Amicus Curiae Brief — Stephenson v. Dow Chemical Co (No. 08-461)

Supreme Court, U.S

\S No. 08- NOV 7 ~ 2008

OFFICE OF THE CLERK

In The

Supreme Court of the Anited States

DANIEL RAYMOND STEPHENSON, ET AL.,

Petitioners,

wf

DOW CHEMICAL COMPANY,

MONSANTO COMPANY, ET AL..,

Respondents.

¢

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Second Circuit

®

BRIEF OF VETERANS GROUPS AS AMICI CURIAE

IN SUPPORT OF PETITIONER

+

LEILA H. WATSON

Counsel of Record

CorY WATSON CROWDER & DEGARIS

2131 Magnolia Ave. S.

Birmingham, AL 35205

(205) 328-2200

November 7, 2008

Counsel for Amici Curiae

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

TABLE OF AUEHORD TUS csnceseccciicsecesvavssevexessues iii

INTEREST OF AMICI CURIALE .............ss00eeceeseees 1

SUMMARY OF ARGUMENT ...00..... ce eeeseeeeeees 3

PAP INE ocsnvciscevaveineweys eebicncencneremmanenD 5

I. PUBLIC POLICY WOULD NOT ADVO-

II.

CATE THE EXPANSION OF THE DE-

FENSE TO PROVIDE IMMUNITY TO

THE CHEMICAL COMPANIES IN THIS

A. Boyle’s rationale for the government

contractor defense recognizes the need

to protect the government’s discretion-

ary function while also encouraging

manufacturers to share their knowl-

edge of known dangers...................0000008

B. The Second Circuit’s application of

Boyle frustrates the government’s dis-

cretionary TCtiOR sa...

C. Public policy demands full disclosure

by government contractors....................

IN A CASE OF THIS MAGNITUDE, THE

COURT SHOULD REVIEW THE SEC-

OND CIRCUITS DECISION, WHICH

GREATLY EXPANDS THE SCOPE OF

THE GOVERNMENT CONTRACTOR

DEST Ral W GIs x nnsn vrs easnscsevinssonteyentonesaieaeneaenanee

1

TABLE OF CONTENTS -— Continued

Page

A. Boyle does not require a showing that

the knowledge withheld by the con-

tractor would have made a difference

to the government in its decision-

PORTA PEOCUES on ic cer eessvesstvermeneem 10

B. The Second Circuit disregarded factual

PE ns sedecccicnncunenaeeneee 11

C. Boyle does not address defects result-

ing from a manufacturing process that

was neither compelled nor specified in

ND UIE isc sicscisscecevicvererseaepeserenmaees 12

il. THE CHEMICAL COMPANIES, RATHER

THAN THE INJURED VETERANS,

THE GOVERNMENT, OR TAXPAYERS,

SHOULD BEAR THE COST OF HARM

THAT WAS PREVENTABLE ...................... 13

A. Manufacturers are in the best position

to prevent these injuries ...............::0006 14

B. Parties withholding information and

causing injury should bear the costs of

PE SII oosciicsecci erica 16

IV. PUBLIC POLICY IS TO PROTECT OUR

TROOPS TO THE BEST OF OUR ABIL-

ITY FROM UNNECESSARY OR PRE-

EEE PPR RAds BRIRARIME » cisccicevsvivescnscsasieerstensecones 18

oo. & Ea 6), iiusitae ies isavaeaee 19

APPENDIX

Ee PEMNNCE CLEPUNG 50.0 ccnsencecvncesovernesnsmeican App. 1

il

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Boyle v. United Technologies Corp., 487 U.S.

ee lata bisynisanevecsiataiesculectunstoncaienaeeeierets passim

In re “Agent Orange,” 517 F. 3d 76 (2nd Cir.

A ea RS RODENT ar RS OTE OE ETRE RoR Or Ea 9,10, 11, 12

United States v. Varig Airlines, 467 U.S. 797

| ae anes era E ORIEN SITE NOUR Ns te Re SDF 6

OTHER AUTHORITIES

Beh, The Government Contractor Defense:

When Do Governmental Interests Justify Ex-

cusing A Manufacturer’s Liability for Defec-

tive Products? 28 SETON HALL 430 (1997) .............. 14

Budget of the United States Government,

Fiscal Year 2008, http://www.whitehouse.gov/

omb/budget/fy2008/pd f/budget/defense. pdf............ 15

Defense News, List of Top Military Contractors

http://www.defensenews.con//static/features/

top100/charts/rank_2007.php?c=FEA&s=TIC ...... 15

Dow Chemical Company 2007 10-K and

Stock Holder Summary, http://www.dow.com/

PublishedLiterature/dh_010b/0901b8038010

bafe.pdf?filepath=financial/pdfs/noreg/161-

00696. pdf &from Page=GetDoc........... eee eeeeeeeeees 15

1V

TABLE OF AUTHORITIES — Continued

Merriam-Webster’s Dictionary of Law. Merriam-

Webster, Inc. http://dictionary.reference.com/

browse/discretion (accessed: October 24,

Monsanto 2007 Annual Report, http://www.

monsanto.com/pdf/pubs/2007/2007Annual

NG iii ciccutiniin crn cnaemanieceonr tenes

Veteran’s Affairs Vietnam Veterans Fact Sheet,

http://www. vba.va.gov/bln/21/Milsvc/Docs/VN

CS EE EERE DOE OL II ENO RTE ee

Page

IDENTITY AND INTEREST OF AMICI CURIAE'

Amici are 32 military and veterans service or-

ganizations, collectively representing more than 7

million members. Amici join together in urging this

court to grant certiorari for two compelling reasons.

First, Vietnam War veterans suffering from fatal

diseases caused by privately manufactured chemicals

should at minimum be accorded the same rights as

ordinary Americans to sue the manufacturers of those

exact same chemicals who happened to be exposed

during domestic use in the U.S. Secondly, and even

more importantly, the Second Circuit’s drastic expan-

sion of the government contractor defense threatens

the health and safety of all servicemen who must

necessarily rely on products manufactured by con-

tractors to protect this country and who, therefore,

have a right to expect that those products will be

manufactured as safely as is possible.

Amici, urging this court to accept certiorari,

include the following chartered veterans service

organizations: 1) The American Legion, 36 U.S.C

§217, et seq., with nearly 3 million members;

’ All counsel of record received notice of amici’s intention to

file this brief at least ten days before this brief was due. The

parties have consented to the filing of this brief. Amici state that

no portion of this brief was authored by counsel for the parties

and that no person or entity other than amici or their counsel

made a monetary contribution to the preparation or submission

of this brief.

* See Appendix for a detailed description of Amici.

2

2) The Veterans of Foreign Wars of the United States,

§2301, et seg., with 1.7 million members; 3) The

Disabled American Veterans, §50301, et seq., with 1.4

million members; 4) The Vietnam Veterans of Amer-

ica, §2305, et seg., with 50,000 members; 5) The

Catholic War Veterans of the United States, §401, et

seq., with 30,000 members; 6) The American Ex-

Prisoners of War, §209, et seq., with 27,000 members;

7) The Blinded Veterans of America, §1701, et seq.,

with 10,200 members; 8) The Paralyzed Veterans of

America, §1701, et seq., with 20,500 members; 9) The

Reserve Officers Association, §1901 et seq.; 10) The

Marine Corps League, §1401, et seq.; 11) The Italian

American War Veterans of the U.S.A., §1001, et seq.,

with 10,000 members; and 12) The Military Chap-

lains Association §1403, et seq.

Amici also include the following unchartered

organizations: 1) The Air Force Association, with

125,000 members; 2) The Air Force Sergeants Asso-

ciation, with 130,000 members; 3) The Air Force

Women Officers Associated; 4) The Association of

the United States Army; 5) The Chief Warrant and

Warrant Officers Association, United States Coast

Guard; 6) The Enlisted Association of the National

Guard of the United States with 414,000 members; 7)

The Fleet Reserve Association; 8) The Jewish War

Veterans of the United States of America; 9) The

Marine Corps Reserve Association; 10) The Military

Officers Association of America, with 370,000 mem-

bers; 11) The National Association for Uniformed

Services, with 200,000 members; 12) The National

Guard Association of the United States, with 45,000

3

members; 13) The National Order of Battlefield

Commissions; 14) The Naval Enlisted Reserve Asso-

ciation; 15) The Navy League of the United States;

16) The Naval Reserve Association; 17) The Non-

Commissioned Officers Association; 18) The United

States Army Warrant Officers Association; 19) The

Veterans of the Vietnam War, Inc.; and 20) The Re-

serve Enlisted Association.

¢

SUMMARY OF ARGUMENT

Public policy demands that the Second Circuit’s

decision in this case be reviewed. That decision

ignores the government’s need to provide our military

with equipment that is not unnecessarily defective.

The defendant chemical companies hid information

from the government regarding the dangerous nature

of dioxin, the manufacturing process used that re-

sulted in unnecessarily high levels of dioxin, and the

numerous illnesses to their workers they knew to be

caused by dioxin. Thus they should not benefit from

the government contractor defense — a defense which

public policy demands sharing knowledge of known

dangers before contractors may benefit from it.

In this case, the exceptionally high levels of toxic

dioxin, a byproduct of Agent Orange, were not the

result of the government’s instruction, design or

specification. Dioxin, which has caused so many

health problems to veterans who were exposed to

Agent Orange in Vietnam, was created as a conse-

quence of the manufacturing process chosen by the

4

defendant chemical companies, not by the govern-

ment. The government did not require the chemical

companies to utilize a manufacturing process that

created dioxin and did not compel the chemical com-

panies to create a defective or unreasonably danger-

ous product. Therefore, the public policy behind the

government contractor defense would not be harmed

or threatened by the rejection of that defense in this

case.

Conversely, other compelling public policies are

trampled by the improper application of the govern-

ment contractor defense here. Public policy strongly

encourages the protection of our military by providing

the troops with the best and the safest equipment

possible to serve our country. The record has been

made clear in this litigation that the chemical com-

panies had the ability to make Agent Orange without

detectible levels of dioxin as a byproduct, by using

less dangerous processes, such as the Boehringer

process — but they chose not to. In addition, public

policy favors holding the party in the best position to

prevent the harm responsible for injuries. The chemi-

cal companies had much greater knowledge than did

the government about the manufacturing processes

which resulted in the creation of dioxin. Moreover,

when harm occurs, public policy requires the culpable

party to bear the cost. In this case, the government

not only paid the chemical companies for the Agent

Orange they manufactured, but also for the medical

care and benefits owed to Vietnam veterans injured

from the unnecessary exposure to dioxin. As a result,

Cn

the public has been forced to pay over and over again

for the harm caused by the chemical companies.

Moreover our Vietnam veterans have no recourse for

their damages. Such a result flies in the face of public

policy.

Should the decision of the Second Circuit be

allowed to stand, private contractors will be encour-

aged to keep from the government knowledge they

possess regarding important safety issues — including

safer alternative manufacturing processes never

contemplated, much less required, by the contract

specifications. Moreover, contractors will use this

holding as a license to ignore opportunities to evalu-

ate safer processes and to learn about potential

defects in the products they supply to the govern-

ment. In either event, there is a substantial risk of

our military being provided unnecessarily dangerous

or defective products that impede the troops’ ability to

get the government’s work done.

.

ARGUMENT

I. PUBLIC POLICY WOULD NOT ADVOCATE

THE EXPANSION OF THE DEFENSE TO

PROVIDE IMMUNITY TO THE CHEMICAL

COMPANIES IN THIS CASE.

The government contractor defense is not statu-

tory, but a creation of the Court, born out of public

policy considerations that a contractor, who simply

does what the government tells him to do, should not

6

be exposed to state-law tort liability for doing so. In

Boyle, this Court set forth 3 requirements for a gov-

ernment contractor to take advantage of the immu-

nity provided by the government contractor defense:

(1) that the United States approved reasonably

precise specifications; (2) the equipment conformed to

those specifications; and (3) the supplier warned the

United States about the dangers in the use of the

equipment that were known to the supplier but not to

the United States. Boyle v. United Technologies Corp.,

487 U.S. 500, 512 (1988).

A. Boyle’s rationale for the government

contractor defense recognizes’ the

need to protect the government’s dis-

cretionary function while also encour-

aging manufacturers to share their

knowledge of known dangers.

This Court imposed the first two requirements of

Boyle in order not to frustrate the government’s

discretionary function. /d., 487 U.S. at 512. In doing

so, this Court considered that there would be a finan-

cial burden associated with holding government

contractors liable that would ultimately be passed

through to the federal government. Boyle, 487 U.S. at

511. Additionally, consideration was given to whether

allowing suits against government contractors would

result in “second guessing” the government’s discre-

tionary function through litigation. Jd. citing, United

States v. Varig Airlines, 467 U.S. 797, 814 (1984).

Added to these was the third requirement. Its ra-

tionale was to prevent giving manufacturers “an

7

incentive to withhold knowledge of risks.” Boyle, 487

U.S. at 512.

All of these concerns are best served by not

allowing the government contractor defense to im-

munize the chemical companies in this case. The

government’s discretionary function is not impeded

by holding contractors liable where they hid known

information of dangers from the government, because

the government was never able to exercise its discre-

tionary authority in the first place. Furthermore, by

allowing the manufacturers to hide behind the gov-

ernment contractor defense, when they withheld

information of a known safer manufacturing process

and intentionally withheld the health hazards associ-

ated with exposure to dioxin, flies in the face of Boyle

and public policy.

B. The Second Circuit’s application of

Boyle frustrates the government’s dis-

cretionary function.

A fair and just reading of Boyle would require

contractors to share their knowledge of safer manu-

facturing processes for the herbicides ordered by the

government. One purpose of the government contrac-

tor defense is to keep the government’s discretionary

function from being frustrated. Jd. 487 U.S. at 511.

“Discretion” implies the government has a choice in

8

its decision-making process.’ By hiding information of

safer available processes for manufacturing Agent

Orange without dangerously high or even detectable

levels of the toxic byproduct dioxin from the govern-

ment, the chemical companies denied the government

an opportunity to approve their selected method.

With this information, the government would have

been able to truly use its discretionary authority to

make an informed decision regarding not only

whether to use Agent Orange, but also which method

should be used to manufacture that product. State

tort claims against the chemical companies do not

frustrate the government’s discretionary authority,

but the chemical companies’ withholding information

from the government surely does.

In Boyle, this Court said, “second guessing” the

government's. discretionary function should _ be

avoided. Jd. However, a second look is mandated in

this case because the chemical companies, as the

Second Circuit acknowledged, failed to provide all

information known to them regarding known defects

in the products they were selling to the government.

The Second Circuit’s ruling improperly grants blan-

ket immunity based on a faulty interpretation of

Boyle. If left standing, this ruling sends the wrong

* Discretion: power of free decision or latitude of choice

within certain bounds imposed by law. Dictionary.com. Merriam-

Webster’s Dictionary of Law. Merriam-Webster, Inc. http://

dictionary.reference.com/browse/discretion (accessed: October 24,

2008).

9

message to government contractors and is contrary to

the public policy considerations of protecting our

troops.

C. Public policy demands full disclosure

by government contractors.

The Second Circuit held that the government

determined that the herbicides it was receiving were

“safe” and that such a determination is equivalent to

approving reasonably precise specifications about

that danger. In re “Agent Orange,” 517 F. 3d 76, 97

(2nd Cir. 2008). It is not. Here, as the Second Circuit

admits, the government did not have full knowledge

of the catastrophic and systemic health dangers

associated with the unspecified dioxin. More impor-

tantly, the government was unaware that the unrea-

sonable dangers of exposing troops to toxic dioxin

could have been reasonably avoided by the use of an

alternative manufacturing process. This further

ignores the fact that while the government was

determining that the product was “safe,” the defen-

dant chemical companies were busy hiding informa-

tion from the government regarding the health

problems they knew were occurring in their own

workers from exposure to the dioxin byproduct. The

relevant inquiry should be whether the government

was given knowledge of the danger and the opportu-

nity to consider approving another plausible manu-

facturing process that would have _ drastically

alleviated the danger. The evidence proves it was not.

It is illogical to determine something is “safe” without

10

knowledge of the specific dangers and the way to

avoid those dangers.

Il. IN A CASE OF THIS MAGNITUDE, THE

COURT SHOULD REVIEW THE SECOND

CIRCUIT’S DECISION, WHICH GREATLY

EXPANDS THE SCOPE OF THE GOV-

ERNMENT CONTRACTOR DEFENSE.

The Second Circuit’s decision expands the gov-

ernment contractor defense by requiring a showing by

the injured party that the knowledge withheld by the

contractor would have made a difference to the gov-

ernment in its decision-making process. Agent Orange,

517 F.3d at 97-98. If the government contractor

defense is to be expanded from Boyle’s requirements,

it should be this Court that articulates the new

standard.

A. Boyle does not require a showing that

the knowledge withheld by the con-

tractor would have made a difference

to the government in its decision-

making process.

In deciding to immunize the chemical companies

in this case, the Second Circuit stated that, even if

health and safety evidence was proven to be hidden,

the plaintiff has the burden of proof at the summary

judgment stage to demonstrate that the evidence

shows that the information withheld from the gov-

ernment is of “the type that would have an impact on

11

the military’s discretionary decision.” The Second

Circuit thereby admitted it was adding an additional

requirement to the defense. Agent Orange, 517 F. 3d

at 97. Nowhere in Boyle did this Court require an

injured party to show that the withheld information

would have had an impact on the military discretion-

ary decision or, conversely, for a plaintiff to show that

admittedly hidden health and safety information

would have had an impact on the military discretion-

ary decision.

B. The Second Circuit disregarded factual

disputes.

Even though the Second Circuit acknowledged

the presence of factual issues left to be resolved as it

considered the three Boyle requirements, the court

ultimately ignored those disputes and took it upon

itself to determine that defective manufacturing

processes and safer alternative methods do not rise to

the level of danger that must be disclosed to the

government. Agent Orange, 517 F. 3d at 97, 101-102.

The Second Circuit’s analysis extends far beyond

what is required by Boyle, and, in this case, results in

the court taking the place of the jury to decide impor-

tant factual disputes. Moreover, it defies logic to

reason that, had the government been fully informed

by the chemical companies of a safer manufacturing

process that would result in an equally effective

Agent Orange defoliant, it would still have chosen

Agent Orange made with a less safe process that

produced dangerously high levels of dioxin. Certainly,

12

such a determination must at least be made by a

finder of fact, not an appellate court.

C. Boyle does not address defects result-

ing from a manufacturing process that

was neither compelled nor specified in

the contract.

The government contractor defense as articulated

in Boyle does not fit well with the peculiar facts of

this case. Boyle sets forth the manner in which a

court must evaluate a state court product liability

claim by comparing the contract at issue with the

alleged defect. This case involves a defective manu-

facturing process that was chosen not by the govern-

ment, but by the chemical companies; and, more

importantly, one that could have been avoided. The

record shows that the chemical companies had supe-

rior knowledge regarding the manufacturing process.

The Second Circuit even acknowledged that there

existed a factual dispute as to whether the chemical

companies could have honored their contractual

obligations using the safer manufacturing process,

but wrongly disregarded that dispute. Agent Orange,

517 F. 3d at 93.

As such, Agent Orange became unreasonably

dangerous as a direct result of the defective manufac-

turing process chosen by the chemical companies. This

case centers on a defective manufacturing process

and not a design defect. A design defect is a defect

inherent in the design of the product. It has nothing

13

to so with the ultimate process to manufacture that

design. Here, there is no issue as to the chemicals or

design chosen. The issue is defendants chose not to

use safer manufacturing methods, including the

Boehringer method. Applying Boyle, which addresses

design defect claims, is inadequate to analyze the

problems created by the defendants’s failure to use

safer methods. Under the Second Circuit's reasoning,

the chemical companies are now off the hook, even

though the government never was given the opportu-

nity to exercise discretion over the manufacturing

process.

lil. THE CHEMICAL COMPANIES, RATHER

THAN INJURED VETERANS, THE GOV-

ERNMENT, OR TAXPAYERS, SHOULD

BEAR THE COST OF HARM THAT WAS

PREVENTABLE.

Sick or the loved ones of now deceased Vietnam

veterans should not be relying exclusively on the

government to pay for the errors of the defendant

companies. This is especially true since those compa-

nies did not share valuable health and safety infor-

mation which could have prevented serious injuries

and death and were paid substantial sums of money

under the contracts. When these Vietnam veterans

sustained injuries and deadly diseases, the govern-

ment paid again — this time with VA benefits and

healthcare expenses. As of March 2000, there were

approximately 7,520 Vietnam veterans receiving

compensation through the Department of Veterans

14

Affairs for Agent Orange related injuries without any

fund or assistance from those companies that manu-

factured the deadly product.’

It is the purpose of our tort system to allow

injured parties to recover when the acts or omissions

of another causes them harm. It is a fundamental

principle “that risk should be borne by those with the

best ability to manage risk by safeguarding against

injury or bearings its cost.” As stated above, the

chemical companies here were in the best position to

safeguard against injury. And for that reason, they

should have to bear the cost.

A. Manufacturers are in the best position

to prevent these injuries.

Government contractors are clearly in a better

position to prevent defects in the products they pro-

duce. The chemical companies had been manufactur-

ing herbicides for decades before the Vietnam War.

These companies should not be allowed to check all

their resources and knowledge at the door when they

* http://www.vba.va.gov/bln/21/Milsve/Docs'VN Facts.doc, citing

6. “Agent Orange: Statistical Update,” March 2000, VA Office of

Public Affairs, Media Relations Office (80-F). This number does

not include the children of Vietnam Veterans who receive

benefits for their injuries due to the use of Agent Orange.

> Hazel Glenn Beh, The Government Contractor Defense:

When Do Governmental Interests Justify Excusing A Manufac-

turer's Liability for Defective Products? 28 SETON HALL 430, 448,

n.103 (1997).

15

work for the government. The chemical companies

have the skill, technology, and financial ability to

ensure that the products they manufacture are effec-

tive, safe and meet the specifications as set forth by

the government.

The Department of Defense has spent $100

billion on procurement contracts in 2008.° The manu-

facturers bidding on these contracts are major corpo-

rate entities, not small-time players. In 2006, the top

ten defense contracting companies produced revenues

over $193.7 billion purely from defense contracts and

their total combined revenues — defense contracting

and other sources of revenues — were over $331.4

billion.’ Although not in the top ten defense contract-

ing companies, the defendants here are hardly lack-

ing in resources: Monsanto reported $8.6 billion in

net sales for 2007, while Dow Chemical reported

$53.5 billion for the same period.” These are industry

leaders who set standards for the rest to follow.

* Budget of the United States Government, Fiscal Year

2008, http://www. whitehouse.gov/omb/budget/fy2008/pdf/budget/

defense. pdf.

" Defense News, List of Top Military Contractors, http://www.

defensenews.com/static/features/top100/charts/rank_2007.php?c

=FEA&s=TI1C.

* Monsanto 2007 Annual Report, http://*www.monsanto.

com/pdf/pubs/2007/2007AnnualReport.pdf; The Dow Chemical

Company 2007 10-K and Stock Holder Summary, http://www.

dow.com/PublishedLiterature/dh_010b/0901b8038010bafe. pdf?file

path=financial/pdfs/noreg/161-00696 pdf&fromPage=GetDoc.

16

Manufacturers should not be encouraged to

withhold safety information when they are manufac-

turing products for use by the government and profit

in the process. Yet, that is precisely what the Second

Circuit’s ruling allows. It is unfitting that these

manufacturers should profit from providing unneces-

sarily defective and highly dangerous herbicides that

cause systemic injuries to our Vietnam veterans when

they went to great lengths to hide health and safety

dangers from the government.

The government contractor defense only requires

that contractors inform the government of all defects

and dangers they are aware of. Boyle 487 U.S. at 512.

This is not a burdensome duty. Such disclosures

would not require any significant additional work as

contractors seek to comply with the terms of a gov-

ernment contract. They are not being asked to make

design changes. They are not being asked to manu-

facture perfect products. Nor are they being asked to

test products and determine all possible defects. They

are simply being asked to responsibly inform the

government of information that could prevent harm

and may implicate the safety of the material that the

government is planning to purchase.

B. Parties withholding information and

causing injury should bear the costs of

those injuries.

Manufacturers that fail in their responsibility to

prevent harm should, as the culpable party, bear the

17

costs of those harms. In this case, the burden should

not fall to the government to pay for injured Vietnam

veterans. Nor should the injured veterans be left

without recourse where neither they nor the govern-

ment were responsible for the harm. Yet, under the

Second Circuit’s ruling, this is precisely the case.

Receiving government healthcare or veterans’

benefits does not have the same affect as being able

to bring a lawsuit against a party that caused one

harm. First and most importantly, such lawsuits

ensure that the culpable party pays for its wrongful

actions and/or omissions. In this case, the chemical

companies who willfully neglected their obligation to

inform the government of a safer manufacturing

process should have to answer for their failures.

Second, only a tort action provides the ability to

validate the victim’s belief that he or she was harmed

by another while also instilling confidence that a

remedy can be found by participating in the judicial

system. Our Vietnam veterans deserve the opportu-

nity to have their day in court against the chemical

companies that could have prevented the illnesses

from which they now suffer. Third, tort liability sets

standards by which others know how to act. In this

case manufacturers and contractors would be encour-

aged to be open and honest with the government

about their knowledge and their capabilities to oper-

ate to the best of their ability.

As the Second Circuit has applied the govern-

ment contractor defense, the culpable parties remain

18

completely immune from having to provide compen-

sation to either the injured Vietnam veterans or the

federal government. This does not embody the stan-

dards considered important to continuing the legiti-

macy of our tort system.

IV. PUBLIC POLICY SHOULD BE TO PRO-

TECT OUR TROOPS TO THE BEST OF

OUR ABILITY FROM UNNECESSARY OR

PREVENTABLE HARM.

Human life is the greatest resource our military

has. It is not in the government’s interest to procure

defective products that cause serious illnesses where

a safer alternative method to manufacture a product

is available. The government invests a large portion

of its budget in the defense of our country. For 2008,

the Department of Defense’s budget is estimated to be

$560 billion with over $100 billion of that allocated

for military personnel. The government has an inter-

est in procuring the best personnel, best resources,

and best equipment for the personnel that protect our

country. The Second Circuit wrongly permits the

manufacturers of products rather than the govern-

ment to determine in the first instance what health

risks may be acceptable for these men and women.

This is wrong. The government should be provided all

known health and safety information in order for it to

determine how best to protect our troops.

As to Vietnam veterans, the government should

certainly not have a greater interest in providing

19

immunity to contractors than in protecting our Viet-

nam veterans from harm. Products manufactured by

government contractors are not a greater or more

important resource than these troops. Although

inury and even death are risks every soldier faces,

those risks should not come from an unnecessarily

defective, extremely toxic product, whose dangers

have been hidden from the government.

°

CONCLUSION

The Second Circuit’s application of the govern-

m2nt contractor defense unduly expands the govern-

m2nt contractor defense beyond its intended scope.

The policy reasons for the government contractor

defense — the interest in protecting both the govern-

ment’s discretionary functions and our military —

stould be of paramount importance to any reviewing

court. Amici urge this Court to grant the petition for

wit of certiorari.

Respectfully submitted,

LitILA H. WATSON

Counsel of Record

CorY WATSON CROWDER & DEGaRIS

2°31 Magnolia Ave. S.

Brmingham, AL 35205

(205) 328-2200

November 7, 2008

Counsel for Amici Curiae

App. 1

APPENDIX

AMICI CURIAE

Congressionally Chartered Organizations

The American Legion, chartered by Congress

in 1919 as a patriotic war-time veterans organization,

is devoted to mutual helpfulness. it is a not-for-profit

community-service organization with nearly 3 million

members, men and women, in nearly 15,000

American Legion posts worldwide.

The Veterans of Foreign Wars of the United

States (VFW) is a federally chartered corporation

with 1.7 million members, over 525,000 of whom

served in Southeast Asia during the Vietnam Conflict.

The organization is dedicated to assuring that veter-

ans are provided the compensation and care earned

by their service, perpetuating the memory of their

sacrifices and furthering the institutions of American

freedoms. Annually, VFW members and its Auxiliary

contribute more than 13 million hours of volunteer-

ism in the community.

Disabled American Veterans (DAV) is a feder-

ally chartered corporation with over 1.4 million

members that focuses on building better lives for

disabled veterans and their families. DAV accom-

plishes this goal by providing free assistance to

veterans in obtaining benefits and services earned

through their military service.

The Vietnam Veterans of America (VVA) is a

federally chartered non-profit corporation dedicated

App. 2

to promoting and supporting the full range of issues

important to Vietnam veterans, creating a new iden-

tity for a generation of veterans and changing public

perception of Vietnam veterans. The VVA has over

50,000 individual members in 46 states and 630 local

chapters. One of the VVA’s special programs is sup-

porting the next generation of America’s war veter-

ans.

Catholic War Veterans was founded in 1935

with the objective of making the entire nation acutely

aware of the struggle and needs of many veterans,

their widows and children. It is also the responsibility

of the 30,000 Catholic War Veterans members to help

protect, preserve and defend the Constitution of the

United States and the laws of our government.

The American Ex-Prisoners of War Organi-

zation is a national organization for American citi-

zens who were captured by the enemy. At the present

time, the American Ex-Prisoners of War has over 300

Chapters and State Departments, representing over

27,000 members. Founded April 14, 1942, the organi-

zation has existed for the purpose of helping others.

Its motto is “We exist to help those who cannot help

themselves.”

The Blinded Veterans Association (BVA) is an

organization of blinded veterans helping blinded

veterans through service programs, regional groups,

resources, and advocacy before the legislative and

executive branches of government.

App. 3

Paralyzed Veterans of America (PVA) is a

congressionally chartered veteran’s organization

dedicated to the needs of veterans with spinal cord

injuries or diseases. The PVA works to maximize the

quality of life for its members and all people with

spinal cord injuries or diseases as a leading advocate

for health care, research, education, veterans’ benefits

and rights, accessibility and the removal of architec-

tural barriers, sports programs, and disability rights.

The Reserve Officers Association (ROA) was

founded in 1922, and chartered by Congress in 1950.

Its mission is to support and promote the develop-

ment and execution of a military policy for the United

States that will provide adequate National Security.

The Marine Corps League, is the only federally

chartered United States Marine Corps — related

veterans organization. Its members join together in

camaraderie and fellowship for the purpose of

preserving the traditions and promoting the interests

of the United States Marine Corps, banding together

those who are now serving in the United States

Marine Corps and those who have been honorably

discharged from that service that they may effectively

promote the ideals of American freedom and

democracy, voluntarily aiding and_ rendering

assistance to all Marines and former Marines and to

their widows and orphans; and to perpetuate the

history of the United States Marine Corps and by

fitting acts to observe the anniversaries of historical

occasions of particular interest to Marines.

App. 4

The Italian American War Veterans of the

U.S.A. is a congressionally chartered organization

with 10,000 members. Its purpose and objectives

include aiding and assisting veterans and their

families; upholding and maintaining the honor and

integrity of the United States, and to preserve and

defend it from her enemies; upholding and maintain-

ing true allegiance to the government of the United

States and fidelity to the Constitution; and promoting

patriotism,” and advancing the civic welfare.

The Military Chaplains Association, formed

in 1925, is a professional support and Veterans Ser-

vice Organization dedicated to the religious freedom

and spiritual welfare of the Armed Services Members,

Veterans, their families and their survivors.

Unchartered Organizations

The Air Force Association (AFA) is an inde-

pendent, non-profit, civilian education organization

with more than 125,000 members which promotes

public understanding of aerospace power and the

pivotal role it plays in the security of the nation. The

AFA’s mission is to educate the public about the

critical role of aerospace power in the defense cf our

nation; advocate aerospace power and a strong na-

tional defense; and support the United States Air

Force and the Air Force Family and aerospace educa-

tion.

The Air Force Sergeants Association (AFSA)

includes all enlisted grades of Air Force Active Duty,

App. 5

ANG and AFRC, retired, veteran and family mem-

bers. With nearly 130,000 members, the AFSA lobbies

to inform Congress of the sacrifices those who wear

and have worn the uniform (and their families) make

on a daily basis for the protection of the American

way-of-life.

The Air Force Women Officers Associated

(AFWOA) was formed in 1975 by a group of retired

Air Force women officers. The AFWOA’s purpose

includes promoting recognition of contributions made

by women while serving in the United States Armed

Forces, supporting education of women currently

enrolled in United States Air Force education/

training programs and to recognize significant

achicvements of women of the United States Armed

Forces.

The Association of the United States Army

(AUSA) is a private, non-profit educational organiza-

tion that supports America’s Army — Active, National

Guard, Reserve, Civilians, Retirees and family mem-

bers. AUSA Chapters worldwide support America’s

Army.

The Chief Warrant and Warrant Officers

Association, United States Coast Guard (CWOA),

established in 1929, represents United States Coast

Guard warrant and chief warrant officers (active,

reserve and retired) to Congress, the White House,

and the Department of Homeland Security Addition-

ally, the association communicates with the Coast

App. 6

Guard leadership on matters of concern to Coast

Guard chief warrant officers.

The Enlisted Association of the National

Guard of the United States (EANGUS) was

formally organized in 1972 with the goal of increasing

the voice of enlisted persons in the National Guard. It

is a non-profit organization comprising over 414,000

soldiers, airmen, and their families and is dedicated

to promoting the status, welfare and professionalism

of enlisted members of the National Guard

The Fleet Reserve Association (FRA) is a

Congressionally chartered, non-profit organization

that represents the interests of the Sea Service

community before the United States Congress. The

Association’s membership comprises of current and

former enlisted members of the United States Navy,

Marine Corps, an. Coast Guard. The FRA is dedi-

cated to serving the interests of current and former

enlisted Navy, Marine Corps and Coast Guard per-

sonnel.

The Jewish War Veterans of the United

States of America, a nonpartisan organization, was

founded in 1896. Its mission includes: fostering and

perpetuating true Americanism; combating whatever

tends to impair the efficiency and permanency of our

free institutions; and encouraging the doctrine of

universal liberty, equal rights, and full justice to all

men and women.

The Marine Corps Reserve Association

(MRCA) represents and advocates for members of the

App. 7

Marine Corps Reserve and their families. The MRCA

provides support for the men and women of the

United States Marine Forces Reserve, in part by

working on matters concerning benefits for Reserve

Marines and their families.

The Military Officers Association of America

(MOAA) is the nation’s largest association of military

officers and operates as an independent, non-profit,

politically non-partisan organization. With about

370,000 members from every branch of service —

including active duty, National Guard, Reserve,

retired, former officers, and their families — it repre-

sents the interests of military officers at every stage

of their careers.

The National Association for Uniformed

Services (NAUS) was founded in 1968. With nearly

200,000 members and supporters, NAUS fights to

protect and enhance the earned benefits of uniformed

servicemembers, retirees, veterans, and their families

and survivors, while preserving a strong national

defense.

The National Guard Association of the

United States (NGAUS) is a nonpartisan organiza-

tion representing nearly 45,000 current and former

Army and Air National Guard officers. Formed in

1878, NGAUS is focused on procuring better equip-

ment, standardized training and a more combat-

ready force.

The National Order of Battlefield Commis-

sions is a non-profit organization of members of the

App. 8

Armed Forces of the United States of America who, in

actual combat, demonstrated exceptional qualities of

leadership. Their aims include voicing concerns for

the protection of our cherished American ideals and

way of life.

The Naval Enlisted Reserve Association

(NERA) was founded in 1957. NERA supports thou-

sands of Sea Service Reservists and works hard in the

interest of National Security.

The Navy League of the United States was

founded in 1902 with the encouragement of President

Theodore Roosevelt. A civilian organization, its objec-

tives include fostering and maintaining an interest in

a strong Navy, Marine Corps, Coast Guard, and

Merchant Marine as integral parts of a sound na-

tional defense and to improve understanding and

appreciation of those who wear the uniforms of our

armed forces and to better the conditions under which

they live and serve.

The Naval Reserve Association is a non-profit,

non-partisan, and non-sectarian organization, founded

in 1954 to speak for the officers of the Navy, the

Naval Reserve, and Naval Reserve. Its purposes

include promoting the interests of officers of the

Department of the Navy and the Naval Reserve to the

advantage of the country’s welfare and security and

supporting the military and naval policies of the

United States to the end that the national defense

and national security be developed and strengthened

App. 9

through the means of an adequate naval establish-

ment including a well-trained and readily available

Naval Reserve.

The Non-Commissioned Officers Association

(NCOA) works daily to enhance and maintain the

quality of life for noncommissioned and petty officers

in all branches of the Armed Forces, National Guard

and Reserves. The Association, founded in 1960, is a

leader on Capitol Hill.

The United States Army Warrant Officers

Association (USAWOA) is a not-for-profit associa-

tion. As part of its goals, the USAWOA strives to:

foster a spirit of patriotism and devotion to duty

among members, commensurate with the high ideals

of the Army; recommend programs for the improve-

ment of the Army; and promote the technical and

social welfare of its members.

The Veterans of the Vietnam War, Inc.,

(VVnW), is a non-profit corporation founded in 1978

to seek help for and to further the cause of all veter-

ans. VVnW was born out of a need to have the service

and special needs of Vietnam War Veterans recog-

nized and acknowledged. Together with the Veterans

Coalition, VVnW strive through their many pro-

grams to maintain, improve, preserve and defend the

quality of life of all veterans and their families.

The Reserve Enlisted Association’s (REA)

mission is to be an advocate for the enlisted men and

women of the United States Military Reserve Compo-

nents in support of National Security and Homeland

App. 10

Defense, with emphasis on the readiness, training,

and quality of life issues affecting their welfare and

that of their families and survivors. The REA is the

only Joint Reserve association representing enlisted

reservists — all ranks from all five branches.