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IN RE "AGENT ORANGE" PROD. LIAB. LITIG.

February 24, 1982

In re "AGENT ORANGE" PRODUCT LIABILITY LITIGATION


The opinion of the court was delivered by: PRATT

This memorandum and order addresses the following subjects:

I. Dow's Motion for Reargument.
 
II. Defendants' Motion for Entry of Final Judgment or Certification.
 
III. Dow's Motion to Amend its Third Party Complaint Against the Government.
 
IV. Motions by Defendants Riverdale, Ansul, Hooker & Occidental.
 
V. Motion by Some Plaintiffs' Counsel for a Steering Committee.
 
VI. Dow's Motion to Decertify the Class.
 
VII. Statute of Limitations.
 
VIII. The Government Contract Defense.
 
IX. Narrowing Claims.
 
X. Discovery.
 
XI. Class Notice.

 I. Dow's Motion for Reargument.

 Dow Chemical Company moves for reargument of that portion of the court's December 29, 1980 order which dismissed defendants' third party complaints against the United States, 506 F. Supp. 762. Much of what Dow argues on this motion has been considered and explicitly rejected by the court's earlier rulings, and the arguments are equally unpersuasive the second time around. Nor is the court persuaded to change its view by the subsequent cases brought to its attention by the parties. E.g., Broudy v. U. S., 661 F.2d 125 (CA9 1981) (independent post-service torts actionable including, in some circumstances, post-discharge failure to warn claim); Laswell v. Brown, 524 F. Supp. 847 (W.D.Mo.1981); Hinkie v. U. S., 524 F. Supp. 277 (E.D.Pa.1981). Cf. Monaco v. U. S., 661 F.2d 129 (CA9 1981); Jaffee v. U. S., 663 F.2d 1226 (CA3 1981); Lombard v. U. S., 530 F. Supp. 918 (D.D.C.1981).

 Finally, contrary to defendants' assertions, the court anticipates no unusual difficulty in obtaining discovery from the government as a non-party. The government has unequivocally promised complete cooperation and liberal discovery, and despite some apparent misunderstandings, the government has done nothing to date to cause the court to doubt its willingness and ability to keep that promise. The motion is denied.

 II. Defendants' Motion for Entry of Final Judgment or Certification.

 On December 26, 1980 this court granted the government's motion to dismiss defendants' third party claims. Defendants now move for entry of a final judgment of dismissal of the government pursuant to FRCP 54(b) or, in the alternative, for an order pursuant to 28 U.S.C. § 1292(b) certifying for interlocutory appellate review questions concerning the dismissal of the United States on defendants' third party complaint.

 FRCP 54(b) prohibits interlocutory appeals on multiple claims or by multiple parties without court certification, but provides that when more than one claim for relief is presented in an action,

 
the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.
 
FRCP 54(b).

 Such certification rests in the sound discretion of the court:

 
The District Court may, by the exercise of its discretion in the interest of sound judicial administration, release for appeal final decisions upon one or more, but less than all, claims in multiple claims actions. The timing of such a release is, with good reason, vested by the rule primarily in the discretion of the District Court as the one most likely to be familiar with the case and with any justifiable reasons for delay.
 
Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 437, 76 S. Ct. 895, 900, 100 L. Ed. 1297 (1956) (emphasis in original).

 Section 1292(b) of 28 U.S.C., the other statute upon which defendants rely in their quest for interlocutory review, provides that:

 
When a district judge, in making in a civil action an order not otherwise appealable under the section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order.
 
28 U.S.C. § 1292(b).

 Both Rule 54(b) and § 1292(b) wisely contemplate that the usual course of events will be a single appeal from a final judgment entered by a district court. This litigation has already given rise to one round of interlocutory appeals pursuant to § 1292(b), which effectively has caused nearly two years of delay. Nearly every issue decided in this massive litigation will impact on numerous parties, and a different resolution of many of the issues could have significant ramifications on other steps in the action. However, the litigation cannot proceed on an issue-appeal, issue-appeal basis; otherwise, it might never end. The wisdom of the general rule-one appeal from a final judgment-is evident here. Later events may obviate the need for an appeal. Even if plaintiffs ultimately prevail, defendants may then on appeal test this court's dismissal of the third party claims and, if successful, pursue their remedies against the government at that time in an appropriate non-jury trial. The court concludes, therefore, that the interests of justice are best served if defendants' appeals from dismissal of their claims against the government are resolved later.

 Accordingly, defendants' motions for entry of final judgment of dismissal of the government pursuant to FRCP 54(b), and defendants' motion for an order pursuant to 28 U.S.C. § 1292(b) certifying aspects of this court's December 26, 1980 order to the Court of Appeals for interlocutory review are denied.

 III. Dow's Motion to Amend its Third Party Complaint Against the Government.

 Defendant Dow moves to amend its previously dismissed third party complaint against the government, pointing out that certain governmental acts may, because of their nature or the circumstances of their timing, circumvent the bar of Feres and Stencel Aero with respect to defendants' third party claims against the government. However, at this stage of the litigation, when the court is being bombarded with numerous multidistrict actions containing virtually every possible theory of recovery, it is difficult to determine which, if any, of the alleged governmental acts might give rise to a valid third party action against the government.

 That such claims may be validly asserted at some time in the future does not alter the thrust of the court's decision dismissing defendants' third party claims against the government. Those separate claims have nothing to do with the common issues at this stage of the MDL litigation, and they can be fully and fairly considered at a later time. Moreover, Dow is not prejudiced by the government's absence at this stage, because it may assert such claims against the government even after judgment against Dow in the plaintiffs' actions. If these various individual theories of recovery are to have impact on this litigation at all, that impact would come at a time when the causation issues are being considered. Furthermore, as noted previously, discovery from the government with respect to Phase I issues will be unaffected by disposition of this motion.

 For these reasons, defendant Dow's motion to amend its third party complaint against the government is denied, without prejudice to possible renewal after the Phase I issues have been tried and decided, and after the full ...


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