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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_0848%3A5

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1994
- **Citation:** 510 U.S. 1140

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_0848%3A5. Public record. Not legal advice.