IN RE" AGENT ORANGE" PRODUCT LIABILITY LITIGATION

• Decision Date: 21 February 1984
• Docket Number: MDL No. 381.
• Citation: 580 F. Supp. 690
• Parties: In re "AGENT ORANGE" PRODUCT LIABILITY LITIGATION.
• Court: U.S. District Court — Eastern District of New York

580 F. Supp. 690

In re "AGENT ORANGE" PRODUCT LIABILITY LITIGATION.

MDL No. 381.

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

February 21, 1984.

COPYRIGHT MATERIAL OMITTED

David J. Dean, Dean, Falanga, Sinrod & Rose, Carle Place, N.Y., Stephen J. Schlegel, Schlegel & Trafelet, Ltd., Chicago, Ill., Thomas W. Henderson, Pittsburgh, Pa., Benton Musselwhite, Houston, Tex., Aaron Twerski, Hempstead, N.Y., of counsel, 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, Richard Goldstein, 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., Morton B. Silberman, Clark, Gagliardi & Miller, White Plains, N.Y., for defendants.

                                    TABLE OF CONTENTS
                  I. Introduction .....................................  693
                     A. Federal law?€”for jurisdictional purposes
                        for substantive purposes; for evidentiary
                        and procedural purposes; and as
                        a model for the states to incorporate in
                        their own law .................................  694
                     B. State law .....................................  695
                     C. National consensus law ........................  696
                 II. Claims of Defendants as Misunderstanding of
                     Posture of Case ..................................  697
                III. Conflicts of Law Rules ...........................  699
                     A. Restatement (Second) ..........................  700
                        1. Product liability law ......................  701
                        2. Government contract defense.................  701
                        3. Punitive damages............................  705
                     B. Governmental Interest..........................  706
                     C. Leflar?€”Better Law........................  706
                III. Conflicts of Law Rules
                     D. Traditional....................................  707
                     E. Forum..........................................  708
                     F. von Mehren?€”Reconciling Conflicts.........  709
                     G. National Consensus Restated....................  711
                 IV. Statutes of Limitations ..........................  713
                  V. Conclusion .......................................  713
                

PRETRIAL ORDER NO. 92

PRELIMINARY MEMORANDUM ON CONFLICTS OF LAW

WEINSTEIN, Chief Judge:

A considerable number of Vietnam war veterans resident in all or almost all states, Puerto Rico and the District of Columbia and a number of foreign countries, and members of their families, claim to have suffered injury as a result of the veterans' exposure to herbicides in Vietnam. Defendants produced those herbicides. Individual claims, originally filed in all parts of the country, were transferred for pretrial purposes to this court. Subject to some powers to opt out, common issues presented by plaintiffs' claims will now be tried together since a class has been certified pursuant to Rule 23. See In re "Agent Orange" Product Liability Litigation, P.T.O. 72, 100 F.R.D. 718 (E.D.N.Y.1983). Petition for writ of mandamus denied, 725 F.2d 858 (2d Cir.), cert. denied, sub nom., Diamond Shamrock Chemicals Co. v. Ryan, ___ U.S. ___, 104 S.Ct. 1417, 79 L.Ed.2d 743 (1984).

Plaintiffs have failed to state a cause of action under federal common law for jurisdictional purposes. In re "Agent Orange" Product Liability Litigation, 635 F.2d 987 (2d Cir.1980), cert. d?nied sub nom. Chapman v. Dow, 454 U.S. 1128, 102 S.Ct. 980, 71 L.Ed.2d 116 (1981). Accordingly, the litigation is grounded upon diversity jurisdiction raising the issue of what substantive law should apply.

As required by Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941), this court has examined the conflict of law rules of the states in which the transferor courts sit. Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964). For the reasons set forth below, it is concluded that under the special circumstances of this litigation, all the transferor states would look to the same substantive law for the rule of decision on the critical substantive issues.

I. Introduction

Plaintiffs originally sought to base jurisdiction on federal common law relying on federal question jurisdiction. 28 U.S.C. ? 1331. This court sustained their contention. In re "Agent Orange" Product Liability Litigation, 506 F.Supp. 737 (E.D.N. Y.1979). The Second Circuit reversed, concluding, for the purpose of denying federal question jurisdiction, that "there is no identifiable federal policy at stake in this litigation that warrants the creation of federal common law rules." 635 F.2d 987, 993, cert. denied sub nom. Chapman v. Dow, 454 U.S. 1128, 102 S.Ct. 980, 71 L.Ed.2d 116 (1981). The court held that if the action was to continue in the federal courts, jurisdiction must be based on diversity of citizenship. 28 U.S.C. ? 1332.

In applying state law, following what is assumed to be the mandate of Klaxon, the choice of law methodology used by the states in which transferor courts sit has been examined to predict what law each state would apply.

We recognize that Klaxon has been widely criticized and that learned scholars have suggested on the basis of policy and possible constitutional grounds that a federal conflicts of law rule should be applied in diversity cases such as the one before us. See, e.g., R. Bridwell & R. Whitten, The Constitution and the Common Law 135 (1977); R.C. Cramton, D.P. Currie & H.H. Kay, Conflict of Laws, 927-932 (3d ed. 1981); Hart & Wechsler's The Federal Courts and the Federal System, 713-717 (2d ed. by P.M. Bator, P.V. Mishkin, D.L. Shapiro & H. Wechsler, 1973); W.L.M. Reese & M. Rosenberg, Conflict of Laws, 692, 694-695 (7th ed. 1978); E.F. Scoles & P. Hay, Conflict of Laws 112 (1982); C. Wright, Law of Federal Courts, 366-370 (4th ed. 1983); Hill, The Erie Doctrine and the Constitution, 53 Nw.U.L.Rev. 427, 444-45 (1958); Korn, The Choice of Law Revolution: A Critique, 83 Colum.L.Rev. 772, 971 (1983); Trautman, The Relation Between American Choice of Law and Federal Common Law, 41 Law and Contemp.Prob. 105, 120 (Spring 1977). The Supreme Court has, however, "made it clear that the Klaxon rule is not to yield to the more modern thinking of conflicts-of-laws scholars." C. Wright, id. at 368. See, e.g., Day and Zimmerman, Inc. v. Challoner, 423 U.S. 3, 96 S.Ct. 167, 46 L.Ed.2d 3 (1975).

Much of the law of conflicts is in a state of flux, development and refinement. Any dogmatism as to the result were the issue to be certified to the highest court of each jurisdiction involved is unwarranted. See, e.g., the most current authoritative and comprehensive review of choice of law problems, Korn, The Choice-of-Law Revolution: A Critique, 83 Colum.L.Rev. 772, 956 (1983), and the shorter but trenchant Juenger, Conflict of Laws: A Critique of Interest Analysis, 32 Am.J. of Comp.L. 1 (1984). Nevertheless, given the special facts of this litigation, under any approach utilized today, so far as can reasonably be predicted, the result would be the same: each state would probably apply the same law, that is to say either federal or national common law.

Before starting the analysis, it is well to keep in mind the admonition of Chief Judge Fuld whose "impact upon choice of law has been greater than that of any living judge and probably greater than that of any judge during the present century." Reese, Chief Judge Fuld and Choice of Law, 71 Colum.L.Rev. 548 (1971).

Justice, fairness and "the best practical result" ... may best be achieved by giving controlling effect to the law of the jurisdiction which, because of its relationship or contact with the occurrence or the parties has the greatest concern with the specific issue raised in the litigation.

Babcock v. Jackson, 12 N.Y.2d 473, 481, 240 N.Y.S.2d 743, 749, 191 N.E.2d 279, 283 (1963). Hope of obtaining a universally accepted result is tempered by Professor von Mehren's reminder that

one who expects to achieve results in multistate cases that are as satisfying in terms of standards of justice and of party acceptability as those reached in purely domestic cases is doomed to disappointment.

von Mehren, Choice of Law and the Problem of Justice, 41 Law & Contemporary Problems 27, 42 (1977).

In view of a growing consensus about what the law governing manufacturer's liability is?€”a problem to be dealt with in a subsequent opinion?€”there is a convergence between the result required in the instant case under the separate state conflicts of law rules and the separate state substantive tort rules. Thus, the obviously sensible result of treating members of this nation's armed forces and their families in essentially the same way for any injuries suffered in a national war fought on foreign soil would, it is now provisionally found, be reached by each of the states.

The issue is particularly difficult to deal with because of a number of definitional and conceptual issues that tend to make some problems appear more murky than they are. While we disclaim any capacity to clarify the law of conflicts, it does seem helpful for purposes of this opinion to restate some definitions and distinctions.

Essentially, there are five different conflicts of laws methodologies widely used in this country. These may be summarized as (1) traditional or Restatement (First) based upon Professor Beale's work, (2) Restatement (Second) being in large part a pragmatic and conservative revision by Professor Reese of Professor Currie's interest analysis school, (3) governmental interest, (4) Leflar, and (5) forum. There is a sixth proposed approach that has some of the aura of Leflar, but which we treat separately as the von Mehren approach. Some states use a combination or variation of these techniques. See, e.g., for various other characterizations of state approaches: R.C. Cramton, D.P. Currie & H.H....