In re Agent Orange Product Liability Litigation

• Decision Date: 03 July 1985
• Docket Number: CV-80-2284.,MDL No. 381
• Citation: 611 F. Supp. 1267
• Parties: In re "AGENT ORANGE" PRODUCT LIABILITY LITIGATION. Anna M. LILLEY, Surviving wife of John Lilley, John W., Jeannie D., Thomas R., Debbie L. and Ward C. Lilley, all minor children of John Lilley, deceased by Anna M. Lilley, their mother and next friend, Plaintiffs, v. DOW CHEMICAL COMPANY, Monsanto Company, Hercules Incorporated, Diamond Shamrock Corporation, Thompson Hayward Chemical Company, North American Phillips Corporation and Uniroyal Merchandising Company, Defendants.
• Court: U.S. District Court — Eastern District of New York

611 F. Supp. 1267

In re "AGENT ORANGE" PRODUCT LIABILITY LITIGATION.

Anna M. LILLEY, Surviving wife of John Lilley, John W., Jeannie D., Thomas R., Debbie L. and Ward C. Lilley, all minor children of John Lilley, deceased by Anna M. Lilley, their mother and next friend, Plaintiffs, v. DOW CHEMICAL COMPANY, Monsanto Company, Hercules Incorporated, Diamond Shamrock Corporation, Thompson Hayward Chemical Company, North American Phillips Corporation and Uniroyal Merchandising Company, Defendants.

MDL No. 381, CV-80-2284.

United States District Court, E.D. New York.

July 3, 1985.

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, Bruce Hecker, Shea & Gould, New York City, N.Y., of counsel; David R. Gross, Budd, Larner, Kent, Gross, Picillo & Rosenbaum, New York City, N.Y.; 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.

MEMORANDUM, ORDER, and JUDGMENT

WEINSTEIN, Chief Judge:

Anna Lilley sues on behalf of her deceased husband John Lilley, a Vietnam veteran. (The Lilleys are sometimes individually and jointly referred to as "plaintiff."). Defendants are seven chemical companies that manufactured the herbicide Agent Orange for use in Vietnam. They have moved to dismiss and for summary judgment. As in the cases of the other veterans who opted out of the class, summary judgment of dismissal must be granted. See In re "Agent Orange" Product Liability Litigation, 611 F.Supp. 1223 (E.D.N.Y.1985).

I. INTRODUCTION

Based on all the information available in this case and in the related MDL litigation, we can assume that plaintiff might establish that the government as well as the defendant chemical companies knew that Agent Orange contained dioxin. The government and defendants undoubtedly knew before the spraying began that dioxin was a highly toxic chemical that might pose dangers to those exposed. Plaintiff can probably show that defendants knew that Agent Orange was to be sprayed in higher concentrations than recommended by the manufacturers for safe commercial use of similar herbicides, creating additional dangers to those on the ground. Plaintiff could also convince a trier that defendants were aware that packaging Agent Orange in drums without warnings was likely to lead to handling in ways contrary to safe usage, such as spillage on personnel and failure to wash and change clothing promptly after exposure.

There is also reason to believe that plaintiff could adduce evidence lending support to a contention that neither the government nor the chemical companies met a responsibility to conduct proper experiments and tests before production and use, to reveal promptly the dangers and to take adequate precautions by warnings and the like. In this respect the case arguably resembles the asbestos litigation where substantial contentions of cover-up and carelessness have been made. See P. Brodeur, "Annals of Law—Asbestos," The New Yorker (June 10, 17, 24, July 1, 1985).

Finally, on the basis of the record, there is evidence of plaintiff's exposure to Agent Orange. It occurred while he was in Vietnam.

Thus plaintiff could establish enough to withstand a motion for summary judgment directed to the first leg of any tort claim— defendants' wrongful act violating a right of plaintiff. Whether the rule is couched in terms of traditional negligence or strict liability we may assume for the purposes of this motion that defendants violated an obligation they owed to plaintiff.

Plaintiff's difficulty is with establishing the second leg of a tort claim—damage to plaintiff caused by defendants' wrongful conduct. Causation cannot be established on the basis of information presently available. It cannot be shown that John Lilley's illness and death were caused by exposure to Agent Orange. On the evidence available no trier could be permitted to find for plaintiff. At this point any analogy to many of the asbestos or other similar toxic tort cases—where there is a clear linkage between the product and a disease—ends.

Under these circumstances, there is no need to consider whether the risks to those on the ground from spraying would have been greater than the risks from ambushes or other enemy action had Agent Orange never been used. Speculation about what the President and other high government officials would have done if they had known of the possible dangers, or what the manufacturers would or should have done if the government ordered the spraying of Agent Orange with full knowledge, becomes legally irrelevant.

Although lack of proof of causation requires that the complaint be dismissed, attorneys for plaintiffs in this and related MDL cases did not bring a frivolous suit requiring them to pay defendants' attorney fees under Rule 11 of the Federal Rules of Civil Procedure. See Eastway v. City of New York, 762 F.2d 243 (2d Cir.1985). The plaintiffs' attorneys in this multidistrict litigation have made a valuable contribution by discovering and revealing evidence supporting the first leg of their claim—defendants' and the government's knowledge of the dangers in using Agent Orange and their failure to take reasonable precautions. That the scientific studies completed after they brought suit failed to support their theories of causation is hardly a reason for punishing the lawyers.

As a result of this litigation, future members of the armed forces may be protected by "sunshine" legislation, Defense Department regulations, and manufacturers' practice requiring disclosure of new and dangerous chemical processes. The importance of this and related Agent Orange litigation to veterans and to the public argues strongly against denominating the complaint in this case frivolous and burdening counsel with Rule 11 sanctions.

A long latency period may ultimately reveal some causal relationship between exposure to Agent Orange and adverse health effects in those exposed and in their children. If and when such a connection is shown the issue of compensation should be addressed by the government. This court must decide the case on the evidence presently available.

II. PROCEDURAL BACKGROUND

Plaintiff opted out of the class previously certified by this court in a suit against the defendant chemical companies. In re "Agent Orange" Product Liability Litigation, 506 F.Supp. 762, 787-792 (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). 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.

The court granted the opt-out plaintiffs repeated adjournments and opportunities for discovery to obtain evidence in opposition to the motion. On December 10, 1984, the court heard oral argument on defendants' motions. 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) (dismissing claims of wives and children against government). The court adjourned consideration of the majority of the opt-out veterans' claims to enable counsel to produce additional evidence of causation.

Counsel for the opt-out plaintiffs submitted materials by Doctors Samuel S. Epstein and Barry M. Singer. Oral argument was heard on April 15, 1985. The court issued an opinion granting defendants' motion for summary judgment on May 8, 1985. In re "Agent Orange" Product Liability Litigation, 611 F.Supp. 1223 (E.D.N. Y.1985).

In the Lilley case, plaintiff produced the affidavit of Dr. Bertram Warren Carnow on October 18, 1984. On December 10, 1984, the court denied summary judgment. Defendants' motion to reargue was granted on February 6, 1985. Expedited discovery occurred and oral argument was heard on April 15, 1985.

On May 14, 1985, the court issued an order granting plaintiff an added thirty days to submit additional proof of exposure and additional medical evidence. Plaintiffs' counsel submitted the affidavit of Mrs. Lilley's brother-in-law John Comeaux on June 12, 1985. Defendants' counsel submitted John Comeaux's supplemental affidavit and an accompanying memorandum of law on June 13, 1985.

III. FACTS

More discovery has occurred in the Lilley case than in any other opt-out case. Still, as the deposition of plaintiff Anna Lilley demonstrates, little is known about John Lilley's medical background and exposure history. Plaintiff's expert, Dr. Bertram Carnow, relies on information supplied by Mrs. Lilley, some of Mr. Lilley's medical records, and studies of animal and industrial exposure to dioxin. He concludes that Agent Orange caused John Lilley's illness and death. Defendants contest causation, relying primarily on epidemiologic studies, the depositions of Mrs. Lilley, the affidavits of John Comeaux and the affidavits of two experts.

A. Information on John Lilley

John Lilley grew up in western Pennsylvania. He entered what subsequently became the Air Force in 1947 at the age of seventeen. According to Mrs. Lilley, her husband received specialized training in the use of chemicals and gas and instruction on how to be an airplane mechanic. Dep. of Anna Lilley at 81. During his years in the service, John Lilley worked primarily as an airplane mechanic. Id. at 36, 57. He "tore engines apart." Id. at 83....