Amicus Curiae Brief — Ivy v. Diamond Shamrock Chemicals Co.

No. 93-860 | 6WwWAK 28 1994

IN THE OFFICE OF THE GLERM

Supreme Court of the Untted-States

October Term, 1993

SHIRLEY IVY, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF

DONALD Ivy, DECEASED; ET AL.,

Petitioners,

v.

DIAMOND SHAMROCK CHEMICALS COMPANY; ET AL.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF AMICI CURIAE OF AGENT ORANGE COORDINATING

COUNCIL; TIIE AMERICAN LEGION; VETERANS OF FOREIGN WARS

OF THE U.S.; DISABLED AMERICAN VETERANS; AMVETS; JEWISH

WAR VETERANS OF TIIE USA; RETIRED ENLISTED ASSOC.;

VIETNAM VETERANS OF AMERICA; MARINE CORPS LEAGUE;

CATIIOLIC WAR VETERANS, USA, INC.; AMERICAN EX-PRISONERS

OF WAR; BLINDED VETERANS ASSOC,; MILITARY ORDER OF THE

PURPLE HEART OF THE USA, INC.; ARMY AND NAVY UNION, USA;

POLISILE LEGION OF AMERICAN VETERANS, USA; PARALYZED

VETERANS OF AMERICA; REGULAR VETERANS ASSOC, OF THE U.S.;

ITALIAN AMERICAN WAR VETERANS OF TILE USA; WOMEN'S ARMY

CORPS VETERANS ASSOC.; AMERICAN WAR MOTHERS; LEGION OF

VALOR OF THE USA, INC.; CONGRESSIONAL MEDAL OF HONOR

SOCIETY; THE RETIRED OFFICERS ASSOC.; NATIONAL VIETNAM

VETERANS COALITION; FLEET RESERVE ASSOC.; THE VETERANS

OF THE VIETNAM WAR, INC.; NATIONAL ASSOC, OF MILITARY

WIDOWS; NEW JERSEY AGENT ORANGE COMMISSION; OKLAHOMA

AGENT ORANGE FOUNDATION; AGENT ORANGE DATA BASE; AND

THE AGENT ORANGE VICTIMS AND WIDOWS SUPPORT NETWORK,

iN SUPPORT OF CERTIORARI

P.B. ONDERDONK, JR. GERSON H. SMOGER

NATIONAL JUDGE ADVOCATE Counsel of Record

THE AMERICAN LEGION AGENT ORANGE

P.O. Box 1055 COORDINATING COUNCIL

Indianapolis, IN 46206 14800 Quorum Dr., Suite 550

Dallas, TX 75240

(214) 980-8020

January 27, 1994 {Additional Counsel Listed Inside Cover]

MARSHALL E. MILLER

NATIONAL JUDGE ADVOCATE

for AMVETS

1920 South Creek Blvd.

Daytona Beach, FL 32124

ROBERT L. NELSON

GENERAL COUNSEL

PARALYZED VETERANS

OF AMERICA

801 Eighteenth St., N.W.

Washington, DC 20006

THOMAS A. O'CONNOR

O'CONNOR, MACDONALD &

MAZA

tor VETERANS OF THE

VIETNAM WAR, INC.

61 N. Washington St.

Wilkes-Barre, PA 18703

ROBERT C. RHODES

MILITARY ORDER

OF THE PURPLE HEART

National Service Headquarters

5413-S Backlick Rd.

Springfield, VA 22151

MAJ. ALDEN S. LANCE, DSC

JUDGE ADVOCATE

for THE LEGION OF VALOR OF

THE UNITED STATES, INC.

415 West Main St.

Savannah, MO 64485

Counsel for Amici Curiae

TABLE OF CONTENTS

BLATT eres OF SERRE ow i ee an |

SUMMARY OF THE ARGUMENT ................ +

ARGUMENT

Il. FUTURE CLAIMANTS HAD NO NOTICE THAT

THEIR CLAIMS WERE BEING EXTINGUISHED .... 7

II. FUTURE CLAIMANTS DID NOT RECEIVE

ADEQUATE REPRESENTATION DURING THE

ug SB er ee ere 10

III. PURPORTED JUDICIAL EFFICIENCY CAN NEVER

JUSTIFY THE WHOLESALE DENIAL OF DUE

PROCESS RIGHTS TO FUTURE CLAIMANTS,

ESPECIALLY WHEN THERE ARE ALTERNATIVE

MEANS OF ENCOURAGING SETTLEMENTS ...... 16

IIS 55g aia 4d aot we Od 4. Oi ae ood ee 20

TABLE OF AUTHORITIES

Cases: Page

Aetna Insurance Co. v. Kennedy,

re sh Ss kiss 4 oa ee 10

Barnes v. A. H. Robbins Co, Inc.,

ee 18

Bowling v. Pfizer, Inc., 143 F.R.D. 141

(S.D. Ohio 1992), appeal pending,

gcc gs eos a. waa ee Ow ee 19

TABLE OF AUTHORITIES (cont.)

Cases: Page

Boyle v. United Technologies Corp..,

gk Re ee er er ae 16

Brady v. United States, 397 U.S. 742 (1970) ........ 10

Crown Cork & Seal Co., Inc. v. Parker,

ee i I aos cael do nw ee eg ee v)

Dante v. Dow Corning Corp., 143 F.R.D. 136

ee, ee res ks be ae a pe aa we oe aoe 10

Daubert v. Merrell Dow Pharmaceuticals, Inc.,

Se ee a Es gn a se we ke a We be we 14

Dincher v. Marlin Fire Arms Co., 198 F.2d 821

A I, Re gage ar be or 18

Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) ..... 9

Foster v. Bechtel Power Corp., 89 F.R.D. 624

CI IE ge re eld ee Ge nb kb oe 608 6

Fuentes v. Shevin, 407 U.S. 67 (1972) ............ 17

Hansberry v. Lee, 311 U.S. 32 (1940) ............ 11

In re "Agent Orange" Product Liability Litigation,

597 F. Supp. 740 (E.D.N.Y. 1984), aff'd,

818 F.2d 145 (2d Cir. 1987), cert. denied,

ee Ses kc a ce be ewe ee passim

In re "Agent Orange” Product Liability Litigation,

ie Fmee. Fem CEOP.Y. 0909)... we passim

In re Agent Orange, 611 F. Supp. 1223

(E.D.N.Y. 1985), aff'd 818 F.2d 187

(2d Cir. 1987), cert. denied,

ail PR ere ree aren 14

In re Amatex Corp., 755 F.2d 1034 (3d Cir. 1985) .... 12

In re Fibreboard Corp., 893 F.2d 706 (Sth Cir. 1990) .. 19

In re Forty-Eight Insulations, Inc., 58 B.R. 476

RI Is os os oy eee as, 6 13

In re General Motors Corp. Engine Interchange

Litigation, 594 F.2d 1106, (7th Cir. 1979), cert. denied,

ee SEs SOE oo ou See 6K koe es OS 17

Ee Te

TABLE OF AUTHORITIES (cont.)

Cases: Page

In re Johns-Manville Corp., 36 B.R. 743

(Bankr. $.D.N.Y. 1984), aff'd, 52 B.R. 940

0a 8... Se ac eke oa ee a ea ee 13

In re Joint Eastern and Southern District New York

Asbestos Litigation, 897 F.2d 626 (2d Cir. 1990) .... 16

In re UNR Indus., 29 B.R. 741 (N.D. Ill. 1983) ...... 10

Lujan v. Defenders of Wildlife, 112 S. Ct. 2130 (1992) .. 13

Mullane v. Central Hanover Bank & Trust Co.,

See Ue ee a a a a ee a ee ee 9

Overmann v. Syntex (USA), Inc., No. 852-02681

(Div. 5), Circuit Court, City of St. Louis,

Ce ce ca ek ee a ee 15

Payton v. Abbott Labs, 83 F.R.D. 382

(D. Mass. 1979), vacated on other grounds,

100 F.R.D. 336 (D. Mass. 1983) ............. 10

Parklane Hosiery Co. v. Shore,

Sa Sic. Re ek oe od ce ee ee eee 18

Phillips Petroleum v. Shutts, 472 U.S. 797 (1985) ... passim

Shults v. Champion Int’l Corp., 821 F. Supp. 517

(Ete. Pee: ee ee oe a ee ee 6

Ticor Title Insurance Co. v. Brown,

Mo. Di-FRPOD has 6 ee he ee ee eh 4

Urie v. Thompson, 337 U.S. 163 (1949) ........... 18

Yandel v. PPG Indus. Inc., 65 F.R.D. 566

(te, Se Se as oe eS ie eae a eee 5

Constitutional Provisions, Statutes and Rules:

SE I ak sk a ee ee 17

Femi Fe. aks Se ee a ee ee 17

ge Sy, ee ae A re sok cee or 14

i Be Fe kt ere ee ei nT o- 12

, 2 eat Re ere or passim

TABLE OF AUTHORITIES (cont.)

Miscellaneous:

Note, Abuse in Plaintiff Class Action Settlements:

The Need for A Guardian During Pretrial Settlement

Negotiations, 84 MICH. L. REV. 308 (1985) ....... 1]

Agent Orange Act of 1991, Public L. No. 102-4,

1D Beek. 5 SRP es wie sates ae ee ee 3

Morris S. Arnold, A Historical Inquiry Into the

Right to Trial By Jury in Complex Civil

Litigation, 128 U. Pa. L. REV. 829 (1980) ........ 17

Comment to the American Bar Association's Model

Rule 1.7(b) on Ethics and Professional Responsibility,

ABA Committee on Ethics and Professional

Responsibility, Formal Op. 93-371 ............. 12

13B Arthur L. Frank, Courtroom Medicine:

Cael CURee os co oa ee el eee 15

3 Louis R. Frumer and Melvin I. Friedman,

eee ee are 18

Han K. Kang, et al., Dioxins and Dibenzofurans

in Adipose Tissue of U.S. Vietnam Veterans and

CON (TRUE 65 6 uc kate ee eee eee 15

Manual for Complex Litigation, Second ........... 10

National Academy of Sciences Institute of

Medicine, Veterans and Agent Orange:

Health Effects of Herbicides Used in

Peneny CROWD. 035 0 0/4 a aaa eee ae 15

Herbert B. Newberg and Alba Conte, Newberg on Class

Actoes (306. 06. TSG) sc cw wees eee .. 10, 19

STATEMENT OF INTEREST

Amici are 31 veterans service organizations, collectively

representing more than 8,000,000 members.' Amici join together

in this case in unprecedented solidarity to urge this Court to grant

certiorari in order to review and ultimately undo the serious

violations of the constitutional rights of Vietnam War veterans and

their families addressed by the second Question Presented in the

Petition.

This unique coalition has been inspired by the unstinting

leadership of Admiral Elmo R. Zumwalt, Jr. (USN Ret.), who has

previously served as Special Assistant to the Secretary of Veteran

Affairs and as Chief of Naval Operations during the Vietnam War.

In his role as chairman of Amicus Agent Orange Coordinating

Council Admiral Zumwalt has provided a forum for many veterans

service Organizations to coordinate their interests in representing

Vietnam veterans affected by Agent Orange.

Twenty-one Amici have been chartered by Congress to

represent the interests of veterans of the Armed Forces and their

families: (1) The American Legion (36 U.S.C. § 41), with 3.1

million members; (2) the Veterans of Foreign Wars of the

United States (§ 111), with 2.2 million members; (3) the

Disabled American Veterans (§ 90), with 1.2 million disabled

members and 180,000 auxiliary members; (4) AMVETS (§ 67),

with 200,000 members; (5) the Jewish War Veterans of the

U.S.A. (§ 2701), with 100,000 members; (6) the Retired

Enlisted Association (§ 5101), with 80,000 members; (7) the

Vietnam Veterans of America (§ 3801), with 42,000 members;

(8) the Marine Corps League (§ 57), with 37,000 members;

(9) the Catholic War Veterans, USA, Inc. (§ 2601), with 35,000

members; (10) the American Ex-Prisoners of War (§ 2101),

with 33,000 members; (11) the Blinded Veterans Association

(§ 851), with 27,000 members; (12) the Military Order of the

Purple Heart of the U.S.A., Inc. (§ 821), with 17,000 members;

(13) the Army and Navy Union, U.S.A. (§ 3901), with 16,000

members; (14) the Polish Legion of American Veterans, U.S.A.

(§ 2501), with 16,000 members; (15) the Paralyzed Veterans of

' Counsel for all parties have consented to the filing of this brief.

Letters of consent have been filed with the Clerk.

2

America (§ 1151), with 15,000 members; (16) the Regular

Veterans Association of the United States (Pub. L. 74-844), with

15,000 members; (17) the Italian American War Veterans of the

U.S.A. (36 U.S.C. § 1701), with 10,000 members; (18) the

Women’s Army Corps Veterans Association (§ 3101), with

5,000 members; (19) the American War Mothers (§ 91), with

1,500 members; (20) the Legion of Valor of the United States

of America, Inc. (§ 631), with membership restricted to

recipients of the Congressional Medal of Honor, Distinguished

Service Cross, Navy Cross, or Air Force Cross; and (21) the

Congressional Medal of Honor Society (§ 791), with

membership restricted to recipients of the Congressional Medal

of Honor.

Amici also include the following unchartered organizations:

(1) The Retired Officers Association, with 450,000 members;

(2) the National Vietnam Veterans Coalition, which is an

umbrella organization composed of 75 organizations with an

estimated total of 350,000 members; (3) the Fleet Reserve

Association, with 170,000 members; (4) The Veterans of the

Vietnam War, Inc., with 10,000 members; (5) the National

Association of Military Widows, with |,000 members; (6) the

New Jersey Agent Orange Commission, (7) the Oklahoma Agent

Orange Foundation, (8) the Agent Orange Data Base; and

(9) the Agent Orange Victims and Widows Support Network.

The general purposes for which Congress has chartered

many Amici include the following: "to uphoid and defend the

Constitution,” 36 U.S.C. § 43, and promote "fidelity to its. . .

laws,” § 823(a); to “stimulate to the highest degree possible the

interest of the entire Nation in the problems of veterans, their

widows, and orphans,” § 2603(c); to "assist disabled .

veterans and other veterans in need of assistance and the

dependents and survivors of such veterans," § 3803(6); "to foster

love for the principles which they have supported by blood and

valor,” § 57(a); and to “encourage the doctrine of universal

liberty, equal rights, and full justice to all,” § 2703(5). In

fulfilling these congressionally inandated obligations, chartered

Amici are duty bound to protest the efforts of the courts below to

give overreaching preclusive effect to the 1984 settlement of Jn

re "Agent Orange.” Far from providing "equal rights” to injured

ee a ee

3

Vietnam veterans, that settlement has systematically denied many

Agent Orange-exposed Vietnam veterans, who manifested no

injuries as of the date of the settlement, fundamental!

constitutionally derived rights which are routinely accorded to

every other citizen of the United States injured by a defective

product, including the right to receive notice, the right to opt-out,

the right to have adequate legal representation, and ultimately the

right to have grievances adjudged by a jury of one’s peers. Far

from providing "full justice," the cruel result of that settlement

has been to restrict Vietnam veterans and their dependents to the

receipt of nuisance value recoveries of approximately $3200

when they suffer total disability or when they die as a result of

their exposure to products manufactured by respondents.

Appendix to Petition ("A__"), Al9, A339.

Amici do not idly request that this Court review and

ultimately reverse this denial of access to justice effectuated by

the courts below. Many Amici, especially The American Legion,

have actively pursued scientific research or have assisted others

in developing scientific information concerning the health effects

on Vietnam veterans from their exposure to Agent Orange and

dioxin. Amici have also petitioned Congress to authorize

scientific studies regarding exposure to herbicides.? As the

average 20-year latency period for certain causally related

injuries, such as cancer, passes, these studies are now creating

a body of evidence that leaves little doubt that Vietnam war

veterans were injured by respondents’ defective products in the

process of serving our nation.

? One result of these extensive efforts is that the Department of Veterans

Affairs has recently acknowledged that certain debilitating illnesses were

caused by exposure to herbicides in Vietnam. The district court in its decision

applauds the federal government for making compensation available to veterans

through the Department of Veterans Affairs pursuant to the Agent Orange Act

of 1991, Public L. No. 102-4, 105 Stat. 11 (1991). AS8-59. Although Amici

also applaud this legislation, Amici point out that the American taxpayer is now

paying for all of the expenses for the injuries caused by Agent Orange rather

than respondents, who had greater responsibility for those injuries, but who

have through this class action settlement so far managed to cap their expense.

4

Thus, Amici, especially those chartered by Congress, are

compelled to request this Court to grant review in this case —

particularly given the significance of the deprivation of due

process rights when viewed from the perspective of the losses

suffered by individual veterans and their families, such as

Captain Donald Ivy and his widow, Shirley Ivy. The Second

Circuit opined that the rights of individual veterans, including

Captain and Mrs. Ivy, are outweighed by "society’s interest in

the efficient and fair resolution of large-scale litigation." A17.

Amici believe that the quest for "efficient" clatms administration

can never provide sufficient justification for the wholesale

abandonment of constitutionally protected rights. Moreover, the

abridgment of rights here is not made in the context of typical,

homogenized class action claims previously considered by this

Court, involving the collection of relatively small sums of

royalties, as in Phillips Petroleum v. Shutts, 472 U.S. 797

(1985), or disputes over fees charged by title insurers, as in

Ticor Title Insurance Co. v. Brown, No. 92-1988 (pending).

Rather, this case involves highly individualized claims which

literally implicate matters of life and death.

SUMMARY OF THE ARGUMENT

Amici respectfully submit that this Court should grant the

petition for certiorari. The decisions below illustrate the grave

dangers in any process that permits attorneys to negotiate a

settlement on behalf of already injured plaintiffs by trading away the

rights of absent, uninjured future claimants. In this case, core due

process requirements, including the receipt of adequate notice, the

opportunity to opt out, and the right to have adequate legal

representation, were abandoned — an abandonment which was

justified by the courts below for the inappropriate reasons of

“efficiency” and "finality." A1l7, A35.

I. Future claimants, including the petitioners, were not

provided with constitutionally adequate notice nor were they

provided with a reasonable opportunity to opt out of the /n Re

"Agent Orange” settlement. Although the scope of the Agent

Orange class was éxpanded upon settlement (and after certification)

to include claimants, like Captain Ivy, who had not yet manifested

i

|

|

5

injury, no additional notice was given to new members of the class.

And though the courts below were likely correct in stating that the

effectiveness of notice to uninjured, potential future claimants was

problematic, Al7 (because such persons may not have attended to

whatever notice was provided and, even if they did, they would

have been forced to speculate upon the possibility of becoming ill

in the future), the courts below were plainly incorrect in concluding

that the difficulty of delivering such notice excuses the failure to

deliver any notice whatsoever or justifies a presumption of the

waiver of constitutionally protected liberty and property interests.

Waivers of constitutionally protected rights cannot be valid unless

they are knowingly and intelligently made.

II. Future claimants, again including the petitioners, were

unrepresented during the Agent Orange settlement process. No sub-

classes were created, nor was a guardian appointed to safeguard the

interests of future claimants. The courts below justified this utter

lack of representation for absent future plaintiffs by citing the

"unique circumstances" of the case. A21. However, this justifica-

tion fails to take into account the very real divergent interesis of

present and future claimants, including different concerns about

statutes of limitations, disparate interests in obtaining immediate

financial recovery, and different capacities to await further scientific

and medical developments which could clarify issues of causation.

III. The reiteration of notice, opt-out, and adequate

representation requirements by this Court in the class action setting

will give important guidance to lower courts throughout the country

as they struggle with the problem of balancing the perceived need

to encourage class action settlements against the basic obligation to

protect the constitutional rights of individual class members. Amici

submit that the courts below did not hold true to the balance that

must be accorded these competing interests. Instead, the courts

approved an unwarranted denial of the rights of American veterans

— as well as plaintiffs in a wide range of circumstances — and

sanctioned an extraordinarily broad use of federal judicial power.

There are accepted mechanisms by which federal courts can

preserve the rights to due process and trial by jury without imposing

an unreasonable burden on the settlement of mass tort cases. The

route taken by the courts below is not among them.

6

ARGUMENT

Amici are well situated to advise this Court on the costs, both

in legal and in human terms, posed by the Second Circuit’s

extraordinary disregard of due process rights. The decisions below

create a threat to settled law, to constitutional values of due process,

and to the welfare of thousands of severely ill veterans and their

families. In this light, the questions which must be answered are

whether, to what extent, and under what circumstances may named

class action claimants and their attorneys extinguish or compromise

the rights of "future" claimants, /.e., persons whose injuries have

not yet become manifest.

Indeed, the lower courts are divided over whether present

claimants may ever extinguish in any manner the rights of future

claimants. Contrary to the decision below, in Shults v. Champion

Int’l Corp., 821 F. Supp. 520 (E.D. Tenn. 1992), the court held:

"No settlement that precludes future, unknown causes of action can |

be considered fair, reasonable, or in the best interests of the class |

as a whole." 821 F. Supp. at 524. The court explained that it

would only “approve release language that barred . . . any class

member’s personal injury claim arising prior to the date the class

was closed." 821 F. Supp. at 524. The court thus refused, without

limitation, to approve a settlement that barred class members’

personal injury claims arising after the class was closed.? Amici

agree with that court. Certainly, any settlement purporting to

extinguish the rights of future claimants should be gravely suspect

and carefully reviewed.

% Federal courts in Texas and Arkansas have reached similar

conclusions. See Yandel v. PPG Indus. Inc., 65 F.R.D. 566, 572 (E.D. Tex.

1974) (court denied certification of class under Fed.R.Civ.P. 23(b)(3) by

employees of an asbestos plant, expressing concern that “because of the nature

of the injuries claimed, there may be persons that might neglect to ‘opt out’ of

the class, and then discover some years in the future that they have contracted

asbestosis, lung cancer, or other pulmonary disease. These persons would be

bound by decision rendered in this litigation."); Foster v. Bechtel Power Corp.,

89 F.R.D. 624, 626-27 (E.D. Ark. 1981) (court held that present employees

cannot represent future employees in discrimination suit: “To rule otherwise,

. the court fears that the due process considerations which permeate the

decision of whether or not to certify a class would be ignored.”).

ee

7

I. FUTURE CLAIMANTS HAD NO NOTICE

THAT THEIR CLAIMS WERE BEING

EXTINGUISHED

This Court has held that in class actions seeking money

damages, notice to absent claimants is required not only by Rule

23(b)(3), but also by due process. Shutts, supra. Yet, in the In re

"Agent Orange” litigation, notice was never given to future

claimants, in violation of their rights of due process. The extent

of this deprivation is elucidated when related to the particular

circumstances of Captain and Mrs. Ivy.

Captain Ivy served in the U.S. Marine Corps and was exposed

to Agent Orange during his tour of duty in Vietnam from 1967 to

1968. After he returned from Vietnam, however, his exposure to

Agent Orange became a distant memory. Thus, when in 1978 other

Vietnam war veterans and their families first began to bring state

law tort actions against the present respondents seeking monetary

relief for injuries they believed were due to their Agent Orange

exposure, A3, Captain Ivy, uninjured at that point, had no reason

to pay attention to these claims. For the same reason, he remained

unaware that these multiple state-law tort actions were consolidated

into a single action known as In re "Agent Orange” Product

Liability Litigation. A3, A68.

Because Captain Ivy had filed no lawsuit, had consulted with

no attorney, and had never contacted the Veterans Administration

regarding his exposure to Agent Orange in Vietnam, he had no way

of knowing that on December 16, 1983, the district court would

certify a Rule 23(b)(3) class with opt-out rights. A3-A4. Nor was

Captain Ivy himself subsequently notified of the existence of the

class, which was specifically defined to include:

"[T]hose 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... ."

A34-A35; 100 F.R.D. 718, 729 (E.D.N.Y. 1983) (emphasis

added). In 1983, Captain Ivy, of course, did not believe that he had

been "injured" by Agent Orange — nor could he reasonably have

had such a belief — for the simple reason that as of that time he had

no injuries. See A68-A69 (Affidavit of Shirley Ivy).

8

Thus, Captain Ivy neither knew nor could he have known that

the deadline for opting out of this Rule 23(b)(3) class was May 1,

1984; and he was completely unaware that six days later, on May

7, 1984, the named plaintiffs and their attorneys would settle these

cases for what the Second Circuit has characterized as "nuisance

value,” 818 F.2d at 171. Most importantly, Captain Ivy was wholly

unaware that the settling parties would, after class certification,

unilaterally change the definition of the class, thereby substantially

extending its breadth by agreement: "The Class specifically includes

persons [inciuding, apparently, Captain Ivy] who have not yet

manifested injury." 597 F. Supp. 740, 865 (E.D.N.Y. 1984)

(settlement agreement), aff'd, 818 F.2d 145 (2d Cir. 1987), cert.

denied, 484 U.S. 1004 (1988) (emphasis added). Nor was he aware

that despite this modification, which substantially broadened the

scope of the class, the district court would fail to direct that a

second notice be distributed to currently uninjured veterans who

were now covered by this broadened class definition.

Of course, this was not an issue which concerned Captain Ivy

in 1984. It only became a concern to him in 1987 when, in his

forties, he was diagnosed with cancer. It was at this time, while

investigating the cause of his own cancer, that he realized its

connection to Agent Orange, and first learned of the existence of the

earlier Agent Orange class action litigation. A69. It was only then,

in the context of preparing a state law tort action, that Captain and

Mrs. Ivy were informed that the case they had not yet brought had

already been settled for "nuisance value" of approximately $3,200

— settled, that is, without anyone ever contacting them and without

their ever being allowed to contact an attorney or to have one

appointed to represent their interests. Al9, A39, A69.

Shockingly, the Second Circuit could only offer a rather

ominous justification for this abrogation of the due process rights of

Captain and Mrs. Ivy (at A17):

"[{SJociety’s interest in the efficient and fair resolution

of large-scale litigation outweighs the gains from

individual notice and opt-out rights, whose benefits here

are conjectural at best. .. . [P]roviding individual

notice and opt-out rights to persons who are unaware

of an injury would probably do little good."

9

In contrast to the Second Circuit’s cavalier approach to due

process rights, this Court has been unwilling to countenance such

abridgements of the constitutional rights of individuals. This Court

has previously held that "[aJn elementary and fundamental

requirement of due process in any proceeding which is to be

accorded finality is notice reasonably calculated, under all the

circumstances, to apprise interested parties of the pendency of the

action and afford them an opportunity to present their objections."

Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306,

314-15 (1950). In a class action for money damages, rights to

receive notice and the subsequent ability to opt out of the class

cannot be abridged: "[WJe hold that due process requires at a

minimum that an absent plaintiff be provided with an opportunity to

remove himself from the class by executing and returning an ‘opt

out’ or ‘request for exclusion’ form to the court." Shutts, supra, at

812 (emphasis added).*

Finally, what is most astonishing and most disturbing is the

Second Circuit’s willingness to countenance this abridgement of due

process rights on the notion that "[p]roviding individual notice and

opt-out rights to persons who are unaware of an injury would do

* Few activities are subject to more extensive record keeping than

military service; if the rights of future claimants can be abolished in this

context without individualized notice, then the implications of the Second

Circuit’s decision are unlimited. By contrast, in an early decision regarding

Rule 23 requirements, Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974),

this Court demonstrated the full extent to which the rights of individual class

members must be safeguarded. Eisen raised the issue of adequate notice in a

Rule 23(b)(3) antitrust and seewrities class action with millions of members and

a class representative with only a $70 stake. Despite the relatively small size

of the individual claims, this Court held that the class action could proceed

only with individual notice to more than two million class members whose

names and addresses could be identified with reasonable effort, holding that

"[i]Jndividual notice to identifiable class members is not a discretionary con-

sideration to be waived in a particular case. It is, rather, an unambiguous

requirement of Rule 23." Si nificantly, the Court in Eisen stated that such

notice was required so that eac.. individual class member "may request exclu-

sion from the action and thereby preserve his opportunity to press his claim

separately... ." /d. at 176. See also Crown Cork & Seal Co., Inc. v.

Parker, 462 U.S. 345, 351 (1983) ("Eisen’s notice requirement was intended

to inform the class member that he could ‘preserve his opportunity to press his

claim separately’ by opting out of the class." (emphasis in original)).

10

little good."* The Second Circuit may well have been correct:

individuals with no present injuries are not in a position to make

intelligent decisions regarding the waiver of their rights.®

However, it is inexcusable that the Second Circuit should respond

to this problem by authorizing a judicial presumption of the waiver

of constitutional rights instead of increasing the vigilance with which

those rights are protected. A judicially countenanced presumption

of waiver is directly contrary to numerous decisions of this Court.

See Brady v. United States, 397 U.S. 742, 748 (1970) (the waiver

of constitutional rights "must be knowing, intelligent [and] done

with sufficient awareness of the relevant circumstances and likely

consequences."); Aetna Insurance Co. v. Kennedy, 301 U.S. 389,

393 (1937) ("[A]s the right of jury trial is fundamental, courts

indulge every reasonable presumption against waiver").

II. FUTURE CLAIMANTS DID NOT RECEIVE

ADEQUATE REPRESENTATION DURING THE

SETTLEMENT PROCESS

Settlement classes, in any setting, present serious potential for

abuse. See, e.g., Manual for Complex Litigation, Second § 30.41,

* Other courts have not been as willing as the Second Circuit to abridge

the notice and opt out rights of absent future claimants. See, e.g., Dante v.

Dow Corning Corp., 143 F.R.D. 136 (S.D. Ohio 1992) (requiring individual

notice by first-class mail to all potential future breast implant claimants);

Payton v. Abbott Labs, 83 F.R.D. 382, 393 (D. Mass. 1979) (refusing to bind

women whose mothers had ingested the drug DES unless personal notice was

sent to every member, regardless of whether they had manifested injuries)

(order vacated on other grounds, Payton v. Abbott Labs, 100 F.R.D. 336

(D.Mass. 1983)); In re UNR Indus., 29 B.R. 741, 747 (N.D. fil. 1983) ("[I]}t

is inconceivable that any notice short of personal notice to every person whom

the debtors would seek to bind — and this could include, theoretically, every

person in this country — would be acceptable under the principles of due

process. ”")

* As stated by leading scholars in the field of class actions: “For class

members who cannot currently identify themselves for purposes of protecting

their interests with respect to a class action purportedly commenced on their

behalf, an opt-out right within a court-designated period of time . . . is of no

beneficial use." 1 Herbert B. Newberg and Alba Conte, Newberg on Class

Actions, § 1.23 (3rd. ed. 1992).

11

at 236 (1985) ("As a practical matter, the dynamics of class action

settlement may lead the negotiating parties — even those with the

best of intentions — to regard the interests of the class members too

lightly."). Indeed, all participants in class action settlement

negotiations have extraordinary incentives to settle. From the

perspective of defendants, settlement is an opportunity to cap risk.

From the perspective of the courts, settlement may be an

opportunity to clear court calendars of tens of thousands of cases.

And, not least of all, from the perspective of class counsel, the

economic rewards of settlement sooner rather than later can be

extraordinarily enticing — regardless of the inchoate needs of absent

class members or future claimants.

For these reasons, adequate representation of absent claimants

has become one of the cornerstones of due process guarantees in

class actions, requiring, among other things, that class representa-

tives and their counsel are aligned identically with the interests of

absent class members. As this Court emphasized in Hansberry v.

Lee, 311 U.S. 32, 45 (1940):

[S]election of representatives for purposes of litigation,

whose substantial interests are not necessarily or even

probably the same as those whom they are deemed to

represent, does not afford that protection to absent

parties which due process requires.

In the present instance, however, the class as originally certified was

not defined to include those veterans who had not yet manifested

injury, and, as such, by definition the counsel for the class as

originally certified did not represent claimants whose interests were

"the same" as those of Captain and Mrs. Ivy.’

Indeed, the district court and the Second Circuit acknowledged

the dangers that could be posed in the absence of separate

representation for potential future claimants like Captain Ivy. A58.

As the Second Circuit noted, "‘[mJany genuine conflicts of interest

. . . [can exist] in a situation such as this’" when there is no

represented sub-class to decide whether to extinguish the unaccrued

” See Note, Abuse in Plaintiff Class Action Settlements: The Need for

A Guardian During Pretrial Settlement Negotiations,” 84 MicH. L. REV. 308

(1985).

—

future claims of absent plaintiffs who have not yet suffered injury.

Al7 (quoting the district court). Nevertheless, no class

representative was ever designated for Captain or Mrs. Ivy or for

any other absent future claimant, nor were the future claimants

represented by a separate attorney, trustee, or guardian. 996 F.2d

at 1437; Al8, A21.

Recognizing that future claimants received no separate repre-

sentation, both the district court and the Second Circuit excused this

admitted failure to accord Captain Ivy his rights to counsel, holding

that constitutional rights of due process may be extinguished when

a court makes a post hoc determination that no harm was caused by

the abrogation of the right. Thus, both courts dismissed the

requirement of separate counsel with the assertion that harm from

any conflict had "never materialized," because all veterans would

become eligible for identical "nuisance value" payments from the

Fund. (Neither the district court nor the Second Circuit mentioned

the fact that pursuant to the terms of the settlement the vast majority

of veterans, /.e. those with injuries causing less than total disability

or death, would not be entitled to receive any recovery at all.

A18.) However, the applicable test of a conflict of interest is not

to judge it on a post hoc basis, but rather to examine whether at the

time of settlement there was a potential for conflict between the

present injury and the future injury classes.* Clearly, such

potential for conflict did exist. Nevertheless, the Second Circuit

concluded from its own factual review that "[t}he unique

circumstances" of this case rendered separate class counsel

"unnecessary." A21.°

* The Comment to the American Bar Association’s Model Rule 1.7(b)

on Ethics and Professional Responsibility states that “[a]n impermissible

conflict may exist by reason of . . . the fact that there are substantially

different possibilities of settlement of the claims or liabilities in question.”

Cited by ABA Committee on Ethics and Professional Responsibility, Formal

Op. 93-371, at 6.

* Unlike here, in bankruptcy, as well as in limited fund class actions

under Rule 23(b)(1), it is at times necessary to account for future claims in

order to preserve a portion of insufficient assets to cover future liabilities that

have not matured. Yet, even in ihe few cases in this setting that have

recognized future claimants, in light of the inescapable conflicts that may arise,

the courts have typically segregated future claimants from present claimants

into separate sub-classes with separate counsel. See Jn re Amatex Corp., 755

13

Notwithstanding the inherent deficiencies in the Second

Circuit’s willingness to abandon constitutionally required due

process rights subject to its own post hoc determination, both the

Second Circuit and the district court were in error when they stated

that a conflict had "never materialized" because future claimants and

current claimants were treated identically. First, they were not

treated identically. Those claimants who had present injuries which

the claimants subjectively believed were related to their exposure to

Agent Orange had the ability to judge the merits of their claim and

reasonably decide whether to opt out of the class. On the other

hand, Captain Ivy, who had not yet manifested any injuries,

received no notice of the class and, in any case, could not

intelligently evaluate the prospects of litigating the case to redress

his injuries, because his injuries had not yet manifested."

In addition, benefits were conveyed to present claimants that

were not equally conveyed to Captain Ivy. First, many present

claimants benefitted from the fact that class actions toll statutes of

limitations. Thus, those present claimants who had suffered injuries

much earlier were able to take advantage of participation in the

settlement and avert a possible defense by respondents on the basis

of the lapse of applicable statutes of limitations. Captain Ivy,

however, had no incentive to compromise his claim to gain any such

benefits, because his Texas statute of limitations did not begin to run

until the time his injury was diagnosed, and Mrs. Ivy’s statute did

not begin to run until her husband’s death.

F.2d 1034, 1042-43 (3d Cir. 1985) ("[NJone of the parties currently involved

in the reorganization proceedings have interests similar to those of future

claimants, and therefore future claimants require their own spokesperson.");

In re Forty-Eight Insulations, Inc., 58 B.R. 476, 478 (Bankr. N.D. Il. 1986):

In re Johns-Manville Corp., 36 B.R. 743, 749, 752 (Bankr. S.D.N.Y. 1984),

aff'd, 52 B.R. 940 (S.D.N.Y. 1985).

‘© In 1984, Captain Ivy’s claim was not even justiciable. In Lujan v.

Defenders of Wildlife, 112 S. Ct. 2130, 2139 (1992), this Court has established

an “irreducible constitutional minimum of standing" which requires that "the

plainuff must have suffered an ‘injury in fact’ — an invasion of a legally-

protected interest which is (a) concrete and particularized, and (b) ‘actual or

imminent, not conjectural or hypothetical.’" /d. at 2136 (citation omitted). In

the absence of unbounded clairvoyance, the risk of Captain Ivy’s developing

an Agent Orange related cancer at some indefinite time in the future was, by

definition, a speculative or conjectural injury rather than a current or imminent

“injury in fact” as necessitated by Lujan.

14

Second, presently injured claimants had a rational incentive to

seek an immediate, albeit less adequate, settlement, because their

illnesses caused financial pressures, including the present costs of

treatment. These costs were clearly defined. By contrast, Captain

Ivy did not experience the same financial pressures nor did he have,

in 1984, any knowledge of the potential costs of his future treatment

and disabilities.

Third, unlike Captain Ivy, presently injured claimants were

obligated by claims accrual rules of various jurisdictions to file their

actions in a timely fashion. These suits were filed at a time when

evidence of medical causation was only in the nascent stages of

development. The district court recognized that it was “of course,

possible that in a few years a sudden increase in diseases associated

with Agent Orange will be revealed.""" 597 F. Supp. at 795

This acknowledgement came in part because of the fact that when

the Agent Orange cases were initially filed in 1978, at maximum

claimants were only sixteen years post-exposure and at minimum six

years. By contrast, mean cancer latency for environmental toxins

is Often in excess of twenty years. See Affidavit of Dr. Jenkins, 2d

Cir. Appendix, No. 92-7575, at 133-34. And, as the district court

noted, “[ijt took almost forty years for solid tissue cancers to

develop in victims of atomic bombing in Japan." 597 F. Supp. at

795. For these reasons, if independent counsel had been appointed

for Captain Ivy, that counsel could have asserted that it would be

unreasonable for Captain Ivy to accept a “nuisance value” settlement

" The District Court went on to find that for the purpose of the opt-out

claims before it, “[i]t appears unlikely that such proof will develop in time to

affect th[at] litigation.” 597 F. Supp. at 795. The district court then dismissed

the claims of those persons who had exercised their opt-out rights. 611 F

Supp. 1223 (E.D.N.Y. 1985), aff'd, 818 F.2d 187 (2d Cir. 1987), cert. de-

nied, 487 U.S. 1234 (1988). The grounds for dismissal were that the then

available scientific evidence was insufficient to demonstrate a causal link

between Agent Orange exposure and plaintiffs’ illnesses, and that the “govern-

ment contractor defense” preempted state tort law. Only the latter ground was

upheld on appeal, as the Second Circuit concluded that the district court's

ruling was inconsistent with the law applied in the Second Circuit on the

admissibility of expert testimony under the Federal Rules of Evidence, Rule

703. 818 F.2d at 189. This would remain true today under this Court's ruling

in Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 $.Ct. 2786, 2797-98

(1993).

aerial el

aaa iia

15

when his ability to substantiate medical causation (if he became ill

from Agent Orange) would very likely improve with time.

In fact, despite the Second Circuit’s protestations to the

contrary, which are based upon material dehors the record.”

scientific knowledge, obtained since the date of the settlement. has.

as expected, strengthened claims that respondents’ products were

responsible for the occurrence of cancer in American war veterans.

See, e.g., Affidavit of Dr. Jenkins, 2d Cir. Appendix, No. 92-7575,

at 129. Indeed, in 1991 Congress directed the Secretary of Veterans

Affairs under Public Law 102-4 to "conduct a comprehensive

review and evaluation of the available scientific and medical

information regarding the health effects of exposure to Agent

Orange.” Pursuant to that charge, the National Academy of

Sciences’ Institute of Medicine Committee to Review the Health

Effects in Vietnam Veterans of Exposure to Herbicides reported in

August 1993 that there was sufficient evidence to conclude that there

IS 4 positive association between herbicide exposure in Vietnam and

three classes of cancer (soft tissue sarcoma, Non-Hodgkin's

lymphoma, and Hodgkin's disease) and that there was suggestive

evidence of an association with three other classes of cancers

(respiratory cancers, prostate cancer, and multiple myeloma).

National Academy of Sciences Institute of Medicine, Veterans and

Agent Orange: Health Effects of Herbicides Used in Vietnam (1993)

(Attachment to July 28, 1993 letter of Robert Hager to Clerk of the

United States Court of Appeals for the Second Circuit).

A20. While not mentioning petitioners’ substantial record evidence.

the Second Circuit went outside the record and cited both Han K. Kang, ef al.,

Dioxins and Dibenzofurans in Adipose Tissue of U.S. Vietnam Veterans and

Controls (1990) and 13B Arthur L. Frank, Courtroom Medicine: Cancer.

§ 25A.00, at 25A-4 (1992), quoting from Frank as follows: "“[Fjurthermore,

no deaths attributable solely to exposure to Agent Orange and its dioxin

contaminant have been reported."" A20. However, the danger of such an ex

parte evidentiary process is that a court risks the possibility of basing its

decision on inaccurate information. Petitioners cited below, Brief for Shirley

Ivy at 47, a case (tried by counsel of record for Amici) wherein the family of

a worker exposed to dioxin received a $1.5 million verdict for his death due

to soft Ussue sarcoma. Overmann v. Syntex (USA), Inc., No. 852-02681 (Div.

5), Circuit Court, City of St. Louis (Mo July 10, 1991).

3

To date, the Department of Veterans Affairs has announced

regulations to compensate herbicide-exposed Vietnam War veterans for each

of the above cancers, with the exception of prostate cancer

16

Lastly, the district court itself recognized that "[fluture

claimants might . . . disagree with prior litigation strategy or find

new evidence in support of their claims." A57. As it has turned

out, one of the most difficult impediments to recovery for Vietnam

war veterans in 1984 was the district court’s perception of the

expansive nature of the immunity given to defense contractors.

Recently, the Second Circuit, by Chief Judge Oakes, has held that

the district court’s rulings herein regarding this defense did not

survive this Court’s decision in Boyle v. United Technologies Corp.,

487 U.S. 500 (1988), which established a far narrower contractor

defense than that applied by the district court. See Joint Eastern

and Southern District of New York Asbestos Litigation, 897 F.2d

626, 634-35 & n.8 (2d Cir. 1990).

Il. PURPORTED JUDICIAL EFFICIENCY CAN NEVER

JUSTIFY THE WHOLESALE DENIAL OF DUE

PROCESS RIGHTS TO FUTURE CLAIMANTS,

ESPECIALLY WHEN THERE ARE ALTERNATIVE

MEANS OF ENCOURAGING SETTLEMENTS

In addition to countenancing the abolition of due process rights

for future claimants, the decisions below presage a remarkable

expansion of federal judicial power. The district court’s justification

for upholding the parties’ contractual agreement to extinguish the

rights of Captain Ivy was that the parties at the table were

“[c]oncerned with the potential for new actions and recogniz[ed] the

need for finality.” A35. Concerned “that class action settlements

simply will not occur" if they are made "too difficult" by according

future claimants due process rights, the district court held that

Captain Ivy’s potential future claims in 1984 were outweighed by

the “interests of presently injured plaintiffs as well as defendants in

achieving a settlement." A58. The Second Circuit concurred that

the deprivation of Captain Ivy’s constitutional rights was justified by

'* Boyle, as applied to the facts here, would require that a jury, and not

a judge, decide the issue of whether the government ordered its herbicide to

be contaminated with deadly dioxin (which the government clearly did not do),

and also decide whether the other elements of the defense were satisfied. See

Joint Eastern and Southern District New York Asbestos Litigation, 897 F.2d at

635 n.8; Boyle, 487 U.S. at 512, 514.

cree eel

17

“society's interest in the efficient and fair resolution of large-scale

litigation." A17.

However, fundamental constitutional principles can never be

disregarded, especially for the sake of supposed efficiency. As this

Court has stated:

Procedural due process is not intended to promote

efficiency . . . it is intended to protect the particular

interests of the person whose possessions are about to be

taken. . . . "[T]he Constitution recognizes higher

values than speed and efficiency. Indeed, one might

fairly say of the Bill of Rights in general, and the Due

Process Clause in particular, that they were designed to

protect the fragile values of a vulnerable citizenry from

the overbearing concern for efficiency and efficacy that

may characterize praiseworthy government officials no

less, and perhaps more, than mediocre ones."

Fuentes v. Shevin, 407 U.S. 67, 90 n.22 (1972) (quoting Stanley v.

Illinois, 405 U.S. 645, 656 (1972))."§

The Second Circuit’s decision defies the history and very

purposes of the Seventh and Fourteenth Amendments. The right to

jury trial, as an essential civil right, was intended to safeguard

against the type of supervisory dominion by the judiciary that the

Second Circuit now advocates.'® As the Chief Justice has stated:

'S See also In re: General Motors Corp. Engine Interchange Litigation,

594 F. 2d 1106, 1133 (7th Cir. 1979), cert. denied, 444 U.S. 870 (1979).

wherein the Seventh Circuit disagrees with the Second Circuit's decision

herein, stating that “convenience and expediency cannot justify disregard of the

individual rights of even a fraction of the class.”

'* See, e.g., Morris 8. Arnold, A Historical Inquiry Into the Right to

Trial By Jury in Complex Civil Litigation, 128 U. PA. L. REV. 829. 832-35

(1980)

18

The right of trial by jury in civil cases at common law

is fundamental to our history and jurisprudence.

The founders of our Nation considered the right of trial

by jury in civil cases an important bulwark against

tyranny and corruption, a safeguard too precious to be

left to the whim of the sovereign, or, it might be added,

to that of the judiciary.

Parklane Hosiery Co. v. Shore, 439 U.S. 322, 338, 343 (1979)

(Rehnquist, J., dissenting).

Additionally, the Second Circuit has disregarded the very

significant state interest in preserving the right of persons, like

Captain and Mrs. Ivy, to bring suit subsequent to the manifestation

of injury or the occurrence of death. Pursuant to the "discovery

rule,” virtually every , urisdiction in the United States has authorized

a tolling of the statute of limitations until an injured person knows

or should know of his or her injury.'’ As stated in Judge Frank’s

oft-quoted dissent:

Except in a topsy-turvy land, you can’t die before you

are conceived, or be divorced before ever you marry, or

harvest a crop never planted, or burn down a house

never built, or miss a train running on a non-existent

railroad. For substantially similar reasons, it has always

heretofore been accepted, as a sort of logical "axiom,"

that a statute of limitations does not begin to run against

a cause of action before that causeof action exists, j.e.,

before a judicial remedy is available to a plaintiff.

Dincher v. Marlin Fire Arms Co., 198 F.2d 821, 823 (2d Cir.

1952). Yet, while virtually every jurisdiction has by now heeded

these words, the Second Circuit would seem to add the paradoxical

exception that an individual’s claim can be settled by others before

his or her cause of action exists.

It is clear then that the lower courts’ preference for

"efficiency" and "finality" cannot possibly justify their denial of the

'? Urie v. Thompson, 337 U.S. 163 (1949). See also Barnes v. A.H.

Robbins Co., Inc. 476 N.E. 2d 84 (Ind. 1985) (collecting decisions) and 3

Louis R. Frumer and Melvin I. Friedman, Products Liabiliiy § 26.04 (1992)

(collecting decisions applying discovery rule).

19

constitutionai rights of future claimants. Even the presumption of

the courts below that “class action settlements will simply not

occur,” A58, unless the rights of future claimants are ignored, is

wrong. For instance, in the case of Bowling v. Pfizer, Inc., 143

F.R.D. 141, 166 (S.D. Ohio 1992), appeal pending, No. 923973

(6th Cir.), a district judge, faced with a desire of the respective

parties to extinguish future rights, approved a settlement that

compromised the rights of unknown future claimants in a class

action involving convex/concave heart valves only on the condition

that any class member who ultimately did suffer a fractured heart

valve would be permitted at that time to opt out of the class, to

arbitrate, or to accept payment under the terms of the settlement.

There is no reason that a similar settlement could not have been

approved by the courts herein.'®

In the Jn re Agent Orange litigation, the thrust of the

settlement could still have been preserved by ruling that notice was

effective only as to those persons who had manifested Agent

Orange-related injuries at the time of the settlement. On the other

hand, those, like Captain and Mrs. Ivy, who subsequently

manifested their injuries should have been given an opportunity to

be informed of their right to pursue their cause of action in a civil

jury trial and should have been afforded a reasonable period of time

in which to exercise that right after the manifestation of their

injuries.

Settlements, even for future claimants with future opt out

rights, when predicated upon realistic evaluations of the prospective

'§ Indeed, respondents are seeking a result by way of settlement that

they could not have achieved through trial. Due process does not permit a

class action judgment to bind absent class members with respect to

particularized damage issues. Personalized damage and causation issues

require individual trials. See In re Fibreboard Corp., 893 F.2d 706 (Sth Cir.

1990) (reversing trial court's decision to adjudicate individual damages claims

through statistical extrapolation from representative plaintiffs). See, a

Herbert B. Newberg and Alba Conte Newberg, supra note 6, § 17.39 ("Any-

time a mass tort gives rise to injuries that occur over a period of time. . .

inevitably there will be claims that arise in the future after an action for this

mass tort has been permitted to be maintained and adjudicated as a class action.

Those future claims will not and cannot be bound by the class action litigation.

Toxic torts giving rise to latent illnesses and defective products with latent

risks are two examples. ")

20

success of claims, will likely be favored by claimants in that they

avoid significant transaction Costs for both sides. However, when

such settlements are unreasonable, it will then be more likely that

future claimants will opt out and return to the civil justice system.

Applied to the Agent Orange settlement herein, if future claimants

truly face the dim prospect of success that is envisioned by the

Second Circuit (A21) and respondents, then respondents need not

fear that many veterans will opt for a return to the civil justice

system. Nevertheless, fundamental constitutional rights are no less

precious to veterans of our Armed Forces than they are to every

other American, and it would be a travesty of justice if Vietnam

veterans were not given at least the opportunity for a jury trial that

is generally accorded to all other victims by our system of laws.

CONCLUSION

The courts below, in the putative interest of judicial efficiency

and contrary to the dictates of due process, have fashioned a broad

and far-reaching doctrine which caused Captain Ivy to be bound to

the 1984 settlement and to have his rights extinguished without

notice, without an opportunity to opt out, and without adequate

representation. This purported solution was fashioned as if

Congress had delegated to these two courts a broad power to create

public policy concerning the compensation for all Vietnam veterans

to the exclusion of every other state and federal court in the

country. Amici do not believe that the courts below were vested

with such plenary power and, therefore, Amici request that this

Court grant certiorari in order to review and ultimately reverse this

usurpation of legislative and judicial powers by the courts below.

Respectfully submitted,

P.B. ONDERDONK GERSON H. SMOGER

NATIONAL JUDGE ADVOCATE Counsel of Record

THE AMERICAN LEGION AGENT ORANGE

P.O. Box 46206 COORDINATING COUNCIL

Indianapolis, IN 46206 14800 Quorum Dr., Suite 550

Dallas, TX 75240

(214) 980-8020

< IRS

21

MARSHALL E. MILLER ROBERT C. RHODES

NATIONAL JUDGE ADVOCATE MILITARY ORDER

for AMVETS OF THE PURPLE HEART

1920 South Creek Blvd. 5413-S Backlick Rd.

Daytona Beach, FL 32124 Springfield, VA 22151

ROBERT L. NELSON MAJ. ALDEN S. LANCE, DSC

GENERAL COUNSEL JUDGE ADVOCATE

PARALYZED VETERANS for LEGION OF VALOR OF

OF AMERICA THE UNITED STATES, INC.

801 Eighteenth St., N.W. 415 West Main St.

Washington, DC 20006 Savannah, MO 64485

THOMAS A. O’CONNOR

O’CONNOR, MacDONALD & MAZA

for VETERANS OF THE

VIETNAM WAR, INC.

61 N. Washington St.

Wilkes-Barre, PA 18703

Counsel for Amici Curiae

January 27, 1994