daseetdiimmimmnien
Armed Forces identifying number of serviceperson

Period of service in or near Vietnam SIR ey ae EES

| learned about this suit by — _ ; Sees eee er

750a

Exhibit B
(Radio and Television Communication)
SPECIAL ANNOUNCEMENT

Were you or anyone in your family on military duty in or
near Vietnam at any time from 1961 to 1972? If so, listen
carefully to this important message about a pending
“Agent Orange” lawsuit that may affect your rights.

If you or anyone in your family claim injury, illness,
disease, death, or birth defect as a result of exposure to
“Agent Orange,” or any other herbicide in or near Viet-
nam at any time from 1961 to 1972, you are now a member
of a class in an action brought on your behalf in the
United Staes District Court for the Eastern District of New
York, unless you take steps to exclude yourself. The class
is limited to those who were injured by exposure to Agent
Orange or any other herbicide while serving in the armed
forces in or near Vietnam at any time from 1961 to 1972.
The class also includes members of families who claim
derivative injuries such as those to spouses and children.

The court expresses no opinion as to the merit or lack of
merit of the lawsuit. It has ordered that this message be
transmitted to give as many persons as is practicable notice
of this suit.

For details about your rights in this “Agent Orange” class
action lawsuit, call |-800- _, or write to the Clerk of the
United States District Court, Box , Smithtown, New
York 11787. That address again is Clerk of the United
States District Court, P.O. Box __ _, Smithtown, New
York 11787, or call 1-800-___.

75la

EXHIBIT C
(Newspaper and Magazine Notice)

TO ALL PERSONS WHO SERVED IN OR NEAR VIET-
NAM AS MEMBERS OF THE ARMED FORCES OF
THE UNITED STATES, AUSTRALIA AND NEW
ZEALAND FROM 1961-1972

If you or anyone in your family can claim injury, illness,
disease, death or birth defect as a result of exposure to
“Agent Orange” or any other herbicide while assigned in or
near Vietnam at any time from 1961 to 1972, you are a
member of a class in an action brought on your behalf in
the United States District Court for the Eastern District of
New York unless you take steps to exclude yourself from
the class. The class is limited to those who were injured by
exposure to “Agent Orange” or any other herbicide while
serving in the armed forces in or near Vietnam at any time
during 1961-1972. The class also includes members of fami-
lies who claim derivative injuries such as those to spouses
and children.

The court expresses on opinion as to the merit or lack of
merit of the lawsuit. 100 F.R.D. at 729-35.

752a

In re “AGENT ORANGE” PRODUCT
LIABILITY LITIGATION
MDL NO. 381.

Nos. 1085, 1095 and 1104, Dockets
85-6163, 85-6269 and 85-6337.

United States Court of Appeals,
Second Circuit.

Argued April 9, 1986.
Decided April 21, 1987.

** * * &

Before VAN GRAAFEILAND, WINTER, and
MINER, Circuit Judges.

WINTER, Circuit Judge:

This opinion addresses the disposition of 287 appeais in
cases brought by plaintiffs who chose to opt out of the
Agent Orange class action. These cases remained in the
Eastern District of New York after the class settlement as a
result of the multidistrict referral. Chief Judge Weinstein
granted summary judgment against each of the optout plain-
tiffs, most of whom now appeal.' To avoid repetition, this
opinion assumes familiarity with the discussion of the
fairness of the settlement in the first of this series of opi-
nions, 818 F.2d 145, and with Chief Judge Weinstein’s
opinions reported at: 597 F.Supp. 740, 775-99, 819-50
(E.D.N.Y.1984) (Settlement Opinion”); 611 F.Supp. 1223

'The appellants include Anna M. Lilley, an opt-out plaintiff against
whom summary judgment was granted in a separate opinion. See /n re
“Agent Orange” Product Liability Litigation, 611 F.Supp. 1267
(E.D.N.Y. 1985) (“Lilley Opinion”).

753a

(E.D.N.Y.1985) (“Opt-Out Opinion”); and 611 F.Supp.
1267 (E.D.N.Y.1985) (“Lilley Opinion”).

After they had settled with the class, the defendant
chemical companies moved for summary judgment against
the opt-out plaintiffs. Chief Judge Weinstein granted the
motion on the alternative dispositive grounds that no opt-
out plaintiff could prove that a particular ailment was
caused by Agent Orange, see Opt-Out Opinion, 611
F.Supp. at 1260-63; Lilley Opinion, 611 F.Supp. at
1284-85, that no plaintiff could prove which defendant
had manfuactured the Agent Orange that allegedly caused
his or her injury, see Opt-Out Opinion, 611 F.Supp. at
1263; Lilley Opinion, 611 F.Supp. at 1285, and that all the
claims were barred by the military contractor defense. See
Opt-Out Opinion, 611 F.Supp. at 1263-64; Lilley Opinion,
611 F.Spp. at 1285.

The district court’s determination that individual causa-
tion could not be proven was based largely on its conclu-
sion that the expert opinions submitted by the opt-out
plaintiffs were inadmissible. Chief Judge Weinstein held
that the opinions lacked a reliable basis and were therefore
inadmissible under Fed.R.Evid. 703.2 See Opt-Out Opi-
nion, 611 F.Supp. at 1243-55; Lilley Opinion, 611 F.Supp.
at 1280-83. He also found that the opinions were so unre-
liable that the danger of prejudice substantially outweigh-
ed their probative value under Fed.R.Evid. 403.5 See Opt-

?>Fed.R.Evid. 703 provides: -

The facts or data in the particular case upon which an expert bases
an opinion or inference may be those perceived by or made known to
him at or before the hearing. If of a type reasonably relied upon by ex-
perts in the particular field in forming opinions or inferences upon the
subject, the facts or data need not be admissible in evidence.

*Fed.R.Evid. 403 provides:

Although relevant, evidence may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice, contu-

754a

Out Opinion, 611 F.Supp. at 1255-56; Lilley Opinion, 611
F.Supp. at 1283.

The district court’s determination that no plaintiff could
prove which defendant caused his or her particular illness
was based on the undisputed facts that the amount of dio-
xin in Agent Orange varied according to its manufacturer
and that the government often mixed the Agent Orange of
different manufacturers and always stored the herbicide in
unlabeled barrels. See Opt-Out Opinion, 611 F.Supp. at
1263 (citing Settlement Opinion, 597 F.Supp. at 816-44).
The court also rejected sub silentio various theories of
enterprise and alternative liability that it had discussed in
evaluating the settlement. See Settlement Opinion, 597
F.Supp. at 820-28. We do not address either of these
grounds for the grant of summary judgment because we
affirm on the military contractor defense.‘

The district court granted summary judgment on mili-
tary contractor grounds because it found no genuine
factual dispute as to whether the government possessed as
much information as the chemical companies about possi-
ble hazards of Agent Orange at pertinent times. See Opt-
Out Opinion, 611 F.Supp. at 1263. This informtion con-
cerned an association between dioxin exposure and cases
of chloracne and liver damage. We agree with the district
court that the information possessed by the government at
pertinent times was as great as, or greater than, that
possessed by the chemical companies. We add a further
reason for affirming the grant of summary judgment bas-

sion of the issues, or misleading the jury, or by considerations of un-
due delay, waste of time, or needless presentation of cumulative
evidence.

‘Twenty-eight appellants made no evidentiary submission in
response to the motion for summary judgment. We affirm those ap-
peals on causation as well as military contractor grounds.

75Sa

ed on the military contractor defense. Even today, the
weight of present scientific evidence does not establish that
Agent Orange injured personnel in Vietnam, even with re-
gard to chloracne and liver damage. The chemical compa-
nies therefore could not have breached a duty to inform
the government of hazards years earlier.

Our consideration of the military contractor defense has
been greatly impaired by the inexplicable and unjustifiable
failure of the opt-outs’ counsel to brief the issue even
though it was a dispositive ground for the grant of sum-
mary judgment.’ On appeal, their brief offers only the
conclusory statement that “[t]he district court clearly com-
mitted error in holding that the government contract de-
fense presented no genuine issues of material fact.” We are
then referred to 569 pages of deposition excerpts and doc-
uments, which are said to “raise clear questions of material
fact."*> No explanation is given of the relevance of these
materials, however, and we are left in ignorance of appel-
lants’ view of the legal contours of the defense. Appellees,
having no discussion to which they might respond, also do
not address the issue.

‘Counsel have also failed to brief the second ground for granting
summary judgment, the indeterminate defendant issue.

*The opt-outs’ brief states in a footnote:

Plaintiff have placed in the appendix a number of
documents and deposition excerpts which were submitted
in opposition to defendants’ motions for summary judg-
ment [sic]. Those documents and deposition excerpts raise
clear questions of material fact. The Court’s attention is
respectfully commended to JA.1717-24, 1759-1808,
2019-2356, 2392-2560, 2568-71. Plaintiffs regret that page
constraints do not permit further comment on those
documents. See, Master Class Action Brief, pp. 69-70.

We cannot agree that an editing of this 75-page brief, which can hard-
ly be described as tightly written, would not have permitted a discus-
sion of the military contractor issue.

756a

We believe that federal law shields a contractor from
liability for injuries caused by products ordered by the
government for a distinctly military use, so long as it
informs the government of known hazards or the informa-
tion possessed by the government regarding those hazards
is equal to that possessed by the contractor. The military
contractor defense has been the subject of several recent
judicial decisions, see Boyle v. United Technologies
Corp., 792 F.2d 413, 414-15 (4th Cir.1986), cert. granted,
___ U.S. ___., 107 S.Ct. 872, 93 L.Ed.2d 827 (1987);
Tozer v. LTV Corp., 792 F.2d 403 (4th Cir. 1986), petition
for cert. filed, 55 U.S.L.W. 3337 (U.S. Oct. 23, 1986) (No.
86-674); Shaw v. Grumman Aerospace Corp., 778 F.2d
736 (11th Cir. 1985), petition for cert. filed, 54 U.S.L.W.
3632 (U.S. Mar. 17, 1986) (No. 85-1529); Bynum v. FMC
Corp., 770 F.2d 556 (Sth Cir.1985); Tillett v. J.I. Case
Co., 756 F.2d 591, 596-600 (7th Cir.1985); Koutsoubos v.
Boeing Vertol, 755 F.2d 352 (3d Cir.), cert. denied,
U.S. ___, 106 S.Ct. 72, 88 L.Ed.2d 59 (1985); McKay v.
Rockwell Int’l. Corp., 704 F.2d 444 (9th Cir.1983), cert.
denied, 464 U.S. 1043, 104 S.Ct. 711, 79 L.Ed.2d 175
(1984), and has figured prominently in the instant litiga-
tion, see In re Diamond Shamrock Chemicals Co., 725
F.2d 858, 861 (2d Cir.), cert. denied, 465 U.S. 1067, 104
S.Ct. 1417, 79 L.Ed.2d 743 (1984); In re “Agent Orange”
Product Liability Litigation, 597 F.Supp. at 847-50; 580
F.Supp. 690, 701-05 (E.D.N.Y. 1984); 565 F.Supp. 1263
(E.D.N.Y.1983); 534 F.Supp. 1046, 1053-58 (E.D.N.Y.
1982); 506 F.Supp. 762, 792-96 (E.D.N.Y.1980). Our ra-
tionale for the defense is similar to that recently expressed
by the Court of Appeals for the Fourth Circuit:

Traditionally, the government contractor defense
shielded a contractor from liability when acting under
the direction and authority of the United States.
Yearsley v. W.A. Ross Constr. Co., 309 U.S. 18, 20,

757a

60 S.Ct. 413, 414, 84 L.Ed. 554 (1940). In its origina!
form, the defense covered only construction projects,
McKay v. Rockwell Int'l Corp., 704 F.2d 444, 448
(9th Cir.1983), cert. denied, 464 U.S. 1043, 104 S.Ct.
711, 79 L.Ed.2d 175 (1984). Its application to military
contractors, however, serves more than the historic
purpose of not imposing liability on a contractor who
has followed specifications required or approved by
the United States government. It advances the separa-
tion of powers and safeguards the process of military
procurement.

Tozer, 792 F.2d at 405.

Subjecting military contractors to full tort liability
would inject the judicial branch into political and military
decisions that are beyond its constitutional authority and
institutional competence. See Gilligan v. Morgan, 413
U.S. 1, 10, 93 S.Ct. 2440, 2446, 37 L.Ed.2d 407 (1973)
(“The complex, subtle, and professional decisions as to the
composition, training, equipping, and control of a mili-
tary force are essentially professional military judgments,
subject a/ways to civilian control of the Legislative and
Executive Branches.”) (emphasis in original). The alloca-
tion of such decisions to other branches of government
recognizes that military ser ice, in peace as well as in war,
is inherently more dangerous than civilian life. Civilian
judges and juries are not competent to weigh the cost of
injuries caused by a product against the cost of avoidance
in lost military efficiency. Such judgments involve the na-
tion’s geopolitical goals and choices among particular tac-
tics, the need for particular technologies resulting there-
from, and the likely tactics, intentions, and risk-averseness
of potential enemies. Moreover, military goods may utilize
advanced technology that has not been fully tested. See
McKay, 704 F.2d at 449-50 (“in setting specifications for

758a

military equipment, the United States is required by the
exigencies of our defense effort to push technology to-
wards its limits and thereby to incur risks beyond those
that would be acceptable for ordinary consumer goods”).
Whereas judges and juries may demand extensive safety
testing for goods marketed in the civilian sector, such test-
ing could impose costs and delays inconsistent with mili-
tary imperatives.

The procurement process would also be severely im-
paired if military contractors were exposed to liability for
injuries arising from the military’s use of their products.
Military contractors produce goods for the government
according to specifications provided by the government
and for uses determined by the government. As long as the
government is aware of known hazards, the decision to
take the risk is made by the government, and it would be
destructive of the procurement process and thereby detri-
mental to national security itself to hold manufacturers
liable for injuries caused by the military’s use of their
products. Costs of procurement would escalate if contrac-
tors were exposed to liability. Contractors would find in-
surance difficult or impossible to procure, and bankrupt-
cies might occur among companies supplying products es-
sential to national security. Firms would take steps to
avoid entering into government contracts, including resort
to litigation. The effect on procurement would be parti-
cularly acute where claims of toxic exposure might be
made and the number of potential claimants would be im-
possible to determine.

We also note that, absent the shield of the military con-
tractor defense, the legal exposure of the contractor would
be much greater than the exposure of a manufacturer that
sells to a private corporation that uses its product. In the
latter case, the user corportion will also be a defendant

759a

and bear some or all of the exposure. Under Feres v.
United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152
(1950), and Stencel Aero Engineering Corp. v. United
States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665
(1977), however, the government cannot be sued and need
not even cooperate with the contractor in defending per-
sonal injury litigation. Obtaining discovery from the gov-
ernment as a non-party might be difficult or even barred
by aclaim of national security privilege. The military con-
tractor thus faces the great exposure of being the sole
“deep pocket” available. In the instant matter, for exam-
ple, the United States has avoided all claims against it and
has refused to participate in settlement negotiations.
Moreover, while the Veterans’ Administration (“VA”) and
the Congress have declined to recognize any ailments other
than chloracne and porphyria cutanea tarda (“PCT”), a
rare liver disorder, as related to Agent Orange exposure,
see infra, the chemical companies found it prudent to pay
$180 million notwithstanding the weakness of the plain-
tiffs’ case.

At various stages in this litigation, Judge Pratt and Chief
Judge Weinstein articulated somewhat different standards
to govern the military contractor defense. Judge Pratt
Stated that each defendant would be required to prove the
following elements:

1. That the government established the specifica-
tions for “Agent Orange”;

2. That the “Agent Orange” manufactured by the
defendant met the government’s specifictions in all
material respects; and

3. That the government knew as much as or more
than the defendant about the hazards to people that
accompanied use of “Agent Orange”.

760a :

In re “Agent Orange” Product Liability Litigation, 534
F.Supp. at 1055. In elaborating on the third element, Judge
Pratt stated that a defendant could not employ the defense
if it “was aware of hazards that might reasonably have af-
fected the government’s decision about the use of ‘Agent
Orange,’ ” id. at 1057, but failed to disclose them to the
government. /d. at 1058.

After discovery and various motions, Judge Pratt con-
cluded that disputes of material fact were involved in deter-
mining the third element — the relative knowledge possess-
ed by the government and the chemical companies. See /n
re “Agent Orange” Product Liability Litigation, 565
F.Supp. at 1275. However, he concluded that all defen-
dants were entitled to summary judgment with respect to
the first two elements — that-the government established
the specifications for Agent Orange and that the Agent
Orange manufactured by the defendants met these speci-
fications in all material respects. See id. at 1274.

In approving the settlement, Chief Judge Weinstein ad-
dressed the military contractor defense as a potential bar to
recovery by the plaintiffs. See Settlement Opinion, 597
F.Supp. at 843-50. While adopting the first two elements of
the defense as defined by Judge Pratt, he modified the third
element as follows:

A plaintiff would be required to prove, along with the
other elements of his cause of action, that the hazards
to him that accompanied use of Agent Orange were, or
reasonably should have been known, to the defendant.
The burden would then shift to each individual! defen-
dant to prove (1) that the government knew as much
as or more than that defendant knew or reasonably
should have known about the dangers of Agent
Orange or (2), even if the government had had as much
knowledge as that defendant should have had, it

76la

would have ordered production of Agent Orange in
any event and wouid not have taken steps to reduce or
eliminate the hazard.

Id. at 849. “In practical terms,” Chief Judge Weinstein ex-
plained, this standard means “that a defendant would not
be liable despite the fact that it negligently produced a
defective product if it could show either that the govern-
ment knew of the defect or that it would not have acted any
differently even if it had known.” /d. at 850.

We need not define the precise contours of the defense
because we believe that under any formulation, and regard-
less of which party bears the burden of proof, the defend-
ants here were entiled to summary judgment.

Agent Orange was a product whose use required a bal-
ancing of the risk to friendly personnel against potential
military advantage. That balancing was the exclusive re-
sponsibility of military professionals and their civilian
superiors. The responsibility of the chemical companies
was solely to. advise the government of hazards known to
them of which the government was unaware so that the bal-
ancing of risk against advantage was informed.

Given the purpose of the duty to inform, a hazard that
triggers this duty must meet a two-pronged test. First,
the existence of the hazard must be based on a substantial
body of scientific evidence. A court addressing a motion
for summary judgment based on the military contractor de-
fense must thus look to the weight of scientific evidence in
determining the existence of a hazard triggering the dutv to
inform. The hazard cannot be established by mere specu-
lation or idiesyncratic opinion, even if that opinion is held
by one who qualifies as an expert under Fed.R.Evid. 702. A
military contractor is no more obligated to inform the gov-

762a

ernment of speculative risks than it is entitled to claim spe-
culative benefits. Second, the nature of the danger to
friendly personnel created by the hazard must be serious
enough to call for a weighing of the risk against the ex-
pected military benefits. Otherwise, the hazard would not
be substantial enough to influence the military decision to
use the product. Neither prong of the test is satisfied in the
case of Agent Orange.

The use of Agent Orange in Vietnam was believed neces-
sary to deny enemy forces the benefits of jungle conceal-
ment along transportation and power lines and near friend-
ly base areas. Its success as a herbicide saved many, per-
haps thousands of, lives. At the time of its use, both the
government and the chemical companies possessed infor-
mation indicating that dioxin posed some danger to hu-
mans. Indeed, there is evidence that the chemical compa-
nies feared that the presence of dioxin in Agent Orange
might lead the government to restrict the sale of pesticides
and herbicides in the civilian market. See P. Schuck,
Agent Orange on Trial 85-86 (1986). However, the knowl-
edge of the government and the chemical companies re-
lated to chloracne and certain forms of liver damage, ail-
ments now known to be very rare among Vietnam veterans,
and not to the numerous other ailments alleged in the in-
stant litigation. Moreover, for the reasons stated in Chief
Judge Weinstein’s opinions, see Opt-Out Opinion, 611
F.Supp. at 1263; Settlement Opinions, 597 F.Supp. at
795-99, we agree that the critical mass of information
about dioxin possessed by the government during the peri-
od of Agent Orange’s use in Vietnam was as great as or
greater than that possessed by the chemical companies.
Nevertheless, the government continued to order and use
Agent Orange. The second prong of the test is therefore
not met.

763a

Because of the paucity of scientific evidence that Agent
Orange was in fact hazardous, the first prong also is not
met. This is not a case in which a hazard is known to have
existed in hindsight and the issue is whether the defendant
had sufficient knowledge at an earlier time to trigger an
obligation to inform. Rather, this is a case in which subse-
i quent study indicates the absence of any substantial haz-
; ard and therefore negates any claim that the chemical
companies breached a prior duty to inform.

When Agent Orange was being used in Vietnam, there
was some evidence, possessed as we have said by both the
government and the chemical companies, relating chlo-
racne and liver damage to exposure to dioxin. Of course,
the fact that dioxin may injure does not prove the same of
Agent Orange, which contained only trace elements of
dioxin. The precise hazard of the herbicide, if any, was
thus a matter of speculation at the time of its use. Now,
some 15 to 25 years after military personnel were exposed
to Agent Orange, we have considerably more information
about the effects of Agent Orange. As noted in our Opi-
nion upholding the settlement, 818 F.2d 145, and explain-
ed in greater detail in the district court’s opinions approv-
ing the settlement, 597 F.Supp. at 787-95, and granting
Summary judgment against the opt-outs, 611 F.Supp. at
1231-34, epidemiological studies of those very personnel
and their families fail to show that Agent Orange was
hazardous, even with regard to chloracne and liver dam-
age. While the decisions to use Agent Orange were being
made, the most relevant question was not, “What will dio-
xin do to animals?” or even, “What will dioxin do to hu-

; mans exposed to it in industrial accidents?” The most rel-
evant question was, “What will Agent Orange do to friend-
ly personnel exposed to it?” The epidemiological studies
ask the latter question hindsight and answer, “Nothing

ae

764a

harmful so far as can be told.” The fact that the epi-
demiological studies do not exclude the possibility of harm
in isolated or unusual cases or in future cases is of no mo-
ment because it does not constitute evidence material to
the military decisions in question. Hardly any product of
military usefulness is known to be absolutely risk free.
Consequently, the existence of a hazard of which the
government should have been informed remains unproven
to this date, long after the relevant events. Indeed, al-
though chloracne is a leading indicator of exposure to dio-
xin, it is very rare among Vietnam veterans. Accordingly,
there never was information about material hazards that
should have been imparted by the chemical companies to
the government.

The military decision to use Agent Orange was, there-
fore, not ill-informed, much less ill-informed as a result of
any action by the chemical companies. This conclusion is
underscored by the actions of the VA and the Congress in
addressing claims by veterans asserting injury by Agent
Orange. The VA has recognized only chloracne and PCT
as ailments related to Agent Orange. By May 1984, it had
granted only 13 chloracne and two PCT claims. It later
concluded that none of the 13 chloracne claims actually in-
volved chloracne. See Settlement Opinion, 597 F.Supp. at
856 (citing remarks of Senator Cranston). In adopting the
Veterans’ Dioxin and Radiation Exposure Compensation
Standards Act, Pub.L. No. 98-542, 98 Stat. 2725 (1984),
Congress declined to compensate veterans claiming ex-
posure to Agent Orange for ailments other than chloracne
and PCT. It thus rejected earlier versions of the Act that
would have compensated such veterans for other medical
conditions, including soft tissue sarcomas and birth de-
fects. See M. Gough, Dioxin, Agent Orange 225 (1986);
Settlement Opinion, 597 F.Supp. at 855-57 (E.D.N.Y.
1984) (discussing earlier legislation).

765a

The VA and the Congress thus continue to act on the
factual conclusion that Agent Orange was hazardous, if at
all, only with regard to chloracne and PCT. We believe
these actions further demonstrate that the military deci-
sion to use Agent Orange was fully informed. To hold the
chemical companies liable in such circumstances would be
unjust to them and would create a devastating precedent
so far as military procurement is concerned.

Affirmed.

766a

In re “AGENT ORANGE” PRODUCT
LIABILITY LITIGATION.

Gerald HOGAN, M.D.,
Plaintiff-Appellant,

The DOW CHEMICAL COMPANY; Diamond Sham-
rock Chemicals Company; Hercules Incorporated;
Monsanto Company; T H Agriculture & Nutrition
Company, Inc.; and Uniroyal, Inc., Defendants-
Appellees.

Clara FRATICELLI, et al.,
Plaintiffs-Appellants,

The DOW CHEMICAL COMPANY; Diamond Sham-
rock Chemicals Company; Hercules Incorporated;
Monsanto Company; T H Agriculture & Nutrition
Company, Inc.; Uniroyal, Inc.; the United States of
America; and Ten Former Regents of the University of
Hawaii, Defendants; Appellees.

Nos. 1084, 1110, 1111 and 1137, Dockets 85-6161, 86-
6223, 86-6339 and 86-6341.

United States Court of Appeals,
Second Circuit.

Argued April 10, 1986.

Decided April 21, 1987.

767a

Before VAN GRAAFEILAND, WINTER and MI?- ER,
Circuit Judges.

VAN GRAAFEILAND, Circuit Judge:

The above captioned appeals raise a number of issues
distinct from that of causal relation, the dominant issue in
most Agent Orange cases, and will be disposed of largely
on the basis of those unrelated issues. The appeals are
from a dismisssal pursuant to Fed. R. Civ. P _7(b)(2) and
from summary judgments, granted by Chief Judge Weins-
tein of the United States District Court for the Eastern
District of New York in opinions reported at 611 F. Supp.
1290 and 611 F. Supp. 1285. The Rule 37(b)(2) dismissal
was against Dr. Gerald Hogan, a resident of Nevada. The
summary judgments dismissed the complaints of three
residents of Hawaii, James K. Oshita and Masao Takat-
suki, who sue for personal injuries, and Clara Fraticelli,
who sues for the wrongful death of her husband, William.
Our discussion of the background and procedural history
of this litigation appears in Judge Winter’s lead opinion,
818 F.2d 145. For purposes of convenience, the appeals
were briefed and argued together.

THE HOGAN APPEAL

In 1966, Gerald Hogan, a thirty-five-year old doctor,
spent four months in Vietnam under contract with the
United States Agency for International Development. For
one month, he worked at a civilian hospital in Da Nang.
During the remaining three months, he was a patient in a
United States hospital in the same city. He now claims that
a variety of illnesses from which he suffers were caused by
exposure to Agent Orange which had accumulated on the
clothing of native patients or was carried by dust in the air.

In 1981, Dr. Hogan sued to recover for his injuries, and,

768a

in due course, his case became part of the multidistrict
litigation in the Eatern District of New York. On March
15, 1985, the magistrate appointed by Chief Judge Weins-
tein to control discovery ordered that Dr. Hogan’s oral
deposition be taken on March 21 and 22. The deposi-
tion was commenced in the yard of Dr. Hogan’s home
but was discontinued after several hours when Dr. Ho-
gan, claiming that he was suffering from cardiac ar-
rhythmia (an alteration in the rhythm of the heart beat),
refused to continue. The magistrate ordered plaintiff ex-
amined by an independent physician, who reported that
the deposition could be continued without adversely
affecting the plaintiff's health. Nonetheless, with a con-
ceded understanding of the possible consequences of his
refusing to continue with the deposition, Dr. Hogan refus-
ed. The district court found that plaintiffs claim of ill
health was unfounded, “an excuse to prevent being embar-
rassed by a searching deposition”, and a “blatant attempt
to frustrate discovery.” 611 F. Supp. at 1294-95.

In view of the district court’s factual findings, which
are not clearly erroneous, and Dr. Hogan’s awareness of
the consequences of his refusal to obey the magistrate’s
order, we reject Dr. Hogan’s contention that the district
court erred in dismissing his complaint. Although
dismissal unquestionably was strong medicine, the “[h]ar-
shest of all . . . orders,” Cine Forty-Second Street Theatre
Corp. v. Allied Artists Pictures Corp., 602 F.2d 1062,
1066 (2d Cir. 1979), disposition of the almost un-
precedented volume of Agent Orange cases would be inter-
minably delayed if the participants were permitted to
disobey court orders with little fear of sanction. In litiga-
tion of such epic proportions as this, it is particularly im-
portant that “the most severe in the spectrum of sanctions
provided by statute or rule must be available to the district

sca Sane oe WA

eae i

oe |e see

769a

court ..., not merely to penalize those whose conduct
may be deemed to warrant such a sanction, but to deter
those who might be tempted to such conduct in the
absence of such a deterrent.” National Hockey League v.
Metropolitan Hockey Club, Inc., 427 U.S. 639, 643, 96S.
Ct. 2778, 2781, 49 L. Ed. 2d 747 (1976); see United States
Freight Co. v. Penn Central Transp. Co., 716 F.2d 954 (2d
Cir. 1983) (per curiam); Trans World Airlines, Inc. v.
Hughes, 332 F.2d 602, 615 (2d Cir. 1964), cert. dis-
missed, 380 U.S. 248 and 249, 85 S.Ct. 934, 13 L.Ed.

~ 2d 817 and 818 (1965). The judgment of the district court

is affirmed.

THE HAWAIIAN APPEALS

In 1967, while James Oshita, Masao Takatsuki and
William J. Fraticelli were working for the University of
Hawaii at its College of Tropical Agriculture and Human
Resources, they allegedly sustained injuries caused by ex-
posure to Agent Orange which was being tested in the
fields by University employees. All three filed Worker’s
Compensation claims, Oshita and Fraticelli in 1979 and
Takatsuki in 1981, and all were awarded benefits.
Fraticelli died in April 1981. On January 12, 1981, Oshita
and Takatsuki presented administrative claims to the
United States pursuant to 28 U.S.C. § 2401(b), no such
claim has been filed by Fraticelli’s widow, Clara. On
January 11, 1982, Oshita, Takatsuki and Clara Fraticelli,
on behalf of herself and her husband’s estate, commenced
this suit in the United States District Court for the District
of Hawaii seeking relief not only for themselves but also
for a proposed class consisting of everyone on the Island
of Kauai who had been exposed to Agent Orange. In addi-
tion to the several chemical companies which allegedly

770a

manufactured the injurious herbicide, the complaint nam-
ed as defendants ten Regents or former Regents of the
University of Hawaii, together with the United States and
its Department of Defense. Over the objection of the
plaintiffs, the case was transferred to the Eastern District
of New York by the Judicial Panel on Multidistrict Litiga-
tion.

In Hawaii, an action for personal injuries must be
brought within two years after the cause of action accrues.
Haw. Rev. Stat. § 657-7. A claim accrues under this
statute when the plaintiff discovers or reasonably should
have discovered the complained of act, the injury and the
causal connection between the two. Yamaguchi v. Queen’s
Medical Center, 65 Haw. 84, 648 P.2d 689 (1982). The
district court held that, insofar as the plaintiffs’ personal
injury claims were concerned, the two-year statute, started
to run no later than 1979, and appellants concede that the
Hawaiian statute, standing alone, wouid have barred their
common-law personal injury claims prior to the bringing
of their suits in 1982. However, relying on American Pipe
& Constr. Co. v. Utah, 414 U.S. 538, 94S. Ct. 756, 38 L.
Ed. 2d 713 (1974), and Crown, Cork & Seal Co., Inc. v.
Parker, 462 U.S. 345, 103 S. Ct. 2392, 76 L. Ed. 2d 628
(1983), they contend that the running of the statute was
tolled by the bringing of the principal Agent Orange class
action. This reliance is misplaced.

The limitation periods of American Pipe and Crown,
Cork were derived from federal statutes. Here, we are
dealing with Hawaii’s limitation statutes. Because none of
them provides for tolling in a situation such as exists here,
it is doubtful that either American Pipe or Crown, Cork
can be treated as applicable precedent. See Chardon v.
Fumero Soto, 462 U.S. 650, 660-62, 103 S. Ct. 2611,

T71a

2618-19, 77 L. Ed. 2d 74 (1983); Board of Regents v.
Tomanio, 446 U.S. 478, 483-86, 100 S. Ct. 1790, 1794-96,
64 L. Ed. 2d 440 (1980); Johnson vy. Railway Express
Agency, Inc. 421 U.S. 454, 466-67, 95 S. Ct. 1716, 1723,
44 L.Ed.2d 295 (1975).

We note, however, Justice Rehnquist’s categorical state-
ment in his Chardon dissent that “[i]f the law of a par-
ticular State was that the pendency of a class action did
not toll the statute of limitations as to unnamed class
members, there seems little question but that the federal
rule of American Pipe would nonetheless be applicable.”
462 U.S. at 667, 103 S. Ct. at 2621. Assuming that for “the
purposes of litigatory efficiency served by class actions”,
Johnson, supra, 421 U.S. at 467 n. 12, 95 S. Ct. at 1723 n.
12, the district court agreed with this observation, Oshita’s
and Takatsuki’s claims against the chemical companies
still were properly barred.

In American Pipe, the Court declared the pertinent toll-
ing rule to be that the commencement of a class action
tolls the applicable statute of limitations “as to all asserted
members of the class who would have been parties had the
suit been permitted to continue as a class action.” 414 U.S.
at 554, 94S. Ct. at 766. In the instant case, the principal
Agent Orange action upon which these personal injury
claimants base their claim of tolling was certified as a class
action and continued as such until it was settled. These
Hawaiian claimants never became part of that action. In-
stead, as stated above, they attempted unsuccessfully to
initiate their own class action on behalf of the populace of
Kauai. Moreover, their attorney, in an affidavit opposing
the removal of their action to the Eastern District of New
York, stated that the issues involved in the Hawaiian
plaintiffs’ suit were “substantially different” from those
in the other actions and that the causes of action were

772a

“separate and distinct” from those in the already-removed
actions. To some extent, at least, he was correct.

From the very outset, the district court recognized the
principal Agent Orange class action as one brought on
behalf of “Vietnam war veterans and members of their
families claiming to have suffered damage as a result of
the veterans’ exposure to herbicides in Vietnam.” 506 F.
Supp. 762, 768. This recognition was based upon a fair
reading of the original class action complaints. The class
which the district court certified consisted of such
veterans, their spouses, parents, and children, who were
injured as a result of the veterans’ Vietnam exposure. i00
F.R.D. 718, 731-32.

The intent of the American Pipe rule is to preserve the
individual right to sue of the members of a proposed class
until the issue of class certification has been decided.
Crown, Cork, supra, 462 U.S. at 354, 103 S. Ct. at 2398
(Powell, J., concurring). Its purpose is not to toll the
statute of limitations for persons such as these Hawaiian
plaintiffs who were not members of either the proposed or
certified class. The district court did not err therefore in
dismissing the personal injury claims as against the
chemical companies and the University of Hawaii
Regents. However, because Mrs. Fraticelli’s cause of ac-
tion for the wrongful death of her husband did not accrue
until his death in 1981, Haw. Rev. Stat. § 663-3, her action
against the chemical companies, brought in 1982, was not
barred by the two-year personal injury statute of limita-
tions, Haw. Rev. Stat. § 657-7.

Dismissal of all personal injury and related wrong-
ful death claims against the Regents was required be-
cause the Hawaiian compensation statute provides the
exclusive remedy against fellow employees for work-

_a

773a

related injuries. Haw. Rev. Stat. § 386-5. Appellants’
claim under 42 U.S.C... § 1983 against the Regents, based
on the same injuries, is so devoid of merit, see Daniels v.
Williams, 474 U.S. 327, 106 S. Ct. 662, 88 L. Ed. 2d 662
(1986); McClary v. O’Hare, 786 F.2d 83 (2d Cir. 1986),
that appellants do not even contend on appeal that their
action against the Regents should be reinstated.

Although the timeliness of actions against the United
States is not governed by the Hawaiian statute of limit-
ations, section 2401(b) of 28 U.S.C. provides time li-
mitations that are more restrictive in that they are juris-
dictional in nature. That section provides in substance
that a tort claim against the United States is barred unless
made in writing to the appropriate federal agency within
two years after the claim accrues and an action is brought
thereon within six months after the claim is denied. The
burden is on the plaintiff to both plead and prove com-
pliance with the statutory requirements. McNutt vy.
General Motors Acceptance Corp., 298 U.S. 178, 182, 56
S. Ct. 780, 782, 80 L. Ed. 1135 (1936); Altman v. Connal-
ly, 456 F.2d 1114, 1116 (2d Cir. 1972) (per curiam); Bruce
v. United States, 621 F.2d 914, 918 (8th Cir. 1980);
Clayton v. Pazcoquin, 529 F. Supp. 245, 247-49 (W.D.
Pa. 1981). Intthe absence of such compliance, a district
court has no subject matter jurisdiction over the plaintiff’s
claim. Wyler v. United States, 725 F.2d 156, 159 (2d Cir.
1983).

Plaintiffs complaint does not allege that the filing
requirements of section 2401(b) were complied with.
Moreover, it appears to be conceded that Mrs. Fraticelli
did not file a claim for her husband’s death. Because of
Mrs. Fraticelli’s failure to file, her complaint against the
United States should have been dismissed for lack of
jurisdiction. Gallick v. United States, 542 F. Supp. 188,

774a

191 (M.D. Pa. 1982). However, the Government concedes
that Oshita and Takatsuki filed claims, and therefore the
complaint could be amended upon remand to allege that
fact. Accordingly, we will assume an amendment and ad-
dress their claims on the merits.!

A_ well-recognized exception to the Government’s
waiver of immunity for tort liability is the “discretionary
function” exception found in 28 U.S.C. § 2680(a). The
governmental acts of which the Hawaiian plaintiffs com-
plain fall within this exception. It cannot be serioiusly con-
tended that the decision to use Agent Orange as a defoliant
was anything but a discretionary act. In pursuance of this
decision, the Government entered into a contract with the
University of Hawaii to perform field tests with the her-
bicide. Plaintiffs, who claim to have been injured during
the course of those field tests, cannot remove them from
the category of discretionary functions by vague and ir-
relevant allegations of negligent labeling, shipping, handl-
ing, etc. See Dalehite v. United States, 346 U.S. 15, 37-45,
73 S. Ct. 956,-969-72, 97 L. Ed. 1427 (1953); First Na-
tional Bank in Albuquerque v. United States, 552 F.2d
370, 374-77 (10th Cir.), cert. denied, 434 U.S. 835, 98 S.
Ct. 122, 54 L. Ed. 2d 96 (1977).

The Supreme Court’s holding in Dalehite is summarized
well in United States v. S.A. Empresa De Viacao Aerea
Rio Grandense (Varig Airlines), 467 U.S. 797, 810-11, 104
S. Ct. 2755, 2762-63, 81 L. Ed. 2d 660 (1984), where Chief
Justice Burger, writing for the Court, said:

Dalehite involved vast claims for damages
against the United States arising out of a
disastrous explosion of ammonium nitrate fer-

'If addressed on the merits, Mrs. Fraticelli’s claim would be dis-
posed of in the same manner as Oshita’s and Takatsuki’s.

SERN pence —
nee haa .stm

775a

tilizer, which had been produced and distributed
under the direction of the United States for ex-
port to devastated areas occupied by the Allied
Armed Forces after World War II. Numerous
acts of the Government were charged as
negligent: the cabinet-level decision to institute
the fertilizer export program, the failure to ex-
periment with the fertilizer to determine the
possibility of explosion, the drafting of the basic
plan of manufacture, and the failure properly to
police the storage and loading of the fertilizer.

The Court concluded that these allegedly
negligent acts were governmental duties pro-
tected by the discretionary function exception
and held the action barred by § 2680(a).

In Varig, the Court held that the failure of Federal Avia-
tion Administration employees to check certain potentially
dangerous items in certifying the safety of an airplane was
the exercise of a discretionary function for which the
Government was not liable. 467 U.S. at 820, 104 S.Ct. at
2767. :

These two decisions teach us that, where, as here, the
Government is performing a discretionary function, the
fact that discretion is exercised in a negligente manner
does not make the discretionary function exception inap-
plicable. See also Cisco v. United States, 768 F.2d 788, 789
(7th Cir. 1985); Begay v. United States, 768 F.2d 1059,
1062-66 (9th Cir. 1985); General Public Utilities Corp. v.
United States, 745 F.2d 239, 243, 245 (3d Cir. 1984), cert.
denied, 469 U.S. 1228, 105 S. Ct. 1227, 84 L. Ed. 2d 365
(1985); Green v. United States, 629 F.2d 581, 585-86 (9th
Cir. 1980).

The dismissal of appellant Hogan’s complaint pur-
suant to Fed. R. Civ. P. 37(b)(2) is affirmed. The sum-

776a

mary judgment in favor of appellees and against ap-
pellants, Oshita and Takatsuki, is affirmed. The chemical
companies moved for summary judgment against Mrs.
Fraticelli on the ground that her claim was barred by the
military contractor defense. The district court did not rule
upon this claim, and we address it only in general terms.
Mr. Fraticelli was a civilian. Nevertheless, his exposure to
Agent Orange occurred after the United States govern-
ment had purchased the herbicide and while the govern-
ment was testing it for military use. We believe, therefore,
that the military contractor defense, as discussed in Judge
Winter’s opinion affirming summary judgment against the
opt-out plaintiffs, 818 F.2d 187, applies to Mrs. Fraticelli’s
claim. We vacate the dismissal of her claim and remand to
the district court for a determination on the motion for
summary judgment. The summary judgment dismissing
Fraticelli’s cause of action against the United States is
vacated and this cause of action is remanded to the district
court with instructions to dismiss for lack of jurisdiction.
No costs to any party.

777a

UNITED STATES COURT OF APPEALS
SECOND CIRCUIT

; At a stated term of the United States Court of Appeals,

) in and for the Second Circuit, held at the United States
Courthouse, in the City of New York, on the 3rd day of
June one thousand nine hundred and eighty-seven.

IN RE:
‘“*AGENT ORANGE”’
PRODUCT LIABILITY Docket No.
| LITIGATION 85-6163* ,85-6269,
85-6337

fee ee @€e ea 42668 6 666 86 6°58. 8.8 8 6 8 2 2 2 ee

A petition for rehearing containing a suggestion that the
action be reheard in banc having been filed herein by
counsel for the Persons Who Opted Out Of The Class Ac-
tion.

Upon consideration by the panel that heard the appeal,
it is

Ordered that said petition for rehearing is DENIED.

It is further noted that the suggestion for rehearing in
banc has been transmitted to the judges of the court in
regular active service and to any other judge that heard the
appeal and that no such judge has requested that a vote be
taken thereon.

Elaine B. Goldsmith
Filed: June 3, 1987 Clerk

a

778a

UNITED STATES COURT OF APPEALS
SECOND CIRCUIT

At a stated term of the United States Court of Appeals,
in and for the Second Circuit, held at the United States
Courthouse, in the City of New York, on the Sth day of
June one thousand nine hundred and eighty-seven.

See eeoG 22689. 82 8606.6 64.6682 86 Oa 626 4.6.6 8 2:6

IN RE:

*“*AGENT ORANGE”’
PRODUCT LIABILITY Docket No. 84-6273*
LITIGATION (L)

A petition for rehearing containing a suggestion that the
action be reheard in banc having been filed herein by
counsel for the Objectors to the Class Action Settlement.

Upon consideration by the panel that heard the appeal,
it is
Ordered that said petition for rehearing is DENIED.

It is further noted that the suggestion for rehearing in
banc has been transmitted to the judges of the court in
regular active service and to any other judge that heard the
appeal and that no such judge has requested that a vote be
taken thereon.

Elaine B. Goldsmith
Filed: June 5, 1987 Clerk

779a

UNITED STATES COURT OF APPEALS
SECOND CIRCUIT

At a stated term of the United States Court of Appeals,
in and for the Second Circuit, held at the United States
Courthouse, in the City of New York, on the 3rd day of
June one thousand nine hundred and eighty-seven.

9neag€2 6268 4288 2068646466664 684846 6.6 4 8 8

IN RE:
*““AGENT ORANGE”’
PRODUCT LIABILITY Docket No. 85-6339
LITIGATION 85-6341
85-6161
85-6223

A petition for rehearing containing a suggestion that the
action be reheard in banc having been filed herein by
counsel for the Appellants—Dr. Gerald Hogan and the
Hawaiian Plaintiffs.

Upon consideration by the panel that heard the appeal,
it is

Ordered that said petition for rehearing is DENIED.

It is further noted that the suggestion for rehearing in
banc has been transmitted to the judges of the court in
regular active service and to any other judge that heard the

appeal and that no such judge has requested that a vote be
taken thereon.

Elaine B. Goldsmith
Filed: June 3, 1987 Clerk

~

780a

United States Court of Appeals

FOR THE SECOND CIRCUIT

NOTICE OF MOTION
FOR CONTINUED STAY OF MANDATE

In re “Agent Orange”: : Nos:

: 84-6273, 84-6321, 85-6035,
Product Liability Litigation + 85-6051, 85-6083, 85-6261,
(Objectors to the Class Action : 85-6265, 85-6301, 85-6303,

Settlement) : 86-6307, 85-6323, 85-6325,
: 85-6327, 85-6329, 85-6335,
85-6349, 85-6371, 85-6373,
85-6379, 85-6381, 85-6385,
85-6387, 86-6393, 85-6395,
85-6411

MOTION BY: Wayne M. Mansulla, Esq.
- ASHCRAFT & GEREL

2000 L Street, N.W. #700

Washington, D.C. 20036

Brief Statement Of The Relief Requested:

Appellants request that this Court continue its Stay of
Mandate issued on July 17, 1987 until the United States
Supreme Court rules on Appellants’ Petition for Writ of
Certiorari.

By: Appearing For: Date:
Objectors to the Class 8/5/87
Wayne M. Mansulla Action Settlement
ORDER

Before: Hon. Ellsworth A. VanGraafeiland, Hon.
Ralph K. Winter and Hon. Roger J. Miner,
Circuit Judges.

781a
IT IS HEREBY ORDERED that the motion be and it
hereby is GRANTED.

Filed: August 7, 1987 FOR THE COURT:
Elaine B. Goldsmith, Clerk

782a

United States Court of Appeals

FOR THE SECOND CIRCUIT

NOTICE OF MOTION
FOR CONTINUED STAY OF MANDATE

In re “Agent Orange”:
: Nos:
Product Liability Litigation : 85-6339, 85-6341, 85-6161,
(Dr. Gerald Hogan & The Hawaiian : 85-6223
Plaintiffs) :

MOTION BY: Wayne M. Mansulla, Esq.
ASHCRAFT & GEREL
2000 L Street, N.W. #700
Washington, D.C. 20036

Brief Statement Of The Relief Requested:

Appellants request that this Court continue its Stay of
Mandate issued on July 17, 1987 until the United States
Supreme Court rules on Appellants’ Petition for Writ of
Certiorari.

By: Appearing For: Date:
Dr. Gerald Hogan & Hawaiian 8/5/87
Wayne M. Mansulla Plaintiffs
ORDER

Before: Hon. Ellsworth A. VanGraafeiland, Hon.
Ralph K. Winter and Hon. Roger J. Miner,
Circuit Judges.

IT IS HEREBY ORDERED that the motion be and it
hereby is GRANTED.

Filed: August 7, 1987 FOR THE COURT:
Elaine B. Goldsmith, Clerk

Nee TEESE sala

783a

United States Court of Appeals

FOR THE SECOND CIRCUIT

NOTICE OF MOTION
FOR CONTINUED STAY OF MANDATE

In re “Agent Orange”:

Product Liability Litigation : Nos:

(Persons who Opted-Out Of : §85--6163, 85-6269, 85-6337
The Class) :

MOTION BY: Wayne M. Mansulla, Esq.
ASHCRAFT & GEREL
2000 L. Street, N.W. #700
Washington, D.C. 20036

Brief Statement Of The Relief Requested:

Appellants request that this Court continue its Stay of
Mandate issued on July 17, 1987 until the United States
Supreme Court rules on Appellants’ Petition for Writ of
Certiorari.

By: Appearing For: Date:
Persons Who Opted- = 8/5/87
Wayne M. Mansulla Out Of The Class
ORDER

Before: Hon. Ellsworth A. VanGraafeiland, Hon.
Ralph K. Winter and Hon. Roger J. Miner,
Circuit Judges.

IT IS HEREBY ORDERED that the motion be and it
hereby is GRANTED.

Fikkd, Augus: 7, 1987 FOR THE COURT:
Elaine B. Goldsmith, Clerk

784a

UNITED STATES COURT OF APPEALS
FOR THE
SECOND CIRCUIT

At a stated Term of the United States Court of Appeals
for the Second Circuit, held at the United States Court-
house in the City of New York, on the seventeenth day of
July one thousand nine hundred and eighty-seven.

Present: Hon. Ellsworth A. : Hon. Ellsworth A.
VanGraafeiland : VanGraafeiland
Hon. Ralph K. Winter : Hon. Amalya L. Kearse
Hon. Roger J. Miner : Hon. Roger J. Miner

Circuit Judges,

: Docket Nos.: 84-6273,

: 6321, 85-6035, 6051,

: 6083, 6261, 6265, 6301,

: 86-6303, 85-6309, 6323,

: 6325, 6327, 6329,

: 85-6335, 85-6349, 85-6371,

: 85-6373, 85-6379, 85-6381,

: 85-6385, 85-6387, 6393,

: 6395, 6411, 86-3039,

: 3042, 6171, 6173, 6174,

: 85-6163, 6269, 6337,
IN RE “AGENT ORANGE” ~ : 85-6091, 6093, 6095,
PRODUCT LIABILITY : 86-6127, 85-6161, 6223,
LITIGATION : 6339, 6341, 85-6153,

: 6165, 6225, 6231, 6263,

: 6287, 6289, 6293, 6295,

: 6375, 6377, 85-6365,

: 85-6305, 6325, 6343,

: 6345, 6347, 6351, 6353,

: 6355, 6357, 6359, 6361,

: 6363, 6383, 6389, 6397,

: 85-6061, 85-6143, 85-6145,

: 85-6151, 85-6167, 85-6287.

: 85-6289, 85-6293, 85-6295,

: 85-6375, 85-6377, 85-6057.

785a

: It is hereby ordered that the mandates in all cases in the
Agent Orange Liability Litigation are stayed until August
7, 1987, on the conditon that petition(s) for writ of cer-
tiorari be filed in the United States Supreme Court on or
before that date. In the event that a petition is not filed in
any particular case, the mandate will issue in that case on
August 10, 1987.

FOR THE COURT.

/s/ Elaine B. Goldsmith
ELAINE B. GOLDSMITH, CLERK

786a

IN THE
SUPREME COURT OF THE UNITED STATES

VINCENT C. LOMBARDI, et al., Petitioners
V.

DOW CHEMICAL CO., et al., Respondents

In re “Agent Orange” Product Liability Litigation

LIST OF PARTIES BELOW

Kathleen Dowd, et al. v. Dow Chemical Co., et al., CV
79-467 filed in the United States District Court for the
Eastern District of New York; Plaintiffs include: Robert
L. Anderson, Ricky J. Briscoe, Robert A. Bara, Ronnie
Burleson, Waitman S. Brown, David R. Bilgo, William I.
Brumbaugh, III, Neil A. Burke, Clarence A. Burnett,
Willie R. Best, Howard R. Bailey, Daniel Columbus Batts,
William Chenevert, Gary Compher, Michael D. Caputo,
Benito Castillo, Louis -S. Carter, Landon C. Corbin,
Robert D. Dekker, David E. Dyson, Lawrence Lolan,
David L. Dawley, Douglas E. Duffield, William Frangis,
Claude L. Fordyce, Michael H. Feen, Arthur Goodwin,
Wayne L. Gagnon, Joseph John Gambino, Joseph J. Gil-
len, John R. Greet, Gordon Hager, Jr., Donald R. Hamil-
ton, Jr., Ronald E. Hampton, Ronnie Hart, Kenneth R.
Hinton, Anton Horton, Charles Hummer, Judith Forbes
Hennig, David P. Hughes, Jr., Jimmy J. Hudnell, Paul
laderosa, James M. Johnson, Earl F. Jones, John A.
Jones, Sr., Wyman Joyner, Wiley D. Johnson, Richard

787a

Kubsick, Alfred E. Kyliavas, Dennis L. Letto, Ronald
Lazenby, John R. Lucas, James McLaughlin, Michael J.
McKenna, Michael Mitchell, John L. Maynard, John
Allen Malewicz, Michael Marcoccia, Frederick P. Mace,
James D. Matthews, James H. McLaughlin, Harrison
Mosley, Eugene R. New, Barry Nesmith, George M.
O’Hara, Richard J. O’Donnell, Edith G. Presco, for Ernst
Jones (deceased), Dickee A. Pennington, Roy Pitzen,
John S. Pyles, Robert C. Padgett, Jr., Kathleen Ribant,
Michael J. Roach, Sr., Dennis L. Roach, Newman R.
Roberts, Leonard F. Robinson, Richard G. Robinson,
Ismael Rodriguez, Jose Rodriguez, Alan T. Rockoff,
Earlie Robinson, Jr., Roger Rice, Frankie L. Schumpert,
Michael A. Snarski, Donald S. Sauls, Daniel W. Sweet,
Joseph F. Thomas, Charles M. Thomas, Jr., Kenneth Tri-
dle, Dale R. Turnbill, Richard Woodman, James M.
Walker, Tilden C. Willet, Roland A. Williams, Joseph E.
Williams, Hugh William White, Jr., Asberry York, Jr.

Vincent C. Lombardi, et al. v. Dow Chemical Co., et al.,
CV 80-1989, filed in the United States District Court for
Maryland; Plaintiffs include: Marvin W. Abbott, Joseph
N. Anthony, Melvin M. Augustyniak, Elmer L. Ault, Carl
F. Atwell, Neil A. Burke, Vincent P. Bonolis, Robert R.
Barracca, David A. Biemiller, John H. Conway, James R.
Carter, Bruce E. Decker, Michael H. Fenn, Milton P.
Gibbs, Eugene G. Grabill, Michael A. Haviland, John M.
Holloway, William H. Hall, Robert A. Horton, Michael
L. Huber, James A. Huff, James O.F. Johns, Robert A.
Juliano, George W. Jones, Charles F. Kosack, Harry
F.W. Klein, Jr., Thomas W. Keown, III, Michael G. Mc-
Nally, Arthur McEvers, William T. McCutcheon, Stephen
N. Prunty, Henry J. Peterson, Jr., John A. Smith,
Thomas W. Spear, Gary W. Spencer, Lawrence G. Sped-
den, Nickolos W. Soffos, Benjmain F. Waulk, Joseph T.
White, Bruce H. Wilkins, Charles J. Wynn.

788a

Leroy Brooks, et al. v. Dow Chemical Co., et al., CV
80-2002, filed in the United States District Court for the
District of Columbia.

Marvin W. Abbott, et al. v. Dow Chemical Co., et al., CV
80-2284, filed in the United States District Court for the
District of Maryland; Plaintiffs include: George W. Audet
(deceased veteran, by wife, Lillian S. Audet), James O.F.
Johns (deceased veteran, by wife, Cynthia Johns), John
Lilley (deceased veteran by wife, Anna M. Lilley), Gene
W. Moore (deceased veteran by wife, Eleanor Moore).

John P. DeAngelo, et al. v. Dow Chemical Co., et al., CV
80-2631, filed in the United States District Court for the
District of Maryland; Plaintiffs include: Marvin W. Ab-
bott, Lloyd T. Brown, Charles S. Calvert, Robert T.
Campbell, Oral Ray Carter, Jerry H. Chosack, Frank W.
Cockrell, Robert J. Foley, Jr., John P. Grosskopk, James
J. Hersl, Anthony W. Jordan, Gregory L. Justice; James
F. Johnson, John F. Johnson, Edward R. Kriston, Mi-
chael E. Lerp, Russell Lewis, Claude R. Lindsay, James
V. Lux, Vernon F. Mitchell, Dallas W. Moore, Jr.,
Ronald E. Nevins, Scott S. Pennewell, Donald E. Ross,
James Skazis, David L. Schascheck, John E. Stokes, IV,
Roland A. Stridiron, James L. Thiess, Jorge E. Vazquez,
William O. Ward, Jr., John N. White, Paul A. Woods.

Irene Gaither, et al. v. Dow Chemical C., et al., CV
80-2997, filed in the United States District Court for the
Northern District of West Virginia; Plaintiffs include: Ro-
bert Gaither (deceased veteran, by wife, Irene Gaither).

J. Michael Gibbs, et al. v. Dow Chemical Co., et al., CV
81-0662, filed in the United States District Court for the
Southern District of Georgia, Brunswick Division; Plain-
tiffs include: Abram Brown, John Richard Douberly, Al-

1 5 C8 i pth OC Sit ONES SS ated

789a

vin Leon Gardner, David Jack Hutchinson, Ronnie L.
Jones, Jasper N. Lynn, Larry Thomas Price.

Tyronne Clark, et al. v. Dow Chemical Co., et al., CV
81-0995, filed in the United States District Court for the
Middle District of Florida, Jacksonville Division; Plain-
tiffs include: David R. Griffith, Daniel Morgan, Newman
R. Roberts, Elmer Rice, Jr., Thomas E. Townsend.

Certain Named Veterans, et al. v. Dow Chemical Co., et
al., CV 81-1006, filed in the United States District Court
for the Eastern District of New York; Plaintiffs include:
James W. Brown, Robert C. Buckley, Cornad C. Cain,
Jerrold Charlet, Leonard W. Cooper, Jr., James Cleve-
land, Garry E. Dabbs, William James Gordy, Sr., Fddie
Gene Hamby, Albert C. Huggard, Bernard E. Johnson,
Thomas Kassay, Jeremiah R. Leary, Jerry E. Lewis, Wil-
liam A. McKay, Jr., Alfred Moore, Donald Norri

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0911%3A3. Public record. Not legal advice.