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

May 10, 1985

In re "Agent Orange" PRODUCT LIABILITY LITIGATION GERALD HOGAN, M.D., Plaintiff,
v.
DOW CHEMICAL CO., et al., Defendants



The opinion of the court was delivered by: WEINSTEIN

MEMORANDUM, ORDER and JUDGMENT

WEINSTEIN, Ch. J.:

 Defendants, seven chemical companies who manufactured the herbicide Agent Orange, have moved to dismiss Dr. Gerald Hogan's claims or in the alternative for summary judgment. Fed. R. Civ. P. 12(b), 56(b). They also seek dismissal for failure to comply with a discovery order. Fed. R. Civ. P. 37(b) and (d). Plaintiff opposes these motions and urges that diversity of citizenship did not exist at the time the suit was brought, making removal to federal court improper.

 As indicated below, removal was proper. Plaintiff's willful failure to comply with a discovery order and his failure to produce any evidence sufficient to show a causal connection between his injuries and exposure to Agent Orange require dismissal.

 I. FACTS

 Hogan is a medical doctor who worked as a civilian contract physician for the United States Agency for International Development in a hospital in Vietnam in 1966. He was in Vietnam for no more than four months. During the first month he worked in a surgical and medical hospital located in the center of the City of Da Nang. He left the city only once during that month to visit a special forces camp 75 miles southwest of the city. The rest of his time in Vietnam he was a hospital patient.

 Hogan claims that during the first month he was exposed to Agent Orange because of his physical contact with Vietnamese who had been exposed to Agent Orange and because dioxin was in Da Nang dust. He was diagnosed in Vietnam as having had an allergic reaction to penicillin or other allergens, an allergy which plaintiff was known to have had prior to his arrival in that country.

 Upon his return from Vietnam, plaintiff was found to have allergic reactions to house dust, airborne molds, grasses, ragweed, cattle and dog hair, feathers, wool, silk, chocolate, and cola. He resumed his medical practice in cardiovascular surgery at Georgetown University in 1967, but left this position in 1971 due to declining health.

 Currently, plaintiff claims that the following diseases and symptoms over the last 18 years result from his exposure to Agent Orange: elevated triglicerides; elevated SGOT; elevated total Bilirubin; elevated C4 (B1- E-Globulin); immune deficiency; environmentally triggered vasculitis; hemi Parkinson's disease; acne-like rash of the premalar area; weakness in extremities (possible peripheral neuropathy); hypoactive reflexes (possible peripheral neuropathy); chest pains; palpitations; and arrythmia.

 The skin rashes, progressive vasculitis, and general deterioration of neurological functions were identified in 1975. The remaining illnesses were diagnosed in 1978 and subsequently.

 II. PROCEDURAL HISTORY

 On January 29, 1981, plaintiff sued the chemical companies in the Second Judicial District Court of Nevada. He charged that the defendants knew of the danger of contact with Agent Orange and failed to warn him.

 In February 1981, defendants removed the suit to federal court based on diversity of citizenship. 28 U.S.C. §§ 1332 and 1441. Plaintiff did not challenge the removal. Once in federal court, the action was transferred to this court as part of the "Agent Orange" product liability litigation, MDL 381.

 In August 1984, defendants moved to dismiss or, in the alternative, for summary judgment. Plaintiff did not reply and defendants obtained a default judgment. Plaintiff's Rule 60 motion to reopen ...


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