"Eleven years and ten months after the incident giving rise to the above-styled actions, five and one-half years after the entry of judgment of liability against the government in the consolidated cases, two years after the former fifth circuit's remand to this Court for further proceedings pursuant to the appellate court's affirmance of the district court in accordance with the Georgia Supreme Court's ruling on questions certified to it, forty-six days after the appointment of a Special Master to try the damages claims of the plaintiffs and after nine months of additional discovery and preparation for trial or settlement of the damages claims, the government has presented the Court with a motion to dismiss for failure to state a claim or for lack of jurisdiction, or in the alternative, for summary judgment on the issue of liability.
"The government submits that because of a change in controlling law, there is a bar to liability and recovery. Specifically, the government cites recent developments in Georgia workers' compensation law conferring tort immunity upon statutory employers and asserts that the United States is entitled to raise the statutory employer defense at this point in the litigation. The plaintiffs challenge the government's assertion of this shield from liability on both substantive and procedural grounds. The parties' positions will be explored after a description of the history of this case.
"It is not uncommon for the law to change, nor are protracted court proceedings a rarity. In this case, the two have coalesced to form a result disillusioning to laymen and lawyers alike. Enormous resources have been expended; the record is vast; the case, under the style of Aretz v. United States, has been reported at various stages no less than eight times since 1973. The plaintiffs decry the unfairness of permitting the government to shield itself from liability years after the determination of liability. No less forcefully the government argues that recovery in these cases would work an injustice. Neither of these contentions adds anything to the ultimate issue facing the Court: a question of law and fact to be decided under legal principles. The Court would be remiss, however, if it did not acknowledge the irony of the situation, i.e., that by mere fortuitousness, two plaintiffs have recovered damages, awards which were upheld on appeal and have now been satisfied, and that after long years, the end of this litigation for a few months in view, has disappeared with the filing of this motion, leaving the litigants and the Court once again at the threshold.
"History of the Thiokol Cases
"The facts, as briefly described by Judge Lawrence in the introduction to his opinion containing findings of fact and conclusions of law on the issue of liability, are as follows:
"These Federal Tort Claim actions have resulted from the fire and explosion which occurred at the Woodbine, Georgia plant of Thiokol Chemical Corporation on February 3, 1971.
"Thiokol was engaged in the manufacture, under contract with the Army, of trip flares which were used by the military during the war in Viet Nam as an aid to troops subjected to attack at night. The flares are ignited by pulling the trip or cutting of the trip wire. A bright flame is emitted which lights up a considerable area.
"On February 3, 1971, around 60 employees of Thiokol were working in or near Building M-132 in which the flares were produced. At 10:53 A.M. a fire broke out at the 'first fire' addition station in the facility. The loose illuminant material (magnesium and sodium nitrate) burns at a speed measured in milliseconds and reaches very high temperatures. The fire ran down the ignition pellet assembly line and eventually got into the cure room where 8,000 pounds of
loose illuminants were being cured in trays. Also in the curing room were 56,322 candles containing approximately 0.3 pounds of illuminant each; 18,472 ignition pellets, and 100 pounds of first fire and intermediate mix.
"An enormous pressure built up as the result of the deflagration of the illuminants. The fire culminated in an explosion in the cure room that destroyed the building. Twenty-nine employees lost their lives. More than fifty other employees were injured. The amounts sought by the plaintiffs aggregate $717,526,391.
"Aretz et al. v. United States, 503 F.Supp. 260, 264-65 (S.D.Ga.1977).
"Twenty-five separate suits were brought against the United States by injured employees and representatives of deceased employees under the Federal Tort Claims Act, 28 U.S.C. Secs. 1346(b) and 2671 et seq. Thiokol, which was a named defendant in many of the cases was dismissed after raising the exclusive remedy bar of workers' compensation, Ga.Code Ann. Secs. 114-103 [O.C.G.A. Sec. 34-9-11]. Massey v. Thiokol Chemical Corp., 368 F.Supp. 668 (S.D.Ga.1973). The government and the plaintiffs filed a joint motion to consolidate the case for the purpose of discovery and of determination as to liability. The Court granted the motion, ruling that "said cases be consolidated for trial for the purpose of determining the issue of liability" in accordance with Rule 42(a) of the Federal Rules of Civil Procedure. (Order of May 13, 1974). According to Neil R. Peterson, lead trial counsel for the government, the intent was to preserve specific affirmative defenses such as comparative negligence, applicable in various actions for trial of the damages aspect. Apparently, this was the case, since the government raised and the Court addressed specific defenses in the Aretz cases when they went to trial on the damages claim. Aretz v. United States, 456 F.Supp. 397, 411 (S.D.Ga.1978).
"The consolidated cases went to trial on the liability issue in the summer of 1974. In Aretz et al. v. United States, 503 F.Supp. 260 (S.D.Ga.1977), the Court found negligence on the part of the United States in wrongly classifying the illuminant used in the manufacture of the flares and in failing to communicate to Thiokol an upgrading in classification of the material. This negligence, Judge Lawrence held, was the proximate cause, along with the negligence of the joint tort-feasor Thiokol, of the explosion. Judgment was entered in favor of all the plaintiffs and against the United States on the question of liability on June 28, 1977. The government sought certification for interlocutory appeal under 28 U.S.C. Sec. 1292(b). By Order of February 14, 1978, Judge Lawrence declined to certify the judgment for appeal and decided instead to proceed to trial on the damages aspect in the cases of Mr. and Mrs. Thomas F. Aretz, the first cases filed. Thereafter, the government would be able to take a direct appeal. The Court awarded damages to the Aretzes in the amount of $594,272.50. Aretz v. United States, 456 F.Supp. 397 (S.D.Ga.1978). Aretz was affirmed, 604 F.2d 417 (5th Cir.1979), then vacated on rehearing en banc, 616 F.2d 254 (5th Cir.1980). The questions of the government's duty of care to the Thiokol employees and of proximate causation were certified by the fifth circuit to the Supreme Court of Georgia which found a duty to properly classify the illuminant and to communicate the proper classification to Thiokol and declined to disturb the district court's holding that the breach of this duty was a proximate cause of the explosion. United States v. Aretz, 248 Ga. 19, 280 S.E.2d 345 (1981). The fifth circuit adopted the Georgia court's conclusions, reinstated the panel decision, affirmed the district court and remanded to the district court for further proceedings. 660 F.2d 531 (5th Cir.1981).
"Shortly after remand, the Court was notified that the Solicitor General had decided not to file a petition for writ of certiorari in the Aretz cases. The United States Attorney expressed his intention to proceed with discovery and settlement negotiations 'as expeditiously as circumstances will permit in order to seek a final resolution of
these damage claims.' (Letter to Court dated February 2, 1982). In October, 1982, the government reported that discovery had been undertaken but not completed and informed the Court that the Department of Justice was considering whether to file a motion raising the defense of statutory employer-tort immunity. As late as October 8, the government continued to assure the Court that it would complete all discovery and participate in settlement discussions.
"Thereafter, the Court issued an order appointing Michael J. Gannam as Special Master to take and hear evidence on all issues presented in the damage claims. The first meeting of the parties or their attorneys with the Special Master was...
