Appeals from a grant of summary judgment by the United States District Court for the Eastern District of New York, Jack B. Weinstein, Chief Judge, in multidistrict litigation No. 381, dismissing claims against Agent Orange manufacturers by Vietnam veterans and members of their families who opted out of the Agent Orange class action litigation. We affirm on the ground that the plaintiffs' claims are barred by the military contractor defense.
BEFORE: VAN GRAAFEILAND, WINTER, and MINER, Circuit Judges.
This opinion addresses the disposition of 287 appeals in cases brought by plaintiffs who chose to opt out of the Agent Orange class action. These cases remained in the Eastern District of new York after the class settlement as a result of the multidistrict referral. Chief Judge Weinstein granted summary judgment against each of the opt-out plaintiffs, most of whom now appeal.*fn1 To avoid repetition, this opinion assumes familiarity with the discussion of the fairness of the settlement in the first of this series of opinions, No. 84-6273, and with Chief Judge Weinstein's opinions reported at: 597 F. Supp. 740, 775-99, 819-50 (E.D.N.Y. 1984) (" Settlement Opinion "); 611 F. Supp. 1223 (E.D.N.Y. 1985) ("Opt-Out Opinion"); and 611 F. Supp. 1267 (E.D.N.Y. 1985) ("Lilley Opinion").
After they had settled with the class, the defendant chemical companies moved for summary judgment against the opt-out plaintiffs. Chief Judge Weinstein granted the motion on the alternative dispositive grounds that no opt-out plaintiff could prove that a particular ailment was caused by Agent Orange, see Opt-Out Opinion, 611 F. Supp. at 1260-63; Lilley Opinion, 611 F. Supp. at 1284-85, that no plaintiff could prove which defendant had manufactured the Agent Orange that allegedly caused his or her injury, see Opt-Out Opinion, 611 F. Supp. at 1263; Lilley Opinion, 611 F. Supp. at 1285, and that all the claims were barred by the military contractor defense. See Opt-Out Opinion, 611 F. Supp. at 1263-64; Lilley Opinion, 611 F. Supp. at 1285.
The district court's determination that individual causation could not be proven was based largely on its conclusion that the expert opinions submitted by the opt-out plaintiffs were inadmissible. Chief Judge Weinstein held that the opinions lacked a reliable basis and were therefore inadmissible under Fed. R. Evid. 703.*fn2 See Opt-Out Opinion, 611 F. Supp. at 1243-55; Lilley Opinion, 611 F. Supp. at 1280-83. He also found that the opinions were so unreliable that the danger of prejudice substantially outweighed their probative value under Fed. R. Evid. 403.*fn3 See Opt-Out Opinion, 611 F. Supp. at 1255-56; Lilley Opinion, 611 F. Supp. at 1283.
The district court's determination that no plaintiff could prove which defendant caused his or her particular illness was based on the undisputed facts that the amount of dioxin in Agent Orange varied according to its manufacturer and that the government often mixed the Agent Orange of different manufacturers and always stored the herbicide in unlabeled barrels. See Opt-Out Opinion, 611 F. Supp. at 1263 (citing Settlement Opinion, 597 F. Supp. at 816-44). The court also rejected sub silentio various theories of enterprise and alternative liability that it had discussed in evaluating the settlement. See Settlement Opinion, 597 F. Supp. at 820-28. We do not address either of these grounds for the grant of summary judgment because we affirm on the military contractor defense.*fn4
The district court granted summary judgment on military contractor grounds because it found no genuine factual dispute as to whether the government possessed as much information as the chemical companies about possible hazards of Agent Orange at pertinent times. See Opt-Out Opinion, 611 F. Supp. at 1263. This information concerned an association between dioxin exposure and cases of chloracne and liver damage. We agree with the district court that the information possessed by the government at pertinent times was as great as, or greater than, that possessed by the chemical companies. We add a further reason for affirming the grant of summary judgment based on the military contractor defense. Even today, the weight of present scientific evidence does not establish that Agent Orange injured personnel in Vietnam, even with regard to chloracne and liver damage. The chemical companies therefore could not have breached a duty to inform the government of hazards years earlier.
Our consideration of the military contractor defense has been greatly impaired by the inexplicable and unjustifiable failure of the opt-outs' counsel to brief the issue even though it has a dispositive ground for the grant of summary judgment.*fn5 On appeal, their brief offers only the conclusory statement that "the district court clearly committed error in holding that the government contract defense presented no genuine issues of material fact." We are then referred to 569 pages of deposition excerpts and documents, which are said to "raise clear questions of material fact."*fn6 No explanation is given of the relevance of these materials, however, and we are left in ignorance of appellants' view of the legal contours of the defense. Appellees, having no discussion to which they might respond, also do not address the issue.
Plaintiffs have placed in the appendix a number of documents and deposition excerpts which were submitted in opposition to defendants' motions for summary judgment [sic]. Those documents and deposition excerpts raise clear questions of material fact. The Court's attention is respectfully commended to JA. 1717-24, 1759-1808, 2019-2356, 2392-2560, 2568-71. Plaintiffs regret that page constraints do not permit further comment on those documents. See, Master Class Action Brief, pp. 69-70.
We cannot agree that an editing of this 75-page brief, which can hardly be described as tightly written, would not have permitted a discussion of the military contractor issue.
We believe that federal law shields a contractor from liability for injuries caused by products ordered by the government for a distinctly military use, so long as it informs the government of known hazards or the information possessed by the government regarding those hazards is equal to that possessed by the contractor. The military contractor defense has been the subject of several recent judicial decisions, see Boyle v. United Technologies Corp., 792 F.2d 413, 414-15 (4th Cir. 1986), cert. granted, 479 U.S. 1029, 107 S. Ct. 872, 93 L. Ed. 2d 827 (1987) (No. 86-492); Tozer v. LTV Corp., 792 F.2d 403 (4th Cir. 1986), petition for cert. filed, 55 U.S.L.W. 3337 U.S. Oct. 23, 1986) (No. 86-674); Shaw v. Grumman Aerospace Corp., 778 F.2d 736 (11th Cir. 1985), petition for cert. filed, 54 U.S.L.W. 3632 (U.S. Mar. 17, 1986 (No. 85-1529); Bynum v. FMC Corp., 770 F.2d 556 (5th Cir. 1985); Tillett v. J. I. Case Co., 756 F.2d 591, 596-600 (7th Cir. 1985); Koutsoubos v. Boeing Vertol, 755 F.2d 352 (3d Cir.), cert. denied, 474 U.S. 821, 106 S. Ct. 72, 88 L. Ed. 2d 59 (1985); McKay v. Rockwell Int'l Corp., 704 F.2d 444 (9th Cir. 1983), cert. denied, 464 U.S. 1043, 79 L. Ed. 2d 175, 104 S. Ct. 711 (1984), and has figured prominently in the instant litigation, see In re Diamond Shamrock Chemicals Co., 725 F.2d 858, 861 (2d Cir.), cert. denied, 465 U.S. 1067, 104 S. Ct. 1417, 79 L. Ed. 2d 743 (1984); In re "Agent Orange" Product Liability Litigation, 597 F. Supp. at 847-50; 580 F. Supp. 590, 701-05 (E.D.N.Y. 1984); 565 F. Supp. 1263 (E.D.N.Y. 1983); 534 F. Supp. 1046, 1053-58 (E.D.N.Y. 1982); 506 F. Supp. 762, 792-96 (E.D.N.Y. 1980). Our rationale for the defense is similar to that recently expressed by the Court of Appeals for the Fourth Circuit:
Traditionally, the government contractor defense shielded a contractor from liability when acting under the direction and authority of the United States. Yearsley v. W.A. Ross Constr. Co., 309 U.S. 18, 20, 60 S. Ct. 413, 414 84 L. Ed. 554 (1940). In its original form, the defense covered only construction projects, McKay v. Rockwell Int'l Corp., 704 F.2d 444, 448 (9th Cir. 1983), cert. denied, 464 U.S. 1043, 104 S. Ct. 711, 79 L. Ed. 2d 175 (1984). Its application to military contractors, however, serves more than the historic purpose of not imposing liability on a contractor who has followed specifications required or approved by the United States government. It advances the separation of powers and safeguards the process of military procurement.
Subjecting military contractors to full tort liability would inject the judicial branch into political and military decisions that are beyond its constitutional authority and institutional competence. See Gilligan v. Morgan, 413 U.S. 1, 10, 37 L. Ed. 2d 407, 93 S. Ct. 2440 (1973) ("The complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments, subject always to civilian control of the Legislative and Executive Branches.") (emphasis in original). The allocation of such decisions to other branches of government recognizes that military service, in peace as well as in war, is inherently more dangerous than civilian life. Civilian judges and juries are not competent to weigh the cost of injuries caused by a product against the cost of avoidance in lost military efficiency. Such judgments involve the nation's geopolitical goals and choices among particular tactics, the need for particular technologies resulting therefrom, and the likely tactics, intentions, and risk- averseness of potential enemies. Moreover, military goods may utilize advanced technology that has no been fully tested. See McKay, 704 F.2d at 449-50 ("in setting specifications for military equipment, the United States is required by the exigencies of ...