818 F.2d 145 (2nd Cir. 1987), 85-6381, In re Agent Orange Product Liability Litigation MDL No. 381

Docket Nº:85-6381, 85-6385, 85-6387, 85-6393, 85-6395, 85-6411.
Citation:818 F.2d 145
Party Name:In re
Case Date:April 21, 1987
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 145

818 F.2d 145 (2nd Cir. 1987)


Nos. 1140, 1141, 1097, 1139, 1081, 1134, 1135, 1100, 1101,

1098, 1099, 1105, 1106, 1102, 1103, 1115, 1119, 1136, 1122,

1123, 1124, 1130, 1133, 1127, 1129, Docket Nos. 84-6273,

84-6321, 85-6035, 85-6051, 85-6083, 85-6261, 85-6265,

85-6301, 86-6303, 85-6307, 86-6323, 86-6325, 86-6327,

86-6329, 85-6335, 85-6349, 85-6371, 85-6373, 85-6379,

85-6381, 85-6385, 85-6387, 85-6393, 85-6395, 85-6411.

United States Court of Appeals, Second Circuit

April 21, 1987

        Argued April 9, 1986.

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[Copyrighted Material Omitted]

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        Sherman L. Cohn, Robert A. Taylor, Jr., Washington, D.C.; Richard L. Steagall, Peoria, Ill.; Benton Musslewhite, Houston, Tex., Avram G. Adler, Francis Kelly, Philadelphia, Pa. (Ashcraft & Gerel, Washington, D.C.; Nicoara & Steagall, Peoria, Ill.; Adler & Kops, Philadelphia, Pa.; James H. Brannon, Jamison & Brannon, Houston, Tex.; Joel Rome, Rome & Glaberson, Philadelphia, Pa.; Marlene Penny Maynes, Cincinnati, Ohio; Richard D. Heidemen, Louisville, Ky.; Stephen L. Toney, Werner, Beyer, Lindgren & Toney, New London, Wis.; Richard Ellison, Cincinnati, Ohio; James C. Barber, Dallas, Tex.; William Beatty, Granite City, Ill.; John T. McKnight, Brunswick, Ga.; Richard L. Gill, Gill & Brinkman, St. Paul, Minn.; James H. Davis, Los Angeles, Cal.; Kenneth R. Yoffey, Newport News, Va.; Richard L. Powell, Augusta, Ga.; Joseph H. Latchum, Jr., Watkins, Chase, Latchum & Williams, Hampton, Va.; Lula Abdul-Rahim, Duda, Rahim & Rotto, Oakland, Cal.; Robert D. Gary, Gary & Duff, Lorain, Ohio; J. Edward Allen, Forston, Bentley & Griffin, Athens, Ga.; Charles O. Fisher, Walsh & Fisher, Westminster, Md.; William J. Risner, Tucson, Ariz.; Walter L. Blair, Blair & Starks, Charles Town, W.Va.; Janet Frazier Phillips, Las Vegas, Nev.; Russell Smith, Laybourne, Smith, Gore, Akron, Ohio; H. Muldrow Etheredge, New Orleans, La.; Ford S. Reiche, Barrett, Reiche & Sheehan, Portland, Me.; Sara Hayes, Gage & Tucker, Kansas City, Mo.; William Jorden, Jorden & White, Meadville, Pa.; Eugene P. Cicardo, Alexandria, La.; Carry R. Dettloff, Kistner, Schienke, Staugaard, Warren, Michigan; James H. Bjorum, Cox, Dodson & Bjorum, Corpus Christi, Tex.; Jack E. London, Hollywood, Fla.; James T. Davis, Davis & Davis, Uniontown, Pa.; Robert W. Kagler, Moundsville, W.Va.; Michael Radbill, Philadelphia, Pa.; William T. Robinson, III, Robinson, Arnzen, Parry, Covington, Ky.; William Jarblum, Jarblum & Solomon, New York City; John R. Mitchell, Charleston, W.Va.; Dennis A. Koltun, Miami, Fla., of counsel), for plaintiffs-appellants objectors to the class settlement.

        John C. Sabetta, Townley & Updike, New York City for appellee Monsanto Co.

        George D. Reycraft, Cadwalader, Wickersham & Taft, New York City, for appellee Diamond Shamrock Chemicals Co.

        Rivkin, Radler, Dunne & Bayh, Garden City, N.Y., for appellee The Dow Chemical Co.

        Kelley Drye & Warren, New York City, for appellee Hercules Inc.

        Clark, Gagliardi & Miller, White Plains, N.Y., for appellee TH Agriculture & Nutrition Co., Inc.

        Shea & Gould, New York City, for appellee Uniroyal, Inc.

        Budd Larner Kent Gross Picillo Rosenbaum Greenberg & Sade, Short Hills, N.J., for appellee Thompson Chemicals Corp.

        Lawrence G. Sager, New York City; Stephen J. Schlegel, Chicago, Ill. (Irving Like, Reilly, Like & Schneider, Babylon, N.Y.; Edward F. Hayes, III, Abruzzo, Clancy & Hayes, Huntington, N.Y.; Clayton P. Gillette, Boston, Mass.; Thomas W. Henderson, Henderson & Goldberg, Pittsburgh, Pa.; David J. Dean, Dean, Falanga & Rose, Carle Place, N.Y.; Gene Locks, Greitzer & Locks, Philadelphia, Pa.; Stanley M. Chesley, Waite, Schneider, Bayless & Chesley, Cincinnati, Ohio; Newton B. Schwartz, Houston, Tex.; Phillip E. Brown, Hoberg, Finger, Brown, Cox & Molligan,

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San Francisco, Cal.; John O'Quinn, O'Quinn & Hagans, Houston, Tex., of counsel), for appellee plaintiffs' Management Committee.

        Before VAN GRAAFEILAND, WINTER, and MINER, Circuit Judges.

        WINTER, Circuit Judge:

        This is the first of nine opinions, all filed on this date, dealing with appeals from Judge Pratt's and Chief Judge Weinstein's various decisions in this multidistrict litigation and class action. This opinion begins with a section entitled "Overview and Summary of Rulings" that summarizes the entire case and all of our decisions. The next section, "Detailed History of Proceedings," gives the background for all of the appeals. Familiarity with this section may be necessary to understand the various opinions that follow. The present opinion also contains our rulings regarding the certification of a class action and the approval of the settlement between the plaintiff class and the defendant chemical companies. Two other opinions by this author review the propriety of the distribution scheme for the resultant fund and the grant of summary judgment against those plaintiffs who opted out of the class action. Three opinions by Judge Van Graafeiland resolve issues concerning the liability of the United States to veterans, their families, and the chemical companies. A fourth opinion by Judge Van Graafeiland reviews the dismissal of actions brought by civilian plaintiffs against the United States and the chemical companies. Two opinions by Judge Miner resolve issues concerning the validity of a fee agreement among the members of the Plaintiffs' Management Committee ("PMC") and the district court's award of attorneys' fees.

        Most of the appeals in this litigation were argued on April 9-10, 1986. The appeal from the adoption of the distribution scheme, however, was not taken until August 19, 1986 and was not argued until October 1. Because the issues raised by the latter appeal were in many ways interrelated with those argued in April, the panel had to suspend consideration of these matters until it heard the arguments in October.


        By any measure, this is an extraordinary piece of litigation. It concerns the liability of several major chemical companies and the United States government for injuries to members of the United States, Australian, and New Zealand armed forces and their families. These injuries were allegedly suffered as a result of the servicepersons' exposure to the herbicide Agent Orange while in Vietnam.

        Agent Orange, which contains trace elements of the toxic by-product dioxin, was purchased by the United States government from the chemical companies and sprayed on various areas in South Vietnam on orders of United States military commanders. The spraying generally was intended to defoliate areas in order to reduce the military advantage afforded enemy forces by the jungle and to destroy enemy food supplies.

        We are a court of law, and we must address and decide the issues raised as legal issues. We do take note, however, of the nationwide interest in this litigation and the strong emotions these proceedings have generated among Vietnam veterans and their families. The correspondence to the court, the extensive hearings held throughout the nation by the district court concerning the class settlement with the chemical companies, and even the arguments of counsel amply demonstrate that this litigation is viewed by many as something more than an action for damages for personal injuries. To some, it is a method of public protest at perceived national indifference to Vietnam veterans; to others, an organizational rallying point for those veterans. Thus, although the precise legal claim is one for damages for personal injuries, the district court accurately noted that the plaintiffs were also seeking "larger remedies and emotional compensation" that were beyond its power to award. In re "Agent Orange" Product Liability Litigation, 597 F.Supp. 740, 747 (E.D.N.Y.1984).

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        Central to the litigation are the many Vietnam veterans and their families who have encountered grievous medical problems. It is human nature for persons who face cancer in themselves or serious birth defects in their children to search for the causes of these personal tragedies. Well-publicized allegations about Agent Orange have led many such veterans and their families to believe that the herbicide is the source of their current grief. That grief is hardly assuaged by the fact that contact with the herbicide occurred while they were serving their country in circumstances that were unpleasant at best, excruciating at worst.

        When the case is viewed as a legal action for personal injury sounding in tort, however--and we are bound by our oaths to so view it--the most noticeable fact is the pervasive factual and legal doubt that surrounds the plaintiffs' claims. Indeed, the clear weight of scientific evidence casts grave doubt on the capacity of Agent Orange to injure human beings. Epidemiological studies of Vietnam veterans, many of which were undertaken by the United States, Australian, and various state governments, demonstrate no greater incidence of relevant ailments among veterans or their families than among any other group. To an individual plaintiff, a serious ailment will seem highly unusual. For example, the very existence of a birth defect may persuade grieving parents as to Agent Orange's guilt. However, a trier of fact must confront the statistical probability that thousands of birth defects in children born to a group the size of the plaintiff class might not be unusual even absent exposure to Agent Orange. A trier of fact must also confront the fact that there is almost no evidence,...

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