In re Agent Orange Product Liability Litigation

• Citation: 603 F. Supp. 239
• Decision Date: 11 February 1985
• Docket Number: MDL No. 381 (JBW).
• Parties: In re "AGENT ORANGE" PRODUCT LIABILITY LITIGATION.
• Court: U.S. District Court — Eastern District of New York

603 F. Supp. 239

In re "AGENT ORANGE" PRODUCT LIABILITY LITIGATION.^*

MDL No. 381 (JBW).

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

February 11, 1985.

COPYRIGHT MATERIAL OMITTED

Stephen J. Schlegel, Schlegel & Trafelet, Ltd., Chicago, Ill., Benton Musslewhite, Law Offices of Benton Musslewhite, Inc., Houston, Tex., Thomas Henderson, Henderson & Goldberg, Pittsburgh, Pa., Phillip E. Brown, Hoberg, Finger, Brown, Cox & Molligan, San Francisco, Cal., Stanley Chesley, Waite, Schneider, Bayless & Chesley, Cincinnati, Ohio, John Q. O'Quinn, O'Quinn & Hagans, Houston, Tex., Neil R. Peterson and Gene Locks, Greitzer & Locks, Philadelphia, Pa., Newton B. Schwartz, Houston, Tex., Irving Like, Reilly, Like & Schneider, Babylon, N.Y., David J. Dean, Dean, Falanga & Rose, Carle Place, N.Y., Aaron Twerski, Hempstead, N.Y., of counsel; Robert A. Taylor, Jr., Ashcraft & Gerel, Washington, D.C., H. Kelly Jones, Cayce, S.C., Leonard W. Schroeter, Schroeter, Goldmark & Bender, Seattle, Wash., Anne E. Meroney, Smith & Meroney, Atlanta, Ga., Douglas F. Patrick, Foster, Covington & Patrick, Greenville, S.C., Ronald L. Wolf, Litvin, Blumberg, Matusow & Young, Philadelphia, Pa., Lawrenceville, Va., for plaintiffs.

Linwood W. Hinson, pro se.

Richard K. Willard, Jeffrey Axelrad, Arvin Maskin, Leon B. Taranto, Robert C. Longstreth, Washington, D.C.; Raymond J. Dearie, U.S. Atty., Brooklyn, N.Y., for U.S., defendant.

MEMORANDUM, ORDER AND JUDGMENT

WEINSTEIN, Chief Judge:

Plaintiffs, Vietnam War veterans and members of their families, sue the United States government to recover damages for injuries allegedly suffered as a result of exposure to Agent Orange in Vietnam. The government has moved to dismiss or, in the alternative, for summary judgment in cases in which it is the only defendant as well as in cases in which it is named as a defendant along with the manufacturers of Agent Orange. For the reasons indicated, the motion must be granted.

I. PROCEDURAL HISTORY IN BRIEF

The history of the "Agent Orange" litigation is set forth in the Preliminary Memorandum and Order on Settlement, 597 F.Supp. 740 (E.D.N.Y.1984). On October 30, 1984 and again on December 10, 1984, the court orally denied plaintiffs' motion for class certification against the government for reasons stated on the record and summarized below. Subsequently, the government renewed a prior motion to dismiss and moved for summary judgment; oral argument was heard on December 10, 1984. On January 24, 1985, counsel for a number of the plaintiffs moved for voluntary dismissal of the children's direct claims for genetic damage.

The government's motion to dismiss the complaint must be granted, as a matter of law, as to the claims by veterans and the derivative claims by their wives and children. The government's motion for summary judgment must be granted, as a matter of fact, as to the independent claims of plaintiffs' wives. As to the independent claims of the minor children, they are dismissed voluntarily and without prejudice in the court's discretion.

II. CLASS CERTIFICATION

Plaintiffs Dan and Christina Ford moved pursuant to Rule 23 of the Federal Rules of Civil Procedure for class certification of all claims asserted against the United States under the Eighth Amended Complaint in Civil Action No. 79-747. Whether to certify a class is a decision "peculiarly within the discretion of the trial judge." Becker v. Schenley Industries, Inc., 557 F.2d 346, 348 (2d Cir.1977); see also City of New York v. International Pipe & Ceramics Corp., 410 F.2d 295, 298 (2d Cir.1969) ("judgment of trial judge should be given the greatest respect and the broadest discretion, particularly if, as here, he has canvassed the factual aspects of the litigation."). As explained in the transcript of oral argument, the court has carefully considered the factual aspects of the litigation. Among the factors considered is that the enormous expenditure required to notify potential class members is not justified given the almost nonexistent possibility of recovery against the government on the merits. While plaintiffs have thus far adduced only minimal proof that Agent Orange caused their injuries, studies are continuing. Certifying a class would give res judicata effect to this court's granting of summary judgment in favor of the government. It would be unfair to preclude children with birth defects — both born and unborn — from someday using studies that may possibly establish the validity of their claims against the government.

III. THE GOVERNMENT'S MOTION TO DISMISS CLAIMS OF VIETNAM VETERANS

Plaintiffs Vietnam veterans' claims against the government rest on a number of grounds: statutory, international law, and constitutional. The United States moves to dismiss each of these claims. Because the statutory ground is dispositive, the others need not be addressed. Cf. Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346-49, 56 S.Ct. 466, 482-84, 80 L.Ed. 688 (1936) (Brandeis, J., concurring).

Plaintiff veterans seek to impose liability upon the government under the Federal Tort Claims Act. 28 U.S.C. § 1346(b). The Act waives the United States' immunity from suit with certain important exceptions.

A. Introduction: The Feres Exception

One such exception was first enunciated in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). It held that a member of the armed forces cannot sue the government in tort for injuries that "arise out of or are in the course of activity incident to service." Id., 340 U.S. at 146, 71 S.Ct. at 159. As subsequently interpreted, this judicially-created exception to the United States' waiver of sovereign immunity was found to rest on three grounds:

1. The existence of a separate, uniform, comprehensive, no-fault compensation scheme for members of the armed forces administered by the Veterans' Administration, similar in effect to workers' compensation plans;

2. The adverse impact on military discipline and effectiveness were servicepersons allowed to sue the government, United States v. Brown, 348 U.S. 110, 112, 75 S.Ct. 141, 143, 99 L.Ed.2d 139 (1954); and 3. The distinctively federal nature of the relationship between the United States and members of the armed forces which would make it unfair and irrational to have "the Government's liability to members of the armed services dependent on the fortuity of where the soldier happened to be stationed at the time of injury." Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 671, 97 S.Ct. 2054, 2058, 52 L.Ed.2d 665 (1977).

The applicability of the Feres doctrine to bar the veterans' claims — and the derivative claims by wives and children based on such theories as loss of earnings and services — has been considered on two prior occasions in the course of deciding the defendant chemical companies' third-party claims against the government. See In re "Agent Orange" Product Liability Litigation, 506 F.Supp. 762 (E.D.N.Y.1980); In re "Agent Orange" Product Litigation, 580 F.Supp. 1242 (E.D.N.Y.), mandamus denied, In re United States, 733 F.2d 10 (2d Cir.), appeal dismissed, In re "Agent Orange" Product Liability Litigation, 745 F.2d 161 (2d Cir.1984). The implicit ruling against the veterans and the derivative claims of their wives and children in these cases was made explicit in Ryan v. Cleland, 531 F.Supp. 724, 728 (E.D.N.Y.1982); see, C. Wright, A. Miller & E. Cooper, 18 Federal Practice and Procedure § 4477 at 788-89 (1981). No reason has been advanced for departing from the law of the case regarding the veterans' claims against the government or the derivative claims of the wives and children. Cf. Dictograph Products Co. v. Sonotone Corp., 230 F.2d 131, 135 (2d Cir.1956) (Hand, J.) (law of case doctrine, although discretionary, is a matter of sound judicial practice).

B. Claims "Incident to Service"

There is no question that the veterans' claims against the government for injuries arising from exposure to Agent Orange while in Vietnam are "incident to service" and barred by the Feres doctrine. See 506 F.Supp. at 776. Such claims implicate all three elements of the Feres rationale. The first Feres factor — the existence of a comprehensive, no-fault veterans' compensation scheme — is especially relevant in light of Congress's recent enactment of legislation aimed at compensating veterans exposed to Agent Orange. The Veterans' Dioxin and Radiation Exposure Compensation Standards Act of 1984, Pub.Law No. 98-542, 98 Stat. 2725 (1984), establishes a commission to study the effects of exposure to dioxin and creates a presumption of causation with respect to two of the injuries alleged to result from such exposure — chloracne and porphyria cutanea tarda. See id. at §§ 6 and 9(a). Congress has chosen to create these statutory presumptions notwithstanding its conclusion that there is "insufficient credible scientific evidence" to support them. House Rpt. No. 98-592 (Veterans' Affairs Comm., Jan. 25, 1984), reprinted in 1984 U.S.Code Cong. & Ad.News 4449, 4453. Congress's decision to legislate in this area tends to confirm the view that Feres remains in force.

C. Post-Discharge Failure to Warn

In an effort to avoid the Feres bar, plaintiffs allege that the government's tortious conduct occurred "post-discharge." More specifically, plaintiffs claim that towards the end of the Vietnam War and subsequently, the government experienced an "explosion of knowledge" regarding the harmful effects of exposure to Agent Orange, yet failed to warn plaintiffs and see to it that they were properly treated and compensated for any injury sustained. Plaintiffs argue that this failure exposes the government to liability under the Federal Tort Claims Act as well as under the Constitution and under the Veterans Benefits Act, 38 U.S.C. § 240. The latter two contentions have been rejected by this court in a previous opinion and need not be reconsidered here. See Ryan v. Cleland, 531 F.Supp. 724, 728 (E...