In re Agent Orange Product Liability Litigation, MDL No. 381.

• Decision Date: 11 August 1982
• Docket Number: MDL No. 381.
• Citation: 544 F. Supp. 808
• Parties: In re "AGENT ORANGE" PRODUCT LIABILITY LITIGATION.
• Court: U.S. District Court — Eastern District of New York

544 F. Supp. 808

In re "AGENT ORANGE" PRODUCT LIABILITY LITIGATION.

MDL No. 381.

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

August 11, 1982.

PRETRIAL ORDER NO. 38

GEORGE C. PRATT, Circuit Judge.^*

This memorandum and order addresses the following subjects:

I. Motion by defendants Syntex Corporation, Syntex Laboratories, Inc., Syntex Agribusiness, Inc., and Hoffman-Taff, Inc. (Delaware) to dismiss and the related motion by American International Underwriters to disqualify Lester, Schwab, Katz & Dwyer as attorneys for these four defendants and a fifth defendant Hoffman-Taff, Inc. (Missouri).

II. The motion to dismiss by Hoffman-Taff, Inc. (Missouri).

III. The motion by defendant Uniroyal, Inc. for an order granting leave to serve a third-party summons and complaint on Mitsui & Co., Ltd., Mitsui & Co., (Canada), Ltd., Canadian Hoechst, Ltd., Hoechst A. G., Bayer Canada Ltd., Bayer A. G., and Dow Chemical of Canada, Ltd.

I. The motions to dismiss by the "Syntex" corporations and Hoffman-Taff, Inc. (Delaware) and the motion to disqualify Lester, Schwab, Katz & Dwyer.

American International Underwriters (AIU) seeks an order disqualifying the law firm of Lester, Schwab, Katz & Dwyer as attorneys for defendants Syntex Corporation, Syntex Laboratories, Inc., Syntex Agribusiness, Inc., Hoffman-Taff, Inc. (Delaware), and Hoffman-Taff, Inc. (Missouri). AIU argues that there is a conflict between the interests of the "Syntex" defendants and Hoffman-Taff (Delaware), which move to dismiss on the ground they never manufactured Agent Orange, and that of Hoffman-Taff (Missouri), which moves to dismiss on the ground that although it manufactured Agent Orange, none of its product ever reached Vietnam. According to AIU, one of the "Syntex" defendants (Syntex Laboratories, Inc.) agreed to assume the liabilities of Hoffman-Taff (Missouri) and further that Lester, Schwab, Katz & Dwyer, attorneys for all five defendants, agreed that any motion to dismiss would be made on behalf of all five defendants together. AIU charges that the fact that Hoffman-Taff (Missouri) moved separately from the other defendants indicates that Lester, Schwab, Katz & Dwyer cannot represent all five defendants fairly because these defendants have conflicting interests.

While it is true that Hoffman-Taff (Missouri), as a manufacturer of Agent Orange, stands in a different position than the other four moving defendants, who did not manufacture Agent Orange, the court fails to see how the dismissal of the claims against the four defendants who did not manufacture Agent Orange will affect the right of Hoffman-Taff (Missouri) to be defended and indemnified by Syntex Laboratories, Inc. This right, if it exists, exists independently of this lawsuit since it was allegedly part of an agreement and plan of reorganization entered into by Hoffman-Taff (Missouri) and Syntex Laboratories; it will not be affected if the claims against the "Syntex" defendants and Hoffman-Taff (Delaware) are dismissed. Accordingly, AIU's motion to disqualify Lester, Schwab, Katz & Dwyer as attorneys for these five defendants is denied.

The three "Syntex" defendants and Hoffman-Taff (Delaware) have moved to dismiss all claims against them on the grounds that they never designed, manufactured, or marketed Agent Orange or any phenoxy herbicide for use in Southeast Asia. The motion is unopposed, except for the opposition by AIU discussed above, and nothing has been presented to the court to establish that any of these defendants did in fact supply Agent Orange or other herbicides to the government. The motion by these four defendants, Syntex Corporation, Syntex Laboratories, Inc., Syntex Agribusiness, Inc., and Hoffman-Taff (Delaware) is granted, provided that, within 20 days of the date of this order, they file with the court a consent to renewal of the action against them by any present or future Agent Orange plaintiffs or class members in the event that evidence should surface during this litigation that the defendants did manufacture or sell Agent Orange or some other herbicide to the government, directly or indirectly, for use in Southeast Asia during the period of the Vietnam war, and agreeing not to raise any statute of limitations defense that includes any time that passes between the date of commencement of the first of these Agent Orange actions and any possible renewal of plaintiff's claims against them. The waiver of the statute of limitations must also include any other claim against the defendants' products which might reasonably be involved in this litigation.

II. Hoffman-Taff (Missouri)'s motion to dismiss.

Hoffman-Taff (Missouri) moves for a voluntary dismissal of the complaint pursuant to F.R.C.P. 41(a)(2) on the ground that the small amount of Agent Orange it manufactured was never used in Vietnam. Hoffman-Taff (Missouri) claims that the Agent Orange it did manufacture was shipped to Gulfport, Mississippi, and was eventually destroyed by the government. It argues that because of its unique situation as a very small manufacturer whose chemical never reached Southeast Asia, it should not be forced to defend in this lawsuit.

Plaintiffs do not oppose the motion. However, defendant Dow Chemical Company (Dow) opposes on the ground that, as a manufacturer of Agent Orange for use in Southeast Asia, Hoffman-Taff (Missouri) is a proper defendant in the lawsuit and further argues, with supporting documentation, that it is not at all clear that the Agent Orange manufactured by...