IN RE" AGENT ORANGE" PRODUCT LIABILITY LITIGATION

• Citation: 475 F. Supp. 928
• Decision Date: 14 August 1979
• Docket Number: MDL No. 381.
• Parties: In re "AGENT ORANGE" PRODUCT LIABILITY LITIGATION.
• Court: U.S. District Court — Eastern District of New York

475 F. Supp. 928

In re "AGENT ORANGE" PRODUCT LIABILITY LITIGATION.

MDL No. 381.

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

August 14, 1979.

COPYRIGHT MATERIAL OMITTED

Schlegel & Trafelet, Ltd., Chicago, Ill., O'Hagan, Reilly & Gorman, Islip, N. Y., Leonard L. Rivkin, Rivkin, Leff & Sherman, Garden City, N. Y., Howard J. Trienens, Sidley & Austin, Chicago, Ill., Morton B. Silberman, Clark, Gagliardi & Miller, White Plains, N. Y., Cadwalader, Wickersham & Taft, Ronald S. Daniels, Townley & Updike, Bud G. Holman, William A. Krohley, Kelley, Drye & Warren, New York City, Baker & McKenzie, L. Steven Platt, Sullivan & Associates, Ltd., Chicago, Ill., Cyril Hyman, Asst. U. S. Atty. for the Eastern District, N. Y., Brooklyn, N. Y., for defendants.

Yannacone & Yannacone, P. C., Patchogue, N. Y., for all plaintiffs (except Kahler v. Dow et al.).

David Jaroslawicz, New York City, for plaintiff Kahler.

Joseph C. Zengerle, III, Shea & Gardner, Washington, D. C., for amicus curiae, The Council of Vietnam Vets.

GEORGE C. PRATT, District Judge.

On July 18, 1979, the court heard oral argument on various motions. Set forth below are the court's rulings on these motions.

MOTION BY NORTHWEST INDUSTRIES FOR DISMISSAL OR SUMMARY JUDGMENT

Defendant Northwest Industries, Inc. moves in all cases except Kahler v. Dow, 79 C 922,¹ for dismissal under FRCP 12(b)(6) or summary judgment under FRCP 56, arguing that it neither sold nor manufactured the chemicals which are the subject of this suit. Along with its dismissal and summary judgment motions (which are unopposed) defendant Northwest has submitted to the court stipulations of dismissal, pursuant to FRCP 41, signed by attorneys for all parties except Dow.

After consideration of all papers submitted, the court grants the summary judgment motion of defendant Northwest Industries, Inc., with the understanding that this judgment is binding only against the named plaintiffs, not against unnamed persons who may become parties to this action if a class is certified. Roberts v. American Airlines, 526 F.2d 757, 762-63 (CA7 1975). The clerk shall enter summary judgment in favor of defendant Northwest Industries, Inc.

MOTIONS BY DOW, JOINED IN BY OTHER DEFENDANTS, TO STRIKE OR DISMISS ALL OR PART OF THE COMPLAINT

By notice of motion filed May 28, 1979, Dow moved to strike or dismiss all or part of the "massive 163 page, 574 paragraph complaint" filed in Claxton v. Dow, 79 C 527, one of the individual cases in this litigation. The motion was adjourned pending the first pretrial conference. One day before the conference, on June 20, 1979, one document, an "Amended Verified Complaint", some 171 pages and 600 paragraphs long, with attached exhibits adding some 94 pages, was filed, purportedly in all cases except Kahler v. Dow, 79 C 922. It is this Amended Verified Complaint (AVC) which was discussed at the first pretrial conference and at oral argument on July 18, 1979. Accordingly, it is this complaint to which defendants' motions to dismiss and strike are now deemed directed.

A. Motion to Dismiss or Stay All Claims for Injunctive and Declaratory Relief

Dow moves to dismiss or stay all claims for injunctive and declaratory relief, "because the subject matter of these claims, namely, the question of whether 2, 4, 5-T should be banned, is committed to the primary jurisdiction of the Environmental Protection Agency." Not all the equitable claims in the AVC involve the banning of 2, 4, 5-T; however, the court holds for reasons set forth below, that those claims that do so are committed to the primary jurisdiction of the EPA and must be stayed.

In a leading case, the Supreme Court explained the doctrine of primary jurisdiction as follows:

The doctrine of primary jurisdiction, like the rule requiring exhaustion of administrative remedies, is concerned with promoting proper relationships between the courts and administrative agencies charged with particular regulatory duties. * * * "Primary jurisdiction" * * * applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views. citations omitted.

No fixed formula exists for applying the doctrine of primary jurisdiction. In every case the question is whether the reasons for the existence of the doctrine are present and whether the purposes it serves will be aided by its application in the particular litigation. These reasons and purposes have often been given expression by this Court. In the earlier cases emphasis was laid on the desirable uniformity which would obtain if initially a specialized agency passed on certain types of administrative questions. citation omitted. More recently, the expert and specialized knowledge of the agencies involved has been particularly stressed. United States v. Western Pacific Railroad Co., 352 U.S. 59, 63-64, 77 S.Ct. 161, 165, 1 L.Ed.2d 126 (1956).

Cases since Western Pacific have elaborated upon and expanded the doctrine of primary jurisdiction. See discussion in Mississippi Power and Light Company v. United Gas Pipe Line, 532 F.2d 412 (CA5 1976), rehearing denied 5 Cir., 540 F.2d 1085, cert. denied 429 U.S. 1094, 97 S.Ct. 1109, 51 L.Ed.2d 541 (1977). The doctrine has been held particularly applicable where Congress has given an agency supervisory power over a comprehensive regulatory scheme, Local 189, Amalgamated Meat Cutters v. Jewel Tea Co., 381 U.S. 676, 684-85, 85 S.Ct. 1596, 14 L.Ed.2d 640 (1965); Western Union Telegraph Co. v. Graphic Screening Corp., 360 F.Supp. 593, 595 (S.D.N.Y. 1973); where there are technical questions uniquely within the expertise and experience of an agency, Nader v. Allegheny Airlines, Inc., 426 U.S. 290, 304, 96 S.Ct. 1978, 48 L.Ed.2d 643 (1976); Far East Conference v. United States, 342 U.S. 570, 596, 72 S.Ct. 492, 96 L.Ed. 576 (1952); and especially where the disputed questions are already under consideration by the agency, Mississippi Power and Light Co., supra, at 414. The doctrine of primary jurisdiction applies to matters within the purview of the EPA. Kennecott Copper Corp., Nevada Mines v. Costle, 572 F.2d 1349 (CA9 1978); Sierra Club v. Morton, 379 F.Supp. 1254 (D.Col. 1974).

It is beyond dispute that under the above standards there is ground for invoking the doctrine of primary jurisdiction in this litigation. The requests for injunctive and declaratory relief raise matters within a comprehensive regulatory scheme (The Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. § 136 et seq., as amended) under the supervision of the EPA. The request for injunctive relief against the continued sale and use of 2, 4, 5-T raises complex and technical questions (see plaintiffs' "Offers of Proof on Application for Temporary Injunction", a 25 page document replete with chemical and biological terminology and analysis), questions within the special competence of the EPA. Added to this, these complex questions are the subject of on-going EPA hearings.² All of the usual standards having been met, the doctrine of primary jurisdiction applies, and it would be an abuse of discretion for this court to act before plaintiffs have brought their requests to the EPA. ITT World Communications, Inc. v. New York Telephone Co., 381 F.Supp. 113, 119 (S.D.N.Y. 1974).

Without disputing this legal analysis, plaintiffs argue that referral to the EPA would be inequitable here:

The history of litigation by EPA under FIFRA is noted for lengthy delay. There is no way that the FIFRA proceeding as now constituted can be completed in less than a year and there is no assurance that if EPA cancels the remaining uses of 2, 4, 5-T and silvex, those cancellations can be effective in less than two to four years should DOW or any of the other parties opposing the cancellation appeal to the Courts. * * *

It also appears from a review of the statutes and procedures of the United States Environmental Protection Agency (EPA) that even completion of the pending proceedings to cancel certain registrations of 2, 4, 5-T and silvex cannot provide the broad prohibition of advertising, promotion, marketing and sale of any and all phenoxy herbicides that may be contaminated with polychlorinated dibenzo-p-dioxins (PCDDs) and polychlorinated dibenzo furans (PCDFs) that the Plaintiff veterans require and seek in the equity action brought before this Court.

It further appears that the offers of proof made by Counsel for the plaintiffs in this proceeding are substantially different than the offers of proof made by the United States Environmental Protection Agency (EPA) and it further appears that the threshold questions dealing with special risk to the population of veterans already exposed to these toxicants in Viet Nam might be better addressed in proceedings before this Court than in the administrative proceeding. * * *

Affirmant telephoned counsel for defendant The Dow Chemical Company in this action and spoke to Mr. Rivkin at approximately 4:00 p. m. on the afternoon of 19 July 1979 and explained in summary form the substance of this affidavit. Counsel indicated that he was not interested in this application since Dow and the other corporate defendants have bluntly stated their claim that the mere existence of a federal agency with some evidence of Congressional intent to vest that agency with responsibility for a matter touching upon the public health, safety, and welfare is all that is necessary to oust a federal Court of Equity of all jurisdiction of the same subject matter no matter what the circumstances might be that cry out to the conscience of the community for equitable relief. The Plaintiffs' (sic) disagree. Affirmation by Plaintiffs' attorney: EPA Timetable.

This court is not deaf...