Opposition Brief — Krupkin v. Dow Chemical Co.

F _ Supreme Court, U.S,

FILED

No. 87-620 | NOV 25 1987

= T?. JOSEPH F. SPANIOL, JR.

* CLERK

In THE Ran

Supreme Court of the United States

OctoserR Term, 1987

BARRY KRUPKIN, et al.,

Petitioners,

v.

DOW CHEMICAL CO., et al.,

Respondents.

In re “Agent Orange” Product Liability Litigation

a

ae

BRIEF OF AGENT ORANGE PLAINTIFFS’ MANAGEMENT

COMMITTEE IN OPPOSITION TO PETITION FOR

A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

STEPHEN J. SCHLEGEL, LTD.

10 South LaSalle Street

Chicago, Illinois 60603

(312) 855-1010

Attorneys for Respondents

George Ewalt, et al.

Additional Counsel: STEPHEN J. SCHLEGEL *

James T. FERRINI

Paut D. SHELDON

Drang M. Baron

Trvinea LIKE

Reittiy, Like & ScHNeEIDER

200 West Main Street

Babylon, New York 11702 * Counsel of Record

(Additional Counsel listed on inside front cover)

Midwest Law Printing Co., Chicago 60611, (312) 321-0220

Chayron PP, Ginnnrrn

765 Commonwealth Avenue

Boston, Massachusetts OB215

Aanon D, Twraskt

250 Joralemon Street

Brooklyn, New York 11201

i

PARTIES

Respondents are members of the class who are repre-

Sented by court-appointed lead counsel to the class, desig-

hated in the courts below as the Plaintiffs’ Management

Committee (““PMC’’). As of October 1, 1987, 248,515 indi-

Vidual members of the class have made claims against the

settlement fund. To avoid burdening this Court and its

staff with the citation of 248,515 names, Mr. George Ewalt,

who was one of the named representative plaintiffs in the

courts below, has been designated as the named respon-

dent for purposes of Rule 28.1.

This brief filed by the PMC is related to the Krupkin

petition only. The various petitions for certiorari arising

out of the Agent Orange litigation are unrelated to each

other and should be separately considered.

a

il

TABLE OF CONTENTS

REASONS WHY CERTIORARI

SHOULD BE DENIED:

I.

THE CIRCUIT COURT’S RELIANCE ON THE

GOVERNMENT CONTRACTOR DEFENSE

DOES NOT WARRANT GRANT OF CER-

BR rr eater rE or Py mee ee

II.

NO IMPORTANT QUESTION OF FEDERAL

LAW OR POLICY IS AT STAKE WARRANT-

ING FURTHER JUDICIAL REVIEW; THE

AGENT ORANGE LITIGATION IS SUI

GENERIS AND OF LITTLE PRECEDENTIAL

ee err rey ere re ye ee ee 8

II.

THE SUPREME COURT HAS CONSISTENTLY

DENIED CERTIORARI IN THE AGENT

ORANGE AND OTHER ANALOGOUS CLASS

pe eT Ey rey re reer See oP eee 10

IV.

THE SETTLEMENT IS IN ALL RESPECTS

FAIR, REASONABLE AND ADEQUATE;

GRANTING A WRIT OF CERTIORARI WOULD

IRREPARABLY INJURE THE VETERANS

AND THEIR FAMILIES .................. 14

AE kos oak 4 ss hae ee Pama rwee ree 18

qo

iil

TABLE OF AUTHORITIES

Cases

Albermarle Paper Company v. Moody, 422 U.S.

Si = i rn ea ee

Berenyi v. Immigration Service, 385 U.S. 680

ee teks be kad st aka Seh ees haw sO

Boyle v. United Technologies Corp., 792 F.2d 413

(4th Cir. 1986), cert. granted 107 S.Ct. 872

aes SIG ea ey awk wkend kees 20 ss

Fields v. United States, 205 U.S. 292 (1907) ..

Flinn v. FMC Corp., 528 F.2d 1169 (4th Cir. 1975),

cert. denied, 424 U.S. 967 (1976) ...........

Graver Tank and Mfg. Co. v. Linde Air Prod. Co.,

336 U.S. 271 (1949), reh. granted on other grounds,

ee ia cc iaks obs nedasae ss

Grunin v. International House of Pancakes, 513

F.2d 114 (8th Cir.), cert. denied, 423 U.S. 864

eae hua cee y Fak ndedconesca's«

In re “Agent Orange” Product Liability Litigation,

100 F.R.D. 718 (E.D.N.Y. 1980) ...........

In re “Agent Orange” Product Liability Litigation,

635 F.2d 987 (2d Cir. 1980), cert. denied, 454

Os Me Ee er a

In re “Agent Orange” Product Liability Litigation,

597 F. Supp. 740 (E.D.N.Y. 1984) ...... 11,

In re “Agent Orange” Product Liability Litigation

sub nom. In re Diamond Shamrock Chemicals

Co., 725 F.2d 858 (2d Cir.), cert. denied, 465

ee ee ora ue ns eee xees cheese

In re “Agent Orange” Product Liability Litigation,

611 F. Supp. 1223 (E.D.N.Y. 1985)

PAGE

11

12

13

12

18, 19

iv

In re “Agent Orange” Product Liability Litigation,

818 F.2d 145 Gd Ca BMD case ccs ccccss. passim

In re “Agent Orange” Product Liability Litigation,

818 F.2d 187 (id Cie Bee pes cscceess..s. 6,7

In re Corrugated Container Antitrust Litigation,

643 F.2d 195 (5th Cir. 1981), cert. denied, 456

U.S. 966 (HGR) cucu pee ce es co's 13

Koutsoubos v. Boeing Vertol, Divison of Boeing

Co., 755 F.2d 352 (8rd Cir. 1985), cert. denied,

106 S.Ct. 72 (OUR voces eck css.

McKay v. Rockwell International Corp., 704 F.2d

444 (9th Cir. 1983), cert. denied, 464 U.S. 1043

on

(1984) ....6.00 60a entra «4 5

N.L.R.B. v. Waterman SS Corp., 309 U.S. 206, reh.

denied, 309 U.S. 696 (1940) ............... 14

Parker v. Anderson, 667 F.2d 1204 (5th Cir.), cert.

denied, 459 U.S. 878 (1982) ............... 13

Reiter v. Sonotone Corp., 442 U.S. 330 (1979) ... 11

Shaw v. Grumman Aerospace Corp., 778 F.2d 736

(llth Cir. 1968) ....c2a cae eke. 5

Tillett v. J.I. Case Co., 756 F.2d 591 (7th Cir.

1966) ...2..00 errr ee 6

United States v. Johnston, 268 U.S. 220 (1925) ... 14

Weinberger v. Kendrick, 698 F.2d 61 (2d Cir. 1982),

cert. denied, 464 U.S. 818 (1983) ........... 12

West Virginia v. Chas. Pfizer & Co., 440 F.2d 1079

(2d Cir.), cert. denied, 404 U.S. 871 (1971) .... 13

Other Authorities

Fed. R. Civ. P. Say 10,11, 13

28 U.S.C. $1382 ..5 scape s

ly Tue

Supreme Court of the United States

Ocroser Trem, 1987

BARRY KRUPEIN, et al,

Petitioners,

v.

DOW CHEMICAL CO., et al,

Respondents.

In re “Agent Orange” Product Liability Litigation

ooo ao

BRIEF OF AGENT ORANGE PLAINTIFFS’ MANAGEMENT

COMMITTEE IN OPPOSITION TO PETITION FOR

A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

PRELIMINARY STATEMENT

This appeal represents the final effort by a single peti-

tioner to undo nine years of complex litigation, involving

multiple parties, novel legal claims, and the emotions of

thousands of veterans aggrieved by the aftermath of an

unpopular war. The cases were tentatively settled on May

7, 1984 for the sum of $180 million, between the represen-

tative plaintiffs and all defendants subject to court ap-

proval. A sole petitioner claims that additional benefits

iil

~

are to be gained by further litigation and delay. Two dis-

trict court judges and all of the judges of the Second Cir-

cuit Court of Appeals have voiced virtually unanimous views

concerning various issues raised in the litigation below.

Each of those courts applied well-settled legal criteria in

rendering exhaustive opinions unanimously approving the

class action settlement reached by the parties.

Since petitioner is unable to isolate any particular issue

that might warrant the attention of this Court, he urges

that certiorari be granted respecting every issue consid-

ered by the Court of Appeals in affirming the settlement’s

approval. Unable to show any error in the Circuit Court’s

application of well-recognized principles bearing on the

single question presented—whether the settlement should

be approved—the petition raises multiple assignments of

claimed error without setting forth any error in affirm-

ing approval of the settlement. The aggregate effect of

these multiple claims does not add substance to any one

of them.

This case presents no question of constitutional moment,

no issue that has generated a split in the circuits, and

no facts that indicate that rulings by this Court will assist

future courts or litigants. Instead, the petition affirms the

PMC’s contention that this litigation involves facts that,

while emotion-filled from the human and political perspec-

tives, are, from the legal perspective, either unique to them-

selves or mundane. There is no merit in further delay in

the implementation of the settlement reached by the par-

ties as approved and affirmed by the Courts below.

=

STATUTES AND RULES INVOLVED

Fed. R. Civ. P. 23(bX3)

RULE 23. Class Actions

* * *

(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:

* * *

(3) the court finds that the questions of law or fact com-

mon to the members of the class predominate over any

questions affecting only individual members, and that a

class action is superior to other available methods for the

fair and efficient adjudication of the controversy. The mat-

ters pertinent to the findings include:

(A) the interest of members of the class in individually

controlling the prosecution or defense of separate actions;

(B) the extent and nature of any litigation concerning

the controversy already commenced by or against members

of the class;

(C) the desirability or undesirability of concentrating

the litigation of the claims in the particular forum;

(D) the difficulties likely to be encountered in the manage-

ment of a class action.

28 U.S.C. §1332

$1332. Diversity of citizenship; amount in controversy; costs

(a) The district courts shall have original jurisdiction

of all civil actions where the matter in controversy ex-

ceeds the sum or value of $10,000, exclusive of interest

and costs, and is between—

(1) citizens of different States;

a oe

(2) citizens of a State and citizens or subjects of a foreign

state;

(3) citizens of different States and in which citizens or

subjects of a foreign state are additional parties; and

(4) a foreign state, defined in section 1603(a) of this title

[28 U.S.C.S. §1603(a)], as plaintiff and citizens of a State

or of different States.

(b) Except when express provision therefor is other-

wise made in a statute of the United States, where the

plaintiff who files the case originally in the Federal courts

is finally adjudged to be entitled to recover less than the

sum or value of $10,000, computed without regard to any

setoff or counterclaim to which the defendant may be ad-

judged to be entitled, and exclusive of interest and costs,

the district court may deny costs to the plaintiff and, in

addition, may impose costs on the plaintiff.

(c) For the purposes of this section and section 1441

of this title [28 U.S.C.S. §1441], a corporation shall be

deemed a citizen of any State by which it has been in-

corporated and of the State where it has its principal

place of business: Provided further, That in any direct ac-

tion against the insurer of a policy or contract of liabil-

ity insurance, whether incorporated or unincorporated, to

which action the insured is not joined as a party-defendant,

such insurer shall be deemed a citizen of the State of which

the insured is a citizen, as well as of any State by which

the insurer has been incorporated and of the State where

it has its principal place of business.

(d) The word “States”, as used in this section, includes

the Territories, the District of Columbia, and the Common-

wealth of Puerto Rico.

aillins

REASONS WHY CERTIORARI

SHOULD BE DENIED

I.

THE CIRCUIT COURT’S RELIANCE ON THE GOVERN-

MENT CONTRACTOR DEFENSE DOES NOT WARRANT

GRANT OF CERTIORARI.

The petitioner suggests that a grant of certiorari is war-

ranted in this case on the “issue” of the government con-

tractor defense because this Court has granted certiorari

in Boyle v. United Technologies Corp., 792 F.2d 413 (4th

Cir. 1986), cert. granted 107 S.Ct. 872 (1987), and has been

asked to consider another case, Shaw v. Grumman Aero-

space Corp., 778 F.2d 736 (11th Cir. 1985). A review of

the disparities among these cases, however, reveals that

a grant of certiorari in the instant litigation is neither

proper nor necessary. |

Both Boyle and Shaw present this Court with the issue

of whether military contractors who do or should have

knowledge of product defects not shared by the govern-

ment are entitled to share the government’s immunity

from liability for service-related injuries caused by those

defects. It is on this factual issue of disparate knowledge

and the implication of some courts that contractors must

inform the government of alternative products that the

Circuit Courts of Appeal may be said to be in conflict.

In no case, however, including Boyle and Shaw, has a Cir-

cuit Court of Appeals denied a military contractor immunity

where the government possessed knowledge of the alleged

hazard equal to that of the contractor. See, e.g., McKay

v. Rockwell International Corp., 704 F.2d 444 (9th Cir.

1983), cert. denied, 464 U.S. 1043 (1984), Koutsoubos v. Boe-

ing Vertol, Division of Boeing Co., 755 F.2d 352 (8rd Cir.),

wiles

cert. denied, 106 S.Ct. 72 (1985); Tillett v. J.J. Case Co.,

756 F.2d 591 (7th Cir. 1985). The Agent Orange litigation,

like those cases, presents an instance of equal knowledge.

The Second Circuit understood that “the information

possessed by the government at pertinent times was as

great as, or greater than, that possessed by the chemical

companies.” 818 F.2d at 190, and see, 818 F.2d at 174.

That same finding was made by the District Court in ap-

proving the settlement, 611 F. Supp. at 1263, and is not

challenged here. The Second Circuit had no doubt that

the government possessed relevant information necessary

to permit a meaningful comparison of risks and benefits

of the product, i.e., the comparison that forms the basis

of all formulations of the defense. See 818 F.2d at 193.

Petitioner’s suggested parade of horribles emerging from

the Second Circuit’s formulation of the defense in this case

is simply fictitious. The Court of Appeals made no hold-

ing as to a proper formulation of the defense. It deter-

mined that under any proper formulation, the defense

posed a substantial risk to the plaintiffs. Implicit in the

Second Circuit’s rationale is the well-accepted view that

government contractors will be liable if they possess

greater material information than the government rele-

vant to a decision to employ a specific product. Thus, the

Second Circuit, in common with all other circuits, recog-

nizes appropriate incentives for contractors to ensure that

the government has equal relevant knowledge with re-

spect to potential hazards.

The only thing the Second Circuit has decided in this

litigation is that any applicable test would have been satis-

fied considering the evidence presented in this litigation.

The purported issue as to whether a contractor may be

liable for failure to inform the government of hazards of

which the government may be ignorant or of alternative

products about which the contractor did or should have

Led

—_—(—

known (the questions presented by Boyle and Shaw) is

simply not implicated in this case.

While the Second Circuit’s opinion affirming approval

of the settlement discussed the role that the government

contractors defense played in the litigation, its discussion

does not constitute a holding as to any particular element

or facet of the defense. It merely holds that the defense,

however properly formulated, was likely to work a poten-

tial dismissal of all of the plaintiffs’ claims and, therefore,

became a significant factor in the Court’s determination

that the approval of the settlement by the District Court

was appropriate.

It is ironic that petitioner attempts to achieve a grant

of certiorari on this alleged issue, since the Second Cir-

cuit found that the petitioners “inexplicably and unjustifi-

ably” failed to address adequately the issue they now

deem so crucial. 818 F.2d at 173, referring to 818 F.2d

at 187-190. Granting a writ of certiorari in these circum-

stances would be in direct contravention of this Court’s

general policy that issues not properly presented in lower

courts cannot be raised at the final level of appeal.

Finally, the only issue which could properly be before

this Court would be the Second Circuit’s affirmation of

the settlement. It affirmed the District Court’s approval

thereof in light of the many significant obstacles the plain-

tiffs had to any recovery. This included the possibility that

the defendants would have successfully pleaded and proven

the government contractor defense. The issue, then, is not

whether that defense was fully established, but whether—

if the case had proceeded to trial—it may have been estab-

lished. The District Court determined that defendants

would have been entitled to summary judgment. One can

hardly conclude that such a case did not warrant settle-

ment by plaintiffs.

~

A redetermination by this Court in 1987 or 1988 of the

appropriate elements of the government contractor de-

fense does not bear on whether the plaintiffs had good

cause for concern in 1984 that the law prevailing at that

time would bar recovery. The defense gave plaintiffs good

cause for concern; it was a substantial factor militating

in favor of settling the litigation. There is nothing, there-

fore, contained in the Circuit Court opinion affirming the

settlement which merits Supreme Court review.

Il.

NO IMPORTANT QUESTION OF FEDERAL LAW OR

POLICY IS AT STAKE WARRANTING FURTHER JUDI-

CIAL REVIEW; THE AGENT ORANGE LITIGATION IS

SUI GENERIS AND OF LITTLE PRECEDENTIAL VALUE.

This Court should not grant certiorari in this litigation,

in part because the plaintiffs’ claims do not arise under

the constitution, any specified federal statute, or under

federal common law. In an earlier phase of this proceed-

ing the Second Circuit decided that there is no identifiable

federal policy at stake in this litigation. 6385 F.2d 98 (2d

Cir. 1980).

The Solicitor General of the United States agreed with

the Second Circuit in its brief for the United States as

amicus curiae in November 1981. The Supreme Court

denied certiorari. 454 U.S. 1128 (1981).

As a consequence of the Second Circuit’s decision, the

class action thereafter proceeded in the District Court

solely on the basis of diversity jurisdiction under 28

U.S.C. §1332. It constituted essentially an action between

private parties for personal injury sounding in tort. The

disposition of plaintiffs’ claims through settlement of the

litigation carries little, if any, weight in terms of the con-

stitution, federal statutes, federal common law, or even

federal policy.

=

Certiorari is also inappropriate because the litigation ac-

tually has little, if any, precedential value. The Agent

Orange cases arose out of the conduct of the Vietnam

war. They involve a cauldron of factual issues relating to

military action, political controversy, scientific and medi-

cal matters, each of great complexity, controversy, and

uncertainty. No other pending or prior litigation anywhere

in the country comes to mind which deals with the fac-

tual scenario underlying the Agent Orange controversy.

With considerable understatement, the Second Circuit

characterized the Agent Orange litigation as ‘‘an extra-

ordinary piece of litigation” (818 F.2d at 148), whose

“most noticeable fact is the pervasive factual and legal

doubt that surrounds the plaintiffs’ claims” (818 F.2d at

149). Issues creating such doubt included problems of lia-

bility, causation, choice of law, statutes of limitations, the

government contractor defense, indeterminate plaintiffs

and defendants, and problems inherent in nation-wide class

action management. 818 F.2d at 172-74.

This unique combination of wartime genesis and factual

complexity makes the litigation sui generis. There never

was a case like Agent Orange; it is unlikely to occur

again. Its facts are so unusual as to negate any preceden-

tial value in other litigation. In fact, the Second Circuit

has directly restricted its precedential value by emphasiz-

ing its uniqueness and pointing out the novelty of the Dis-

trict Court’s pretrial rulings in some areas. It expressed

sufficient skepticism as to the acceptability by other courts

of the District Court’s view on choice of law to sharply

restrict its precedential weight. 818 F.2d at 173.

Fortunately, the litigation was settled, mooting all of

the disputed issues of law and fact which were in con-

tention prior to the settlement.

mins.

The Court of Appeals’ decision does not establish prece-

dent for opening the floodgates of class action litigation

in any type of mass tort cases. The Court commented on

the individuality of the causation issue (818 F.2d at 165).

It agreed with the prevalent skepticism over the useful-

ness cf class actions in other tort litigations, and it allowed

class certification in this case only because of its finding

that the military contractors defense raised common ques-

tions central to all claims under F.R.C.P. Rule 23(b\3).

(818 F.2d at 150, 164-67).

The Second Circuit recognized that the Agent Orange

case and its settlement were largely the result of coinci-

dental nonrecurrent factors when it stated,

The weakness of the evidence of causation as to all

plaintiffs and the strength of the military contractor

defense enabled the district court to evaluate the set-

tlement accurately and to fashion an appropriate dis-

tribution scheme in the instant matter. We regard

those factors as largely coincidental and not to be ex-

pected in all toxic exposure cases. 818 F.2d at 166.

Since this litigation has little precedential value, a grant

of certiorari would be unnecessary and improper.

Ill.

THE SUPREME COURT HAS CONSISTENTLY DENIED

CERTIORARI IN THE AGENT ORANGE LITIGATION

AND OTHER ANALOGOUS CLASS ACTIONS.

Issues fundamentally identical to those urged by peti-

tioner here have been raised in prior Agent Orange pro-

ceedings. Following class certification (100 F.R.D. 718,

E.D.N.Y., 1980), the defendants asked the Second Circuit

to issue a writ of mandamus to vacate the certification.

In denying the petition, the Court of Appeals stated “‘it

seems likely that some common issues which stem from

—

the unique fact that the alleged damage was caused by

a product sold by private manufacturers under contract

to the government for use in a war, can be disposed of

in a single trial.”” In Re: Diamond Shamrock Chemicals

Company, 725 F.2d 858, 860-61 (2d Cir. 1984). The Sec-

ond Circuit also observed that the class notice ordered

by the District Court was arguably the best practicable

under the circumstances. It further indicated that the pro-

priety of a class certification might be fully reviewed by

it on a later appeal (725 F.2d at 862).

On petition filed by the defendants, the Supreme Court

denied certiorari, 465 U.S. 1067 (1984), suggesting that

the Court found it inappropriate to intervene in the me-

chanical aspects of the Agent Orange litigation.

The full review alluded to by the Second Circuit was

in fact made in 818 F.2d at 146 on the appeal from Chief

Judge Weinstein’s orders (100 F.R.D. 718 and 597 F.

Supp. 740) certifying the plaintiff class and approving the

settlement. After carefully reviewing the exhaustive opin-

ions of the District Court, the Court of Appeals again

concluded that class certification was justified under Rule

23(bX3) due to the centrality of the military contractor

defense (818 F.2d at 166). It also concluded that the

District Court’s notice plan was fully adequate under

the circumstances (818 F.2d at 169). Relying on Supreme

Court precedents, the Second Circuit based its conclu-

sions on the facts that:

a. Rule 23 accords considerable discretion to a dis-

trict court in fashioning notice to a class, Reiter

v. Sonotone Corp., 442 U.S. 330, 345 (1979); and

b. The standard of appellate review is whether the

district court was clearly erroneous in its factual

findings and whether it abused its traditional dis-

cretion. Albermarle Paper Company v. Moody,

422 U.S. 405 (1975).

= =

The Second Circuit properly noted it to be inappropriate

to second-guess a district court’s class notice procedure,

“particularly [where] no alternative method of ascertain-

ing class members’ identities has been suggested to us,”’

citing Weinberger v. Kendrick, 698 F.2d 61, 71 (2d Cir.

1982), cert. denied, 464 U.S. 818 (1983), a case supporting

the view that this Court should not “‘second-guess’”’ both

the District Court and the Second Circuit by reviewing

the adequacy of the notice plan adopted by Chief Judge

Weinstein, which the Court of Appeals described as “‘ap-

propriate to this unique case” (818 F.2d at 167).

In the present context of this litigation, settled and fully

approved by both the District and Second Circuit courts,

there is less reason to review the District Court’s manage-

ment of the action and its settlement.

The Supreme Court’s practice is to decline taking cases

to review factual issues where the findings of fact made by

the district court receive the concurrence of the Court of

Appeals. In those situations the Court has often held that

‘‘a court of law, such as this Court is, rather than a court

for correction of errors in fact finding, cannot undertake

to review concurrent findings of fact by two courts below

in the absence of a very obvious and exceptional showing

of error.” Graver Tank & Mfg. Co. v. Linde Air Prod.

Co., 336 U.S. 271, 275 (1949) (and cases cited therein), reh.

gtd. on other grounds, 339 U.S. 605 (1950); Berenyi v. Im-

migration Service, 385 U.S. 630, 635 (1967).

Settled Supreme Court practice operates against review

of the adequacy of post-settlement procedures conducted

by Judge Weinstein. When asked to review aspects of

class action settlements, the Court has consistently denied

certiorari. For example, in Jn Re: Corrugated Container

Antitrust Litigation, 643 F.2d 195, 223-24 (5th Cir. 1981),

_) =

cert. denied, 456 U.S. 998 (1982), the Court held that there

is no absolute requirement that a distribution plan be for-

mulated prior to notification of a class of settlement. It

has also been held that a court “should not turn a settle-

ment hearing ‘into a trial or rehearsal of the trial,’ ”’ Flinn

v. FMC Corp., 528 F.2d 1169, 1172 (4th Cir. 1975), cert.

denied, 424 U.S. 967 (1976).

Even allegations of collusion in the negotiation processes

culminating in class action settlements have failed to per-

suade the Supreme Court to grant certiorari. Parker v.

Anderson, 667 F.2d 1204 (5th Cir.), cert. denied, 459 U.S.

878 (1982).

The only standard set out in Rule 23 regarding approval

of class action settlements is, under applicable authorities,

that settlements generally should be fair, reasonable and

adequate. West Virginia v. Chas. Pfizer & Co., 440 F.2d

1079, 1085 (2d Cir.), cert. denied, 404 U.S. 871 (1971).

There is no reason for the Supreme Court to substitute

its own factual standards for those the lower courts have

established for judging what is fair, reasonable, and ade-

quate. The trial court has before it direct knowledge of

all of the facts, circumstances, and contentions of the par-

ties and is, therefore, obviously in the best position to

determine the overall fairness of such settlements. This

is one reason why the standard of appellate review in the

Court of Appeals eliminates second guessing, and relies

upon the traditional abuse of discretion standard.

Since the Krupkin petition merely contains a rehash of

arguments made in the Second Circuit, its request for a

grant of certiorari is that the Supreme Court substitute

its own judgment for that of the trial court on factual

issues, traditionally an improper subject matter of Supreme

=)

Court review. See, e.g., Fields v. United States, 205 U.S.

292 (1907); United States v. Johnston, 268 U.S. 220 (1925),

and N.L.R.B. v. Waterman SS Corp., 309 U.S. 206, reh.

denied, 309 U.S. 696 (1940).

Denial of certiorari in this litigation is prudent because

fairness, reasonableness, and adequacy must be judged in

light of the “totality of the circumstances.” Grunin v. In-

ternational House of Pancakes, 513 F.2d 114, 124 (8th

Cir.), cert. denied, 423 U.S. 864 (1975). The “‘totality of

the circumstances” in this litigation, as in other class ac-

tion settlements, is best judged by the district court which

was closest to the litigation. This is particularly true

where, as here, the extensive opinions of the District

Court were meticulously reviewed under proper standards

and affirmed by the Second Circuit.

IV.

THE SETTLEMENT IS IN ALL RESPECTS FAIR, REA-

SONABLE, AND ADEQUATE; GRANTING A WRIT OF

CERTIORARI WOULD IRREPARABLY INJURE VET-

ERANS AND THEIR FAMILIES.

In its simplest form, the petition contends that the set-

tlement constitutes less money than a single objector feels

should be paid to the veterans. Somehow, in the opinion

of the petitioner only, further litigation would lead to

more money.’

1 This situation is similar to circumstances apparent in the peti-

tion in Pinkney, et al. v. Dow Chemical Company, et al., No. 87-

437. In the PMC’s response to Mr. Pinkney’s petition, defects are

noted. The same arguments therein apply to Mr. Krupkin as well

as his counsel, Mr. Musslewhite. Like Mr. Pinkney’s counsel (Ash-

craft & Gerel), Mr. Musslewhite urged class certification and sup-

(Footnote continued on following page)

=< mM

Much of the petition is directed at disagreements with the

District Court and Court of Appeals regarding the facts

of the case. No substantial disagreement is raised with

the Courts’ use of proper standards and criteria for deter-

mining propriety of the settlement. Mr. Krupkin’s ex-

pounded wish is for a trial rather than settlement. He con-

cedes, however, that if the case is settled, he simply wants

more money for the class. This result is unachievable.

While couched in terms of what the “‘veterans wish to

see’’ in this, their litigation, throughout the course of

these proceedings there has not been identified one vet-

eran who has either properly opposed class certification

or the concept of settlement. At this point, only two ob-

jectors, Krupkin and Pinkney, both arguably without stand-

ing, and neither objecting in the court below, have taken

it upon themselves to risk the only actual substantial

benefit achieved through any device for Vietnam veterans

who claim to be affected by the Agent Orange herbicides.

Neither objector seems to acknowledge the PMC’s over-

riding responsibility to the class as a whole. That respon-

sibility was to weigh all factors present in the litigation

1 continued

ported the notice given by the trial court at all times prior to the

settlement. Mr. Musslewhite was a member of the PMC who spoke

wholly in favor of the tentative settlement (which he agreed to)

throughout the process of the fairness hearings. It was only after

Chief Judge Weinstein entered his order respecting class counsel

fees that Mr. Musslewhite resigned from the PMC and then began

to contest the settlement. The PMC has further noted the question

as to the petitioner’s standing. More importantly, veterans who

objected in the court below to class certification had the oppor-

tunity to opt out (and did so). These claims are not properly raised

by the petitioner. The petition is not brought by any veteran who

has indicated he has been harmed in any way. Implicit in the peti-

tion is the underlying fact that it is brought by lawyers who seek

self-reward.

cea i aieiailiiaieeneile

==

in determining whether to forge forward through a trial

of the case or to tentatively accept the settlement offered

by the defendants.

The approval of the District Court confirms that all factors

present in the litigation militated in favor of the settle-

ment. Chief Judge Weinstein emphasized in part the dif-

ficulties all the plaintiffs faced in proving the necessary

element of medical causation. The Court of Appeals, ac-

knowledging that, and also taking into account all factors

in the litigation, chose to emphasize the difficulties the

plaintiffs faced with the government contractors defense

and the pervasive factual and legal doubt surrounding

plaintiffs’ claims. Both Courts, however, were in full agree-

ment that ali factors weighed in favor of the benefits con-

ferred by the settlement as opposed to the risks of con-

tinuing the trial effort. The risk of ultimate loss by reason

of one or more of these factors constitutes a large part

of the equation. Another factor was the prospect of years

of continued legal effort with no certainty of any recovery.

All factors were substantial considerations in the PMC’s

exercise of its best judgment in deciding to settle.

The veterans who will benefit by the settlement are in

desperate need of monetary aid now. This is not a class

action such as some commercial cases involving numerous

claimants waiting for a small amount of money in refund

for a commercial transaction. To the contrary, these vet-

erans need direct medical aid and indirect aid to help

them take advantage of benefits available from other

sources, including veterans’ programs, which thus far have

been denied them.

The petitioner belittles the amount of the settlement.

He fails to note that the principal on deposit in the fund,

at the average rate of interest being earned, leads to in-

come in excess of $1,150,000.00 per month. The fund con-

———— SS

=. =

fers life-improving benefits upon large numbers of the

class. These are benefits available to them from no other

source. They were achieved through hard lawyering in

a litigation that resulted in a concrete settlement that is

ripe for distribution. The Krupkin petition reveals no

more than wishful speculation on the part of petitioner

and his counsel. Petitioner has not suggested any work-

able, practical alternative to the settlement. His wish for

a trial is likely to result in a complete loss of any benefit

to the class. The petitioner’s request, if granted, would

ensure years of continued litigation, years of continued

burden on the part of all parties concerned, years of a

lack of financial and other aid to the veterans, more frus-

tration, a continued high level of emotionalism, and an

increased lack of ability on the part of the veteran popula-

tion to integrate the balance of their lives into society.

The PMC has never contended that the settlement of

this litigation is the cure for the veterans’ ills. The Judges

below have all agreed with the PMC’s exercise of respon-

sibility and best judgment that the settlement is a fair,

reasonable, and adequate resolution, not of all of the prob-

lems of the Vietnam veterans, but of the litigation.

The Agent Orange settlement has grown with the ac-

crual of interest to nearly $230,000,000.00. No other fund

of any consequence is available to compensate the vet-

erans for their suffering. The United States Government

has denied that their injuries and diseases are service con-

nected or caused by exposure to Agent Orange. Hence,

with few exceptions, it has stubbornly rejected their

claims for benefits.

The Second Circuit summed up its approval of the ade-

quacy of the setilement in these words:

silicen

Within the sharply limited judicial role we must ask

whether the settlement of the litigation proposed by

the parties’ representatives is acceptable. For the

reasons indicated below we tentatively hold that it

is. It gives the class more than it would likely achieve

by attempting to litigate to the death. It provides

funds to help at least some men, women and children

whose hardships will be reduced in some small de-

gree. It does represent a major step in the essential

process of reconciliation among ourselves. (818 F.2d

145).

But the settlement does considerably more than that.

The distribution plan spells out the benefits to the vet-

erans (see 597 F. Supp. at 858-61 and 611 F. Supp. 1396).

It provides veterans with the opportunity to establish ef-

fective means of representing their interests. The district

court recognized ‘“‘the settlement provides a powerful

legal, medical, political, and social instrument” (597 F.

Supp. at 858).

CONCLUSION

Since 1979, the Agent Orange litigation has been a nation-

wide lightning rod generating interest and emotional con-

troversy. It has also generated despair and has imposed

a vast burden upon the resources of the federal judiciary.

The PMC believes that it is and has been time to end

the legal controversy. It should be removed from the legal

shackles the courts necessarily impose. It is time to begin

channeling the fund to the veterans. They can then con-

structively begin addressing their present and future

needs. A denial of certiorari is the final step in ensuring

the beginning of that positive process.

ee A Ee

=| a

The District Court observed, and the Second Circuit

agreed, ‘‘the plaintiffs were also seeking larger remedies

and emotional compensation that were beyond its power

to award” (597 F. Supp. at 747; 818 F.2d at 148). It is

a tribute to both of the lower Courts that they have wise-

ly approved the settlement of plaintiffs’ claims in view

of the denial by the executive and legislative branches

of our government. The judicial branch has permitted the

fashioning of a settlement which affords the veterans at

least some of the tools with which to work toward better

lives, larger remedies, and the emotional compensation

they desparately desire. For the Supreme Court to inter-

fere with and delay this process of reconciliation, particu-

larly upon the grounds asserted in the petition, would lead

to the reopening of old wounds upon no proper legal

ground. There is no valid reason for this Court to allow

such delay.

The Agent Orange controversy is a classic instance of

a litigation which should not be the subject matter of a

grant of certiorari. It is a once in a nation’s lifetime case.

Some of our finest judiciz] talent has exhaustively re-

viewed all of its circumstances. Because of its uniqueness

it has no serious potential for establishing any judicial

precedent. It is the type of case which this Court has con-

sistently found undeserving of certiorari. The legal issues

on which certiorari is sought were previously properly denied

in earlier phases of the litigation.

Finally, a grant of certiorari is likely to irreparably in-

jure the veterans who have already suffered from events

which began in the 1960s and which have been relived

during the long years of this litigation. There is no pre-

ferred alternative to the settlement. To deny certiorari

is legally proper, practically effectuating the disbursement

of life-improving benefits to class members, and morally

correct.

We respectfully request that the petition for writ of cer-

tiorari be denied.

Respectfully submitted,

STEPHEN J. SCHLEGEL, LTD.

10 South LaSalle Street

Chicago, Illinois 60603

(312) 855-1010

Attorneys for Respondents

George Ewalt, et al.

STEPHEN J. SCHLEGEL *

JAMES T. FERRINI

Pau.t D. SHELDON

Diane M. Baron

* Counsel of Record

—

4 : : r

Ae. ' . + J

- Sr AES 4 i

% o

&

ee

7 Ay

= fel

we gh

é a > .

ENS ne St. :

Caan at : Rr

= +a" 5 : R ey wv ie

: +h 4 TAS WAR) .

: at : a, ; Ye Ly at "batt

Sa ae ¥ F - : , 7 ‘

; ? f * , a

a Ris Bal a Steal

: i" P ,

, ‘ ' y

‘ neues 4 : -

‘ >» P

ea : .

: \

* -

tj 2

i r ‘S 7 4