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

July 3, 1985

In re "AGENT ORANGE" PRODUCT LIABILITY LITIGATION ANNA M. LILLEY, SURVIVING wife of JOHN LILLEY, JOHN W. JEANNIE D., THOMAS R., DEBBIE L. and WARD C. LILLEY, all minor children of JOHN LILLEY, deceased by ANNA M. LILLEY, their mother and next friend, Plaintiffs, against DOW CHEMICAL COMPANY, MONSANTO COMPANY, HERCULES INCORPORATED, DIAMOND SHAMROCK CORPORATION, THOMPSON HAYWARD CHEMICAL COMPANY, NORTH AMERICAN PHILLIPS CORPORATION and UNIROYAL MERCHANDISING COMPANY, Defendants


The opinion of the court was delivered by: WEINSTEIN

MEMORANDUM, ORDER, AND JUDGMENT

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 WEINSTEIN, Ch. J.:

 Anna Lilley sues on behalf of her deceased a Vietnam Veteran. (The Lilleys husband John Lilley, are sometimes individually and jointly referred to as "plaintiff."). Defendants are seven chemical companies that manufactured the herbicide Agent Orange for use in Vietnam. They have moved to dismiss and for summary judgment. As in the cases of the veterans who opted out of the class, summary judgment of dismissal must be granted. See In re "Agent Orange" Product Liability Litigation, F. Supp. (E.D.N.Y. May 8, 1985).

 I. INTRODUCTION

 Based on all the information available in this case and in the related MDL litigation, we can assume that plaintiff might establish that the government as well as the defendant chemical companies knew that Agent Orange contained dioxin. The government and defendants undoubtedly knew before the spraying began that dioxin was a highly toxic chemical that might pose dangers to those exposed. Plaintiff can probably show that defendants knew that Agent Orange was to be sprayed in higher concentrations than recommended by the manufacturers for safe commercial use of similar hericides, creating additional dangers to those on the ground. Plaintiff could also convince a trier that defendants were aware that packaging Agent Orange in drums without warnings was likely to lead to handling in ways contrary to safe usage, such as spillage on personnel and failure to wash and change clothing promptly after exposure.

 There is also reason to believe that plaintiff could adduce evidence lending support to a contention that neither the government nor the chemical companies met a responsibility to conduct proper experiments and tests before production and use, to reveal promptly the dangers and to take adequate precautions by warnings and the like. In this respect the case arguably resembles the asbestos litigation where substantial contentions of cover-up and carelessness have been made. See P. Brodeur, "Annals of Law -- Asbestos," The New Yorker (June 10, 17, 24, July 1, 1985).

 Finally, on the basis of the record, there is evidence of plaintiff's exposure to Agent Orange. It occurred while he was in Vietnam.

 Thus plaintiff could establish enough to withstand a motion for summary judgment directed to the first leg of any tort claim -- defendants' wrongful act violating a right of plaintiff. Whether the rule is couched in terms of traditional negligence or strict liability we may assume for the purposes of this motion that defendants violated an obligation they owed to plaintiff.

 Plaintiff's difficulty is with establishing the second leg of a tort claim -- damage to plaintiff caused by defendants' wrongful conduct. Causation cannot be established on the basis of information presently available. It cannot be shown that John Lilley's illness and death were caused by exposure to Agent Orange. On the evidence available no trier could be permitted to find for plaintiff. At this point any analogy to many of the asbestos or other similar toxic tort cases -- where there is a clear linkage between the product and a disease -- ends.

 Under these circumstances, there is no need to consider whether the risks to those on the ground from spraying would have been greater than the risks from ambushes or other enemy action had Agent Orange never been used. Speculation about what the President and other high government officials would have done if they had known of the possible dangers, or what the manufacturers would or should have done if the government ordered the spraying of Agent Orange with full knowledge, becomes legally irrelevant.

 Although lack of proof of causation requires that the complaint be dismissed, attorneys for plaintiffs in this and related MDL cases did not bring a frivolous suit requiring them to pay defendants' attorney fees under Rule 11 of the Federal Rules of Civil Procedure. See Eastway v. City of New York, F.2d (2d Cir. 1985). The plaintiffs' attorneys in this multidistrict litigation have made a valuable contribution by discovering and revealing evidence supporting the first leg of their claim -- defendants' and the government's knowledge of the dangers in using Agent Orange and their failure to take reasonable precautions. That the scientific studies completed after they brought suit failed to support their theories of causation is hardly a reason for punishing the lawyers.

 As a result of this litigation, future members of the armed forces may be protected by "sunshine" legislation, Defense Department regulations, and manufacturers' practice requiring disclosure of new and dangerous chemical processes. The importance of this and related Agent Orange litigation to veterans and to the public argues strongly against denominating the complaint in this case frivolous and burdening counsel with Rule 11 sanctions.

 A long latency period may ultimately reveal some causal relationship between exposure to Agent Orange and adverse health effects in those exposed and in their children. If and when such a connection is shown the issue of compensation should be addressed by the government. This court must decide the case on the evidence presently available.

 II. PROCEDURAL BACKGROUND

 Plaintiff opted out of the class previously certified by this court in a suit against the defendant chemical companies. In re "Agent Orange" Product Liability Litigation, 506 F.Supp 762, 787-792 (E.D.N.Y. 1980), modified, 100 F.R.D. 718 (E.D.N.Y. 1983), mandamus denied, 725 F.2d 858 (2d Cir.), cert. denied, U.S. , 104 S. Ct. 1417, 79 L. Ed. 2d 743 (1984). After settling with members of the class on May 7, 1984, defendants moved on July 24, 1984 for summary judgment in the opt-out cases and a number of cases brought by civilians.

 The court granted the opt-out plaintiffs repeated adjournments and opportunities for discovery to obtain evidence in opposition to the motion. On December 10, 1984, the court heard oral argument on defendants' motions. Defendants offered overwhelming proof that no causal connection exists between exposure to Agent Orange and development of miscarriages or birth defects. In response, the veterans' wives and children produced no evidence sufficient to create an issue of material fact on causation.

 See also In re "Agent Orange" Product Liability Litigation, 603 F. Supp. 239 (E.D.N.Y. 1985) (dismissing claims of wives and children against government). The court adjourned consideration of the majority of the opt-out veterans' claims to enable counsel to produce additional evidence of causation.

 Counsel for the opt-out plaintiffs submitted materials by Doctors Samuel S. Epstein and Barry M. Singer. Oral argument was heard on April 15, 1985. The court issued an opinion granting defendants' motion for summary judgment on May 8, 1985. In re "Agent Orange" product Liability Litigation, F. Supp. (E.D.N.Y. 1985).

 In the Lilley case, plaintiff produced the affidavit of Dr. Bertram Warren Carnow on October 18, 1984. On December 10, 1984, the court denied summary judgment. Defendants' motion to reargue was granted on February 6, 1985. Expedited discovery occurred and oral argument was heard on April 15, 1985.

 On May 14, 1985, the court issued an order granting plaintiff an added thirty days to submit additional proof of exposure and additional medical evidence. Plaintiffs' counsel submitted the affidavit [affidavit] of Mrs. Lilley's brother-in-law John Comeaux on June 12, 1985. Defendants' counsel submitted John Comeaux's supplemental affidavit and an accompanying memorandum of law on June 13, 1985.

 III. UFACTS

 More discovery has occurred in the Lilley case than in any other opt-out case. Still, as the deposition of plaintiff Anna Lilley demonstrates, little is known about John Lilley's medical background and exposure history. Plaintiff's expert, Dr. Bertram Carnow, relies on information supplied by Mrs. Lilley, some of Mr. Lilley's medical records, and studies of animal and industrial exposure to dioxin. He concludes that Agent Orange caused John Lilley's illness and death. Defendants contest causation, relying primarily on epidemiologic studies, the depositions of Mrs. Lilley, the affidavits of John Comeaux and the affidavits of two experts.

 A. Information on John Lilley

 John Lilley grew up in western Pennsylvania. He entered what subsequently became the Air Force in 1947 at the age of seventeen. According to Mrs. Lilley, her husband received specialized training in the use of chemicals and gas and instruction on how to be an airplane mechanic. Dep. of Anna Lilley at 81. During his years in the service, John Lilley worked primarily as an airplane mechanic. Id. at 36, 57. He "tore engines apart." Id. at 83. Mr. Lilley's main workplace was Andrews Air Force Base, and he commuted home on weekends. Id. at 51, 54, 84.

 He had several tours of duty abroad, including service in Germany, England, Japan, Korea and Vietnam. He worked as a cargo inspector in Vietnam from April 1966 through April 1967. There he inventoried cargo and assisted in loading and unloading it onto airplanes.

 Dr. Carnow states that Mr. Lilley "was not exposed to any spraying nor did he handle any chemicals" other than in Vietnam. Carnow Aff. at 2. Mrs. Lilley's deposition makes clear that she would not have been aware of her husband's exposure to chemicals. See generally Lilley Dep. at 85 & passim. According to Mrs. Lilley, whatever John Lilley's assignment, "he would be * * * on top secret * * * [and] never knew where he was going until he boarded the plane and opened the envelope." Id. at 47.

 Dr. Carnow also states that Mr. Lilley told Mrs. Lilley "that he did handle drums of Agent Orange extensively and that he did get some of the chemical on him from ruptured or defective containers." Mrs. Lilley, on the other hand, repeatedly stated that "he could never tell me what was in the containers." Id. at 36; see also id. at 42, 44, 161.

 Mrs. Lilley testified at her deposition that she first learned that Agent Orange may have been in the containers her husband handled sometime after his death. She was told this by her brother-in-law, who had worked with John Lilley in Vietnam. Id. at 41-42. There are indications in Mrs. Lilley's deposition that the chemicals handled by her husband and her brother-in-law included chemicals other than Agent Orange. See, e.g., id. at 45 ("[t]he boys never knew what they were handling, all they knew it was chemicals * * * supposed to kill the mosquitos or something over there"); id. (describing "red, green, blue" seals on barrels); id. at 161 ("chemicals my husband [used] * * * to spray for the bugs").

 The affidavit of Mrs. Lilley's brother-in-law, John C. Comeaux, is more explicit about in Vietnam. Mr. the material John Lilley handled Comeaux served as a flight engineer and cargo inspector in Vietnam, frequently working with John Lilley. Comeaux Aff. PP5-7.

 Mr. Comeaux "cannot clearly recall the color of the various bands used" on the barrels he and Mr. Lilley handled. They emptied the 55-gallon drums into larger aircraft tanks for use on C-123 aircraft as part of Operation Ranch Hand. Aff. 7. The material in the drums, which Mr. Comeaux "understood * * * to be for defoliating the jungle, killing the tall grasses and occasionally for destroying enemy crops," "was constantly spilling" on Mr. Comeaux and Mr. Lilley. Aff. PP7-8. A film of what Mr. Comeaux believes to have been Agent Orange developed on the water when it rained. Rainwater flooded the barracks and Mr. Lilley and Mr. Comaux [Comeaux] were forced to wade in it. Aff. P7. Mr. Comeaux concludes that "John Lilley was exposed to Agent Orange and possibly other herbicides." Aff. P10 (emphasis supplied). John Comeaux's supplemental affidavit filed at the request of defendant Monsanto states that he has "no personal knowledge of the contents of the barrels we handled" and that he does "not know * * * whether the barrels in fact contained! the herbicide known as Agent Orange." Supp. Aff. PP3-5.

 Dr. Carnow notes that after returning from Vietnam, Mr. Lilley had blister-like lesions on both lower legs which were then diagnosed as shingles. He also complained of a red rash which would later result in brownish patches on his skin. Carnow Aff. at 2; see also Dep. of Anna Lilley at 27. He had difficulty holding a hammer because of numbness in his hands. Finally, he had a cough and sore throat, which were apparently cured by a tonsillectomy. Id. at 64.

 Mr. Lilley retired from the Air Force after twenty years of service in August 1967. Upon returning to civilian life he worked for Aircraft Armaments Company, a manufacturer of grenades, machine guns and shells. Lilley Dep. at 62-63. Dr. Carnow states that during his subsequent occupation, Mr. Lilley "never handled any toxic chemicals including solvents or pesticides." Carnow Aff. at 2. This conclusion is presumably based on Mrs. Lilley's statement that "[t]hey didn't have chemicals down there." Lilley Dep. at 63. While employed at Aircraft Armaments, and fixed air Mr. Lilley replaced light bulbs conditioners. Id.

 With respect to Mr. Lilley's personal habits, Dr. Carnow states that, according to Mrs. Lilley, Mr. Lilley did not smoke or drink. Aff. at 2. Mrs. Lilley's deposition reads:

 
Q: At any time since you have known your husband, did he ever smoke?
 
A: Well, I don't know what he did. He started one time and went back off of it and broke himself of it.
 
Q: Was he ever advised by a doctor in the military to stop smoking?
 
A: I don't know. He never told me.

 Dep. at 98. Mr. Lilley, however, "admitted to smoking 1 pack per day for the last 30 years * * *." Medical Record, USPHS Hospital (12/10/70) submitted as Exhibit "B" to Aff. of Edmund H. Sonnenblick, M.D., In Support of Defendant's Motion to Dismiss and for Summary Judgment.

 Dr. Carnow also relies on information from Mrs. Lilley to conclude that Mr. Lilley never contracted hepatitis or infectious mononucleosis and did not take any medication regularly. Carnow Aff. at 2. She gave Dr. Carnow an abbreviated family history: Mr. Lilley's father died of a stroke in his 50s or 60s. His mother had cancer of the uterus or cervix. He has five sisters, all of whom are alive and well. There is no history of any leukemias or other cancers in the family. Aff. at 3.

 Mrs. Lilley notes that she had a stillbirth after five months' gestation in 1969. She became pregnant again several months later and after a full-term pregnancy gave birth to an eight pound, five ounce baby. The boy has developed rashes on about 13 occasions, diagnosed as Scarlet Fever, German Measles, and other infectious diseases. The child also suffers from a lung disorder. Aff. at 3.

 After Mr. Lilley's return from Vietnam, he received medical attention twice: once in April 1966 for a boil on his scrotum, and once for a sore throat in May 1967. His retirement examination in August 1967 showed a normal electrocardiogram, no significant findings on the physical examination, and no complaints. He was 6 feet tall and weighed 180 pounds. His blood pressure was 120/84 and he was thought to be in excellent health. Aff. at 3.

 In September 1970 at the age of 40, Mr. Lilley was diagnosed as having poorly differentiated lymphocytic lymphoma, nodular type. He was treated with various medications and told that he had only six months to live -- although fortunately he lived longer. Carnow Aff. at 3. He had a spleenectomy in 1970 after the diagnosis of lymphosarcoma was made.

 Dr. Carnow notes that the progression of Mr. Lilley's disease was from poorly differentiated lymphocytic lymphoma, nodular type, to mixed histiocytic-lymphocytic, nodular type, to lymphosarcomatous leukemia. Aff. at 3. Mr. Lilley died on January 28, 1976. According to Dr. Carnow, the autopsy report shows a lymphosarcomatous leukemia with various other findings, all related to the cancer diagnosis. Aff. at 3.

 A hospital discharge summary dated February 17, 1975 shows that Mr. Lilley had just suffered a myocardial infarction. He had had a previous myocardial infarction in 1973. Dr. Carnow concludes that Mr. Lilley's lymphosarcoma was caused by exposure to Agent Orange during his tour of duty in Vietnam. He further states that John Lilley's myocardial infarction "was also the result of absorption of these chemicals into his body and the development of chronic chemical intoxication as a result." Carnow Aff. at 5. Cf. Tr. at 183 (Hearings March 5, 1985) ("medical evidence would suggest that if somebody had occluded arteries, that person did not die from Agent Orange exposure") (remarks of Plaintiffs' Management Committee member David Dean).

 Assuming, based on the Comeaux affidavits, that Mr. Lilley was in fact exposed to Agent Orange, there is insufficient evidence to support Dr. Carnow's opinion that such exposure caused Mr. Lilley's lymphosarcoma and myocardial infractions. Dr. Carnow relies on insufficient information about Mr. Lilley's background and personal habits. What little information is available makes clear that Mr. Lilley was exposed to a wide variety of carcinogens during his lifetime. The only medical records submitted make no mention of Agent Orange. The inapposite scientific studies described by Dr. Carnow do not support the claim of causation.$

 B. Review of Scientific Literature

 To reach his conclusion that Agent Orange caused Mr. Lilley's lymphosarcoma and myocardial infractions, Dr. Carnow relies primarily on a number of studies conducted ...


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