Diamond Shamrock Chemicals Co., In re

• Citation: 725 F.2d 858
• Decision Date: 27 February 1984
• Docket Number: No. 754,D,754
• Parties: In re DIAMOND SHAMROCK CHEMICALS COMPANY, the Dow Chemical Company, Monsanto Company, Hercules Incorporated, and T H Agriculture & Nutrition Company, Inc., Petitioners, In re "AGENT ORANGE" PRODUCT LIABILITY LITIGATION. ocket 83-3065.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 858

725 F.2d 858

In re DIAMOND SHAMROCK CHEMICALS COMPANY, the Dow Chemical Company, Monsanto Company, Hercules Incorporated and T H Agriculture & Nutrition Company Inc., Petitioners In re "AGENT ORANGE" PRODUCT LIABILITY LITIGATION.

No. 754, Docket 83-3065.

United States Court of Appeals Second Circuit.

Argued Jan. 4, 1984.

Decided Jan. 9, 1984.

Certiorari Denied Feb. 27, 1984.

See 104 S.Ct. 1417.

Wendall B. Alcorn, Jr., Cadwalader, Wickersham & Taft, New York City, for petitioners.

David John Dean, Carle Place, N.Y., Stephen J. Schlegal, Chicago, Ill., Benton Musslewhite and Thomas Henderson, Plaintiffs' Management Committee, Houston, Tex., Irving Like, Chairman, Law Committee, Babylon, N.Y., for respondents.

Before NEWMAN and WINTER, Circuit Judges, and MacMAHON, District Judge. ^*

WINTER, Circuit Judge:

This multi-district litigation in the Eastern District of New York involves several hundred actions brought by veterans of the armed forces of the United States, Australia and New Zealand who served in Vietnam at some time during the period 1961 to 1972 and by their spouses, parents and children. Jurisdiction is based upon diversity of citizenship. In re "Agent Orange" Product Liability Litigation, 635 F.2d 987 (2d Cir.1980), cert. denied, 454 U.S. 1128, 102 S.Ct. 980, 71 L.Ed.2d 116 (1981). The plaintiffs claim to have suffered damages as a result of the veterans' exposure to "Agent Orange," a term applied to a group of similar herbicides containing toxic substances used by United States armed forces in Vietnam. The defendant chemical companies allegedly produced Agent Orange with unsafe levels of the chemical byproduct commonly called dioxin. Plaintiffs' theories of liability include negligence, strict liability, breach of implied warranty, intentional tort and nuisance. They seek compensatory and punitive damages.

On December 16, 1983, Chief Judge Weinstein certified two classes, one pursuant to Fed.R.Civ.P. 23(b)(3) and the other pursuant to Rule 23(b)(1)(B). In re "Agent Orange" Product Liability Litigation, 100 F.R.D. 718 (E.D.N.Y.1983). Familiarity with his Memorandum and Order is assumed. This petition for a writ of mandamus ensued. We deny the petition.

We note again that mandamus is an extraordinary remedy. Thus, "mere error even gross error in a particular case, as distinguished from a calculated and repeated disregard of governing rules, does not suffice to support issuance of the writ." United States v. DeStefano, 464 F.2d 845, 850 (2d Cir.1972). We note also that this action is "sui generis, and national in its proportions" involving an extraordinary constellation of facts, parties and pleadings. In re Agent Orange Product Liability Litigation, supra at 995. (Feinberg, C.J., dissenting). Accordingly, it is not a case where mandamus is particularly appropriate because a district court's action is likely to "encourage the use of similar procedures by ... district courts in the future." United States v. Dooling, 406 F.2d 192, 199 (2d Cir.), cert. denied, 395 U.S. 911, 89 S.Ct. 1744, 23 L.Ed.2d 224 (1969).

Chief Judge Weinstein certified a class under Fed.R.Civ.P. 23(b)(3) ¹ of United States, Australian and New Zealand veterans, allegedly injured in Vietnam by Agent Orange, and various members of their families, on the grounds that common issues of law and fact predominated. Specifically, he identified as common issues general causation, failure to warn and affirmative defenses arising out of allegations concerning misuse by the government and federal contract requirements.

The oral argument before us cast considerable doubt upon the significance--not to say existence--of the issue of general causation. As described by plaintiffs' counsel, the issue is limited to whether the many harms alleged could conceivably have been caused by Agent Orange without regard to, or differentiation among, levels of exposure. Defendants' response that anything, even water, can be harmful, would seem to dispose of the issue, so defined, without more. However, our skepticism on this particular score, which may be alleviated by framing the issue in different terms, hardly calls for issuance of the writ since it is clear that common issues relating to the nature of the hazards caused by Agent Orange are directly involved in the parties' various contentions regarding an alleged failure to warn, the defense of misuse and the so-called government contract defense. Plaintiffs' claim that defendants conspired to conceal the dangers of Agent Orange also raises a common issue of fact.

Common issues of fact of considerable significance thus arguably exist. Potentially these include what each manufacturer knew and when it knew it, what each told the government and when it did so, what the government learned on its own and when it did so, what hazards of Agent Orange were known then and are known now, what influence the government exercised over the composition of the herbicide, and what various manufacturers communicated to each other. It is, of course, true that many issues are peculiar to the individual plaintiffs, such as the nature of the exposure to the herbicide, causation of individual ailments, and monetary damages. Whether further subclasses may be possible must be left to the future although it is clear that the residual individual trials will be a considerable task. Nevertheless, it seems likely that some common issues, which stem from the unique fact that the alleged damage was caused by a product sold by private manufacturers under contract to the government for use in a war, can be disposed of in a single trial. The resolution of some of these issues in defendants' favor may end the litigation entirely. Moreover, since these issues may involve extensive documentary and testimonial evidence, Chief Judge Weinstein found that obviating a retrial in countless individual cases will lead to substantial economies in the use of judicial and private resources.

There are thus substantial grounds at this stage to support his conclusion that the common issues predominate and that a class action is the most efficient means of adjudicating them. Moreover, there is no guarantee that a non-class action decision on the common issues favorable either to a plaintiff or to the defendants will be recognized as dispositive in later cases under the doctrine of collateral estoppel as applied in different states. See, e.g., Standage Ventures, Inc. v. State, 114 Ariz. 480, 562 P.2d 360 (1977) (reaffirming mutuality requirement despite trend toward abolishing it); Howell v. Vito's Trucking and Excavating Co., 386 Mich. 37, 191 N.W.2d 313 (1971) (same). The unique common issues take the case out of the general rule that "[a] 'mass accident' resulting in injuries to numerous persons is ordinarily not appropriate for a class action because of the likelihood that significant questions, not only of damages but of liability and defenses of liability, would be present, affecting the individuals in different ways." Advisory Committee Note to the 1966 Revision of Rule 23(b)(3), reprinted in 39 F.R.D. 69, 103 (1966). See In re Northern District of California "Dalkon Shield" IUD Product Liability Litigation, 693 F.2d 847 (9th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 817, 74 L.Ed.2d 1015 (1983); Payton v. Abbott Labs, 100 F.R.D. 336 (D.Mass. 1983); Delaney v. Borden, Inc., 99 F.R.D. 44 (E.D.Pa.1983), Mertens v. Abbott Laboratories, 99 F.R.D. 38 (D.N.H.1983); Thompson v. Procter & Gamble Co., No. C-80-3711, slip op., (N.D.Cal. Dec. 7, 1982); Ryan v. Eli Lilly & Co., 84 F.R.D. 230 (D.S.C.1979); McDaniel v. Johns-Manville Sales Corp., No. 76-735, slip op., (N.D.Ill. May 31, 1979); Marchesi v. Eastern Airlines, Inc., 68 F.R.D. 500 (E.D.N.Y.1975).

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