In re Agent Orange Product Liability Lit.
| Decision Date | 08 May 1985 |
| Docket Number | MDL No. 381. |
| Citation | 611 F. Supp. 1223 |
| Parties | In re "AGENT ORANGE" PRODUCT LIABILITY LITIGATION. |
| Court | U.S. District Court — Eastern District of New York |
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Robert C. Taylor, Jr., Ashcraft & Gerel, Washington, D.C., for plaintiffs.
Leonard Rivkin, Rivkin, Leff, Sherman & Radler, Garden City, N.Y., Philip Pakula, Townley & Updike, Wendell B. Alcorn, Jr., Cadwalader, Wickersham & Taft, William Krohley, Kelley, Drye & Warren, Thomas Beck, Arthur, Dry & Kalish, New York City, Bruce Hecker, Shea & Gould, New York City, of counsel, David R. Gross, Budd, Larner, Kent, Gross, Picillo & Rosenbaum, New York City, Paul V. Esposito, Lewis, Overbeck & Furman, Chicago, Ill., Henry G. Miller, Clark, Gagliardi & Miller, White Plains, N.Y., for defendants.
Arvin Maskin, Dept. of Justice, Washington, D.C., for third-party defendant U.S.
TABLE OF CONTENTS
I. INTRODUCTION .............................................. 1228
II. PROCEDURAL BACKGROUND ..................................... 1229
III. FACTS ..................................................... 1230
A. Epidemiological Studies ................................ 1231
1. Miscarriages and Birth Defects ...................... 1231
2. Veterans' Health .................................... 1232
B. Expert Affidavits ...................................... 1234
1. Dr. Singer's Affidavits ............................. 1235
2. Dr. Epstein's Affidavits ............................ 1238
IV. LAW ....................................................... 1239
A. Legal Standards Governing Expert Opinion ............... 1239
1. Admissibility of Epidemiological Studies ............ 1239
2. Admissibility of Expert Opinion Under Rule 702 ...... 1241
(a) Admissibility of Dr. Singer's Testimony ......... 1242
(i) Qualifications as an Expert ................. 1242
(ii) Helpfulness ................................ 1243
(b) Admissibility of Dr. Epstein's Testimony ........ 1243
3. Rule 703 ............................................ 1243
(a) Reliance on Inadmissible Evidence ............... 1245
(i) Dr. Singer .................................. 1246
(ii) Dr. Epstein ................................. 1247
(b) The Requirement of "Sufficient Basis" ........... 1248
4. Rule 403 ............................................ 1255
B. Legal Standard Governing Summary Judgment .............. 1256
C. Law of Causation ....................................... 1260
D. Other Grounds .......................................... 1263
1. Lack of Proof of Who Was Harmed and Who Caused Harm . 1263
2. Statutes of Limitation .............................. 1263
3. Government Contract Defense ......................... 1263
V. CONCLUSION ................................................ 1264
Defendants, seven chemical companies, have moved to dismiss or in the alternative for summary judgment. Plaintiffs are Vietnam veterans and members of their families who have opted out of the class previously certified by the court pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure. In re "Agent Orange" Product Liability Litigation, 100 F.R.D. 718 (E.D.N.Y.), mandamus denied, 725 F.2d 858 (2d Cir.), cert. denied, ___ U.S. ___, 104 S.Ct. 1417, 79 L.Ed.2d 743 (1984). They allege that as a result of the veterans' exposure to Agent Orange, a herbicide manufactured by the defendants, they suffer from various health problems.
Defendants contend that they are entitled to judgment dismissing the claims asserted against them because of each plaintiff's conceded inability to identify the individual manufacturer of the Agent Orange to which a given veteran was exposed, inapplicability of any alternative theory of liability that would overcome that inability, the government contract defense, and inability of any plaintiff to prove that his or her injuries were caused by Agent Orange.
Plaintiff Vietnam veterans do suffer. Many deserve help from the government. They cannot obtain aid through this suit against private corporations.
These issues have been discussed extensively in the court's Preliminary Memorandum and Order on Settlement, In re "Agent Orange" Product Liability Litigation, 597 F.Supp. 740, 876-78 (E.D.N.Y. 1984) (), and the reader is respectfully referred to it for elaboration. See also, e.g., In re "Agent Orange" Product Liability Litigation, 603 F.Supp. 239 (E.D.N.Y.1985) ().
The most serious deficiency in plaintiffs' case is their failure to present credible evidence of a causal link between exposure to Agent Orange and the various diseases from which they are allegedly suffering. Various other reasons why the motion for summary judgment must be granted are set forth below.
The mere fact that this case involves claims of negligence does not preclude granting summary judgment. See, e.g., Haugen v. United States, 492 F.Supp. 398, 400 (E.D.N.Y.), aff'd without opinion, 646 F.2d 560 (2d Cir.1980); INA Aviation Corp. v. United States, 468 F.Supp. 695, 699 (E.D.N.Y.), aff'd without opinion, 610 F.2d 806 (2d Cir.1979). Nevertheless, the practice is somewhat unusual. We have, therefore, set out below in some detail the facts and an analysis of the cases bearing on the matter.
The claims of 281 servicepersons who have opted out of the class are embodied in sixteen different cases. One case began the Agent Orange litigation with the filing of a 162-page complaint in this district on February 23, 1979. Dowd v. Dow Chemical Co., Civil Action No. 79-467. The others were consolidated in this court for pretrial proceedings by the Judicial Panel on Multidistrict Litigation ("MDL Panel"). Plaintiffs seek relief on theories of negligence, strict liability, breach of warranty, intentional tort, and nuisance.
This court certified a class action against the defendant chemical companies pursuant to Rule 23(b)(3). See In re "Agent Orange" Product Liability Litigation, 506 F.Supp. 762, 787-92 (E.D.N.Y.1980), modified, 100 F.R.D. 718 (E.D.N.Y.1983), mandamus denied, 725 F.2d 858 (2d Cir.), cert. denied, ___ U.S. ___, 104 S.Ct. 1417, 79 L.Ed.2d 743 (1984). The class was defined as "those persons who were in the United States, New Zealand or Australian Armed Forces at any time from 1961 to 1972 who were injured while in or near Vietnam by exposure to Agent Orange or other phenoxy herbicides, including those composed in whole or in part of 2, 4, 5-trichlorophenoxyacetic acid or containing some amount of 2, 3, 7, 8-tetrachlorodibenzo-p-dioxin." 100 F.R.D. at 729. The class also included spouses, parents, and children of the veterans born before January 1, 1984 directly or derivatively injured as a result of the exposure.
A separate class was certified on the issue of punitive damages under Federal Rule of Civil Procedure 23(b)(1)(B). Potential class members were allowed to opt out of the Rule 23(b)(3) class but not out of the Rule 23(b)(1)(B) class. 100 F.R.D. at 728.
Extensive notice of the class certification was given. See 597 F.Supp. 740, at 756-57. The notice included a Request for Exclusion Form to be completed by anyone wishing to opt-out of the class. Id.
Over 2.6 million veterans from the United States, Australia, and New Zealand served in Vietnam during the relevant period. Letter from Arvin Maskin, Trial Attorney, Torts Branch of the Department of Justice dated March 29, 1985. The number of persons from that group said to have been exposed to Agent Orange has been estimated in the order of 600,000 or more. See 597 F.Supp. 740, at 756. The class size is far larger since it includes family members of the exposed veterans.
As of May 6, 1984, the Eastern District's Clerk's Office had received 2,440 requests to be excluded from the class, but a substantial number of these opted back in. See 597 F.Supp. 740, at 756. The 281 plaintiffs in the captioned cases under consideration at this time, together with the plaintiff in Lilley v. Dow Chemical Co., 105 F.R.D. 577, Civil Action No. 80-2284, appear to comprise all the opt-outs whose claims are now pending in this court. Some of the remaining opt-outs apparently have not yet filed suit; if they do, their cases presumably will be transferred to this court. A considerable number of opt-outs have been dismissed without opposition or for a variety of reasons not germane to the present discussion.
After settling with members of the class on May 7, 1984, defendants moved on July 24, 1984 for summary judgment in the opt-out cases and a number of cases brought by civilians. On December 10, 1984, the court heard oral argument on defendants' motion. Defendants offered overwhelming proof that no causal connection exists between exposure to Agent Orange and development of miscarriages or birth defects. In response, the veterans' wives and children produced no evidence sufficient to create an issue of material fact on causation. See also In re "Agent Orange" Product Liability Litigation, 603 F.Supp. 239 (E.D. N.Y.1985) ().
The court adjourned consideration of the opt-out veterans' claims against the chemical companies to allow plaintiffs' counsel time to produce evidence of causation. Counsel produced the affidavit of Dr. Barry M. Singer and 189 accompanying affidavits on January 24, 1985. At that time, the court, at the request of plaintiffs' counsel, allowed plaintiffs fifteen days to produce additional affidavits; the court's order stated that "no...
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