In re Agent Orange Product Liability Litigation

• Decision Date: 09 May 1985
• Docket Number: MDL No. 381. CV-82-1734.
• Citation: 611 F. Supp. 1285
• Parties: In re "AGENT ORANGE" PRODUCT LIABILITY LITIGATION. Clara FRATICELLI, et al., Plaintiffs, v. The DOW CHEMICAL CO., et al., the United States of America, etc., Defendants.
• Court: U.S. District Court — Eastern District of New York

611 F. Supp. 1285

In re "AGENT ORANGE" PRODUCT LIABILITY LITIGATION Clara FRATICELLI, et al., Plaintiffs, v. The DOW CHEMICAL CO., et al., the United States of America, etc., Defendants.

MDL No. 381. CV-82-1734.

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

May 9, 1985.

Robert C. Taylor, Jr., Ashcraft & Gerel, Washington, D.C., Michael R. Salling, Fernandes, Salling & Salling, Kapaa, Kauai, Hawaii, 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; Bruce Hecker, 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.; Henry G. Miller, Clark, Gagliardi & Miller, White Plains, N.Y.; Tany S. Hong, Atty. Gen.; Michael A. Lilly, Lawrence K. Lau & Gerald C. Yoshi, Deputy Attys. Gen., Honolulu, Hawaii; Arvin Maskin, Robert C. Longstreth, Dept. of Justice, Washington, D.C., for defendants.

WEINSTEIN, Chief Judge.

I. INTRODUCTION

Defendants have moved to dismiss or in the alternative for summary judgment. They are the seven manufacturers of Agent Orange; its purchaser, the United States; and the former Regents of the University of Hawaii which tested the product. Plaintiffs Clara Fraticelli, wife of William Fraticelli (deceased), James K. Oshita, and Masao Takatsuki, sue on behalf of themselves and a class of 35,000 unnamed residents of Kauai County, Hawaii, alleging that they were all harmed by exposure to Agent Orange. Jurisdiction is premised on 28 U.S.C. §§ 1331, 1332, 42 U.S.C. § 1983, and the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-80. For the reasons stated below, the motions must be granted.

II. FACTS

Fraticelli, Oshita, and Takatsuki were civilians employed at the University's Kauai Experimental Station for Tropical Agriculture. Fraticelli worked in the fields as an Equipment Operator from 1946 until his retirement in 1972. Oshita was similarly employed from 1961 to 1982 and Takatsuki from 1961 to 1980.

In 1966 and 1967 the University, pursuant to a contract with the United States Department of Defense, conducted tests by spraying on its fields chemicals including arsenic, benzol, beryllium, zirconium, cadmium, chrome, lead, fluorine, 2,3,7,8-tetrachlorodibenzo-p-dioxin ("TCDD" or "Dioxin") and other herbicides.

All three employees claimed exposure during a 1967 incident. They stood by their tractors, which had been marked with flags as targets for aerial herbicide spraying, and were "drenched" by a substance they believe was Agent Orange manufactured by one or more of the defendants. They also believe they were exposed on two other occasions. No protective clothing or showers had been provided.

Fraticelli died in April 1981 as a result of lung and kidney cancer. He had a history of bladder cancer (which did not recur after surgery), a metastatic brain tumor, priapism dating back to 1962, and migraine headaches dating back to 1946. He drank "2 to 3 shots of whiskey per day for many years," had family problems to which he attributed his headaches and tensions, and smoked over one pack of cigarettes per day, which his doctors told him was "excessive." (Hospital Record 7/23/73.)

Oshita was diagnosed as having liver dysfunction in 1969. In 1971 he had a kidney stone and was diagnosed as having cancer of the bladder, which has not recurred since surgery at that time. In 1980 chronic hepatitis was present, and he alleged that he also suffered from diabetes, anemia and chloracne at one time or another. He claims he discontinued "moderate" drinking in 1971 and smoked one pack of cigarettes per day for over 30 years. His hospital records indicate no chloracne but do show that he "smokes at least 1½ packs a day and used to drink quite a lot of alcoholic drinks." (Hospital Record 11/23/71.) His father died of stomach cancer at age 60. His maternal grandfather died of cancer, and his two brothers both have histories of kidney trouble.

Takatsuki was diagnosed as having cancer involving the undersurface of the tongue and floor of his mouth in late 1978. He has a 60-80 pack per year history of smoking and also a moderate alcohol intake, "mostly bourbon." (Medical Center Record 10/10/78.) He was treated with radiation therapy and there has been no recurrence as of February, 1985. This plaintiff also claims to suffer from chloracne although there is no mention of this in his medical records supplied to the court.

In none of the extensive medical records of treating physicians and hospitals supplied by plaintiffs' counsel could the court find any reference to Agent Orange. Nevertheless, plaintiffs' expert, Dr. Samuel P. Epstein, had no doubt that plaintiffs' various complaints were caused by Agent Orange even though he had never seen any of the plaintiffs. See Epstein affidavit, March 9, 1985; see also the full discussion of Dr. Epstein's evidence in In re "Agent Orange" Product Liability Litigation, 611 F.Supp. 1223 (E.D.N.Y.1985). His is the only evidence supporting plaintiffs' case. The facts in the instant case require rejection of Dr. Epstein's proposed testimony. Id.

All three plaintiffs filed workers' compensation claims in which they listed each other as witnesses to the claimed 1967 incident and asserted knowledge of the causal nexus between their illnesses and exposure to chemicals: Fraticelli's claim, filed October 1, 1979, asserts knowledge in September, 1979; Oshita's claim, filed July 12, 1979, asserts knowledge on July 11, 1979; and Takatsuki's claim, filed January 7, 1981, asserts knowledge at an unspecified day in January, 1979. Mrs. Fraticelli filed a workers' compensation death benefit claim on May 28, 1981.

In their workers' compensation claims plaintiffs characterize their injuries as having been caused by a host of toxic substances:

latent slow acting diseases from occupational exposure to arsenic and/or benzol, and/or beryllium, and/or zirconium, and/or cadmium, and/or chrome, and/or lead, and/or fluorine, and/or other toxic chemicals including but not limited to dibenzo-p-dioxin (TCDD or Dioxin) and other toxic herbicides, including but not limited to phenoxy herbicides.

(Emphasis supplied.)

On April 21, 1982 the State of Hawaii Department of Labor issued its decision accepting liability in both Fraticelli claims and awarding his widow compensation in an aggregate amount of slightly more than $73,000. On October 19, 1981, the Department awarded James Oshita slightly more than $23,000 for a period of total disability, for permanent partial disability, and for disfigurement from surgical scars. Plaintiff Takatsuki has indicated only that his workers' compensation claims were pending; based upon their common exposure and the Department of Labor decision as regards Fraticelli and Oshita, it is assumed, without objection from counsel, that Takatsuki has also obtained workers' compensation.

On January 16, 1979 plaintiffs' Hawaiian counsel entered into an agreement with the Agent Orange Plaintiffs' Management Committee to join in the Agent Orange Product Liability Litigation, MDL No. 381. Yet plaintiffs did not file their complaint, Civ. No. 82-0021, in the Hawaii district court until January 11, 1982. The Multidistrict Litigation Panel then transferred the Hawaii action to the Eastern District of New York.

All three plaintiffs submitted administrative claims to the United States on January 7, 1981. There is no information indicating that these claims have been acted upon by the government.

III. LAW

A. Class Action

Plaintiffs in this action fail to meet the prerequisites of a class action in any respect save numerosity. Fed.R.Civ.P. 23. The population-at-large of Kauai County, Hawaii cannot make any claim in common with that based on injuries sustained by these employees during experiments at the University of Hawaii. No harm to the residents of Kauai County from contaminated herbicides has been shown. Plaintiffs have not demonstrated a common interest with the populace relative to their own work experiences at the Experimental Station. Class certification was properly denied.

B. Statute of Limitations

Plaintiffs' claim against the chemical companies and the University's Former Regents is governed by the two-year Hawaii statute of limitations for tort actions, which provides:

Actions for the recovery of compensation for damage or injury to persons or property shall be instituted within two years after the cause of action accrued * * *.

Haw.Rev.Stat. § 657-7 (1976).

The Supreme Court of Hawaii has held that a claim accrues when the plaintiff discovers, or reasonably should have discovered, the "negligent act, the damage, and the causal connection between the former and the latter." Yamaguchi v. Queen's...