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

May 20, 1983

IN RE "AGENT ORANGE" PRODUCT LIABILITY LITIGATION


The opinion of the court was delivered by: PRATT

PRETRIAL ORDER NO. 51

 PRATT, C.J.:

 In this multidistrict litigation Vietnam veterans and their relatives seek to recover damages from nine chemical companies, Dow Chemical Co. (Dow), Hercules, Inc. (Hercules), The Monsanto Co. (Monsanto), Diamond Shamrock Corporation (Diamond Shamrock), Hoffman-Taff (Missouri) (Hoffman-Taff), Thompson Chemical Corporation (Thompson), T.H. Agriculture & Nutrition Co. (T.H.), Riverdale Chemical Co. (Riverdale), and Uniroyal, Inc. (Uniroyal), for injuries allegedly suffered as a result of their exposure to a herbicide called Agent Orange used by the military in Vietnam. Plaintiffs' claim is that 2,3,7,8 Tetrachlorodibenzo-p-dioxin (dioxin) is extremely toxic, that it was produced as a by-product in the manufacture of trichlorophenol (TCP) which was a precursor chemical for 2,4,5 trichorophenoxy acetic acid (2,4,5-T), which in turn was combined with 2,4-dichlorophenoxyacetic acid (2,4-D) to make Agent Orange. Any dioxin produced in the manufacture of TCP carried forward into 2,4,5-T and therefore into the Agent Orange. Thus the claims of the plaintiffs focus upon dioxin as a contaminant in the Agent Orange supplied to the government pursuant to contracts with the separate chemical companies.

 In pretrial order no. 26, I recognized the possibility of a government contract defense to the plaintiffs' claims but denied defendants' motions to dismiss on that ground, finding that the motions presented issues of fact which precluded summary judgment. 506 F. Supp. 762, 796 (E.D.N.Y. 1980). The contours of the defense were developed in more detail in pretrial order no. 33:

 
[A] defendant in this case will be entitled to judgment dismissing all claims against it based on that defendant's having supplied "Agent Orange" to the government pursuant to a contract, if the defendant proves:
 
1. That the government established the specifications for "Agent Orange";
 
2. That the "Agent Orange" manufactured by the defendant met the government's specifications in all material respects; and
 
3. That the government knew as much as or more than the defendant about the hazards to people that accompanied use of "Agent Orange".

 534 F. Supp. 1046, 1055 (E.D.N.Y. 1982).

 Because the issues presented by the government contract defense seemed to be separate and distinct from the general theories of liability then being advanced by plaintiffs, I ordered a separate trial of the defense, 506 F. Supp. at 796, and appointed a special master to supervise discovery for that trial scheduled to begin on June 27, 1983, 94 F.R.D. 173 (E.D.N.Y. 1982).

 In April 1983, after almost eleven months of intensive discovery, I permitted any defendant who so elected to move for summary judgment with respect to the government contract defense. The basis of such summary judgment would, of course, be that there were no triable issues of fact with respect to the defense, and that the moving defendant was therefore entitled to dismissal of all claims against it as a matter of law. All defendants except Monsanto and Diamond Shamrock moved for summary judgment. In reaching a determination on these motions, I have reviewed all of the papers submitted, both in support and in opposition, including counsel's extensive memoranda and attached exhibits. In addition, I listened closely to the oral arguments presented by all parties.

 The central issue raised by the government contract defense centers on its third element: whether the government knew as much as or more than the contracting defendant about the hazards to people that accompanied the use of Agent Orange. As this action has matured, the plaintiffs have concentrated their claims on dioxin as a contaminant present in 2,4,5-T; consequently, the knowledge in question is knowledge about dioxin. To focus upon this element, it is necessary to compare what knowledge the government had about dioxin in 2,4,5-T and about its contamination of Agent Orange, with what knowledge each of the moving defendants had about these matters.

 Since discovery is not yet complete, the following discussion of facts and evidence does not constitute a finding of facts for any future purpose except for those specifically mentioned below in connection with the specifications for and performance of the government contracts.

 RELATIVE LEVELS OF KNOWLEDGE

 The Government

 Even when all doubts are resolved in favor of the plaintiffs, as required by SEC v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir. 1978), the record demonstrates that the government and the military had a considerable amount of knowledge about 2,4,5-T, about dioxin, and about the health hazards associated with both. The following general chronology, while not all-inclusive, gives some indication of both the extent of government knowledge in this area and of the fact that it was continually increasing.

 During World War II, the military discovered the herbicidal properties of 2,4,5-T and conducted extensive testing of various possible herbicides. This research was conducted under the supervision of the Crops Division of the Army Chemical Corps at Camp Detrick, Maryland.

 Several years later, in 1949, Dr. Donald Birmingham of the Public Health Service visited Nitro, West Virginia, where there had been an explosion at Monsanto's 2,4,5-T plant. The report of Dr. Birmingham's colleague, Dr. Louis Schwartz, indicated a connection between chloracne and the chemicals produced in the plant.

 There is uncontradicted evidence in the record that a number of people knew in the 1950s that dioxin was toxic although they may not have connected it with 2,4,5-T. Several factors contributed to this awareness.

 First, in the early 1950s, C.H. Boehringer Sohn Company of Germany had serious cases of chloracne among workers engaged in the production of TCP, a precursor chemical used inter alia to manufacture 2,4,5-T. By 1955, the Boehringer company was forced to halt production at two plants. Dr. K. H. Schulz, a skin specialist, investigated the problem and in 1957 together with Professor J. Kimmig, reported his findings in an article entitled Chlorinated Aromatic Cyclic Ethers As the Cause of Chloracne. 44 Die Naturwissenshaften 337 (1957). In this article, the authors stated that they were able to isolate dioxin, which they believed to be the contaminant in TCP that was causing the health problems. While it is not established that anyone in the government read the Kimmig & Schulz article at the time it was published, the article was available as part of the scientific literature and it appeared in a note to the report written by Friedrich Hoffmann concerning his trip to Europe in 1959.

 The "Hoffmann Trip Report" was a second factor contributing to government knowledge during this period. Dr. Hoffmann, who was searching on behalf of the military for potential chemical warfare agents, reported that he had received "startling information" regarding the toxicity of the compound dioxin. In his report, he described the deaths of several workers in a plant that produced wood preservatives containing trace amounts of dioxin. In addition, he reported that the compound could cause severe, indeed fatal, liver damage. At least 10 copies of the Hoffmann report were sent to the Army Chemical Corps Chemical Warfare Laboratories at Edgewood Arsenal, the governmental body responsible for investigating toxicity and analyzing chemical agents. Thus, the Hoffmann report on dioxin, coupled with the Kimmig & Schulz article connecting dioxin to TCP, raises a strong possibility that personnel at Edgewood, even before 1960, were aware of the connection between dioxin and TCP as well as the use of TCP to make 2,4,5-T.

 Deposition testimony of Edgewood research personnel confirms that people at Edgewood knew about the toxicity of dioxin. Dr. Bernard Jandorf, chief of the Army Chemical Research Laboratory, testified that people at Edgewood had been familiar with this fact since the late 1950s. Dr. Richard Horton, a toxicologist, testified that he knew dioxin was toxic in 1959, as did Dr. Thomas Simmons, who worked in the Agents Research Branch. Walter Sultan, a pharmacologist in the Toxicity Screening Branch, testified that he had read the Hoffmann report.

 Further evidence of governmental knowledge is found in the article written by Dr. Birmingham of the Public Health Service in 1959, stating that in the manufacture of 2,4,5-T, intermediate hydrocarbons of the chlorine group had caused chloracne in more than 200 chemical workers at a manufacturing plant. Birmingham, New Causes of Occupational Dermatoses, 20 Industrial Health 489, 490 (1959). Dr. Marcus Key of the Public Health Service testified that he had learned of the association between hydrocarbons and chloracne and other diseases at the Harvard School of Public Health in 1953.

 In the early 1960s, Dr. Bernard McNamara, Chief of the Toxicology Division at Edgewood, performed a study at Edgewood Arsenal of the toxicity of Agent Purple, another defoliant containing 2,4,5-T that was used by the military. This testing was conducted at the request of General F. J. Delmore, Commanding General, U.S. Army Chemical Corps, Research & Development Committee. While the testing indicated that there was some toxicity, the results were not conclusive. At a meeting held at Edgewood Arsenal in 1963 to discuss and evaluate the toxicity of 2,4,5-T, the overall thrust of those reporting was that both 2,4,5-T and 2,4-D were safe for humans.

 Other events occurring in 1963 give additional indications of governmental knowledge. The Institute for Defense Analysis wrote a report for the Advanced Research Project Agency, an agency within the Department of Defense. This report stated that herbicides were safe when used commercially, but that there could be increased hazards in military use because greater concentrations might be applied by less experienced personnel under the pressures inherent in battlefield use. The report noted the connection between chloracne and skin and respiratory irritations and their association with herbicides.

 Dr. Key of the Public Health Service testified at his deposition that in 1963 he placed a sample of 2,4,5-T herbicide on his forearm to see if it would induce chloracne. He did this three times a week for three weeks and developed chloracne on his forearm. He also testified that he had read Kimmig & Schulz and learned of dioxin from that article. When questioned concerning a June 1964 article by Dr. Jacob Bleiberg, Industrially Acquired Porphyria, 89 Archives of Dermatology 793 (1964), which discussed chloracne and porphyria in workers engaged in 2,4,5-T production, Key stated that he had reviewed the article at the time it was written and that it was only a more complete version of what they already knew.

 The level of government knowledge appears to have increased much more rapidly during the mid-to-late 1960s. Defendants point to numerous instances of governmental knowledge which are not disputed by plaintiffs. Dr. Herbert Stokinger, the chief toxicologist of the Division of Occupational Health, testified that he knew dioxin was an impurity in 2,4,5-T sometime around 1965. Colonel Robert A. Shade, who was chief of the Chemical Operation Branch of Military Assistance Command-Vietnam and later on the staff of the chemical branch of the Assistant Chief of Staff Force Development, testified that he learned of the connection between dioxin and 2,4,5-T sometime between mid-1966 and summer 1968.

 In July 1966, the director of the National Academy of Sciences wrote to the chief of the Bureau of Medicine and Surgery for the Navy advising him of the connection between 2,4,5-T and porphyria and chloracne. In August 1966, the National Academy of Sciences, in response to a request for information, wrote to the Army Surgeon General telling him that 2,4,5-T was toxic and that chloracne was associated with it.

 Recent deposition testimony indicates that people closely associated with the White House were aware of hazards involved in the use of defoliants. Dr. Gordon MacDonald, a member of President Johnson's Science Advisory Committee (PSAC), testified that the issues of herbicides and dioxin in herbicides were informally discussed by a subgroup of PSAC sometime between April and June 1965. Dioxin as an impurity in 2,4,5-T was also discussed. He said there was discussion of the potential toxicity of dioxin, and while it was considered that the evidence was fragmentary and inconclusive, the subject of dioxin contamination deserved continuing attention. Dr. MacDonald testified that human health effects were discussed, and that he attended a meeting where the effectiveness of herbicides and the presence of dioxin in 2,4,5-T were discussed. According to MacDonald, Secretary of Defense Robert MacNamara attended this meeting.

 Dr. Donald Hornig, Special Assistant to President Johnson for Science and Technology and Chairman of PSAC, testified at his deposition that by 1966 PSAC was discussing impurities in 2,4,5-T. He stated that this discussion occurred sometime between 1964 and 1966. He said that when he learned of the impurity, he felt that "one ought to be concerned" about what the magnitudes of the toxicological effects and of the exposures might be. He testified that he understood dioxin was a health hazard to human beings. However, he also testified that he did not relay the information to President Johnson.

 An additional element of knowledge is found in a 1967 Rand report commissioned by the Advanced Research Project Agency of the Department of Defense. This report described "actual experience" of health hazards associated with the use of defoliants in Vietnam.

 Finally, there is the study commissioned by the National Cancer Institute, Evaluation of Carcinogenic, Teratogenic, and Mutagenic Activities of Selected Pesticides and Industrial Chemicals (Bionetics Report). This study evaluated the carcinogenic, teratogenic, and mutagenic effects of various chemicals. The study was commissioned in 1963, and the report is dated August 1968. The study did result in a finding of some teratogenic effects connected with the use of 2,4,5-T. While it is not clear that defendants are correct in their assertion that portions of the study were available to the government earlier than August 1968, it is clear that by 1968 and 1969, the results of the study were available to the government.

 This picture of knowledge shown to be in government hands is based almost entirely on uncontradicted and uncontested evidence. It reveals that the government and the military possessed rather extensive knowledge tending to show that its use of Agent Orange in Vietnam created significant, though undetermined, risks of harm to our military personnel. Against this picture we must examine what was known by the different defendants, keeping in mind that, by and large, much of the government's knowledge was classified and not shared with the defendants.

 Dow Chemical Company

 Dow supplied Agent Orange to the military pursuant to seven contracts. Deliveries were made from September 1965 to December 1968. The government established the specifications for the delivered product, and Dow performed to those specifications.

 Dow began manufacturing 2,4,5-T in 1948. Dow admits that it knew prior to this that chloracne was an industrial health hazard present in the production of certain chlorinated hydrocarbons. It developed the "rabbit ear" test, which was non-specific, but was able to determine if a chloracnegen was present. Dow used this test until 1964.

 Plaintiffs argue persuasively that Dow must have known about the 1949 explosion at the Monsanto plant in Nitro, West Virginia, in 1949, and the resulting cases of ...


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