Agent Orange Product Liability Litigation, In re
| Decision Date | 24 June 1993 |
| Docket Number | 818,D,Nos. 670,831,s. 670 |
| Parties | In re "AGENT ORANGE" PRODUCT LIABILITY LITIGATION. Shirley IVY, Individually and as Representative of the Estate of Donald Ivy, Deceased; Charles Jardon and Tony K. Jardon, Individually and as Next Friend of Charles Jardon, Jr.; Robin Jardon, Warren Jardon and Sharon Jardon; Verda Wilson, Individually and as Representative of the Estate of Isaiah Wilson, Jr., Deceased; Shirley Zalewaski, Individually and as Representative of the Estate of Yen Zalewaski, Deceased; Gary Thomas; Mary Lee Thomas; James L. Kent; Emma I. Kent; Dawn Marie Inman, Individually and as Representative of the Estate of Bobby Joe Inman, Deceased; Earl Thompson; Judy L. Thompson; James Donald Deloatch; Joyce Deloatch; Peggy Sands, Individually and as Representative of the Estate of Martin Sands, Deceased; Emile Annibolli; Ursula Margot Parry, Individually and as Representative of the Estate of James D. Parry, Sr., Deceased; James D. Parry, Jr.; James Christopher Parry; Laura Jenkins, Individually and as Representative of the Estate of Eddie Jenkins, Deceased; Ronald L. Hartman, Katherina H. Hartman, and as Next Friend to Jeffery Alan Hartman and Angela Marie Hartman, Both minors individually and as Representative of those similarly situated, Plaintiffs-Appellants, James White, Individually and as Representative of the Estate of Clarence White, Deceased; Charles Brown, Plaintiffs, v. DIAMOND SHAMROCK CHEMICALS COMPANY, also known as Diamond Shamrock Refining & Marketing Company, also known as Occidental Electro Chemical Corporation, also known as Maxus Energy Corp., also known as Occidental Chemical Corporation, also known as Diamond Shamrock Co.; Dow Chemical Company; Monsanto Company; Uniroyal, Inc.; Hercules, Inc.; Thompson-Hayward Chemical Company; T.H. Agriculture & Nutrition Company, Inc., Defendants-Appellees. ockets 92-7537, 92-7573, 92-7575. |
| Court | U.S. Court of Appeals — Second Circuit |
Robert M. Hager, Washington, DC, Benton Musslewhite, Houston, TX (Kelly L. Newman, of counsel), for plaintiffs-appellants.
John C. Sabetta, New York City (Lord Day & Lord, Barrett Smith, of counsel), for defendant-appellee Monsanto Co.
Steven R. Brock, New York City (Rivkin, Radler & Kremer, Uniondale, NY, of counsel), for defendant-appellee Dow Chemical Co.
Michael M. Gordon, New York City (Cadwalader, Wickersham & Taft, of counsel), for defendant-appellee Diamond Shamrock Chemicals Co.
Shea & Gould, New York City, for defendant-appellee Uniroyal, Inc.
Kelley, Drye & Warren, New York City, for defendant-appellee Hercules, Inc. Clark, Gagliardi & Miller, White Plains, NY, for defendant-appellee T.H. Agriculture & Nutrition Co., Inc.
The States of Ala., Ark., Hawaii, Idaho, Ill., Ind., Kan., La., Minn., Nev., N.J., N.M., New York, N.D., Ohio, S.D., Tex., Utah, Vt., W.Va., and the Com. of Mass. (Kenneth J. Chesebro, Cambridge, MA; Brian Stuart Koukoutchos, Lexington, MA; James H. Evans, Atty. Gen., Montgomery, AL; Winston Bryant, Atty. Gen., Little Rock, AR; Robert A. Marks, Atty. Gen., Honolulu, HI; Larry Echohawk, Atty. Gen., Boise, ID; Roland W. Burris, Atty. Gen., Chicago, IL; Linley E. Pearson, Atty. Gen., Indianapolis, IN; Robert T. Stephan, Atty. Gen., Topeka, KS; Richard P. Ieyoub, Atty. Gen., Baton Rouge, LA; Scott Harshbarger, Atty. Gen., Boston, MA; Hubert H. Humphrey, III, Atty. Gen., St. Paul, MN; Frankie Sue Del Papa, Atty. Gen., Carson City, NV; Robert J. Del Tufo, Atty. Gen., Trenton, NJ; Tom Udall, Atty. Gen., Santa Fe, NM; Robert Abrams, Atty. Gen., New York City; Nicholas J. Spaeth, Atty. Gen., Bismarck, ND; Lee Fisher, Atty. Gen., Columbus, OH; Mark Barnett, Atty. Gen., Pierre, SD; Dan Morales, Atty. Gen., Austin, TX; Paul Van Dam, Atty. Gen., Salt Lake City, UT; Jeffrey L. Amestoy, Atty. Gen., Montpelier, VT; Mario J. Palumbo, Atty. Gen., Charleston, WV, of counsel), amici curiae in Support of appellants.
Center for Claims Resolution, Princeton, NJ (Lawrence Fitzpatrick, John Gaul, Princeton, NJ, John D. Aldock, Frederick C. Schafrick, Laura S. Wertheimer, Elise J. Rabekoff, Shea & Gardner, Washington, DC, of counsel), amicus curiae in Support of appellees.
Before: VAN GRAAFEILAND, KEARSE and CARDAMONE, Circuit Judges.
Two groups of veterans and their family members, who sue both individually and on behalf of others similarly situated, appeal from a judgment of the United States District Court for the Eastern District of New York (Weinstein, J.) dismissing their tort claims against seven chemical companies which manufactured the defoliant Agent Orange. Ryan v. Dow Chemical Co., 781 F.Supp. 902 (E.D.N.Y.1991). In addition to their claim of substantive error, appellants contend that the district judge erred in refusing to remand their cases to the state court from which they were removed and in denying their motion that he disqualify himself for conflict of interest or appearance of partiality. For the reasons that follow, we affirm.
These actions are an attempted revival of the massive tort litigation (collectively "Agent Orange I "), which arose from the United States Armed Services' use of Agent Orange during the Vietnam War. Because both the history of the litigation and the background of the instant actions have been chronicled in the opinion below, 781 F.Supp. at 904-14, a brief summary will suffice for present purposes.
While serving in Vietnam, several hundred thousand soldiers were exposed to Agent Orange, which contained traces of the chemical 2,3,7,8-tetrachlorodibenzo-p -dioxin ("dioxin"). Following their return home, many veterans complained of illnesses, which they attributed to this exposure. In 1978, these veterans began to seek redress through the courts, suing both the United States and the manufacturers of Agent Orange.
In 1979, the Judicial Panel on Multidistrict Litigation consolidated hundreds of the cases and transferred them to the Eastern District of New York. Subject matter jurisdiction over these cases originally was based on the asserted existence of a question of federal common law, but, after we reversed on this issue, 635 F.2d 987 (2d Cir.1980), cert. denied, 454 U.S. 1128, 102 S.Ct. 980, 71 L.Ed.2d 116 (1981), jurisdiction was found to exist on the basis of diversity of citizenship.
In December 1983, the district court certified a Rule 23(b)(3) "common question" class with opt-out rights in order to address the common issues of general causation and the military contractor defense, and a Rule 23(b)(1)(B) "limited fund" class for punitive damage claims. 100 F.R.D. 718 (E.D.N.Y.1983), mandamus denied, 725 F.2d 858 (2d Cir.), cert. denied, 465 U.S. 1067, 104 S.Ct. 1417, 79 L.Ed.2d 743 (1984). The Rule 23(b)(3) class was defined as those persons who were in the United States, New Zealand or Australian Armed Forces at any time from 1961 to 1972 who were injured while in or near Vietnam by exposure to Agent Orange or other phenoxy herbicides.... The class also includes spouses, parents, and children of the veterans born before January 1, 1984, directly or derivatively injured as a result of the exposure.
Id. at 729. Notice was provided to class members by mail where feasible and by advertisements in the print and broadcast media. Id. at 729-30. The deadline to opt out of the Rule 23(b)(3) class was May 1, 1984; 2,440 potential plaintiffs opted out by the deadline, although all but 282 eventually opted back into the class.
A tentative settlement was reached on May 7, 1984, the day the trial was scheduled to begin. The Settlement Agreement provided for the establishment of a $180 million settlement fund to cover all claims arising out of Agent Orange exposure, and a claim against this fund was made the exclusive remedy for all class members. A $10 million reserve was created to indemnify the defendants for any state court judgments obtained by class members. The Settlement Agreement stated that "[t]he Class specifically includes persons who have not yet manifested injury," and it forever barred class members from instituting or maintaining an action against defendants based on exposure to Agent Orange. See 597 F.Supp. 740, 862-66 (E.D.N.Y.1984) (reprinting Settlement Agreement).
The settlement was approved on September 25, 1984 after extensive, nationwide fairness hearings, see id. at 740-862, and the approval was reaffirmed on January 7, 1985, see 611 F.Supp. 1296, 1347. On July 9, 1985, the district court granted an order directing consummation of the settlement "in accordance with its terms," dismissing all class members' claims, permanently barring class members from instituting or maintaining future actions arising from Agent Orange exposure, and retaining jurisdiction over the maintenance, administration and distribution of the settlement fund. 618 F.Supp. 623, 624-25 (E.D.N.Y.1985). The court also granted summary judgment against the opt-out plaintiffs based on their failure to prove causation and on the military contractor defense. 611 F.Supp. 1223 and 1267 (E.D.N.Y.1985), aff'd, 818 F.2d 187 (2d Cir.1987), cert. denied, 487 U.S. 1234, 108 S.Ct. 2898, 101 L.Ed.2d 932 (1988). We affirmed the certification, maintenance and settlement of the class action in all significant and relevant respects. 818 F.2d 145 (2d Cir.1987), cert. denied, 484 U.S. 1004, 108 S.Ct. 695, 98 L.Ed.2d 648 (1988).
The final distribution plan for the settlement fund was announced on July 5, 1988 following the termination of all appeals. 689 F.Supp. 1250. Roughly three-fourths of the fund, which by then had grown to approximately $240 million, was allocated to the Agent Orange Veteran Payment Program. This Program provides payments on the death or disability of class members. By September 30, 1991, it had disbursed over $86 million and had processed more than fifty thousand claims. Twenty-eight percent of the disability claims processed by the fund were for disabilities manifesting...
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