3 15 672 https://www.nal.usda.gov/exhibits/speccoll/files/original/f7f25c4aa7a10c210ae173a57c47dacf.pdf dbbda9dccb40613128d26c600e5b5175 PDF Text Text Reno Number °5614 D Author Corporate Author Report/Article TldO A JOUrnil/BOOk TItto Congressional Record - House Year ™M Month/Day January 30 Cotor Number of Images DBBCrtatOn NOtM 9ent Orange and Atomic Veterans Relief Act n ° Alvin L Youn 9 filed these documents together with others in a folder labeled, "Agent Orange Working Group Science Panel, Current Folder." Monday, March 25, 2002 Page 5614 of 5720 �January Jft 1984 CONGRESSIONAL RECORD — HOUSE LINE-ITEM VETO CONSTITUTIONAL AMENDMENT (Mr. GBKAS asked and ww ftven permission to sddrses the HOUM for I minute and to revise and extend his remarks.) jar. OEKAS. Mr. Speaker, I understand that the Chair has ruled that la order tor a unanimous-consent request to be made that we. mint obtain the clearance of both the minority leader* $nip and the majority leadership. The SPEAKER. The gentleman is correct. Mr. OEKAS. In that regard, then, havlnff had the good fortune to have received the clearance of the minority to offer a unanimous-consent request to consider line-item veto legislation, I would now ask if the majority leadership, through one of its spokesmen, would also concede a unanimous-consent request for that purpose. The SPEAKER. Has the gentleman's leadership put that request in writing? Mr. OEKAS. No; it has been represented to. me. The SPEAKER. It would be nice to get him on record. Mr. OEKAS. Is there someone here representing the leadership who cant I represent to the Speaker that that consent has been given to me. The SPEAKER. I thank the gentleman. • Mr. GEKAS. I hear no response from the majority leadership, however. If that be the case. I would have to then say that the case for the lineitem veto has met with an obstacle from the failure of the majority to respond to this unanimous-consent request. RESIGNATION AS CHAIRMAN AND APPOINTMENT OF CHAIRMAN OF HOUSE DELEGATION TO CANADA-UNITED STATES INTERPARLIAMENTARY GROUP The SPEAKER laid before the House the following resignation as Chairman of the House delegation to the Canada-United States Interpartiamentary Group: COMMrrrtt ow PoasMH Amns. Washington, aeUJonaanrJ?. me . Hon. THOMAS P. O'Nsnc. Jr.. Speaker. Ho*** at JtcprmcnteMoea, (Ta#V infften. D.C DBAS MR. SrcAKOf r hereby nslgn at Chairman of the Route delegation to UM Canada-United State* toUrparlltmrntary Group. With best wishes, I am. Sincerely 70111*. DAJ*T* B. PASCAL. CRrti H217 REPORT OF ACTIVrnES OF U.8. GOVERNMENT .IN THE UNl'l'LU NATIONS DURING 1982-MESSAGE FROM. THE PRESIDENT .OF THE UNTIED STATES The SPEAKER laid before the House the following message from the President of the United States: which was read and. together with the accompanying papers, referred to the Committee on Foreign Affairs. (For message, see proceedings of the Senate of Friday. January 27.19M. at page 8297.) SECOND ANNUAL REPORT OF TOURISM POLICY COUNCIL. FISCAL YEAR 1988-MESSAOE FROM THE PRESIDENT OF THE UNITED STATES The SPEAKER laid before the House the following message from the . President of the United States: which was read and. together with the accompanying papers, referred to the Committee on Energy and Commerce. (For message, see proceedings of the Senate of Friday. January 27.1984 at page S297.) The SPEAKER. Without objection, the resignation is accepted. There was no objection. O 1220 The SPEAKER. Pursuant to the provisions of 22 U.S.C. 276d. the Chair appoints as Chairman of the U.S. delegation to attend the 23th meeting of the Canada-United States Interparlia- TWELFTH ANNUAL REPORT ON mentary Group March 8 through 12. ADMINISTRATION OF FEDERAL 1984. in Puerto Rico the gentleman RAILROAD SAFETY ACT OF from Maryland. Mr. BAJUTXS. 1970—MESSAGE FROM THE PRESIDENT OP THE UNITED APPOINTMENT AS MEMBER OF STATES THE PERMANENT SELECT The SPEAKER laid before the COMMITTEE ON INTELLIGENCE House the following message from the The SPEAKER. Pursuant to clause President of the United State*: which 6<f). rule X and clause 1. rule XLVZZL was read and, together with the acthe Chair appoints the gentleman companying papers, referred to the from California, Mr. BRLxnsoif, as a Committee on Energy and Commerce. (For message, see proceedings of the member of the Permanent Select Committee on Intelligence to fill the Senate of today. Monday. January 30. 1984.) THE DEFICIT "DOWN PAYMENT" existing vacancy thereon. (Mr. BROWN of Colorado asked and ANNOUNCEMENT BY THE COMMUNICATION FROM THE wss given permission to address the SPEAKER CLERK OF THE HOUSE House for 1 minute and to revise and extend his remarks.) The SPEAKER laid before the The SPEAKER. Pursuant to the Mr. BROWN of Colorado. Mr. Rouse the following communication provisions of clause 8, rule I. the Chair Speaker, today's Wall Street Journal from the Clerk of the House of Repre- announces be win postpone further reports some Democratic leaden sentatives: proceedings today on each motion to remain unconvinced of the President's WAUUHGTOW, D.C, January 27.J9I4. suspend the rules on which a recorded sincerity in seeking to achieve a down Ron. THOMAS P. O'Nstu. Jr.. vote or the yeas and nays are ordered., payment reduction of deficit* No The Speaker, ffouu of Acp/cseiUaliMa. or on which the vote is objected to party has a patent on sincerity when it Wathinyttm. D.C. under clause 4 of rule XV. comes to the welfare of our Nation, DEAB MR. SPKAKOI: Pursuant to the per- • Such rollcall votes, if postponed, will It would be a tragedy if progress minion granted in Clause 9, Rule HI of tnt be taken on Tuesday. January 31. toward reducing the deficit Is halted Rule* Of the 0.8. House of Representative*. 1984. sealed enveby pressures emanating from Preil- I have the honor to transmit House as foldentlal candidates. This House must lopes received from The White *•—• -AGENT ORANGE AND ATOMIC not be held hostage to the ambition of low*: At 12:49 p-m. oo Friday. January (l) VETERANS RELIEF ACT Presidential candidates no matter 1984 and maid to contain a message from what party. Mr. MONTGOMERY. Mr. Speller. President wherein he transmits the I hope we will be willing to put aside Annual Report on U.S. participation ia I move to suspend the rules and pass Partisan considerations and end the UJ*.: and the bill (H.R. 1961) to amend title 38. •nlping about the possibility of a down (J) At 12:43 pjn. on Friday. January United States Code, to provide a pre1984 and said to contain a message from Payment. When the American people sumption of service connection for the President wherein he transmits the j«e such sniping before we have even occurrence of certain diseases related Annual Report of the Tourism Policy begun to sit down and talk, they may dl. to exposure to herbicides or other en•wuy conclude that some of our Mem- With kind retards. I am. vironmental hazards or conditions In °*rs are more concerned about partiveterans who served in Southeast Asia, Sincerely. •u politics than reducing the deficit during the Vietnam era. at amended. BstUAnn J. QvnooM. °ur citizens deserve better. • Clerk. The Clerk read a* follows: �H218 CONGRESSIONAL RECORD — HOUSE HJttMl Bt U eMCfad 6* M< Settle el* ITOMM Of XttnttnUtiv* o/ Me Vniltt Stvtut of Amtriem in C0»g*e*e tntmtlti, That this Act nay be cited M the "Agent Orange ami Atomic Veterane Relief Act". Sse. 2. The purpose ef thto Act is to provide certain benefits— (1> to veterans and the survivors of veteran* who served In Southeast Ada during the Vietnam en and suffer fron diseases that may be attributable to exposun to Agent Orange: and <2),to veterans and the survivors of raterani who participated In atonic tests or the occupation of Hiroshima and Nagasaki and suffer from dieeaiee that may be attributable to Ionising radiation, notwithstanding that there Is Insufficient medical evidence to conclude that such dissenrtee connected. Sac. 1. (a) Title M. United Statee Code, it amended by inserting after chapter 19 the following new chapter ••CHAPTER 14—DISABILITY AND DEATH ALLOWANCES FOR CERTAIN VETERANS AND SURVIVORS "Sec. "451. Agent Orange veterane and survivors. "432. Atomic veterans and survivors. "451. Rate* of disability and death allow"454. Other benefits. "455. Termination of chapter. "I ML Ag«rt Orange veUfaiM "(a) In the case of a veteran who served, on active duty In-Southeast Asia during the Vietnam era and who after such service suffers from a disease described in subsection (b> of tbJe section, the Administrator shall pay a disability allowance to the veteran and, if the veteran dies fromjuch disease, a death allowance to the survivors of the veteran. Such allowances shall be paid at the rates prescribed in section 453 of this title. "(b) The diseases referred to in subsection (a) of thai section are the following: "(1) Soft-tisfue sarcoma becoming manifest within twenty years from the date of the veteran's departure from Southeast Asia. "(2) Porphyrla cutanea tarda becoming manifest within one year from the date of the veteran's departure from Southeast Asia. "(3) Chloracne becoming manifest within one year from the date of the veteran's devparture from Southeast Asia, "(c> Benefits may not be paid under this section with respect to a veteran— "(1) where there Is affirmative evidence that the disease described in subsection (b) of this section was not Incurred by the veteran during service in Southeast Asia during the Vietnam era; or "(3) where there is affirmative evidence to establish that an Intercurrent injury or disease which is a mcQgntted cause of any of the diseases described In subsection <b> of this section ham been suffered between the date of the veteran's separation from service and the onset of such ditesie. "14SL Atoarte vtterwM aed MtrvUon "(a* In the case of a veteran who while on active duty participated in the testing of an atomic bomb or device, or who while on active duty participated in the occupation of Hiroshima or Nagasaki during World War II. and who within twenty yean from the date of the veteran's participation in the test or occupation suffers from a disease described in subsection (b) of this section, the. Administrator shall pay a disability allowance to the veteran and. if the veteran die* from such disease, a death allowance to the survivors of the veteran. Such allowances January SO, 1984 The Chair recognises the "(b) The diseases referred to to subsection from Mississippi (Mr. Moirrc (Mr. MONTGOMERY asked and (a) of this section are the following: was given permission to revise and -(1) Leukemia. "(2)Polycythemiavera. • extend his remarks.) "(I) Carcinoma of the thyroid. "(c> Benefits may not be paid under this section with respect to a veteran— "(1) where there Is affirmative evidence that the dlssase described In subsection (b) df this section was not Incurred by the veteran during service described In the first sentence of subsection (a) of this section; or "(It when then Is affirmative evidence to establish that an Intercurrent Injury or disease which Is a recognised cause of any of the diseases described to subsection (b) of this section has been suffered between the date of the veteran's separation from service and the onset of such disease. "1 451. RalM oT tfteaMllty Me death allowaneM "A disability allowance payable to a veteran under this chapter shall be paid at the rates provided In chapter 11 of this title. based upon the degree of disability of the veteran attributable to the disease establishing eligibility for such allowance. A death allowance payable under this section to the survivors of a veteran shall be paid to such survivors based upon the eligibility requirements and rates applicable to payments uner chapter 13 of this title. "A disease establishing ellglblity for a disability allowance under this chapter shall be treated for purposes of All other Jaws of the United States (other than chapters 11 and 13 of this title) as if such disease were service connected, and receipt of -a disability allowance under this chapter shall be treated for purposes of all other laws of the United States as if such allowance wen service-connected compensation under chapter 11 of this title. Receipt of a death allowance under this chapter shall be treated for purposes of all other laws of the United States as U such allowance were dependency and Indemnity compensation under chapter 13 of this title. "1 4SS. Terminal!** of chapter "This chapter shall terminate on the first day of the first month beginning after the end of the one-year period beginning on the date the Administrator submits to the appropriate committees of Congress the first report required by section 307(bX2> of the Veterans Health Programs Extension and Improvement Act of 1979 (Public Law (b) The tables of chapters at the beginning of title U. United States Code, and at the beginning of pan n of such title, an amended by Inserting after the Item relating to chapter 13 the following new Item: "14. Disability and Death Allowances for Certain Veterans and Survivors. ~_~.................».___......_ 451". Stc 4. This Act shall take effect on October 1. 1983. No benefit may be paid for any period before such date by reason of the enactment of this Act. The SPEAKER. Is a second demanded? Mr. HAMMERSCHMIDT. , Mr. Speaker. I demand a second. The SPEAKER. Without objection. a second will be considered as ordered. There was no objection. The SPEAKER. The gentleman from Mississippi (Mr. Moirrooaaar) will be recognized for 20 minutes and the gentleman from Arkansas (Mr. HAIOODMCBIODT) will be recognized for 90 minute*. Mr. MONTGOMERY. Mr. Speaker. I ask unanimous consent that au Members may have 5 legislative days In which to revise and extend their remarks, and Include extraneous material, on the subject of the bill under consideration. The SPEAKER. Is there objection to the request of the gentleman from Mississippi? There was no objection, Mr. MONTGOMERY. Mr. Speaker. I yield myself 4 minutes. Mr. Speaker, following extensive hearings by the Committee on Veterans' Affairs, I am pleased to bring to the floor of the House H.R. 1961. a bill that would provide a temporary disability, or death, allowance for veterans who served in Southeast Asia during the Vietnam era and were exposed to agent orange, and who later suffered from three specific disabilities. The bill would also provide a dlsabll- ••» ity, .or death, allowance for veteranjw,-* who participated In the testing of nuclear devices or in the occupation of Hiroshima or Nagasaki during World War II, and who later suffered from three serious conditions. Mr. Speaker, there has been much controversy concerning the long-term health effects that may be related to service In Vietnam and exposure to agent orange. The reported bill is a compromise measure that we worked out in the full committee. The bill we bring to the floor today passed the full committee by vote of 30 to 0. Some Members feel the measure Is inadequate, and they will speak later In the debate. Some Members feel we \ should not enact legislation until the agent orange study, now being conducted by the Centers for Disease Control In Altanta. has been concluded. Mr. Speaker, the CDC study Is not expected to be completed until 1988 or 1989. The measure before us today Is clearly a compromise pending the final results of the CDC study. This bill is not an expensive measure. The first fuU year cost of this bill would be $4.7 million. Those costs are assumed in the first concurrent budget resolution adopted by the Congress. As chairman of the committee. I am pleased with the progress we have made to bring to the floor a measure focusing attention on this Issue. I wan( to thank the ranking minority member of the full committee. Mr. HAMMrascxM IDT. for his cooperation; the distinguished chairman of the subcommittee. Mr. AmxGAtt. for the leadership he has shown; for the cooperation and support given by the distinguished gentleman from Ohio, the �January JO, 1984 CONGRESSIONAL RECORD — HOUSE rankinf majority member of the subcommittee.Be»Mc«w»r. Finally Mr. Speaker. I wut to comoiiment the chief sponsor of the bill. TOM DASCittg. a distmgulflhed member of the committee, for the major role he Play*11 m thuteltolatioii.Be ho certainly been a strong advocate in the committee to move the bill to the House floor. In addition, I want to thank Or. ROT ROWLAND, the distinguished gentleman from Georgia, who hat Just completed his first year as a member of our committee. • I am most grateful to all members of the committee who have given so much of their time attending hearings, and markup sessions in order to get this bill to the floor. The attendance of our members has been outstanding. . I now yield 4 minutes to the distinguished gentleman from Ohio (Mr. ArPU6ATI). the chairman of the Subcommittee on Compensation. Pension and Insurance. Mr. APPLEGATE. Mr. Speaker, thank you. Chairman MONTGOMERY, for yielding to me this time. Mr. Speaker. I am very happy to be able to stand here today and present the bill, H.R. 1M1 to my colleagues to the House of Representatives. When I came here in 1977,1 made a commitment to the Vietnam veterans that there should be some kind of a compensation program to take care of a disease which was first officially diagnosed many yean after service but undoubtedly had its start during that service. Although this is not something new, the highly complex medical questions presented by agent orange are so novel and unique that innovative approaches by the Congress are warranted. Unlike injuries incurred during conflict, medical problems which might be related to exposure to this toxic chemical may not surface many times until years after the veteran has returned home. It Is these veterans, our Vietnam veterans, who were exposed to agent orange and who suffer from the specific disabilities listed in the bill which are our concern today. Members of our committee have demonstrated their strong desire to respond to the apprehension and concern among some Vietnam veterans and their families. During the 07th Congress, we enacted legislation giving medical care to Vietnam veterans whose medical problems could possibly be related to exposure to agent orange or to radiation while in service. We are spending close to $100mlWon on a study by the CentersTBruIseBe Control to find the answers. But these answers will not be available for several years. The bill we are considering today is a stopgap measure. As Chairman MONTGOMERY said, it will provide a temporary disability or death allowance for veterans who served in Southeast Asia during the Vietnam war and may have been exposed to agent orange or who were exposed to low- level ionising radiation while participating in testing of nuclear devices or in the occupation of Hiroshima or Nagasaki The bill would provide effective October 1. 1983, monetary benefit* for agent orange veterans if they are shown to have soft tissue sarcoma .within 30 years from the time they left Vietnam or if they have a liver condition called PCT or the skin condition chloracne within 1 year from leaving. Similarly, benefits would be provided for veterans who participated in the testing of nuclear devices while in service or occupied Hiroshima or Nagasaki and who suffer from leukemia, cancer of the thyroid, or polycythemia vera, a bone marrow disease, within 20 years from their exposure to such radiation. If the disabilities are shown to exist within the time limits in the bill, payments would be at the same rates as if the disabilities were service connected. I also want to point out that this bill has a sunset clause. Benefits would terminate 1 year after the agent orange study is received by the Congress. This means that we. will have 1 full year in which to decide what we need to do after we have what we hope will be the answers to a lot of our questions. The bill has a modest cost of $4.7 million for the first year, increasing to only $5.4 million 5 years from now. Mr. Speaker, as Chairman MONTGOMERY said, this has been a highly emotional Issue, but I want to point out again that the Veterans' Affairs Committee Is nonpartisan and provetenn and while we had considerable disagreement during our consideration of the bill, we recognized that something had to be done. We worked out a compromise which some members of the committee'feel does not go far enough. Others feel maybe it goes too far. But in the end. we all knew we had to act and it was in this spirit that agreement was reached. I Just want to say that the final committee vote on ordering the bfll reported was 30 to 0, once again showing how the Veterans' Affairs Committee works together for veterans. I would be remiss If I did not say at this time how much assistance I received from my colleague from Ohio, Bos McEwxif. the ranking minority member on the subcommittee as well as Chairman MONTGOMERY and Mr. HAMMERSCHMIDT. the ranking minority member of the full committee. Mr. ROWLAND of Oeorgia gave us the benefit of his experience in the field of medicine. And it goes without saying that without the perserverance and vigor of the gentleman from South Dakota (f OM DASCHLE), this bill would never have gotten off-the ground. Mr, Speaker, this is a reasonable and limited approach to a problem which will not go away. It is a good bill and I urge my colleagues in the House to join me In giving overwhelming approval of H.R. 1961. H219 Mr. HAMMERSCHMIDT. Mr. Speaker. I yield myself such time at I may consume. (Mr. HAMMERSCHMIDT asked and was given permission to revise and extend his remarks.) MR HAMMERSCHMIDT. Mr. Speaker.-I Join with my colleague, the distinguished chairman of the House Veterans' Affairs. Committee, the gentleman from Mississippi (Mr. MONTOOMZBT). In support of the legislation before the House, H.R. 1961. My colleague from .Mississippi has, -as usual, provided diligent and responsible leadership In shepherding this matter through the committee, and I offer only the highest praise for his efforts. Many members of the committee are to be commended for their contributions In bringing this legislation to the floor. The gentleman from Ohio (Mr. ArFUOATE), chairman of the Subcommittee on Compensation. Pension, and Insurance, has worked long and diligently toward the resolution of a very complicated Issue. His leadership has been of great value. The Subcommittee's ranking member, the gentleman from Ohio,'** Mr, BosMcEwKN. bxuralso contributed much time, energy and guidance In assuring that this bill Is the best possible solution to a complex problem. The gentleman from South Dakota, of course, has played a major role on HJt 1961. He and others have had and retain very strong concerns about one of the most perplexing veterans issues of our time. They would have gone further on this bill than most of us. On the other hand. Mr. Speaker, there are many—and I am among them—who feel strongly that we ought to legislate very cautiously in a field of medicine that thus far is devoid of the scientific expertise that ought to be available before laws are passed by the Congress. Mr. Speaker, a sense of cooperation and compromise caused a broad committee consensus on this bill. We cast a 30-to-O vote to report the bill to the floor. We did this after hearing many witnesses from the veterans' Administration and other Government and civilian medical experts. Veterans appearing alone or represented by the several major veterans organizations, offered valuable testimony and Insight into this Important matter. Mr. Speaker, during the hearings on this bill. I made it very clear that I had serious reservations about providing compensation for diseases not yet scientifically linked to the doxln known as agent orange. I reminded my colleagues that the Congress, through previous legislation had authorized comprehensive studies to be carried out to determine the relationship, If any. between those diseases and agent orange, and that we ought to be very cautious as to preempting the study results. But, Mr. �H220 CONGRESSIONAL RECORD — HOUSE Speaker, we aQ knew that data from many of these studies would not be available for some Urn* and that some data already existed even though It was not accepted by some as being actually valid and even though It was said to be In need of further scientific analysis. Simply stated, our committee was faced with setting % precedent in veterans legislation by providing compensation to a limited number of veterans prior to conclusive evidence about the source oretlology of their disease. The question therefore came down to whether or not we ought to wait for those study result* or whether we ought to do at least that which is called for by the bill before us. We chose the latter course. In so doing, we recalled that a spokesman from the Veterans' Administration testified before our committee—and I quote him. It may well be thmt tht Congress cannot wait for scientific answers in the short term, in which case it may well b» that the sociopolitical aspect of this problem will have to be addressed. We do that addressing in this bill. '• There to-another aspect of the bm. Mr. Speaker, that, in my view, was not as difficult to resolve, and that is the relief sought for certain veterans «\ posed to Ionizing radiation, either during atomic testing or while part of the Armed Forces occupying Hiroshima and Nagasaki. Medical evidence has detailed many health and lifethreatening aspects of such radiation exposure although again, even on this issue, we do not have a complete scientific picture. But certainly, Mr. Speaker, it is wellknown that radiation exposure has caused some types of cancer. I think that the proponent* of this aspect of H.R. 1961 stand on a well-built platform of knowledge as compared to the one still under construction for agent orange. In this connection I want to commend the gentleman from Georgia, Dr. ROWLAND, for this contribution as to this aspect of the bilL Finally. Mr.. Speaker, the sunset provision of this bill does offer the Congress an opportunity to reexamine the issue upon completion of the studies now underway. At that time, we may see that our action here today was both beneficial and foresighted and even that much more win have to be done. Of course the opposite may be true and we hope that It is, for then the very real fears and apprehensions of a large number of veterans and their families would be.overcome. Mr. Speaker, the Veterans' Affairs Committee is dedicated to serving the best interests of the men and women who served their country. They did not ask for the conditions military duty imposed on them, but accepted those conditions without' hesitation. They stood tall and many endured hardships and suffered disabilities beyond description. Sometimes those disabilities came Into view later tn life January 30,1984 and thto may be true of the Vietnam popular war. an now •**«£*.°{J and atomic veterans covered by HJl men'srtlm'sMs,tonot enough oasi**e 1961. These) kinds of individuals an warrant T"ni>*1""i thto Nation **•* the very special charges of the Con- no title to the greatness we an claim gress of the United States and we for It. ought to resolve reasonable doubt in Veterans with —«-«» their favor as to the origin of their dif- Uw disorder known a* ficulties. Just as then- service to record tarda. and a .skin condition of faith In thto Government, we have a chloracn* will be eligible for duty to stand tall with them. It to B fjui other benefit* from therefore my position on HJl. 1961 that, while tt to imperfect as to science. I have been contacted by a number It to mandated by our country's obliga- of veterans who have these conditions: tion to a special group of veterans and veterans Ukalbomas Radon, of OrlanI urge It* passage by the House, do. Fla.: David Maier, of Bay Village. Mr. Speaker: I reserve the balance of Onto; Monte Baird. of Sacramento. my time. \ CallL; Bill Foe. of Mesquite, Tex; Jim Blackmore, of Oak Forest, 111.; Sandy d 1240 Buseffl Mr. MONTGOMERY. Mr. Speaker. a few of Dunmore. Pa* who has only months to live, and others. I yield 4 minutes to the gentlman from have been permaSouth Dakota (Mr. DASCXU). the These are men whola some case* an nently disfigured, chief author of H.R. 1961. have (Mr. DASCHLE asked and was givenN unable to work, andcost*. aoctmniltt-*^ medical Thto legislapermission to revise and extend his re- staggeringhelp defray future medical marks and include extraneous matter.) tion will provide a modest income for Mr. DASCHLE, Mr. Speaker. I rise cost* and in support of HJl. 1961, the Agent those unable to provide for their famiOrange *and Atomic Veterans Relief Though very few wffl benefit, an ImAct Thto legislation to the culmination of several days of often contentious portant addition to thto legislation to hearings and a great deal of hard congressional recognition of certain work. It to far from a perfect bill and I claims- Hied-by ^ World. War n and. alert my colleagues to a special order Korean era veterans with conditions at the close of business on Tuesday, related to radiation exposure. Veterwhere we hope to elaborate on thto ans who served In Japan with the oclegislation. But thto to a beginning and cupation forces or witnessed nuclear it* adoption will further the reconcili- testing during the 1950's and early ation process between thto Govern- 1960*8 who haw leukemia, thyroid ment and the veterans who fought in cancer, or polycythemia-vera—a blood the unpopular Vietnam war. Rouse ap- disorder—wiQ also be eligible for comproval will be a landmark decision and pensation. Such recognition to overdue an implicit acknowledgment that their as medical science ha* long recognized are long-term health effects from ex- these conditions as radiation related. It has been nearly 6 jrears since the posure to the dioxin contaminated deconcerns about possible long-term foliant, agent orange. health effects from exposure to the . Iba The experts say tney do not know for dioxincontamlnated defoliant, agent certain as exposure to difficult to orange, first came to light. Conern measure. There were many new, ex- continues to grow about the potential perimental drugs, herbicides, and in- health effect* of exposure to dioxin as secticides used in large quantities in exemplified by the Government's deciSoutheast Asia that could be combin- sion to buy-out Times Beach* Mo. We ing to have a synergtotic effect on also know from the Air Force that these men and women. Though these over a 9-year period—late 1961-71— chemicals may very well have saved herbicides containing 368 pounds of lives in the short term, they may be pure dioxin were dumped In Vietnam responsible for a national tragedy in on an area the size of Connecticut. the long term. Studies conducted over Dioxin, known as the most toxic syththe next 5 years should greatly im- entlc chemical known to man. has prove our existing knowledge of the caused cancer In test animals at th* chemicals used in Vietnam as well as parts per trillion level. For these reaabout the health of the Vietnam vet- sons and others, conems among Vietnam veterans about the effects of thto eran as a population. Despite the nay-sayers claims that chemical on their health have Justifithe modest benefit* awarded in HJl. ably heightened as well. I wtoh my 1961 are not deserved, one thing to for speech on the House floor today could sure, the past few years have produced signal the end of these concerns about a legitimate Hat of scientific evidence agent orange, but unfortunately it and professional concern to indict cannot.' both the herbicide agent orange, and We nonetheless have taken an Imit* chemical contaminant, dioxin. to portant Interim step today, a step the degree that It wfll probably never which builds on earlier actions rebe used nor produced In this country quired by Congress which Include; au• thorization of the largest epeidemioIf this fact, coupled with unusual logy study ever attempted, and aucircumstances where young men who thorization of priority health care in served their Nation valiantly in an un- tht VA system for veterans who be- �January SO, 1984 CONGRESSIONAL RECORD - HOUSE lieve their health Infirmities were caused by exponirt to toxic chemicals during the war. Despite the llmJted wop* of this legislation, there art thoee who Insist that we should have Incontrovertible proof that agent orange is the culprit before awarding benefits. Unfortunately, as former HHfiGtanfrjICojUU sel Joan BernsletoTUtaailflait-"evMi tne ueai BllBrTI or wmcn our scientists are capable may not produce definitive, incontrovertible scientific information about the medical affects of agent orange" and that "full answers may never be found." The principal tool of scientists studying agent orange and dioxln, epidemiology studies, are not even designed to elicit a cause and effect relationship, rather they try instead to determine risk levels. Those who desire vigorous, incontrovertible proof are expecting I more than science can deliver and are I therefore setting standards that will 1 be virtually impossible to meet. Those Iwho thus insist on incontrovertible Iproof before providing the modest benefits available in H.R. 1961 in my opinion would probably also Insist on witnessing the second coming of phrist before believing in Ood. I salute Members»of the House for not requiring such impossible standards. This Is not to say that we do not have a substantial record of evidence which already links agent orange to long-term health effects. We dp. The current record reveals herDicide-related cancers in Western Europe, cancers in occupationally exposed U.S. workers, excessive cancers among white women in Midland. Mich.—where herbicides have been produced—and cancer in multiple animal species by multiple routes of exposure. This record will expand as a number of scientific studies currently underway provide additional information over the next few years. I would also like to comment on the Rjnch Hand study, which many people believe will be an important Indicator in determing the health effects of agent orange. Though I do not believe that one can casually assume that the type, level, and length of exposure of these Air Force personnel can be extrapolated to the exposure experience of ground units, important information will nonetheless result from this study. Though it Is too soon to draw firm conclusions on mortality figures, initial findings are of interest. Enlisted personnel, which the Air Force admits were "far more exposed than the officer personnel." had a less favorable mortality rate than their nonherbicide exposed peers. In addition, there was an excess of , The Air Force however, that digestive mortality and a paucity of cancer deaths are statistically nonsignificant Morbidity data from this study of those who dispensed agent orange in Vietnam will be available late in February and should provide further information on these concern*. Though I support the bill we approved today, Z do have some concerns about it as It now exists. One significant addition to the bill will result in compensation for a modest number of World War n and Korean era veterans suffering from leukemia, thyroid cancer, and potycythemia-vera—a blood disorder—conditions related to Atomic radiation exposure. This Is a long-overdue action that should greatly assist a few very ill veterans. Unfortunately, the bill significantly restricts eligibility for benefits to these "atomic veterans" by limiting payments to those whose condition first originated within 20 years of their services discharge. The vast majority of veterans, with radiation-induced conditions were discharged during the 1940's and 1980's. The 20year restriction for initial manifestation of these conditions has expired for the vast majority of these men a long time ago. In my view, the Veterans' Committee should seriously consider extending the 20-year limit by at least 10 years. Similar restrictions were applied to agent orange claims as well. Though I believe a 20-year "presumptive period" is reasonably accurate for soft-tissue cancer, I am concerned about 1-vear limitations on poi and chloracne. Hearings on H.R. 1981 revealed that most soldiers in Vietnam did not bother to have what were considered at the time, minor ailments, such as skin conditions and rashes, recorded in their service records. Though a 1-year "presumptive period" perhaps accurately reflects the time when the condition would ordinarily first occur from the point of exposure, chloracne is known to persist for 25 to 30 years. Thus, a chloracne-type condition may have originated well within the 1-year limitation period but was never recorded. I believe we could have been more generous in this instance. Finally. Representative CHRIS SMITH and I offered an amendment to require establishment of an independent advisory coiflmlttee and guidelines for resolution, of agent orange claims. Though our amendment was defeated in-a committee vote, I would like Jto have printed in the RECORD the additional views of several committee members in support of this effort. ADDITIONAL Vzsws The Veterans' Affair* Committee took an important first step In reportins *n amended version of H.R. 1981. However, even with the paiiate of this legislation, questions relating to Agent Orange compensation will be considered for some time. Many veterans will continue to be frustrated by the inability of this legislation to meet their legitimate needs. Two steps In our view would greatly address thete concerns. One is the creation of an Independent advisory committee to objectively analyse all new and existing scientific evidence pertaining to dioxln exposure. H221 The second would create an open, public procedure by which tne VA can clarify how much and what kind of proof Is still necessary before additional Agent Orange claims can be approved. These proposals were offered In the form of an amendment to HJl. IMi during committee consideration of the bill. They ware rejected on a 17-13 vote of the committee. -~ Results from several scientific studies art expected In the months ahead which should reveal a great deal more about Agent Orange and its effects on humans. Yet. In the words of the Congressional Research Service the Impact of these studies will be unclear, as "fhu VA has not established any formal criteria for how their policies might be altered by scientific findings." Therefore, the discovery of Illness In a medical or scientific study could easily go Ignored. The proposal offered in the committee would have ensured that ss these new studies are published there will be a certain and orderly process to determine study conclusions and their relevancy to veterans' compensation There Is also a great deal of concern about the declslonmaking process within the Veterans Administration with respect to Agent Orange compensation. There are no standards or guidelines available by which the agency Justifies Its position that no illness, except chloracne, result* from Agent Orange exposure. The Daschle/Smith amendment would have established a procedure by which the agency, would provide, JusttflcatlovfdT their decfifon with regard to compensation for various disease categories. Other federal agencies such as the Environmental Protection Agency and Occupational Safety and Health Administration Involved in affecting toxic chemical risk follow clear and established guidelines for making such determinations. It Is a matter of sound policy and we see no reason why the Veterans Administration ahould be exempt from §uch a requirement. After several days of hearings on H.R. 1961 it became abundantly clear that an Advisory Committee was necessary simply to sort out the conflicting viewpoint* on the many scientific studies and their relationship to Agent Orange claims. Independent analysis of this Information would ensure that viewpoints contrary to agency positions receive fair and expeditious consideration. There are also distinct advantages In this approach for the Veterans Administration. The VA Administrator ultimately selects AdvUory Committee members, determine when they meet and whether or not compensation is even warranted. Agency decisions on compensation could be corroborated by Advisory Committee recomraenda• tlons. , It Is therefore our belief that as additional / scientific studies are released, the Advtaory Committee would have ensured fair and ex; seditious analysis of Information directly i relevant to Agent Orange claims. It la our ] hope that the committee will renew consideration of these proposals duirog the second session of the 98th Congress. Tom Daschle. Christopher Smith. Robert Edgar. Marcy Kaptur, Matthew Marlines, Rarley Staggers. Jr., Jim Slattery, Bill Richardson. John Bryant. Frank Harrison. Tun Penny. . LaneEvana Though there were . disagreements about the scope of this legislation, a number of individuals deserve recognition for helping this legislation get to where it Is today. The distinguished and able chairman of the committee. Somrr MONTOOMOIT. as well as the �H222 CONGRESSIONAL RECORD — HOUSE ranklni minority member. Joint PAUL HAMinascKhuor. deserve much credit for insuring onazUmoue committee approval of the MB. Oompenaattoa and Pensions Subcommltte* chairman. Douo Amjui* and ranking minority member. Boa McKwxx. were active hearing participants and instrumental in teeing the bill through subcommittee. Also deserving thanks Is Boa EDOAX for his commitment and support during this lengthy process. Finally, the Vietnam Veterans of America, American Legion. Veterans of Foreign Wan. AMVCXS, Jewish War Veterans, and Vietnam Veterans Agent Orange Victims, deserve a great deal of credit for their support and efforts on behalf of H.R. 1961. It is my hope that these .members and organizations wfll now commit themselves to encourage Senate passage and President Reagan's endorsement Mr. HAMMERSCHMIDT. Mr. Speaker. I yield 3.minutes to the very able chairman of* the Subcommittee on Hospitals and Health Care, the gentleman from Pennsylvania (Mr. EDGAR). (Mr. fiDOAR asked and was given permission, to revlse.and extend his remarks.) " *"-•" Mr. EDGAR. Mr. Speaker, as an original cosponsor of HJl. 1961. the Agent Orange and Atomic Veterans Relief Act. I rise in full support of the legislation. As chairman'of the House Veterans Affairs Subcommittee on Hospitals and Health Care and a member of the committee since 1975. I can attest to the fact that the subject of agent orange has been one of the most serious and persistent problems we have faced. In 1978. our colleague, the gentleman from California, Don EDWARDS, and I were the first members of the committee to call for hearings on the issue of agent orange. We have, since that time, held at least nine hearings reviewing scientific data, and the concerns of veterans and their families In attempting to reach a consensus on the issue. Where the scientific community was uncertain as to the range of disabilities which could be attributed to exposure to agent orange in humans, there was general agreement on three basic points: Dioxin la one of the most highly toxic substances known to man. Second, during a 10-year period from 1961 to 1971 approximately 52 million pints of the herbicide were sprayed in South Vietnam. Third, there was a growing concern among the Vietnam veteran population that not only their health, but the welfare of (heir families had been adversely affected by exposure. The VA has conducted over 130.000 agent orange health screening examinations. Nearly 11.000 Vietnam veterans in my. own State of Pennsylvania have gone to the Veterans Administration for examinations and Agent orange counseling. During the 47th Congress the Congress approved oar legislation, now law. Public LAW 97-71 which provides healthcare In VAmedical facilities tor reSranTwho have disabilities which could be associated with exposure to agent orange and ionizing radiation. Based on far less evidence than last year, the present, administ awarded $33,mJUion to relocate the families olTlmAj B^afih. Mo., who only may have been exposed to dioxin in the soil around their homes, . On these precedents and further scientific evidence it only seems appropriate that we move forward at this point with the presumptions for compensation for three specific diseases: chloracne—a skin condition. Porphyria Cutanea Tarda—a liver disorder, and soft tissue sarcomas. In the same vein, our committee has attempted to deal with the residual effects of exposure to ionizing radiation among the "Atomic Veteran" population. Between 1945 and 1963 the U.S. Government exploded approximately 235 atmospheric nuclear devices. Approximately 200.000 American service personnel were exposed to ionizing radiation during that time, or during the clean-up operations in Hiroshima and Nagasaki. Again, as with the agent orange question, there has been disagreement in the scientific community as to the exact disabilities brought on by varying degrees of radiation. But still, the existing evidence was strong enough to warrant, at a minimum, at this time, a presumption of disability for three specific diseases: cancer of the thyroid, Polycythemia vera—a bone disease, and leukemia If those disabilities appear within 20 years of exposure, Mr. Speaker, it is very clear that we have taken an important first step in bringing this bill to the floor. It does not go as far AS the bill we originally introduced nor does it include additional means of requiring that the VA submit additional disabilities which could be compensable as a result of exposure to these environmental hazzards that was contained in an amendment before the committee, There are many of us on the committee who are also concerned that the presumptive periods called for. for both Vietnam veterans and atomic veterans, are unrealistteally short. Still, the bill Is a beginning, and the House, at least Is taking this important first step in behalf of those who have served their country and now seek our help. I would like to express my deep appreciation to the gentleman from South Dakota, the original author of this legislation. TOM DASCHLE for his persistence and his dedication to this issue, I would also like to thank the Readership of the committee, Chairman MONTOOMSXT. and Ranking Minority Member Joav PAOL January SO, 1984 for the* leadership and willingness to compromise to seek this solution. Mr. MONTGOMERY. Mr. Speaker. I yWd such time as he may consume to the gentleman from California <Mr. FAZIO). (Mr. FAZIO asked and was given permission to revise and extend his remarks1.) Mr. FAZIO. Mr. Speaker, today we are considering legislation that will provide a measure of relief that Is long overdue for the thousands of veterans suffering from illnesses attributable to | agent orange and atomic radiation exposure. These veterans provided our country with patriotic service under hazardous conditions. Indeed, the full extent of the hazards faced by Vietnam veterans exposed to toxic herbicides containing dioxin, such as agent orange, .and who suffer from Illnesses linked to that exposure is not yet fully known. Likewise, veterans who served in the occupation forces in Hiroshima and Nagasaki Immediately following World War LT and those who have since participated In atmospheric nuclear tests were serving In the midst of hidden dangers that are only now coming to light! This legislation, which provide* disability benefits to these veterans or" their survivors, is only the first step we must take to insure that this type of hazard Is never faced by our service men and women in the future. There is a growing concern and Interest in Congress to find out all we can about the potential health effects of expo; sure to nuclear radiation and agent orange—both manmade environmental hazards of military service. These veterans served their country in good faith and honorably fulfilled their obligations. With the passage of HJt. 1961 Congress can demonstrate that we will not turn our backs oa our responsibilities to those who served their country at a great personal sacrifice. Mr. MONTGOMERY. Mr. Speaker. I yield 2 minutes to the gentleman from Georgia (Mr. ROWLAND!, a member of the committee, who has been very helpful on this legislation. Mr. ROWLAND, Mr. Speaker. I thank my good friend and distinguished chairman of the full committee for his strong support and for giving me this time. I also thank my good friend, the gentleman from Arkansas (Mr. KAtomscxMiDT), for Che great part that he has played in this, as well as the gentleman from Ohio (Mr. AFFLSBATO. the gentleman from New York (Mr. McHoca). and other members of the committee for the work that they have done. Mr. Speaker, I rise today in support of the Agent Orange and Atomic Veterans Relief Act. Legislation which I Introduced wtth my good friend and colleague, Mr. HAaonascmnnT HR. 390H has DMB Incorporated, in part' to this the pertaining to vet- �January Mr 1W CONGRESSIONAL RECORD — HOUSE H22S , exposed te agent orange. I want upon which we can bufld the truth, de- thte lingering problem which wfll not to addreav the portion* of HJL *0M termine responsibility, and provide ap- disappear. that have been made apart of thte tom-propriate compensation. Forge my colOthen who oppose thte bfll argue leaguer support of thte modest MB. P^rtutlegteietten. that we ere abandoning reason tor the lMUfaM^ sake of compassion. They want u* to 012841 that, at long last the Government te wait onto all the evidence to in. which recognizing the unknown, rtekv t* Mr-. HAMMERSCHMIDT. Mr. perhaps wfll never occur for some opwhich some of our soldier*, were ex- Speaker; I yield 2 minutes to a very ponent*. Thte Rouse must draw & dte- /i posed in the line of duty. Over 220,000 able member of our committee, the tmction between what te irlfif1"""? I military personnel have been exposed gentlewoman from Ohio (Ms. ECumnl proven "beyond a shadow of a doubt." to varying level* of lontetnc ***iti*tti>«(Ms. RAPTOR asked and was given, and what te morally responsible under Even though we do not know the permission to revise and extend~her re- the law* of thte land. I belleve'that at name of every person, who we* ex- marks.} ' some point a line must be drawn as to posed, and in most cases, we do- not Ma. KAPTUR. Mr, Speaker, as a co- how much evidence must be obtained, know the extent of the exposure, the before action can be taken to assist of the Agent Orange carcinogenic effect* of radiation have sponsor Veterans Relief Act, I riseand dying and seriously 01 Vietnam and tobeen accepted for many yean. In 1934, Atomic colleague* to vote for thte atomic veteran*. I need only to point urge my after prolonged exposure to X-rays. vital piece of legislation and compli- to the massive cleanup and relocation Madame Currie died from leukemia. ment our dffMng"lsrif'^ chairman, the effort at Time* Beach, Missouri, fol- I Radiation exposure ha* a documented Mississippi (Mr. lowing the discovery in that commuoi- / effect on the reticulo endothelial gentleman from his strong leader- ty of the same deadly dioxin known to / MoifTGOicxxT). for system. the ranking HJt 1M1 establishes a temporary ship on this* a* well asgentleman mi- have been present in agent orange. the the disability program for veteran* who nority member,HAMMKMCHMDT),from Clearly, other branches ofthe Federal urious Arkansas (Mr. and Government recognise nave manifested one of three disease* the gentleman from South Dakota, health risk* associated with dioxin exwithin 20 year* of their exposure to (Mr. DASCHUX posure. radiation: leukemia, which te the pro- Mr. At te the integrity and credlbUmust admit that liferation of the white cell producing both Speaker. Iand saddened toI am ity ofissue VA'* compensation program. the pleased be element* in bone marrow; polycythe- standing hen today speaking in supof thte bill would mia vera, the proliferation of the red port of thte bill. I am pleased that we credibility to the VA'* policies reston blood cell producing element* in bone in Congree* are taking a step to try to our **""•*»••""* to compensateand to vetermarrow; and* thyroid cancee Studies help the Vietnam and atomic veteran*. an* for injuries incurred in the service '" by the Center for Disease Control m But I am saddened that tt ha* taken so of our country. It te time to shift the Atlanta have shown the incidence of take such a step. Passage leukemia to be three time* a* high for long to bill must besmall the first step burden of proof from the veteran to the VA in awarding service-connected thte veteran* exposed during the Smoky of a series of moves only in to nuclear test in Nevada, and for po- these veteran*. I am bring justice to \ disability claim* for illnesses attributaalso saddened ble to dioxin and radiation. lychthemia vera. 10 time* as high. that the Veteran*' Administration, the In my home area of Toledo. Ohio. I It te interesting to note that during the Baker test* in the South Pacific, Government agency which te supposed have heard more individual horror stocontaminated salt-water was ingested to abide by its motto, "To care for him ries from families, concerning expoby military personnel. Saltwater who shall have borne the battle," sure to radiation and agent orange, than I can recount here. Tragically, which has a heavy concentration of seems to care very little. The plain and hard fact te that we suicide he* been the answer for some. iodine, when radiated turns to Im. a radloteotope. Thte radiated iodine te have not been keeping our commit- Others have withstood the pain and then stored in the thyroid gland* of ment to Vietnam and atomic veteran*. medical bilte. both of which _are those who Ingested the salt-water It te not enough for statements to be deadly. The problem*, of course, an issued each and every Memorial Dey compounded by the high unemployspray. The problem with Identifying the or each and every Armistice Day on ment rate in the area. Repeatedly, my constituent*- have cause and effects of radiation Induced behalf of these people who bravely cancers and disorder* te that it takea served their country. It te time for explained to me that thte legislation yean for the original injury to mani- action and the action should be pass- would do more than provide them with desperately needed benefit*. For fest itself as an observable malignant ing this legislation. Many of as In Congress have heard the first time, they say. It would begin neoplasm. Beta emitters can even be incorporated into part* of the body to from Vietnam and atomic veteran* to relieve some of their anxiety. T irradiate internally. These problem* who ar* discouraged, disappointed, know many Vietnam veterans currentwith just identifying the disorders in a and disgusted with the inertia exhibit- ly suffering from chloracne. who timely manner are compounded by the ed by the VA. Regrettably, their out- served with other* who are currently factors other than scientific which rage b extremely justified. These vet- dying of soft-ttesue sarcoma. Since have entered Into the research on thte eran* have been turning to their Gov- cancer often doe* not show up for ernment for answers and assistance, quite a while, many veteran* justifisubject. However, it te the responiibOIty of and they have received neither. The ably worry that chloracne te only the the Government to at least give the remit ha* understandably been anxi- beginning of their problem*. Thte legislation would relieve some of their benefit of the doubt to those veteran* ety and despair. who have risked their lives for our Some people who oppose thte bfll anxiety, by proving" that American* common good. Although the 20-year have argued that It ha* the potential are concerned about them, and that manifestation period to to short to do for alarming mfflfonc of veteran* and they wQl be able to afford proper many veterans any good, perhaps perhaps- the population a* a whole. treatment If further service-connected their survivors will find some solace in Bat we are ahumed already, and not disabilities appear. the inclusion* of death benefit* in thte only at the specter of dioxin and radiI urge my colleague* on both sides of legislation. ation. We are ateo alarmed at the spec- the aisle to support thte vital legislaThis is a bipartisan bill that offers ter of an indifferent Government tion. For a* Mr. Harry Walters, the hope to a large group of patriotic vet- which inflict* enormous suffering and Administrator of the VA, has so aptly erans who have for too long felt that te too callous to assume responsibility. stated:" America Is No. 1 thank* to our their pleas for recognition and ao Rather than alarming American*, pas- veteran*." fa appreciation of their valcounting have gone unheeded. sage of thte bill will bring relief. iant service, we mint insure that they, The Agent Orange and Atomic Vet. American* will be relieved to know receive the cere, support, and recognir eran* Relief Act te the cornerstone that we are finally taking action on tlon they have earned, The Agent �H224 CONGRESSIONAL RECORD - HOUSE January SO, For Vietnam veterans to trust their • racks; -they had an opportunity to Government, they must believe that clean up. They did not go through any somewhere, somehow, there will be an formal decontamination procedures. end to delays and a time for action. This was not the only test that this inIt to possible to argue that the evi- dividual participated in. dence supporting the disabilities adAt my recommendation this individdressed in H.R. 1961 to not adequate. ual filed a claim for service-connected It to not possible, however, to avoid disability with the Veterans' Administhe next question. tration. He claimed service-connection If this evidence to not enough, then* for the cancer he was suffering as a how tall a mountain of material will fi- result of the nuclear tests he particinally be required? pated in during the 1950's. This case. H.R. 1961 will Insure compensation under the- guidelines then in effect. for several thousand Vietnam veter- was denied by the regional office of ans. This to an important step, but the the Veterans' Administration. During bill's importance goes beyond the aid this period I did everything I could to It offers Individuals. assist my constituent and friend. H.R. 1961 seeks to demonstrate that When the case was before the Board whoever else may hesitate. Congress, of Veterans Appeals I appeared perat least, to prepared to draw a line and sonally at the hearing with this indiact. vidual to assist him. The Board of VetI urge adoption of the measure. erans Appeals remanded the case to Mr. HAMMERSCHMIDT. Mr. the regional office for the developSpeaker, I yield 3 minutes to the dis- ment of further information. The long tinguished chairman of the Committee and the short of this was he was on Education and Labor, the gentle- denied by the Veterans' Administraman from Kentucky (Mr. PBUUHS). tion after he died. I considered at that Mr. PERKINS: I thank the gentle- time, and I still do. that the denial of man for yielding this time to roe. Mr. Speaker. I am pleased that Con- this individual for service-connection believed gressman DASCHLE and the Committee to arbitrary andIcapricious. I that the at that time, as on Vetemans' Affairs' ha* brought to denial of -benefitsstill believe, like this. JCL people the House. H.R. 1961. legislation Individual, as the which addresses the problems suffered veterans, was wen asuponother atomic based calculations by our veterans from exposure to . by so-called budget analysts as to Its agent orange during the Vietnam war, impact on the Treasury of granting as well as those veterans who were ex- these veterans the benefits they deposed to radiation after the atom asked the General Accounting bombings of Japan and during the nu- serve. Ito Investigate and see if they Office clear testing until 1963. As an original could find evidence of this occurring cosponsor of this legislation I believe GAO reported back to me that they that it addresses a major problem could not document that this was the which our veterans are suffering. My one individual at GAO only criticism to that it needs to go case although my assistant that he bemuch further but it to definitely a privately told lieved I was correct but they could not major step forward. The committee acted wisely in find the necessary proof. I hope that this legislation -will be adding the section concerning atomic veterans -and survivors. Just a few passed unanimously. It is a step foryean ago I visited a neighbor of mine ward. The people who will benefit in the hospital who had been diag- have served their- Nation and have nosed as having cancer. This man had been stricken with dread diseases served his country for many years as caused by chemicals and nuclear radian enlisted man in the Air Force until ation. It is indeed a tragedy that such his retirement. While I was talking legislation to necessary. The denial of with him he told me for the first time benefits to the victims of agent orange that he had participated in several nu- and to the victim of nuclear radiation clear test* in Nevada. During these to an inhumane act. I hope that'this tests he and his fellow soldiers were legislation will speedily become law required to stand up with their backs and will send a message to the Veterto the blast The shock wave was so ans' Administration that they are to strong that it knocked his helmet off serve the veterans and not some indieven though he was holding on to It. vidual's misguided opinion as to budgBefore this person was stricken with etary priorities. . . cancer he was one of the most robust Q 1300 men I have known. He could engage in Mr. MONTGOMERY. Mr. Speaker. hard physical labor all day without slowing down. After the blast this indi- I thank the gentleman from Connectividual and his colleagues were given cut for his patience and I now yield 2 sandwiches which' they ate and ingest- minute* to the gentleman from Coned the radioactive dust which covered necticut (Mr. RATCHPORD). them. Late In the day they were (Mr. RATCHFORD asked and was loaded in trucks and driven many given permission to revise and extend miles away to an Air Force base. While rus remarks.) ley must believe that new evidence they were in the truck they Mr. Speaker. I rtoe m strong will not disappear behind an ever esca- other soldiers going through of lating burden of proof and the constant call for yet more research. Orange and Atomic Veteran* Relief. Act to long overdue. The SPEAKER pto tamper*. The Chair will advtoe that the gentleman from Mtottoaippt ha* f mimttee rem*initig sod the fentleman from ArfrjM^M has 0 mlnutee rtmafning Mr. MONTGOMERY. Mr. Speaker,. I yield 3 minute* to the chairman of the Confreational Vietnam Veteran*, the gentleman from Michigan. Mr. DAvi Bono*. Mr. BONIOR of Michigan. Mr. Speaker. I would like at this time to commend the distinguished chairman of the full committee, the gentleman from Mississippi (Mr. MONTOOMIHT). and the distinguished chairman of the subcommittee, the gentleman from Ohio (Mr. ArpLEOATt), for their leadership and active support of this legislation, as well as the gentleman from Arkansas (Mr. HAMMDUCHUIDT), particularly for his interest in the atomic veterans part of this legislation. Mr. Speaker. I would also like to commend the distinguished gentleman from South Dakota, the present chairman of the Vietnam Veterans In Congress TOM DASCHLE, and the author of the original-bill, for his persistent work«m behalf of Vietnam veterans. Mr. Speaker, H.R. 1961 addresses the dual problem of exposure to agent orange and atomic radiation. The bill is not the hurried answer to a new problem. It does not open the flood gates to future claims nor does it reject science In the name of compassion. At a yearly cost of just S6 million or less, the bill's agent orange presumptions are carefully focused on only three specific disabilities: Soft tissue sarcomas, chloracne and prophyria. In each case, substantial evidence exists relating the disabilities to exposure to agent orange. Some 4 years ago. two independent Swedish studies related exposure to J.4.5-T—a main ingrediant In agent orange—and soft tissue cancers. Following the Swedish studies, an independent review of four additional groups of exposed American workers found the same correlation. In the distinguished New England Journal of Medicine, two doctors from Emory University completed the circle, reporting on three Vietnam veterans with soft tissue sarcomas. Yet even today, the Veterans' Administration repeats its .call for more research—and more delays—before any compensation is granted. Mr. Speaker, there is much we do not know about agent orange. Aggressive research is required. Nevertheless, there are some things we'do know and some things we can do. For �January *0, 1W CONGRESSIONAL RECORD — HOUSE H225 tissue sarcoma cancer. It provides 19M. White X am hopeful that this and *"* *for"certato di**a*e* related to benefits to the Vietnam veteran, who other studies win provide important orange expoaure in veteran* of within 1 year of bis departure' from, answers to the agent orange question, Vietnam, to shown to have either prw- there an some veterans who cannot phyria cukanea tarda (FCT. a liver watt that long for our help. R.R. 19CI chloracne (a skin condi- will provide interim disability compenSO to AO.OOO Vietnam veteran to. the sation to veterans with certain speciSUte of Connecticut alone. The. expe- tionx rience* of many of Choaa. veteran*. In. The bill also provides the same dis- fied luneasa* which may have been my own district, and throughout the ability relief to vetetaaa who- partici- caused by agent orange exposure. sute have been a aoutce of. concern pated in the testing of nuclear devicea These disability payment* will be valid for """T y«ar*. A statewide Investiga- or in the occupation, of Hiroshima or until completion of the CDC study, at tten Into the problem, mandated by Nagasaki; if within 20 yean from time which time Congress will have an opConnecticut*! Legislature In 1981 hat of- participation they suffer from portunity to review the findings to dealready begun to bear fruit la data cancer of the thyroid, leukemia, or termine if further action is needed. which cannot be Ignored. Although polycythemia vera (a bone marrow disWhile questions still remain about HJt. 1901 I* a good beginning. I be- ease). the effects of exposure to low-level raThe Government's position on expo- diation, some evidence has emerged lieve it will need to be broadened, and that analysis of the growing national sure to agent orange or the participa- which links such, exposure to certain data will support it. In addition to tion in the testing of nuclear devices diseases. H.R. 1961 would compensate, liver and skin disorders, in Connecti- has frankly been dispiriting. A great veterans who contracted these 01cut birth defects among exposed veter- many injustices have been inflicted on nesaes after exposure to radiation ans' children are alarmingly frequent, our Vietnam veterans, high unemploy- during their time of service. As with and yet thb bfll unfortunately does ment. inadequate training programs. the agent orange program, these benenot include them among the compen- and unfilled promises of rehabilitation fits are temporary pending the results sable diseases. Several veterans in my and carrer counseling. • of additional studies. own district, who were crew members It is time for us to fulfill our obligatoday for Operation Ranchhand. the agent tions to those who served our country a The legislation before us highlytake* balanced approach to a comorange spraying missions, have had in the Vietnam war. This legislation plex and controversial Issue. It comchildren with severe multiple birth de- recognizes the long-range effects of pensates a carefully defined group of fects. These tragedies have occurred in exposure to agent orange or nuclear veterans who have contracted the dismany families with no previous histo- radiation and allows this small group ry of birth defects on- either side. The of .veterans to receive service-connect- eases considered most likely to result; Individual horror ttories of chronic ed disability treatment and benefits. from exposure»to agent orange-or maladies among veterans exposed to These veterans were willing to risk atomic radiation. The bill include* a. agent orange, and severe birth defects their lives in Vietnam because they sunset provision stating that the comamong their children, are forming a cared: we the Congress should be will- pensation provided is temporary, conpattern typical of finding across the ing to take the necessary actions to tingent on the final outcome of studio* country. They may' very well represent allow for the treatment of their ill- on these situation*. This legislation provide* a long overdue remedy for only the tip of the iceberg. nesses without requiring them to fight America'* veteran* and take* an imThe Government has not been ful- for many years in the courts. filling its obligations to it* citizens in I urge my colleagues to give this leg- portant step toward Insuring that oar Connecticut or the rest of the country. islation favorable support and pas- Government fulfills its promise to those who served their country, as, It is time for Congress to step in and sage.* . _ fill the gaps, and H.R. 1961 is a good • Mr. PATTERSON. Mr. Speaker. I stated in the motto of the Veterans' beginning. Veterans are asking them- rise in support of H.R. 1961, the Agent Administration: "To care for him who selves: If the Government is offering Orange and Atomic Veterans Relief - shall have borne the battle and for hia presumptive treatment; why not pre- Act This legislation addresses serious widow, and his orphan."* sumptive compensation? And if the problems that began for some veterans • Mr. BONER of Tennessee. Mr. Speaker. I rise in support of the Agent citizens of Time Beach. Mo., were com- nearly 40 years ago. pensated. citizens exposed to dloxin at' B~R. 1961 provides assistance to vet- Orange and Atomic Veterans Belief 120th the level in agent orange, why erans who served their country, con- Act. This bill addresses a problem that not the citizens who served In Viet- tracted illnesses which may be servicenam? Let the studies continue, by all related and have not received disabil- many veterans now face as a result of means, and I regret that the bill as re- ity compensation. After years of wait- their service either in South Vietnam ported does not provide for a special ing for help, these veterans were told or the Southwest United SUte* and advisory committee to analyze the evi- that they should continue to wait, pos- the South Pacific. From 1961 until 1971 the herbicide dence. But let us not quibble. Dloxin is sibly unto the end of this decade. a killer and a crippler. and compensa- before their eligibility for disability agent orange was used in South Viettion is needed now. I urge my cot- compensation would be determined. nam to Tn"Mn**4f Jungle growth. Agent leagues to support this legislation, This Is too great a burden to place on orange contain* one of the most which takes a thoughtful and bal- veterans suffering from disabling ail- highly toxic substances known to man—dioxin; The medical community anced approach to a very difficult ments. problem. This measure provides much needed la unable to come to terms on how • Mr. UDALL. Mr. Speaker, r rise relief for two very specific groups of dangerous dioxin 1* to the health, or today in support of the bill. HJR. 1961, veterans— those who were exposed to to what extent exposure result* In Agent Orange and Atomic Veterans agent orange in Southeast Asia, and long-term health problem*. There to Relief Act. This legislation is a first those who were exposed to atomic ra- considerable evidence, however, that step toward acknowledging the suffer- diation, either during the occupation dioxin doe* Increase the likelihood of ing of many of our Vietnam veterans. of Japan after the Hiroshima and three type* of disease: Soft tissue sarSpecifically, it will provide relief for Nagasaki bombings, or during atmos- coma, a form of cancer PCT, a liver those individuals who served in South' pheric testing of nuclear devices be- condition: and a skin condition known east Asia during the Vietnam era and tween 1945 and 1968. a* chloracne. were exposed to the herbicide, agent Numerous scientific studies are curDuring the year* of 1945 through orange. rently underway related to the effect! 1964 the United State* exploded apThe bill provides benefit* to Viet- of exposure to agent 'orange. The proximately 298 nuclear devicea in the nam veterans and/or their survivors, Center for Disease Control is current- atmosphere in the Southwest United who within 20 years of their departure ly conducting an extensive study with State* and the Pacific Ocean. The Defrom Vietnam, must show to have soft- results expected between 1MT partment of Defense estimates that �H226 ' CONGRESSIONAL RECORD — HOUSE 220,000 military personnel partldpated In thaw tote Additionally. other personnel were exposed to radiation while partidpatin* tat the oeeupattea of Hiroshima and Nagasaki. Many studies indicate thai those partlclDating In the tests have a higher than expected rat* of leukemia, at wen as a bone marrow disease. Mr. Speaker. In both of the** Instances the scientific and medical com* munitiet cannot decide If dioxin or radiation has led to the suffering that many of our veterans now experience. Several studlea have been conducted and several more are to be completed by 1987 and 1989. I do not feel that the veterans should wait any longer to receive the benefits that they so rightly deserve. We have waited and researched long enough, it is time we compensate these special Americans and their survivors in some way. I commend Mr. DASCHLE for introducing this bill, and especially the chairman of the committee, my friend, SoNirr MOMTGOMOT. for his work on this legislation in addressing this problem and bringing It to the attention of the American people.* • • Mr. KOSTMAYm Mr. Speaker, I rise in support of H.R. 1961, the Agent Orange and Atomic Veterans Relief Act I am proud to be a cosponsor of this important legislation. Recognition of the medical needs of those veterans who served our country in Southeast Asia during the Vietnam era and who participated in the testing of nuclear devices between 1945 and 1963 is long overdue. I believe that we. as Members of Congress, must respond to the apprehension and concern among Vietnam veterans and their families about the possible long-term health effects that may have been caused by exposure to agent orange while serving in Southeast Asia. In addition, this bill addresses the health concerns of atomic veterans and their families who were exposed to low-level Ionizing radiation. The herbicide agent orange was used extensively in Vietnam over a 10-year period to reduce or eliminate Jungle foliage. Agent orange contains dioxin. one of the most toxic substances known to science. At this time, we do not know all the long-term effects of dioxin on humans, nor do we know how much exposure can be expected to harm human health. However, agent orange has been linked to at least three types of disease: a form of cancer known as soft-tissue sarcoma, a liver condition known as porphyria cutanea tarda or PCT, and a skin condition known as chloracne. It is estimated that 220,000 military personnel may have'been exposed to radiation effects between 194S and 1963. Studies have shown that those persons involved in the nuclear testing have a higher than expected rate of leukemia and bone marrow disease known as polycythemia vera. This bm provides that retroactive to' October 1, IBM, a temporary disability lor death) allowance would be payable to veterans who served In Southeast •Asia during the Vietnam era and who later suffer from one' of three conditions—soft-tissue sarcoma, porphyria cutanea tarda, or chloracne. The soft'tissue sarcoma must be shown to exist within 20 yean from date of departure from Southeast Asia while the other two conditions must be shown to exist within 1 year from date of departure. The bill also provides that retroactive to October 1, 1983. a temporary disability (or death) allowance would be payable to veterans who participated in the testing of nuclear devices or who participated In the occupation of Hiroshima or Nagasaki Immediately after World War II and, within 20 years from time of participation, suffer from cancer of the thyroid, leukemia, or polycythemia vera. Under the biU, these benefits would be terminated 1 year after the Veterans' Administration submits to Congress a study now being prepared by the Centers for Disease Control on the effect of agent orange .exposure on veterans' health. This study is expected to be-completed between 1987 and 1989. Public Law 98-160. which was signed into law on November 21. 1983, already requires the Administrator of Veterans' Affairs to consider the feasibility of conducting an epidemiological study on the effects of low-level ionizing radiation on veterans who participated in the testing of nuclear devices or who were in the occupation forces at Hiroshima and Nagasaki Immediately after World War H. It is estimated that this study, if undertaken, would be completed before the agent orange study. I am concerned, as are others. Mr. Speaker, about the fact that the benefits authorization in this bill terminates 1 year after the agent orange study Is completed. Therefore, it will be -important for the Veterans' Affairs Committee and the Congress to carefully follow the progress of the studies to Insure their objectivity and accuracy, and then to be prepared to pass the appropriate legislation expedltiously upon learning of the findings. This legislation is an important first step regarding compensation for exposure to agent orange and low-level radiation. However, this bill is not a cure-all and questions relating to this compensation for veterans will continue after the bill is passed. I Join several of my colleagues on the Veterans' Affairs Committee in urging the creation of an independent advisory committee to objectively analyze all new and existing scientific evidence pertaining to dioxin exposure. I believe this would Insure that viewpoints contrary to VA positions receive fair and expeditious consideration. In addition, I support an open, public procedure by which the VA can clarify how much and what kind of proof is stul January 50,1984 sary before 'additional agent orange r»r> p£ approved. " • Mr. Speaker) I know as a cosponsor of this bill that It has been carefully examined by veterans and veterans' groups throughout our Nation. Tne bill Is supported by such veteran organizations as the Vietnam Veterans of America, the American Legion, and the Veterans of Fprelgn Wars. Many of the veterans I represent from Bucks County and eastern Montgomery County In Pennsylvania have Impressed upon me the Importance of this bill. Vietnam and atomic veterans' loyal service to America was without question a display of courage, strength, and devotion. As elected representatives. we have an obligation to defend the interests of veterans who have already made great sacrifices in serving and protecting our country and I encourage my colleagues to support H.R. • Mr. CORRADA. Mr. Speaker, I rise in strong support of H.R. 1961. the Agent Orange and Atomic Veterans Relief Act which establishes a presumption of service-connection for certain diseases present in Vietnam veter*• ans and veterans who participated in •? the detonation of an atomic bomb or device or in the occupation of Hiroshima or Nagasaki, that may be attributable to the exposure to agent orange or ionizing radiation. I believe that It is only fitting and Just to compensate veterans who suffer certain diseases which have been reasonably linked to the veterans exposure to agent orange anti atomic radiation during their time in military service. While these Illnesses stand officially unrecognized due to the lack of conclusive scientific evidence of their service-connection, they are real, they are painful, they have been reasonably established as service-incurred diseases and therefore, during the absence of scientific proof to the contrary, the ailing veteran should be compensated. The Federal Government has the responsibility to compensate our soldiers for all service-connected disabilities • and whenever we are in doubt as to the service-connection of a disease, the benefit of the doubt should rest with the veteran; they have rightfully earned this deference. I urge my colleagues to vote for the passage of this legislation which places the responsibility for the health damaging results the use of herbicides and ionizing radiation yielded where it belongs.* • • Mr. STARK. Mr. Speaker. I support the passage of this legislation. It is becoming Increasingly clear that the costs of the Vietnam war will be even more horrendous than we realized— but they are costa which all of society must share, not just those who served their country by going to Vietnam. The fun magnitude of the health disaster creeUd by agent orange is still unfolding. On* of my constituents was �January SO, 1984 CONGRESSIONAL RECORD — HOUSE in a tupply company (the 870th) in Vietnam in 1987 and 1961. which wu Involved In fighttog a chemical fire In which • huge each* of agent orange was burned. He hast come down with a very serious akin and nerve (and posalbiy other) disorders. In .contacting other member! of hie unit, he hss found four out of the approximately 200 men of the unit to be seriously ill. He had not found any of hi* colleagues who are fully welL I have asked the VA to find the men of this unit and poll them as to their health, to determine whether this is a cohort which should be especially watched over the years. I suspect that this bill will be the first of several we will need over the years to be fair to the men and the families of those who served in Vietnam. To reject this bill would be the most serious breach of faith. I urge its passage.* • Mr. SIMON. Mr. Speaker. I rise in support of H.R. 2878. the Library Services and Construction Act amendments of 1983. Since the Federal Government began to assist our Nation's libraries in 1957, some 17 million Americans have received library services for the first time. Another 90 million individuals have benefitted from improved services. During the last Congress, the Subcommittee on Postsecondary Education conducted extensive oversight hearings • around the country to prepare for reauthorizatlon of the act. We learned that, in general, LSCA programs were very highly regarded and valued. Certain suggestions were made, however, to improve library services under the act. Numerous witnesses pointed out, for example, that: The focus of LSCA needed to be changed from providing geographic access to a strong emphasis on providing access to services for a wide range of populations; Libraries should be considered community information centers, not Just repositories for books; There are no provisions for library services for American Indian tribes; Increased emphasis Is needed on interlibrary cooperation; and Funding is desperately needed for title II construction programs. H.R. 2878 addresses these needs. It expands the definition of libraries to reflect their new role as information centers; it increases the authorization for library construction and redefines permissible projects to include handicapped access and energy conservation projects; and it encourages greater interlibrary cooperation. One new program in title IV will permit Indian tribes to receive funding directly from the Secretary of Education for the purposes of developing library services. Title V creates a second new program which provides for discretionary grants directly to libraries for the purpose of purchasing foreign language materials. Finally, there Is a new pro- gram created by a new title VI which allows libraries to apply directly to the Secretary of Education for grants to be used in the coordination of literacy programs. The administration has expressed its opposition to this bill. Libraries, It argues, are the responsibility of State and local governments and. In spite of the acknowledged success of LSCA programs over the past 38 years, all Federal support should be cut LSCA, however, requires that States and communities must match the Federal contribution to libraries. In no case can the Federal share of programs on titles I and II be more than 88 percent Still, Federal funds have proven to be a tremendous stimulus to State and local governments. Often. States over match Federal funds. In spite of a record of opposition to libraries on the part of the administration. Congress has consistently given library programs strong bipartisan support. In fiscal years 1983 and 1984, the administration recommended zero funding for library programs. Nonetheless. Congress has kept authorization levels above 180 million. Given the'tremendous cost increases that libraries have faced in recent years. It Is time we reconfirm our commitment and put authorization levels for libraries back In step with their needs. The average cost of a periodical in 1969 was $9.31. Today it is $50.23. The average book in 1989 was priced at $19.37. Today the price tag is over $25. If our Nation's libraries are to meet the growing challenge of the new era of information. If they are to attain their full potential as social services to all American citizens, we cannot back down now. We must continue our history of support. I urge you to vote yes on this bill.* Mr. HAMMERSCHMIDT. Mr. Speaker. I yield back the balance of my time. Mr. MONTGOMERY. Mr. Speaker. I rise in strong support of this bill and yield back the balance of my time. The SPEAKER pro tempore (Mr. MOAKLZT). The question is on the motion offered by the gentleman from Mississippi (Mr. MONTGOMERY) that the House suspend the rules and pass the bill, H.R. 1981. as amended. The question was taken; and (twothirds having voted in favor thereof) the rules were suspended and the bill., as amended, was passed. The title of the bill was amended so as to read: "A bill to amend title 38, United States Code, to provide disability and death allowances to veterans and the survivors of veterans who served in flouth**** A«I« during qy Vietnam era and «uffer from diseases Orange*1 ana1 U veterans and the survivors of veterans who participated In atomic tests or the occupation of Hiroshima and Nagasaki and suffer from diseases that may be attributable to ionizing radiation." H227 ANNUAL REPORT OF PIPELINE SAFETY FOR CALENDAR YEAR 1982-MESSAOE FROM THE PRESIDENT OF THE UNITED STATES The SPEAKER pro tempore laid before the House the following message from the President of the United States; which was read, and together with the accompanying papers, without objection, referred to the Committee on Energy and Commerce and the Committee on Public Works and Transportation. (For message, see proceedings of the Senate of today. Monday, January 30. 1984.) LIBRARY SERVICES AND CONSTRUCTION ACT AMENDMENTS OF 1983 ~ The SPEAKER pro tempore. Pursuant to House Resolution 397 and rule XXIII. the Chair declares the House In the Committee of the Whole House on the State of the Union for the consideration of the bill. H.R. 2878. IN THE COMMRTB OF TBS WHOU Accordingly, the House resolved itself into the Committee of the Whole House, on the State of the Union for the consideration of the^bill (H.R. 2878) to amend and extend the Library Services and Construction Act. with Mr. FAZIO In the chair. The Clerk read the title of the bill. The CHAIRMAN. Pursuant to the rule, the first reading of the bill Is dispensed with. • Under the rule, the gentleman from Kentucky (Mr. PERKINS) will be recognized for 30 minutes and the gentleman from Missouri (Mr. COLOIAN) will be recognized for 30 minutes. The Chair recognizes the gentleman from Kentucky (Mr. PERKINS). Mr. PERKINS. Mr. Chairman. I yield myself 8 minutes. Mr. Chairman, I rise in support of H.R. 2878. the authorization for the Library Services and Construction Act Amendments of 1983. This important piece of legislation provides funding through fiscal year 1988 to continue services and to provide access to these services for unserved and underserved. population groups. Since 1958. this program has provided 17 million, Americans with library services for the first time, and another 90 million Americans have received improved" and additional services through the provisions of this legislation. Even though we are close to our original goal of providing geographic access to libraries for all Americans (98 percent of the Nation now has access to library services), we know there are still millions of Americans who need to have these services continued and expanded if we are to provide the kinds of informational services and special programs that are needed for today's world. This bill has attempted to meet that challenge by focusing on underserved � Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource Alvin L. Young Collection on Agent Orange Description An account of the resource <p style="margin-top: -1em; line-height: 1.2em;">The Alvin L. Young Collection on Agent Orange comprises 120 linear feet and spans the late 1800s to 2005; however, the bulk of the coverage is from the 1960s to the 1980s and there are many undated items. The collection was donated to Special Collections of the National Agricultural Library in 1985 by Dr. Alvin L. Young (1942- ). Dr. Young developed the collection as he conducted extensive research on the military defoliant Agent Orange. The collection is in good condition and includes letters, memoranda, books, reports, press releases, journal and newspaper clippings, field logs and notebooks, newsletters, maps, booklets and pamphlets, photographs, memorabilia, and audiotapes of an interview with Dr. Young.</p> <p>For more about this collection, <a href="/exhibits/speccoll/exhibits/show/alvin-l--young-collection-on-a">view the Agent Orange Exhibit.</a></p> Text A resource consisting primarily of words for reading. Examples include books, letters, dissertations, poems, newspapers, articles, archives of mailing lists. Note that facsimiles or images of texts are still of the genre Text. Box The box containing the original item. 199 Folder The folder containing the original item. 5614 Series The series number of the original item. Series VIII Subseries II Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Source A related resource from which the described resource is derived Congressional Record - House Date A point or period of time associated with an event in the lifecycle of the resource January 30 1984 Title A name given to the resource Agent Orange and Atomic Veterans Relief Act ao_seriesVIII Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource Alvin L. Young Collection on Agent Orange Description An account of the resource <p style="margin-top: -1em; line-height: 1.2em;">The Alvin L. Young Collection on Agent Orange comprises 120 linear feet and spans the late 1800s to 2005; however, the bulk of the coverage is from the 1960s to the 1980s and there are many undated items. The collection was donated to Special Collections of the National Agricultural Library in 1985 by Dr. Alvin L. Young (1942- ). Dr. Young developed the collection as he conducted extensive research on the military defoliant Agent Orange. The collection is in good condition and includes letters, memoranda, books, reports, press releases, journal and newspaper clippings, field logs and notebooks, newsletters, maps, booklets and pamphlets, photographs, memorabilia, and audiotapes of an interview with Dr. Young.</p> <p>For more about this collection, <a href="/exhibits/speccoll/exhibits/show/alvin-l--young-collection-on-a">view the Agent Orange Exhibit.</a></p> Text A resource consisting primarily of words for reading. Examples include books, letters, dissertations, poems, newspapers, articles, archives of mailing lists. Note that facsimiles or images of texts are still of the genre Text. Box The box containing the original item. 201 Folder The folder containing the original item. 5681 Series The series number of the original item. Series VIII Subseries II Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Creator An entity primarily responsible for making the resource Zamichow, Nora Source A related resource from which the described resource is derived Washington Post Date A point or period of time associated with an event in the lifecycle of the resource April 30 1986 Title A name given to the resource Agent Orange and the Noncombatants: Women of the USO and Red Cross Seek to Prove Injury from the Chemical ao_seriesVIII https://www.nal.usda.gov/exhibits/speccoll/files/original/8864b451f91ea1e528a22cc7fd996842.pdf 6a947666715affbea7919d7bfd6f09a3 PDF Text Text Item D Number °5838 Author Cleland, Max D (jotScanneil Corporate Author Report/Article TltlB Agent Orange and Veterans' Health Journal/Book Title Year Month/Day Color D Number of Images ° DeSCrlptOO NOtBS Max Cleland, Administrator of Veterans Affairs, Veterans Administration, lays out the past and current VA and other government actions on Agent Orange Health issues. Undated. Tuesday, April 02, 2002 Page 5838 of 5840 �VETERANS ADMINISTRATION OFFICE OF THE ADMINISTRATOR OF VETERANS AFFAIRS WASHINGTON, D.C. 20420 AGENT ORANGE AND VETERANS' HEALTH Max Cleland, Administrator of Veterans Affairs Both as Administrator and as a Vietnam veteran, I am vitally concerned about Agent Orange. By far, my most important concern is for my fellow Vietnam veterans who may have been exposed to Agent Orange in Vietnam and who now believe their present medical problems are related to that exposure. When VA's Chicago Regional Office received the first claims related to Agent Orange, the agency's response was immediate. I believe at this time that our response is thorough. The investigative arm of Congress, the General Accounting Office, apparently agrees. GAO made a complete investigation of the use of herbicides in Vietnam and the steps being taken by VA and other agencies with regard to the current concerns about after effects. Recommendations made by GAO's investigators indicated that VA should continue along the lines we had already established. We, of course, will continue until all the answers are in about the possible effects on the present and future health of veterans exposed to Agent Orange. It was in March 1978 that VA received the first suggestion that use of herbicides almost 10 years earlier was suspected by some veterans as being a factor in their health. VA immediately: — mobilized all staff agencies into a steering committee to insure a complete and uniform response to the problem; — advised all VA hospitals of veterans' concern and instructed them to report details of each examination made as a result of this interest; -- centralized claims adjudication to insure that no veteran was turned down without VACO concurrence; -- reviewed all pertinent literature on herbicides covering the 30 years of their use; — contacted all government agencies with any known experience on the subject; �-2-- established a computer search of medical data generated in the course of treating some 1.2 million veterans per year with the goal of identifying any health patterns that might be related to exposure; — launched a study of human body fat to determine what body mechanism might account for any delayed health effects and to develop a diagnostic technique if such a mechanism was confirmed; and, — urged the study of all populations with known exposure to the chemicals in the past. These epidemiological studies of exposed populations still appear to be the only way to confirm or refute the theories of long range effects on veterans. This widespread inquiry has not yet been able to establish a link between exposure to Agent Orange in Vietnam and the present or future health of veterans. But because the concerns among veterans relate to such extremely serious fears as cancer, birth defects, liver problems, psychological problems, sexual dysfunction and others, VA has felt obligated to do everything possible to establish the medical and scientific facts on these subjects. We are now getting government-wide help in this effort. The Air Force is studying the health records of the aircrews who had unusually heavy exposure to Agent Orange as they loaded and dispensed it in Vietnam. Two civilian communities exposed to the same chemicals through industrial accidents -- the populations of Nitro, W. Va., exposed in 1949, and Seveso, Italy, exposed in 1976 -- are being studied to determine how their subsequent health patterns might differ from unexposed groups. The Center for Disease Control is monitoring United States birth statistics to determine whether the normal rate of defects, one per 1,000 births, remains stable or if types of defects change in any way. The National Cancer Institute, in collaboration with the Armed Forces Institute of Pathology, is studying the possible role of chemicals such as those in Agent Orange in the development of cancer. The National Institute of Environmental Health Sciences is in the midst of a long range study of the effects of environmental chemicals on the health of men. The Environmental Protection Agency is monitoring the continuing use of Agent Orange chemicals in this country and following health statistics of populations in the areas where they are used. �University scientists are working independently on their own studies of these chemicals including the effects on animals from ingesting them on a daily basis. All these agencies, and more, plus independent experts and representatives of the veterans VA serves, are advising me in our continuing search for answers to the remaining questions on Agent Orange. With their help as members of VA's "Advisory Committee on the Health Effects of Herbicides," we hope soon to get valid information to share with those veterans and their families whose health might have been affected or whose fears might have been aroused needlessly. I remain personally committed that VA make a total effort to resolve these questions as soon as possible. Until they are resolved, I will continue to urge veterans concerned about Agent Orange exposure to be examined at any VA medical center. Veterans who feel any present disability is related to Agent Orange should call any VA regional office on our toll-free lines for assistance in filing disability claims. # # # � Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource Alvin L. Young Collection on Agent Orange Description An account of the resource <p style="margin-top: -1em; line-height: 1.2em;">The Alvin L. Young Collection on Agent Orange comprises 120 linear feet and spans the late 1800s to 2005; however, the bulk of the coverage is from the 1960s to the 1980s and there are many undated items. The collection was donated to Special Collections of the National Agricultural Library in 1985 by Dr. Alvin L. Young (1942- ). Dr. Young developed the collection as he conducted extensive research on the military defoliant Agent Orange. The collection is in good condition and includes letters, memoranda, books, reports, press releases, journal and newspaper clippings, field logs and notebooks, newsletters, maps, booklets and pamphlets, photographs, memorabilia, and audiotapes of an interview with Dr. Young.</p> <p>For more about this collection, <a href="/exhibits/speccoll/exhibits/show/alvin-l--young-collection-on-a">view the Agent Orange Exhibit.</a></p> Text A resource consisting primarily of words for reading. Examples include books, letters, dissertations, poems, newspapers, articles, archives of mailing lists. Note that facsimiles or images of texts are still of the genre Text. Box The box containing the original item. 208 Folder The folder containing the original item. 5838 Series The series number of the original item. Series VIII Subseries III Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Creator An entity primarily responsible for making the resource Cleland, Max Title A name given to the resource Agent Orange and Veterans' Health ao_seriesVIII Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource Alvin L. Young Collection on Agent Orange Description An account of the resource <p style="margin-top: -1em; line-height: 1.2em;">The Alvin L. Young Collection on Agent Orange comprises 120 linear feet and spans the late 1800s to 2005; however, the bulk of the coverage is from the 1960s to the 1980s and there are many undated items. The collection was donated to Special Collections of the National Agricultural Library in 1985 by Dr. Alvin L. Young (1942- ). Dr. Young developed the collection as he conducted extensive research on the military defoliant Agent Orange. The collection is in good condition and includes letters, memoranda, books, reports, press releases, journal and newspaper clippings, field logs and notebooks, newsletters, maps, booklets and pamphlets, photographs, memorabilia, and audiotapes of an interview with Dr. Young.</p> <p>For more about this collection, <a href="/exhibits/speccoll/exhibits/show/alvin-l--young-collection-on-a">view the Agent Orange Exhibit.</a></p> Text A resource consisting primarily of words for reading. Examples include books, letters, dissertations, poems, newspapers, articles, archives of mailing lists. Note that facsimiles or images of texts are still of the genre Text. Box The box containing the original item. 198 Folder The folder containing the original item. 5574 Series The series number of the original item. Series VIII Subseries II Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Creator An entity primarily responsible for making the resource Gordon, Paula D. Date A point or period of time associated with an event in the lifecycle of the resource July 27 1981 Title A name given to the resource Agent Orange Assessment ao_seriesVIII https://www.nal.usda.gov/exhibits/speccoll/files/original/ac7be2909f064dbf5ce3095deb9b88d0.pdf 8df6841413d9920c5e55966421ed5cd1 PDF Text Text Item D Number °5835 Not Scanned Author Corporate Author Veterans Administration, Environmental Medicine Office, Report/Article TltlB Agent Orange Briefs 1-13, October 1988 Journal/Book Title Year Month/Day Color D Number of Images ° DBSGriptOn NOtBS Includes a second copy of No. 4. Tuesday, April 02, 2002 Page 5835 of 5840 �Veterans Administration Agent Orange Brief Prepared by the Environmental Medicine Office VA Central Office, Washington, DC October 1988 The Agent Orange Briefs are a series of fact sheets designed to answer questions regarding Agent Orange and related matters. The Environmental Medicine Office at VA headquarters In Washington, D.C. prepared the fact sheets and is responsible for their content. That office plans to update the Briefs on a regular basis. Copies of all Briefs are maintained by the Agent Orange Coordinator at all VA medical centers. Comments about existing Briefs and ideas for future issues should be sent to the Environmental Medicine Office (10B/AO), Veterans Administration Central Office, 810 Vermont Avenue, N.W., Washington, D.C. 20420. The following Briefs are currently available: 1. Agent Orange - General Information 2. Agent Orange Registry 3. Agent Orange Litigation 4. Agent Orange - Research Problem 5. Agent Orange - Priority Treatment Program 6. Agent Orange and Birth Defects 7. Agent Orange and Chloracne 8. Agent Orange and VA Disability Compensation 9. Agent Orange and Soft Tissue Sarcoma 10. Agent Orange and Related Research - VA Efforts 11. Agent Orange and Related Research - Non-VA Efforts » 12. Agent Orange and Non-Hodgkin's Lymphoma 13. VA Publications on Agent Orange and Related Matters �Veterans Administration Agent Orange Brief Prepared by the Enviornmental Medicine Office VA Central Office, Washington, DC October 1988 AGENT ORANGE - GENERAL INFORMATION What 1s Agent Orange? Agent Orange was a herbicide, or defoliant, which was used in Vietnam to kill unwanted plant life and to remove leaves from trees which otherwise provided cover for the enemy. Agent Orange was a mixture of chemicals containing equal amounts of the two active ingredients, 2,4-D and 2,4,5-T. The name, "Agent Orange," came from the orange stripe on the 55-gallon drums in which it was stored. Other herbicides, including Agent White and Agent Blue, were also used in Vietnam to a much lesser extent. Why are Vietnam veterans concerned about Agent Orange? In the 1970's some veterans became concerned that exposure to Agent Orange might cause delayed health effects. One of the chemicals (2,4,5-T) in Agent Orange contained minute traces of 2,3,7,8-tetrachlorodibenzo-£-dioxin (also known as TCDD or dioxin), which has caused a variety of illnesses in animal studies. A more recent study of agricultural workers exposed to 2,4-D suggested that that chemical may be related to a particular cancer. When and where was Agent Orange used in Vietnam? Fifteen different herbicides were shipped to and used in Vietnam between January 1962 and September 1971. Over 80 percent of the herbicides sprayed in Vietnam was Agent Orange, which was used between January 1965 and April 1970. Herbicides other than Agent Orange were used in Vietnam prior to 1965, but to a very limited extent. The total area sprayed with herbicides between 1962 and 1965 was small, less than 7 percent of the total acreage sprayed during the Vietnam conflict. Rapid yearly increases in the annual number of acres sprayed occurred from 1962 to 1967. The number of acres sprayed reached a maximum in 1967, leveled off slightly in 1968 and 1969, and declined rapidly in 1970 prior to the termination of spraying in 1971. During this time more than 20 million gallons of herbicides were sprayed over 6 million acres, some of which were sprayed more than once. More than 3.5 million acres of South Vietnam -- approximately 8.5 percent of the country -- were sprayed one or more times. Spraying occurred in all 4 military zones of Vietnam. �Heavily sprayed areas were inland forests near the demarcation zone; inland forests at the junction of the borders of Cambodia, Laos, and South Vietnam; inland forests north and northwest of Saigon; mangrove forests on the southernmost peninsula of Vietnam; and mangrove forests along major shipping channels southeast of Saigon. Crop destruction missions were concentrated in northern and eastern central areas of South Vietnam. What should concerned veterans do? In 1978, the Veterans Administration set up a special examination program for Vietnam veterans who were worried about the long-term health effects of exposure to Agent Orange. Vietnam veterans who are interested in participating in this program should contact the nearest VA medical center for an examination. An appointment usually can be arranged within two to three weeks. What can a veteran expect from this examination? Veterans who participate in the examination program are asked a series of questions about their possible exposure to herbicides in Vietnam. A medical history is taken, a physical examination is performed, and a series of basic laboratory tests, such as a chest x-ray, urinalysis, and blood tests, are done. No special Agent Orange tests are offered since, there is no test to show if a veteran's medical problem was caused by Agent Orange or other herbicides used in Vietnam. There are tests that show the level of dioxin in human fat and blood, but such tests are not done by the the VA because they do not help veterans in any way. In scientific studies, people with "high" levels of dioxin are in the same general health as those with "low" dioxin levels. Almost everyone has some dioxin in his body. If the examining physician thinks it is medically indicated, consultations with other physicians are set up. How does a veteran benefit from taking the VA Agent Orange Registry examination? The veteran is told of the results of the examination and gets a written report. Each veteran is given the opportunity to ask for an explanation and advice. Where medically necessary, a follow-up examination or additional laboratory tests are scheduled. The examination and tests sometime reveal previously undetected medical problems. These discoveries permit veterans to get prompt treatment for their illnesses. Some veterans think they are in good health, but are worried that exposure to Agent Orange and other substances may have caused some hidden illness. The knowledge that a complete medical examination does not show any medical problems can be very reassuring or helpful to these veterans. All examination and test results are kept in the veteran's permanent medical record. This information is also entered into the computerized VA Agent Orange Registry. So far about 230,000 Vietnam veterans have participated in this program. For more information about the VA Agent Orange Registry, see Agent Orange Brief, Number 2. �Can a veteran get treatment for Agent Orange-related Illnesses? In addition to the Agent Orange Registry examination program, the VA also provides special priority treatment to Vietnam veterans for conditions that may be, but ard not necessarily, related to Agent Orange exposure. For information about the priority treatment program, see Agent Orange Brief, Number 5. Can veterans get disability compensation for Agent Orange Illnesses? The VA also pays disability compensation to many Vietnam veterans with injuries or illnesses incurred in or aggravated by their military service. Veterans do not have to prove that Agent Orange caused their medical problems to be eligible for compensation. Rather, the VA must determine that the disability is "service-connected." A Veterans Benefits Counselor, at any VA medical center or regional office, can explain the compensation program in greater detail and can assist veterans who need help in applying. For more information about the VA disability compensation program, see Agent Orange Brief, Number 8. What else is the VA doing? In addition to the efforts described above (that is, Agent Orange Registry examination program, priority treatment, and disability compensation), the VA is doing research to learn more about the possible adverse health effects of Agent Orange exposure. The VA has completed two studies about possible connections between Vietnam service and specific kind of cancers called soft tissue sarcomas, and a large scale study of mortality among Vietnam veterans. For information about soft tissue sarcoma, see Agent Orange Brief, Number 9. For information about VA research efforts, see Agent Orange Brief, Number 10. In 1981, the VA published a two-volume report reviewing scientific literature on herbicides in the United States and throughout the world. This publication was updated with an additional two volumes in 1984, 1985, 1986, 1987, and 1988. Lay language summaries of the scientific reviews have also been published. The VA has also published a series of monographs regarding Agent Orange-related matters. For additional information on these publication, see Agent Orange Brief, Number 13. Since 1979, the VA has been part of an interagency group monitoring and coordinating Agent Orange- and dioxin-related research within the Federal government. The VA has two advisory committees to assist the Administrator, who leads the VA, in developing appropriate policy. What are other government agencies doing? Many other Federal agencies are also doing scientific studies on this subject. The CDC (Centers for Disease Control), Air Force, National Institute for Occupational Safety and Health, National Cancer Institute, and Environmental Protection Agency have all been involved in research. The CDC published an important study in 1984 regarding Vietnam veterans' risks of fathering babies with birth defects. The VA provided partial funding for this study. CDC investigators found that Vietnam veterans were not at increased risk of fathering a child with birth defects. The �VA also funded the CDC Vietnam Experience Study published in 1987 and . 1988. CDC is currently pursuing a Selected Cancers Study on behalf of the VA. The Air Force is conducting a long-term study of mortality and morbidity among the,men involved in the herbicide spraying missions. The National Institute for Occupational Safety and Health is maintaining a registry of individuals exposed to dioxins and other chemicals in the workplace. The National Cancer Institute has studied the health effects of herbicides on selected agricultural workers. The Environmental Protection Agency is working with the VA on the Retrospective Study of Dioxins and Furans in Adipose Tissue. A considerable amount of research has been undertaken by Federal agencies. According to a special report issued by the Domestic Policy Council's Agent Orange Working Group in September 1987, "There are 70 ongoing projects and 80 completed projects." The report indicates "that over $91 million has been spent on the completed projects, an additional $120 million has been spent" on the ongoing projects. Several States also have undertaken research efforts to learn more about the possible health effects of Agent Orange and the Vietnam experience upon our Nation's veterans. Research being done by non-VA agencies and organizations is more fully described in Agent Orange Brief, Number 11. Where is additional Information available? There is at each VA medical center a specially trained "Environmental Physician" responsible for the conduct of Agent Orange Registry examinations. These individuals participate in regularly scheduled nationwide conference calls and receive mailouts from VA headquarters updating them on the latest developments on Agent Orange. Each facility also has an "Agent Orange Coordinator" to facilitate the Agent Orange program. As indicated above, other Agent Orange Briefs provide additional information on specific Agent Orange concerns and issues. The Agent Orange Briefs are available at all VA medical centers. The Environmental Medicine Office (10B/AO), Veterans Administration Central Office, 810 Vermont Avenue, N.W., Washington, D.C. 20420, is another good source of information on this subject. The Environmental Medicine Office used to be known as the Agent Orange Projects Office. �Veterans Administration Agent Orange Brief Prepared by the Environmental Medicine Office VA Central Office, Washington, DC October 1988 AGENT ORANGE REGISTRY What Is 1t? In mid-1978 the Veterans Administration (VA) set up a register of Vietnam veterans who were worried that they may have been exposed to chemical herbicides which might be causing a variety of ill effects and who took an extensive medical examination offered at all VA facilities. The Agent Orange Registry is a computerized index of those examinations. What should a participating veteran expect? Each veteran participating in this voluntary program, offered at all VA medical centers, is given the following baseline laboratory studies: chest x-ray (if one has not been done within the past 6 months); complete blood count; blood chemistries and enzyme studies; and urinalysis. Evidence is also sought concerning the following potentially relevant symptoms or conditions: altered sex drive; congenital deformities (birth defects) among children; neoplasms or cancers, including soft tissue sarcoma and lymphoma (including non-Hodgkin's lymphoma); repeated infections; sterility; and difficulties in carrying pregnancies to term (a problem experienced by the wives of some Vietnam veterans). How does a veteran benefit from taking the Agent Orange Registry examination? The examination provides the participating veteran with an opportunity to receive a complete health evaluation and answers to questions concerning the current state of knowledge regarding the relationship between herbicide exposure and subsequent health problems. Following completion of the examination, the veteran is given the results of the physical exam and laboratory studies. This information is provided to the veteran by both a face-to-face discussion with a physician familiar with the health aspects of the Agent Orange issue and a follow-up letter summarizing the results of the examination. Occasionally, previously undetected medical problems are found. With prompt attention, many times these illnesses may be successfully treated. The Registry permits the VA to contact veterans for further testing if continuing research efforts should make this action advisable. �Does the Agent Orange Registry have an Impact on research efforts? The Registry provlde.s a means of detecting clues or suggestions of specific health problems In the event that unexpected or unusual health trends show up In this group of veterans. Such clues could then form the basis for the design and conduct of specific scientific studies. Who Is eligible? Any veteran, male or female, who had active military service in the Republic of Vietnam between 1962 to 1975, and expresses a concern relating to exposure to herbicides may participate in the Registry. Eligible veterans who want to participate in this program should contact the nearest VA medical facility for an appointment. A veteran who did not serve in Vietnam is not eligible, for the Agent Orange Registry examination. Similarly, the spouses and children of veterans are not eligible for this examination. What are the limitations and uses of the Registry? It is important to understand that the Agent Orange Registry is not a scientific study. Because of the self-selected nature (that is, the individuals decide themselves to be part of the Registry rather than being "chosen" in a scientific manner) of the Registry participants, this group of veterans cannot, with any scientific validity, be viewed as being representational of Vietnam veterans as a whole. Therefore, the health-related information collected cannot be used for scientific research. The information can, however, be used to detect possible health trends, as noted above, and can provide some useful facts about the group itself. For example, it is possible to show the numbers in each branch of military service, the period(s) of service in Vietnam, kinds of symptoms veterans are experiencing, and some of the results of the physical examinations. From this type of information, it is possible to develop the relative frequency or internal proportional distribution of certain health problems. That is, we could find that health condition "A" is appearing in five times as many Registry participants as problem "B." However, since participation in the Registry program is entirely voluntary, one cannot make statistically valid comparisons directly between this group of veterans and other groups of veterans or non-veterans. Who has participated In the Registry? More than 230,000 Vietnam veterans have already participated in this program. Although the program is now more than 10 years old, hundreds of veterans are still contacting the VA each week for their initial Registry examination. Many of these veterans have no medical problems; others present a wide range of ailments. Veterans interested in receiving the Agent Orange Registry examination should contact the nearest VA medical center. �If a veteran who has participated in the Agent Orange Registry examination program changes residence who should he or she contact? A veteran who moves .after receiving the Agent Orange examination should contact the Agent Orange Coordinator at the nearest VA medical center and the Agent Orange Clerk (200/397B), VA Data Processing Center, 1615 East Woodward Street, Austin, Texas 78772. Both the old and new addresses should be indicated. If a Vietnam veteran receives an Agent Orange Registry examination, does that automatically make him or her eligible for disability compensation? No. Veterans who wish to be considered for disability compensation must file a claim for that benefit. Many Agent Orange Registry participants have no medical problems. For more information regarding disability compensation, see Agent Orange Brief, Number 8. Who should be contacted for additional Information regarding the Agent Orange Registry? At each VA medical center there is a specially trained "Environmental Physician" responsible for the conduct of Agent Orange Registry examinations. These individuals participate in regularly scheduled nationwide conference calls and receive mailouts from VA headquarters updating them on the latest developments on Agent Orange. Each medical center also has an Agent Orange Coordinator who has a great deal of information about the Agent Orange Registry and related matters. The VA medical center libraries also have considerable information, including videotapes, regarding Agent Orange. The Environmental Medicine Office (10B/AO), Veterans Administration Central Office, 810 Vermont Avenue, N.W., Washington, D.C. 20420, is another good source of information on this subject. �Veterans Administration Agent Orange Brief Prepared by the Environmental Medicine Office VA Central Office > Washington, DC No. 3 October 1988 AGENT ORANGE LITIGATION What 1s It? In re "Agent Orange" Product Liability Litigation is the name of the class action lawsuit brought by Vietnam veterans and their family members against seven chemical companies for injuries the veterans believed were caused by exposure to Agent Orange and other herbicides in Vietnam. More than 200,000 veterans joined the class action claiming a large number of diseases they believe related to Agent Orange. On May 7, 1984, a settlement was reached in which the manufacturers agreed to pay $180 million. Since the suit did not go to trial, no specific diseases were associated with Agent Orange, and it has been difficult to determine who should receive this money. What Is the status of this settlement? For more than four years, various groups challenged the settlement for a variety of reasons. In mid-1988 the U.S. Supreme Court declined to review rulings that dismissed lawsuits brought by veterans and others who challenged the settlement. Currently, the survivors of deceased Vietnam veterans and totally disabled veterans who were exposed to Agent Orange are scheduled to receive settlement funds. It is anticipated that the first payments will be made in 1989. The Court has designated Aetna Life Insurance Company to serve as the claims administrator for the program. Are the VA and other government agencies Involved in this settlement? No. Neither the Veterans Administration nor any other Federal agency is directly involved in the distribution of the settlement assets. How can an Individual or group get additional Information on the settlement? Information can be obtained by either calling a toll-free telephone number, 1-800-225-4712 (recorded message), or by writing to the Agent Orange Veteran Payment Program, P.O. Box 110, Hartford, Connecticut 06104. �Veterans Administration Agent Orange Brief ! JNo. 4 Prepared by the Environmental Medicine Office VA Central Office ' Washington, DC Qctober AGENT ORANGE - RESEARCH PROBLEM Why was the CDC Agent Orange Study cancelled? In December 1979, Congress directed the VA to conduct a large-scale epidemiological study to determine if Agent Orange has caused health problems in Vietnam veterans. For approximately 3 years the VA and its contractor attempted to develop an adequate protocol or study design. The VA, at the suggestion of Congress, then transferred responsibility of the study to the Centers for Disease Control (CDC). Unfortunately after several years of research, CDC found that military records were unable to identify individuals who were exposed to Agent Orange in Vietnam. Subsequently, CDC did a special Agent Orange Validation Study to determine the feasibility of conducting the Agent Orange Study using indirect estimates of exposure to Agent Orange from military records (and self reports) and by comparing such measures with serum levels of 2,3,7,8-TCDD (dioxin). CDC maintained that the findings of the Agent Orange Validation Study confirmed conclusively that neither military records nor veterans' self reports of exposure to Agent Orange can identify exposed individuals needed for a full scale study. This conclusion was agreed to by the Science Panel of the Domestic Policy Council Agent Orange Working Group and Agent Orange Advisory Panel of the Congressional Office of Technology Assessment. Consequently, the study was cancelled. It should be noted that some people believe that an index of Agent Orange exposure for ground troops can still be developed. Scientists in New Jersey are using different study methodologies involving small groups of exposed subjects in different categories of military units. What can be done? While the CDC Agent Orange Study could not be successfully completed, a substantial number of related research efforts have been completed and published, and other scientific studies are ongoing. The VA, CDC, Air Force, and several other agencies and organizations are doing this important research. For information about these projects, see Agent Orange Briefs, Numbers 10 and 11. �Who should be contacted for additional information regarding the cancellation of the CDC Agent Orange Study and the difficulties experienced in pursuing Agent Orange research? Questions concerning the CDC Study can be directed to the Center for Environmental Health, Centers for Disease Control, Atlanta, Georgia 30333. Other matters can be handled by the Environmental Physician at the nearest VA medical center or by the Environmental Medicine Office (10B/AO), Veterans Administration Central Office, 810 Vermont Avenue, N.W., Washington, D.C. 20420. �Veterans Administration Agent Orange Brief So. 4 Prepared by the Environmental Medicine Office VA Central °ffice' WashinSton» DC October 1988 AGENT ORANGE - RESEARCH PROBLEM Why was the CDC Agent Orange Study cancelled? In December 1979, Congress directed the VA to conduct a large-scale epidemiological study to determine if Agent Orange has caused health problems in Vietnam veterans. For approximately 3 years the VA and its contractor attempted to develop an adequate protocol or study design. The VA, at the suggestion of Congress, then transferred responsibility of the study to the Centers for Disease Control (CDC). Unfortunately after several years of research, CDC found that military records were unable to identify individuals who were exposed to Agent Orange in Vietnam. Subsequently, CDC did a special Agent Orange Validation Study to determine the feasibility of conducting the Agent Orange Study using indirect estimates of exposure to Agent Orange from military records (and self reports) and by comparing such measures with serum levels of 2,3,7,8-TCDD (dioxin). CDC maintained that the findings of the Agent Orange Validation Study confirmed conclusively that neither military records nor veterans' self reports of exposure to Agent Orange can identify exposed individuals needed for a full scale study. This conclusion was agreed to by the Science Panel of the Domestic Policy Council Agent Orange Working Group and Agent Orange Advisory Panel of the Congressional Office of Technology Assessment. Consequently, the study was cancelled. It should be noted that some people believe that an index of Agent Orange exposure for ground troops can still be developed. Scientists in New Jersey are using different study methodologies involving small groups of exposed subjects in different categories of military units. What can be done? While the CDC Agent Orange Study could not be successfully completed, a substantial number of related research efforts have been completed and published, and other scientific studies are ongoing. The VA, CDC, Air Force, and several other agencies and organizations are doing this important research. For information about these projects, see Agent Orange Briefs, Numbers 10 and 11. �Who should be contacted for additional information regarding the cancellation of the CDC Agent Orange Study and the difficulties experienced in pursuing Agent Orange research? Questions concerning the CDC Study can be directed to the Center for Environmental Health, Centers for Disease Control, Atlanta, Georgia 30333. Other matters can be handled by the Environmental Physician at the nearest VA medical center or by the Environmental Medicine Office (10B/AO), Veterans Administration Central Office, 810 Vermont Avenue, N.W., Washington, D.C. 20420. �Veterans Administration Agent Orange Brief Prepared by the Environmental Medicine Office VA Central Office, Washington, DC Jo. 5 October 1988 AGENT ORANGE - PRIORITY TREATMENT PROGRAM What is it? The VA (Veterans Administration) provides certain health care services to any veteran of the Vietnam era (August 5, 1964 - May 7, 1975) who may have been exposed to dioxin in a herbicide used for military purposes in Vietnam. Proof of service in Vietnam is required. Without affirmative evidence to the contrary, a Vietnam veteran's contention of exposure will be accepted. Health care services under this program are limited to hospital and nursing home care in VA facilities and outpatient care in VA facilities on a pre- or post-hospitalization basis or to prevent a need for hospitalization. Health care services will be provided without regard to the veteran's age, service-connected status or the veteran's ability to pay for the expenses of such care. Veterans receiving outpatient care under this program will be given priority ahead of nonservice-connected veterans and equal to former Prisoners of War who are receiving care for nonservice-connected conditions. A decision by the VA that a veteran is eligible for health care does not constitute a basis for service-connection or in any way affect determinations regarding service-connection. Who Is eligible for this priority treatment? When a Vietnam veteran requests VA medical care he or she will be evaluated clinically through a physical examination and appropriate diagnostic studies. This may, but need not, be the Agent Orange Registry examination. If such an examination has been completed within the prior 6 months, only those procedures which are medically indicated by the current circumstances need be repeated. Where the findings reveal a condition requiring treatment, the responsible VA staff physician will make a" determination as to whether the condition resulted from a cause other than exposure to dioxin or herbicides. In making this determination, the physician should consider that the following types of conditions are not ordinarily considered to be due to such exposure: (1) congenital or developmental conditions, e.g.,"spina bifida; scoliosis. (2) conditions which are known to have pre-existed military service. (3) conditions resulting from trauma, e.g., deformity or limitation of..mot Ion..of an ..extremity.. �(4) conditions having a specific and well established etiology, e.g., tuberculosis; gout. (5) common conditions having a well recognized clinical course, e.g., inguinal hernia; acute appendicitis. On occasion, the responsible staff physician may find that a veteran requires care for one or more of the conditions listed above, but that the patient presents complicating circumstances that make the provisions of care under this program appropriate. After consultation with the Chief of Staff and the Environmental Physician authorization for priority treatment may be granted. Under what authority does the VA provide this priority treatment? The Veterans' Health Care, Training, and Small Business Loan Act of 1981, Public Law 97-72, enacted November 3, 1981, established the priority treatment. The Veterans' Administration Health-Care Amendments of 1985, Public Law 99-166, enacted December 3, 1985, extended the program through September 30, 1989. The Veterans' Administration Adjudication Procedure and Judicial Review Act extended the program through December 31, 1990. Where can a veteran obtain additional Information on this priority treatment program? Questions concerning priorities for medical care should be directed to the Medical Administration Service of the nearest VA medical center. ] �Veterans Administration Agent Orange Brief N0i 6 Prepared by the Environmental Medicine Office VA Central Office, Washington, DC October 1988 AGENT ORANGE AND BIRTH DEFECTS Does exposure to Agent Orange or service 1n Vietnam Increase the likelihood of a veteran fathering a child with birth defects? One of the most emotional aspects of the Agent Orange Issue 1s the concern that exposure to herbicides in Vietnam may have caused or contributed to the risks of having babies with birth defects. Literally thousands of Vietnam veterans have fathered children with abnormalities. Considering the fact that approximately 2.6 million veterans served in Vietnam and the fact that 3-6 percent of all children are born with some kind of defect, scientists expect to see many children with abnormalities among the offspring of Vietnam veterans. Unfortunately, in many instances scientists cannot explain what caused these birth defects. Research has been conducted to determine whether exposure to Agent Orange or military service in Vietnam may have Increased the risk of fathering children with birth defects. Based on the research completed to date, the answer seems to be "no." The Australian birth defects study, the CDC (Centers for Disease Control) birth defects study, the Air Force Health Study (Ranch Hand), and the CDC Vietnam Experience Study all suggest that Agent Orange is not the most likely cause of the birth defects. Each of these investigations are briefly summarized below. Case-Control Study of Congenital Anomalies and Vietnam Service (Birth Defects Study) - Report to the Minister tor veterans' Affairs - January 1983 - Prepared by 0. W. Donovan and others. This Australian Investigation involved examination of the hospital and laboratory records of infants born with birth defects in three populous areas of Australia between the years 1966 and 1979. In all, 34 hospitals and 4 laboratories cooperated fully with the investigating team. Whenever the birth of an infant with a defect was found, it was matched to a healthy control infant born in the same hospital, to a mother of similar age, and as close as possible in time to the birth of the child with the defect. The fathers of both cases (for this study, a case is a baby with a birth defect) and controls (for this study, a control is a baby without a birth defect> were identified in 8,517 instances and those identified were compared with a list of every man who served in the Australian Army between 1962 and 1972, the period of Australian involvement in Vietnam. Fathers who served in the Army during this period were then classified according to whether they had served in Vietnam. The important finding of the study is that 127 of the fathers of children with birth defects were Vietnam veterans and 123 veterans were among the fathers of healthy children. This indicates that there is no evidence that Army service in Vietnam increased the risk of fathering a child with a birth defect. �Vietnam Veterans' Risks for Fathering Babies with Birth Defects August 1984 - U.S. Department of Health and Human Services, Public Health Service, Centers for Disease Control, Center for Environmental Health. Vietnam veterans' risks for fathering babies with major structural birth defects were assessed using a case-control study. Information regarding military service in Vietnam was obtained from interviews with mothers and fathers of babies in case and control groups and from review of military records. Vietnam veterans did not have an increased risk of fathering babies with defects. Futhermore, Vietnam veterans who had greater estimated opportunities for Agent Orange exposure were not at greater risk for fathering babies with all types of defects combined. Air Force Health Study (Project Ranch Hand II) - An Epidemiologic Investigation of Health Effects In Air Force Personnel Following Exposure to Herbicides - Periodic reports on morbidity (health problems) Prepared by George D. Lathrop, William H. Wolfe and others. The February 1984 Baseline Morbidity Study Results indicated that there was no significant differences between the Ranch Hand (the military unit that did most of the herbicide spraying in Vietnam) and control groups with regard to severe or moderate birth defects. Based on parental reports, however, Ranch Hand offspring showed significantly more minor birth defects (birth marks, etc.). In 1988, Air Force investigators indicated the baseline findings of overall group differences in reported birth defects are being reinvestigated with full medical record verification of the birth defects reported on all children fathered by study participants. Over 6,000 medical records are under review. The Air Force expects to complete this analysis in late 1989. Health Status of Vietnam Veterans - Reproductive Outcomes and Child Health - The Centers for Disease Control Vietnam Experience Study - May 1988. The Vietnam Experience Study was a multidimensional assessment of the health of Vietnam veterans. From a random sample of enlisted men who entered the U.S. Army from 1965 through 1971, 7,924 Vietnam and 7,364 non-Vietnam veterans participated in a telephone interview; a random subsample of 2,490 Vietnam and 1,972 non-Vietnam veterans also underwent a comprehensive medical examination. Children of Vietnam veterans were not more likely to have birth defects recorded on hospital birth records than were children of non-Vietnam veterans. The rates of total, major, minor, and suspected defects were similar among children of Vietnam and non-Vietnam veterans. What can a Vietnam veteran now assume about the risks of birth defects? Many Vietnam veterans have produced children with birth defects. In the future, Vietnam veterans will produce more children with birth defects. Unfortunately, that much is a certainty. The critical question is "are Vietnam veterans more likely than other men to father children with birth defects? Based on all we know from the scientific research described above and studies of dioxin-contaminated areas in Times Beach, Missouri, and Seveso, Italy (where investigators recently concluded "that the data collected contain no evidence ... that in the population of the Seveso area exposed to dioxin, there was greater risk of producing congenitally �malformed offspring."), Vietnam veterans do not seem to be at increased risk of fathering children with birth defects. (A relatively small number of women served in Vietnam. It is unlikely that many of them were exposed to Agent Orange. Research is underway to learn more about what effects Vietnam service may have had on their health. There is no scientific evidence 'that women have mothered an unexpected high number of children with birth defects.) Where can a concerned veteran get additional Information about birth defects? In October 1985, the VA published a monograph entitled "Birth Defects and Genetic Counseling." This publication was distributed to all VA medical center libraries in 1985. A limited supply of complimentary copies is currently available from the Environmental Medicine Office (10B/AO), Veterans Administration Central Office, 810 Vermont Avenue, N.W., Washington, D.C. 20420. The March pf Dimes Birth Defects Foundation is also an excellent source of information on this subject. The address is Professional Education, March of Dimes Birth Defects Foundation, 1275 Mamaroneck Avenue, White Plains, New York 10605. �Veterans Administration Agent Orange Brief Prepared by the Environmental Medicine Office VA Central Office, Washington, DC October 1988 JNO • / AGENT ORANGE AND CHLORACNE What Is chloracne? Chloracne is a skin condition that looks like common forms of acne that affect teenagers. At present, chloracne is the only well established long-term effect of exposure to TCDD or dioxin, the contaminant found in one of the ingredients of Agent Orange. What does chloracne look like and where does it appear? The first sign of chloracne may be excessive oiliness of the skin. This is accompanied or followed by the appearance of numerous blackheads. In mild cases the blackheads may be limited to the area around the eyes extending along the temples to the ears. In more severe cases blackheads may appear in many places on the body, especially over the malar (or cheek bone) area, other facial areas, behind the ears, and along the arms. The blackheads are usually accompanied by fluid-filled cysts and by an increased or darker growth of body hair. The skin may become thicker and flake or peel. In severe cases, the acne may result in open sores and permanent scars. The condition fades slowly after exposure. Minor cases may disappear altogether, but more severe cases may persist for years after the exposure. Physicians, even dermatologists, sometimes have difficulty in distinguishing chloracne form other more common skin disorders. While chloracne may be a sensitive indicator of exposure to dioxins in some people, it may not be in other individuals who had equal or greater exposure to dioxins. The absence of chloracne is not necessarily a reliable basis for concluding that a person has not been exposed to a chemical which is known to cause chloracne. Has chloracne been a problem for a large number of Vietnam veterans? No, it-has not. Of course, many veterans have complained of skin problems. Skin ailments are the most common medical problem in veteran and non-veteran populations. �Veterans Administration Agent Orange Brief Prepared by the Environmental Medicine Office No. 8 VA Central °fflce' AGENT ORANGE AND VA DISABILITY COMPENSATION What 1s disability compensation and who 1s eligible for this benefit? Veterans who are disabled by injury or disease incurred or aggravated during active service in the line of duty during wartime or peacetime service and discharged or separated under other than dishonorable conditions are eligible for monthly payments from the Veterans Administration. The amount of these payments, called disability compensation, is based on the degree of disability. For example, a veteran with a 30 percent service-connected disability would receive more money than a veteran with a 10 or 20 percent disability. A veteran who is totally disabled would receive substantially more than a veteran with a lesser disability. Does exposure to Agent Orange qualify Vietnam veterans for disability compensation? No. Mere exposure to Agent Orange and other chemicals used in military service does not automatically qualify Vietnam veterans for compensation. As mentioned above, payments are based on disabilities. Many Vietnam veterans who were exposed to Agent Orange have no serious medical problems. Some Vietnam veterans have disabilities clearly unrelated to their military service. For example, a Vietnam veteran may have been in an automobile accident 10 or 15 years after leaving military service. Under the law, disability compensation can only be approved for conditions incurred in or aggravated during military service. If a veteran has a disability that he or she believes was caused by Agent Orange exposure or some other aspect of military service, what should he or she do? To receive disability compensation, the veteran must file an application for such benefits. For information or assistance in applying, the veteran can write, call, or visit a veterans benefits counselor at the nearest VA regional office or VA office, or a local veterans service organization representative. What should a veteran do 1f his or her claim for disability compensation 1s denied by the VA? While the VA provides billions of dollars to veterans and their survivors in disability compensation each year, the VA is not able to approve every �claim. When a claim is denied, the VA provides the applicant with the reason for this action as well as detailed information regarding appeal rights. If a Vietnam veteran receives an Agent Orange Registry examination, does that automatically make him or her eligible for disability compensation? No. Veterans who wish to be considered for disability compensation must file a claim for that benefit. Many Agent Orange Registry participants have no medical problems whatsoever. �Veterans Administration Agent Orange Brief No. 9 Prepared by the Environmental Medicine Office VA Central Office, Washington, DC October 1988 AGENT ORANGE AND SOFT TISSUE SARCOMAS What are soft tissue sarcomas? The term "soft tissue sarcoma" is used to describe a group of approximately 25 different types of malignant tumors which arise from body tissues such as muscle, fat, blood and lymph vessels and connective tissues (that is distinct from hard tissue such as bone or cartilage). These tumors are relatively rare. Why are Vietnam veterans concerned about soft tissue sarcomas? The possibility that exposure to phenoxy herbicides, such as Agent Orange, may have caused rare forms of cancer in humans such as soft tissue sarcoma was suggested in 1979 and 1981 by small scale studies conducted in Sweden. These studies showed that persons reporting occupational exposure to phenoxy herbicides may have a 5 to 6 fold higher risk of developing soft tissue sarcoma as compared to persons without such exposure. Have more recent research results supported or conflicted with the Swedish studies finding regarding soft tissue sarcomas? A number of scientific studies of soft tissue sarcoma among people who may have been exposed to herbicides and/or dioxins have been published in the past few years. Some studies suggested a possible association between these exposures and an increased risk of some cancers, but none showed an increased risk of soft tissue sarcomas on the magnitude cited by the Swedish researchers, and the majority of these investigations showed no association at all. Mortality studies conducted by Massachusetts and West Virginia indicated that there might be a link between service in Vietnam and soft tissue sarcoma. The small number of deaths in the West Virginia study makes it possible that these findings were the results of chance rather than real association. A New York State study showed that fewer Vietnam veterans died of soft tissue sarcoma than Vietnam-era veterans who did not serve in Vietnam. A study in New Zealand of soft tissue sarcomas and exposure to phenoxy herbicides and chlorophenols, a National Cancer Institute study of agricultural herbicide use and risk of lymphoma and soft tissue sarcoma in Kansas, the VA (Veterans Administration) Vietnam veterans mortality study, and two VA studies of the relationship between soft tissue sarcomas and military �service in Vietnam have not supported the findings of the Swedish researchers. At the present time, there is no conclusive evidence linking soft tissue sarcomas in Vietnam veterans with herbicides or military service in Vietnam. Very few cases of soft tissue sarcomas are appearing in the Agent Orange Registry. Research on soft tissue sarcoma and other cancers is continuing. Where can a veteran get additional Information on this subject? Information on soft tissue sarcomas and related matters can be obtained at VA medical center libraries, from the Environmental Physicians at every VA medical center, or from the Environmental Medicine Office (10B/AO), Veterans Administration Central Office, 810 Vermont Avenue, N.W., Washington, D.C. 20420. �Veterans Administration Agent Orange Brief ! No.10 Prepared by the Environmental Medicine Office VA Central Office, Washington, DC [ October 1988 AGENT ORANGE AND RELATED RESEARCH VA EFFORTS Vietnam Veterans Mortality Study (Proportionate Mortality Study of Army and Marine Corps Veterans of the Vietnam War) - The results of this study were released in September 1987.Patterns of mortality among 24,235 Army and Marine Corps Vietnam veterans were compared with that of 25,685 non-Vietnam veterans using standardized proportional mortality ratios. The study subjects were a random sample of deceased Vietnam era veterans identified in a VA computerized benefit file. Military service information was obtained from military personnel records, and cause of death information from death certificates. Statistically significant excess deaths were observed among Army Vietnam veterans for motor vehicle accidents, non-motor vehicle accidents and accidental poisonings. Similar findings have been reported in other studies of Vietnam veterans. Suicides were not elevated among Vietnam veterans. Marine Corps Vietnam veterans appeared to have an increased mortality from lung cancer and non-Hodgkin's lymphoma. The study did not investigate possible causes of these findings. Follow-up research is now underway. The study was published in the Journal of Occupational Medicine in May 1988. Soft Tissue Sarcoma Study (Soft Tissue Sarcoma and Military Service in Vietnam: A Case Control Study) - This study was conducted of men who were of draftable age during the Vietnam conflict to examine the association of soft tissue sarcomas with military service in Vietnam as well as other environmental risk factors. A total of 217 soft tissue sarcomas cases selected from the Armed Forces Institute of Pathology were compared to 599 controls for Vietnam service occupational and non-occupational exposure to various chemicals, occupational history, medical history, and life-style (smoking, alcohol, coffee, etc.). The results of the study indicate that Vietnam veterans did not have an increased risk of soft tissue sarcoma when compared to those men who had never been in Vietnam. The study was published in the Journal of the National Cancer Institute in October 1987. Soft Tissue Sarcoma.Review (Soft Tissue Sarcomas and Military Service in Vietnam: A Case Comparison Sroup Analysis of Hospital Patients) - This study reviewed soft tissue sarcoma cases among Vietnam era veterans who were admitted to VA medical centers during the period 1969-1983. This effort compared location, histopathology and relative frequency of soft tissue sarcomas between Vietnam veterans and non-Vietnam veterans. The �study showed that for this group of veterans, service in Vietnam did not increase the risk of developing this type of cancer. The VA's Office of Environmental Epidemiology worked with the VA's Pathology Service and the Armed Forces Institute of Pathology on this research. The findings were published in the Journal of Occupational Medicine in December 1986. Adipose Tissue Study (Retrospective Study of Dioxins and Furans in Adipose Tissue) - The VA, in cooperation with the Environmental Protection Agency, is in the process of performing a very detailed analysis of tissue specimens from approximately 200 males of the Vietnam era age group. The specimens will be analyzed for 2,3,7,8-TCDD and several other related dioxins and furans to determine if service in the military, especially service in Vietnam, has resulted in increased levels of these compounds as compared to civilians of the same age group. In addition, the study will help to answer the concerns of many veterans regarding the relationship between dioxin levels in their bodies and the risk of developing health problems.. It is anticipated that this study will be completed in late 1988 or early 1989. Specially Solicited Investigator Initiated Research - The VA is funding several investigator-initiated Agent Orange-related research projects. These studies are designed to increase our knowledge regarding the possible adverse health effects of exposure to Agent Orange and its dioxin contaminant. Individual research projects are in varying stages of completion at VA medical centers throughout the Nation. Women Vietnam Veterans Health Study - The Consolidated Omnibus Budget Reconciliation Act of 1985, enacted April 7, 1986, directed the VA to provide for the conduct of a scientific study of any long-term adverse health effects experienced by women who served in the Armed Forces in Vietnam. The study will examine health effects, which may have resulted from traumatic experiences during such service, from exposure during Vietnam service to phenoxy herbicides, including Agent Orange, to other herbicides, chemicals, or environmental hazards or from any other experience or exposure during such service. A protocol for the conduct of the study was prepared for the VA by its contractor, New England Research Institute. The protocol, after a review conducted by the Congressional Office of Technology Assessment's Advisory Committee, and the Science Panel of the Agent Orange Working Group, was modified in accordance with recommendations of those review groups. It is anticipated that a contract for the conduct of the the study will be awarded in 1989. Where can a veteran obtain additional Information on VA Agent Orange research and studies on related matters? Information on these subjects can be obtained at the VA medical center libraries, from the Environmental Physicians or Agent Orange Coordinator at every VA medical center, or from the Environmental Medicine Office (10B/AO), Veterans Administration Central Office, 810 Vermont Avenue, N.W. Washington, D.C. 20420. �Veterans Administration Agent Orange Brief NC. Prepared by the Environmental Medicine Office VACentral °ffice> Washi^ton, DC AGENT ORANGE AND RELATED RESEARCH NON-VA EFFORTS CDC Epidemic logical Study (Epidemiologic Studies of the Health of Vietnam Veterans - Mandated by Public Law 97-72 and Public Law yb-ibi; - ims project is actually three studies: the Vietnam Experience Study, designed to evaluate the overall impact of military service in Vietnam on those who served there; the Agent Orange Exposure Study, intended to assess the possible adverse health effects on Vietnam veterans of exposure to the herbicide; and the Selected Cancers Study, designed to determine the risks of developing specific types of cancer among Vietnam veterans. The Veterans Administration is providing full funding to the Centers for Disease Control for this research. Vietnam Experience Study - There are two components of this study: mortality {death) and morbidity (disease). The mortality effort (Postservice Mortality Among Vietnam Veterans) revealed that total mortality in Vietnam veterans was 17% higher than for other veterans. The excess mortality occurred mainly in the first five years after > discharge from active duty and involved motor vehicle accidents, suicide, homicide, and accidental poisonings. Thereafter, mortality among Vietnam veterans was similar to that of other Vietnam-era veterans, except for drug-related deaths, which continued to be elevated. An unexpected finding was a deficit in deaths from diseases of the circulatory system among Vietnam veterans. The excess in postservice mortality due to external causes among Vietnam veterans is similar to that found among men returning from combat areas after World War II and the Korean War. The results of this study component were published in the Journal of the American Medical Association in February 1987. The morbidity component of the Vietnam Experience Study (Health Status of Vietnam Veterans) indicated that the Vietnam and non-Vietnam veterans studied were similar in terms of level of education, employment, income, marital status, and satisfaction with personal relationships. Certain psychological problems, however, were significantly more common among Vietnam veterans than among non-Vietnam veterans. These included depression, anxiety, and alcohol abuse or dependence. About 15% of Vietnam veterans suffered from combat-related post-traumatic stress disorder at some time during or after military service, and 2.2% had the disorder during the month before the examination. During the telephone �interview, Vietnam veterans reported current and past health problems more often than did non-Vietnam veterans, although results of medical examinations showed few current differences in physical health between the Vietnam veterans and non-Vietnam veterans groups. The Vietnam veterans had more hearing loss. Also, among a subsample of participants who had semen samples evaluated, Vietnam veterans had lower sperm concentrations and lower average proportions of "normal" sperm cells. Despite differences in sperm characteristics, Vietnam and non-Vietnam veterans have fathered similar numbers of children. Children of Vietnam veterans were not more likely to have birth defects recorded on hospital birth records than were children of non-Vietnam veterans. The rates of total, major, minor, and suspected defects were similar among children of Vietnam and non-Vietnam veterans. The results of the morbidity component were published in the Journal of the American Medical Association in May 1988. Agent Orange Exposure Study - This study was designed to evaluate the health effects of possible exposure.to herbicides (primarily Agent Orange), utilizing information contained in military records. This component was put on hold in January 1986 because of problems related to the exposure assessment of veterans who served in Vietnam. More specifically, it was determined that a study based solely on military records was not possible because of the considerable potential for misclassification of exposure status. Subsequently, the Centers for Disease Control conducted a TCDD validation study to compare military records-based estimates with current serum dioxin levels. The results of this study led the Domestic Policy Council's Agent Orange Working Group and the Congressional Office of Technology Assessment to conclude that the Agent Orange Exposure Study cannot be conducted. Consequently, this study component was cancelled. Selected Cancers Study - This study was designed to determine if Vietnam veterans are at increased risk of contracting any of five specific cancers: soft tissue sarcoma, lymphoma, nasal, nasopharyngeal, and liver cancer. Data collection for this study component began in January 1985 and will continue through mid-1989. Publication of the Selected Cancers Study findings is currently targeted for mid-1990. Questions concerning the conduct of the studies described above should be referred to the Centers for Disease Control, Atlanta, Georgia 30333. Air Force Health Study (An Epidemiologi'c Investigation of Health Effects in Air Force Personnel Following Exposure to Herbicides) - This study is being conducted to determine whether long-term adverse health effects exist following contact with herbicides and whether these medical problems can be attributed to occupational exposure to Agent Orange. The study consists of mortality and morbidity components, with follow-up efforts. The investigation focuses on the Air Force personnel attached to Operation Ranch Hand, responsible for the great majority of herbicide spraying missions. Members of the Ranch Hand unit had frequent and repeated exposure to Agent Orange. Individuals in the comparison group had served in numerous flying organizations that transported cargo to, from, and within Vietnam but were not involved in the aerial spray �operations of Agent Orange. Air Force investigators have issued a series of mortality and morbidity assessments. The mortality assessments have shown that the Ranch Hand population is doing about the same as the comparison group, with no unusual causes of death, increased frequency of death, or evidence suggesting death at younger ages. Because of the "healthy veteran effect," (that is, only healthy people are allowed to serve in our Armed Forces) both groups are surviving significantly longer than similarly aged civilians. The morbidity assessments showed only minor differences between the Ranch Hands and the comparisons, and these differences were not considered to be indicators of dioxin-related disease. Within the next year, investigators plan to issue the second follow-up morbidity report, additional annual mortality reports, and an expanded birth defects study. CDC Birth Defects Study (Vietnam Veterans' Risks for Fathering Babies with Birth Defects) - This study, conducted by the Centers for Disease Control with funding from the Veterans Administration, Department of Defense, and the Department of Health and Human Services, assessed Vietnam veterans' risks for fathering babies with major structural birth defects. Information regarding military service in Vietnam was obtained from interviews with mothers and fathers of babies in case and control groups and from review of military records. Vietnam veterans did not have an increased risk of fathering babies with defects. Vietnam veterans who had greater estimated opportunities for Agent Orange exposure were not at greater risk for fathering babies with all types of defects combined. The study results were published in the Journal of the American Medical Association in August 1984. Agricultural Herbicide Use and Risk of Lymphoma and Soft-Tissue Sarcoma This population-based case-control study of soft-tissue sarcoma, Hodgkin's disease, and non-Hodgkin's lymphoma in Kansas found farm herbicide use to be associated with non-Hodgkin's lymphoma. This National Cancer Institute study indicated that the relative risk of non-Hodgkin's increased significantly with number of days of herbicide exposure per year and latency. Men exposed to herbicides more than 20 days per year (regardless of the number of years of herbicide use) had a 6 fold increased risk of non-Hodgkin's lymphoma relative to nonfarmers. Excesses were associated with the use of certain herbicides, specifically 2,4-dichlorophenoxyacetic acid (2,4-D), one of the ingredients of Agent Orange. Soft tissue sarcomas was not associated with herbicide exposure. This study supports findings from Sweden and the U.S. that suggests non-Hodgkin's lymphoma is associated with farm herbicide use. The results of the study were published in the Journal of the American Medical Association in September 1986. Soft Tissue Sarcoma and Non-Hodgkin's Lymphoma in Relation to PhenoxyherblcTde and Chlorinated Phenol Exposure In Western Washington This National cancer institute-funded population-based case-control study was conducted in western Washington State to evaluate the relationship between occupational exposure of men aged 20-79 to certain herbicides and other chemicals and the risks of developing soft tissue sarcoma and non-Hodgkin's lymphoma. Occupational histories and other information were obtained by personal interviews for 128 soft tissue sarcoma cases J �and 576 non-Hodgkin's lymphoma cases, diagnosed between 1981 and 1984, for 694 randomly selected controls without cancer. The results demonstrated small but significantly increased risks of developing non-Hodgkin's lymphoma in association with some occupational activities where certain herbicides have been used in combination with other types of chemicals, particularly for prolonged periods. They do not demonstrate a positive association between increased cancer risks and exposure to any specific herbicide alone. Moveover, these findings provide no evidence of increased risks of developing non-Hodgkin's lymphoma associated with chlorinated phenol exposure or of developing soft tissue sarcoma associated with exposure to either class of chemical. The results were published in the Journal of the National Cancer Institute in May 1987. In addition to the scientific investigations described above, the Department of Agriculture, Environmental Protection Agency, Armed Forces Institute of Pathology, National Cancer Institute, National Institute for Occupational Safety and Health, and several other Federal agencies are doing or have completed research to discover more about the possible adverse health effects of exposure to Agent Orange and other herbicides used in Vietnam. According to a special report issued by the Domestic Policy Council's Agent Orange Working Group in September 1987, there are 70 ongoing projects and 80 completed projects. The report indicates that over $91 million has been spent on the completed projects, an additional $120 has been spent on the ongoing projects. A number of States have also conducted research on Agent Orange and Vietnam veterans. Mortality studies of Vietnam veterans were completed in New York, Wisconsin, West Virginia, and Massachusetts. Studies and/or surveys have also been done in Iowa, New Jersey, and several other States. The Veterans Administration also is closely monitoring research being conducted in other countries. Where can a veteran get more Information about Agent Orange research and studies on related matters? Information on these subjects can be obtained at the VA medical center libraries, from the Environmental Physician or Agent Orange Coordinator at every VA medical center, or from the Environmental Medicine Office, (10B/AO), Veterans Administration Central Office, 810 Vermont Avenue, N.W., Washington, D.C. 20420. �Veterans Administration Agent Orange Brief Prepared by the Environmental Medicine Office VA Central Office, Washington, DC No. 12 October 1988 AGENT ORANGE AND NON-HODGKIN'S LYMPHOMA What 1s non-Hodgkin's lymphoma? The term "non-Hodgkin's lymphoma" is used to describe a group of malignant tumors that affect the lymph glands and other lymphatic tissue. These tumors are relatively rare (about 3% of all cancers that occur among the U.S. general population), and although survival has improved during the past 15 years, these diseases tend to be fatal. Why are Vietnam veterans concerned about non-Hodgkin's lymphoma? The possibility that exposure to phenoxy acid herbicides such as Agent Orange may have caused rare forms of cancer in humans was suggested in Swedish studies published in 1979 and 1981. Investigations in Sweden reported a six-fold increased risk of malignant lymphoma (Hodgkin's Disease and non-Hodgkin's lymphoma combined) among persons occupationally exposed to phenoxy acids or chlorophenols compared to persons without exposure. Have more recent results supported or conflicted with these Swedish studies? An analysis using the New Zealand Cancer registry indicated an elevated risk of malignant lymphoma (including non-Hodgkin's lymphoma, Hodgkin's Disease, and multiple myeloma) linked with agricultural occupations; however, further analyses restricted to interviews of non-Hodgkin's lymphoma and control subjects found no significant differences between non-Hodgkin's lymphoma cases and controls regarding their potential exposure to phenoxy herbicides or chlorophenols. A population-based study in Kansas found a 6-fold excess risk of non-Hodgkin's lymphoma among farmers exposed to herbicides more than 20 days per year (regardless of the number of years of herbicide use) compared to non-farmers. Excesses of non-Hodgkin's lymphoma in Kansas were associated primarily with the use of phenoxy acid herbicides, specifically 2,4-D, one of the ingredients of Agent Orange. Hodgkin's Disease was not associated with herbicide use in Kansas. A study in Washington State demonstrated small but significantly increased risks of developing non-Hodgkin's lymphoma in association with some occupational activities where phenoxy herbicides have been used in �combination with other types of chemicals,.particularly for long periods. The study results did not demonstrate an association between increased cancer risks and exposure to any specific phenoxy herbicide product alone. A 1987 study of Swedish pesticide appliers, 72% of whom were exposed also to phenoxy herbicides, found no excess risk of non-Hodgkin's lymphoma or Hodgkin's Disease. Conflicting results have also been seen in studies of Vietnam veterans. No significant excess mortality from non-Hodgkin's lymphoma was reported among New York State Vietnam veterans, Australian Vietnam veterans, U.S. Vietnam veterans in the Centers for Disease Control Vietnam Experience Study or among Air Force "Ranch Hands" who handled and sprayed herbicides in Vietnam. West Virginia Vietnam veterans had an excess of deaths from Hodgkin's Disease compared to non-Vietnam veterans. In a mortality study of U.S. Army and Marine Corps veterans, a significantly higher than expected proportion of non-Hodgkin's lymphoma occurred among U.S. Marine Vietnam veterans, compared to Marines who did not serve in Vietnam. However, this elevation was not found among the Army veterans. The conflicting evidence makes it difficult at the present time to determine whether non-Hodgkin's lymphoma in Vietnam veterans is related to military service, particularly in the absence of adequate information on exposures to phenoxy herbicides. Investigations are continuing. Where can a veteran get additional Information regarding non-Hodgkin's lymphoma? Information on non-Hodgkin's lymphoma and related matters can be obtained at VA medical center libraries, from the Environmental Physician at every VA medical center, or from the Environmental Medicine Office (10B/AO), Veterans Administration Central Office, 810 Vermont Avenue, N.W., Washington, D.C. 20420. �Veterans Administration Agent Orange Brief Prepared by the Environmental Medicine Office VA Central Office, Washington, DC October 1988 VA PUBLICATIONS ON AGENT ORANGE AND RELATED MATTERS Review of Literature on Herbicides, Including Phenoxy Herbicides and Associated Dloxlns - This multi-volume document is primarily designed for use by researchers, physicians, scientists, and others with similar backgrounds. The initial review was mandated by Public Law 96-151 in December 1979. The first two volumes were released in 1981. Updates (in two volume sets) were issued in 1984 and each year thereafter. Volume I Analysis of Literature GPO Stock No. 051-000-00154-1 $9.00 Volume II Annotated Bibliography GPO Stock No. 051-000-00155-9 $9.50 Volume III Analysis of Literature GPO Stock No. 051-000-0164-8 $9.50 Volume IV Annotated Bibliography GPO Stock No. 051-000-0165-6 $3.25 Volume V Analysis of Literature GPO Stock No. 051-000-00-173-7 $6.00 Volume VI Annotated Bibliography GPO Stock No. 051-000-00-173-5 $2.75 Volumes VII Analysis of Literature and Annotated Bibliography $7.50 and VIII GPO Stock No. 051-000-00186-9 (combined document) Volumes IX and X Analysis of Literature and Annotated Bibliography Not available from GPO (combined document) Volumes XI and XII Analysis of Literature and Annotated Bibliography Not available from GPO (combined document) Synopsis of Scientific Literature on Phenoxy Herbicides and Associated Plpxlns - These documents summarize in non-technical language the literature reviews cited above. Number 1 in the synopsis series corresponds with Volumes I - IV of the literature review; Number 2 with Volumes V - VI; Number 3 with Volumes VII - VIII; Number 4 with Volumes IX - X, and Number 5 with Volumes XI - XII. �Monographs - The Veterans Administration Agent Orange Projects Office (now known as the Environmental Medicine Office) has published several technical documents of interest to individuals concerned about the use of herbicides in Vietnam: Cacodylic Acid; Agricultural Uses, Biologic Effects, and Environmental Fate by Ronald D. Hood, Ph.D. - GPO Stock No. 051-000-00177-0 - $6.00 Birth Defects and Genetic Counseling by Annemarie Sommer, M.D. Human Exposure to Phenoxy Herbicides by Terry L. Lavy, Ph.D. - NTIS nenoxy H Accession NO. PB 88231857 - $19.95 Z31857 To purchase items with GPO stock numbers, write to the Superintendent of Documents, United States Government Printing Office, Washington, D.C. 20402. To purchase the monograph with the NTIS accession number, write to the U.S. Department of Commerce, National Technical Information Service, Springfield, VA 22161. The Environmental Medicine Office (10B/AO), Veterans Administration Central Office, 810 Vermont Avenue, N.W., Washington, D.C. 20420, has a limited supply of most of these documents. These items are also maintained in all VA medical center libraries. Agent Orange Review - This newsletter is prepared by the VA's Office of Public Affairs in Washington, D.C. The "Review" is published periodically to provide information on Agent Orange to concerned veterans and their families. The most recent issue (Volume 6, Number 1) of this newsletter was distributed in October 1988. That issue updates Federal government studies and activities related to Agent Orange and the Vietnam experience. Anyone interested in getting a copy of that issue should contact the Agent Orange Coordinator at the nearest VA medical center or the VA's Office of Public Affairs (003F), 810 Vermont Avenue, N.W., Washington, D.C. 20420. Agent Orange Brief - The paper you are now reading is one of a series of one-to-four page fact sheets, prepared by the VA's Environmental Medicine Office, to help answer questions about Agent Orange and related matters. The series will be updated on a regular basis. The Agent Orange Coordinator at all VA medical centers has copies of all Agent Orange Briefs. Questions or ideas concerning these fact sheets should be directed to the Environmental Medicine Office (10B/AO), Veterans Administration Central Office, 810 Vermont Avenue, N.W., Washington, D.C. 20420. � Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource Alvin L. Young Collection on Agent Orange Description An account of the resource <p style="margin-top: -1em; line-height: 1.2em;">The Alvin L. Young Collection on Agent Orange comprises 120 linear feet and spans the late 1800s to 2005; however, the bulk of the coverage is from the 1960s to the 1980s and there are many undated items. The collection was donated to Special Collections of the National Agricultural Library in 1985 by Dr. Alvin L. Young (1942- ). Dr. Young developed the collection as he conducted extensive research on the military defoliant Agent Orange. The collection is in good condition and includes letters, memoranda, books, reports, press releases, journal and newspaper clippings, field logs and notebooks, newsletters, maps, booklets and pamphlets, photographs, memorabilia, and audiotapes of an interview with Dr. Young.</p> <p>For more about this collection, <a href="/exhibits/speccoll/exhibits/show/alvin-l--young-collection-on-a">view the Agent Orange Exhibit.</a></p> Text A resource consisting primarily of words for reading. Examples include books, letters, dissertations, poems, newspapers, articles, archives of mailing lists. Note that facsimiles or images of texts are still of the genre Text. Box The box containing the original item. 208 Folder The folder containing the original item. 5835 Series The series number of the original item. Series VIII Subseries III Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Description An account of the resource <strong>Corporate Author: </strong>Veterans Administration, Environmental Medicine Office, VA Central Office, Washington, D. C. Title A name given to the resource Agent Orange Briefs 1-13, October 1988 ao_seriesVIII Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource Alvin L. Young Collection on Agent Orange Description An account of the resource <p style="margin-top: -1em; line-height: 1.2em;">The Alvin L. Young Collection on Agent Orange comprises 120 linear feet and spans the late 1800s to 2005; however, the bulk of the coverage is from the 1960s to the 1980s and there are many undated items. The collection was donated to Special Collections of the National Agricultural Library in 1985 by Dr. Alvin L. Young (1942- ). Dr. Young developed the collection as he conducted extensive research on the military defoliant Agent Orange. The collection is in good condition and includes letters, memoranda, books, reports, press releases, journal and newspaper clippings, field logs and notebooks, newsletters, maps, booklets and pamphlets, photographs, memorabilia, and audiotapes of an interview with Dr. Young.</p> <p>For more about this collection, <a href="/exhibits/speccoll/exhibits/show/alvin-l--young-collection-on-a">view the Agent Orange Exhibit.</a></p> Text A resource consisting primarily of words for reading. Examples include books, letters, dissertations, poems, newspapers, articles, archives of mailing lists. Note that facsimiles or images of texts are still of the genre Text. Box The box containing the original item. 199 Folder The folder containing the original item. 5615 Series The series number of the original item. Series VIII Subseries II Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Source A related resource from which the described resource is derived The Stars and Stripes Date A point or period of time associated with an event in the lifecycle of the resource February 9 1984 Title A name given to the resource Agent Orange Deaths Found in Brazil ao_seriesVIII https://www.nal.usda.gov/exhibits/speccoll/files/original/4ef01a1df08acdfbd2250c0e13439fd1.pdf 5dfe85ecd4b72f6460ba1f12a9a170bd PDF Text Text Item D Number °5549 D fl0t Scanned Author Corporate Author RODOrt/ArtlOlB Title Agent Orange Exposure Study - Decision Tree/Time Table Journal/Book Title Year 000 ° Month/Day Color n Number of Images ° Doscrtyton Notes Tuesday, March 19, 2002 Page 5549 of 5611 �AGENT ORANGE EXPOSURE STUDY — Decision Tree / Time Table CDC examines TCDD levels in paired fat/blood samples; lab undergoes external quality control review. Data sent to AOWG/OTA for review. CDC requests DOD to permit ESG to participate in protocol development for a TCDD validation study (see last page). 8/31/86 AOWG/OMB/OTA review (2-4 weeks) 'Tat/ blood Correlation* Domestic Policy Council \ considers recommendation j to cancel APE Study j GO 9/30/86 CDC prepares TCDD validation rotocol — to IRB o review new herbicide exposure questions 10/10/86 AOWG/l TA review (4 weeks) Modify * GO 1/15/86 NG "START" of validation study 11/15 - 12/30/86 Final selection of 500 "high" and 300 "low" exposure men from among 5000 qualifying men with data already at CDC. Names to contractors for location, interview, exam &/or bleeding of at least 400 cooperators. (See option paper.) "START" + 1 mo. Interview (& exam) data returned with blood specimens weekly. Complete study andTprepare report. "START" -f 4-6 mo. 6/87 (New data from other sources) VES mortality/morbidity data-> VA, Ranch Hand, etc. data—> CDC peer review (2-4 weeks) all data—" recommend NG GO 7/87 To next page for AOWG/OTA review �.X—•> From previous page AOWG/(OMB; OTA review (2-4 weeks) NG GO J'START" + 8 mo. 8/87 Domestic Policy Council considers recommendation to cancel APE Study T CDC re-writes Agent Orange Exposure Study protocol sections on ~\ \ exposure estimation and submits for review. "START" + 9 mo. 1 , 9/87 s— ^ AOWG/QMB OTA review (4 weeks) *>c "%dl Modify / protocol \ GO "START" + 10 mo. 10/87 Start Agent Orange Exposure Study "START" + 10 mo. Finish data analyses, available for peer review "START" + 28 mo. Final reports for publication/release to agencies "START" + 34 mo. 10/89 �Notes for the Agent Orange Exposure study time table: o The time table shown on the previous pages depend on the timeliness of the 5 separate review cycles indicated. o The three tasks involving ESG in protocol development for the 400-man TCDD validation study are: a. Providing to CDC a copy of ESG's new tape shbwing unit location data developed during their recent 7-battalion pilot study, thus allowing CDC to use more accurate estimates of probable exposure. b. Receiving the ID'S and names from CDC of 300 "low exposure" candidates and verifying that they qualify for this category. c. Receiving the ID'S and names from CDC of 500 "high exposure" candidates and verifying that they qualify for this category. The task of utmost urgency in preparing the protocol is the copy of the tape with improved unit location data. The other two tasks are important to serve as a guide to CDC in determining the final "cut points" to put into the protocol (along with data to defend those points). Any delay in the above will delay the delivery of the TCDD validation protocol to AOWG/OTA for review. � Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource Alvin L. Young Collection on Agent Orange Description An account of the resource <p style="margin-top: -1em; line-height: 1.2em;">The Alvin L. Young Collection on Agent Orange comprises 120 linear feet and spans the late 1800s to 2005; however, the bulk of the coverage is from the 1960s to the 1980s and there are many undated items. The collection was donated to Special Collections of the National Agricultural Library in 1985 by Dr. Alvin L. Young (1942- ). Dr. Young developed the collection as he conducted extensive research on the military defoliant Agent Orange. The collection is in good condition and includes letters, memoranda, books, reports, press releases, journal and newspaper clippings, field logs and notebooks, newsletters, maps, booklets and pamphlets, photographs, memorabilia, and audiotapes of an interview with Dr. Young.</p> <p>For more about this collection, <a href="/exhibits/speccoll/exhibits/show/alvin-l--young-collection-on-a">view the Agent Orange Exhibit.</a></p> Text A resource consisting primarily of words for reading. Examples include books, letters, dissertations, poems, newspapers, articles, archives of mailing lists. Note that facsimiles or images of texts are still of the genre Text. Box The box containing the original item. 197 Folder The folder containing the original item. 5549 Series The series number of the original item. Series VIII Subseries I Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource Agent Orange Exposure Study - Decision Tree/Time Table ao_seriesVIII Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource Alvin L. Young Collection on Agent Orange Description An account of the resource <p style="margin-top: -1em; line-height: 1.2em;">The Alvin L. Young Collection on Agent Orange comprises 120 linear feet and spans the late 1800s to 2005; however, the bulk of the coverage is from the 1960s to the 1980s and there are many undated items. The collection was donated to Special Collections of the National Agricultural Library in 1985 by Dr. Alvin L. Young (1942- ). Dr. Young developed the collection as he conducted extensive research on the military defoliant Agent Orange. The collection is in good condition and includes letters, memoranda, books, reports, press releases, journal and newspaper clippings, field logs and notebooks, newsletters, maps, booklets and pamphlets, photographs, memorabilia, and audiotapes of an interview with Dr. Young.</p> <p>For more about this collection, <a href="/exhibits/speccoll/exhibits/show/alvin-l--young-collection-on-a">view the Agent Orange Exhibit.</a></p> Text A resource consisting primarily of words for reading. Examples include books, letters, dissertations, poems, newspapers, articles, archives of mailing lists. Note that facsimiles or images of texts are still of the genre Text. Box The box containing the original item. 186 Folder The folder containing the original item. 5375 Series The series number of the original item. Series VIII Subseries I Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Creator An entity primarily responsible for making the resource Dutton, Julie A. Source A related resource from which the described resource is derived The Stars and Stripes - The National Tribune Date A point or period of time associated with an event in the lifecycle of the resource August 5 1982 Title A name given to the resource Agent Orange Legislation ao_seriesVIII https://www.nal.usda.gov/exhibits/speccoll/files/original/d2fca94d20cf5e8ab57d362cec515b2c.pdf b39480fda13c199b80ca90ab38534ed9 PDF Text Text Item D Number °5496 Author Corporate Author ROpOrt/ArtlGlO TltlB A 9ent Orange Litigation Team, 1984 Journal/Book Title Year 000 ° Month/Day Color D Number of Imaofls ° DBSCPlpton Notes Items filed together under the above title. Includes personnel lists, deposition digest, and procedures for document reviewers. Friday, March 15, 2002 Page 5496 of 5571 �R E S P O N S I B I L I T Y " A G E N T A I R F O R U S E F O R C E O R A N G E " 78% A R M Y 2 0 % N A V Y 2 % �M A K E U P O F P R O J E C T A R M Y M S C C H E M 1 D A C A I R 1 1 F O R C E N A V Y U S M C U S P H S V E T E R A N S A D M I N I S T R A T I 0 N C O N T R A C T O R 1 22 32 �S E A R C H F O R R E Q U I R E M E N T S I N F O R M A T I O N P R O J E C T S T A R T R E M A I N I N G 2 0 % 1 0 % A R M Y 7 0 % 3 0 % N A V Y 1 0 0 % 4 0 % U S M C 1 0 0 % 4 0 % A I R F O R C E �T O T A L D O C U M E N T S P R O V I D E D 4, 7 0 0 T O T A L R E M A I N I N G P A G E S E S T I M A T E D P A G E S 6 0 0 0 0 R E V I E W D 2 5 0 , 0 0 0 R E M A I N I N G D A Y S OF O P E R A__T _I O N 2 1 T O T A L D A Y S 0 F O P E R A T I O N 8 4 �S O U R C E S O F I N F O R M A T O N W H I T E H O U S E DEPT. OF S T A T E DEPT. OF D E F E N S E DEPT. OF A R M Y DEPT. OF N A V Y DEPT. OF A G R. N. I. H. N. A. S. A R M Y W A R D C S 0 P S D C S R D A C O L L E G E �R. Kainz TASK COORDINATOR REVIEW SERVICE* B. Buckingham CO-TASK COORDINATOR f— • :—i 1 --- ...... ........ John Headen ARMY POLICY CHEMICAL CORP* HERB DOCTRINE S. Schaub R. Kainz TOXICOLOGY AND ADVERSE HEALTH EFFECTS WATER - ENV. HEALTH EFFECTS CHB1ISTRY 1 S. Blackhurst CACI PROJECT MANJ, DOCUMENT REVIEW B. Buckingham MR FORCE DOD POLICY STATE DEPT POLICY P.] •L. SoloiTDn G. Vtoately "PARALEGAL •D^Carnevate D. DOC. CNTRL. DOC. CNTRL. R. Doby CLERK D. Bell 'DATA PROCESSOR •C. Battlfetf ' K. Hill /rl flOL/i-jeS -Ws Anderson 'DEPOSITIONS I L. Young PARALEGAL R. Bates J. Chaffee PARALEGAL H. McGlade Alvin Young's *~ E f'A ^ T H. Wilson _ _^ ^ i= PARALEGAL" " f J. Norris PARALEGAL PRESENT PROJECTED STAFF SCIENCE 10 10 1 SUPPORT ADMIN 1% 4g 24 4 0 • "2& 38 C. Goffe PARALEGAL G. Acker LEGAL SUPPORT SAFEWAY LOSS \ 3 TOTAL J. Hsia LEGAL SUPPORT SAFEWAY R. Scotton LEGAL SUPPORT SAFEWAY * one contract for service M COMPUTER CODING - . - l - H V;-. t: / V ~ ' �THIS COPY OPIATED JULY 30 Page 1 PERSONNEL LIST Re: In re "Agent Orange" Product Liability Litigation, MDL No. 381 Trial Attorneys Arvin Maskin (0)724-6744 (H)652-7139 No Negligence; U.S. acted reasonably under circumstances Gretchen Witt (0)724-6725 (H)589-5042 Federal Tort Claims Act Defenses Robert Longstreth (0)724-7953 (H)544-5803 Issues: U.S. owes no duty to Plaintiffs or Third Party Plaintiffs. Includes all contract issues. Patrick Cavanaugh (0)724-6888 (H)255-0908 Causation re Miscarriages & Birth Defects Judith Sack (0)724-6734 (H)654-1877 No Negligence U.S. acted reasonably under all the circumstances Leon Taranto (0)724-6812 (H)(301)-589-5660 Causation re Miscarriages & Birth Defects Michael Fawcett (0)724-6812 (H)536-2950 Safeway Document Coordination Clarisse Abrams (0)724-7662 (H)250-9017 Litigation Support Case Manager �Page 2 NAME PHONE AREAS Hone Robert Kainz Steve Schaub Work ARMY MAJOR Toxicology Adverse Health Effects (30D-845-2089 (202)-783-8620 ARMY DAC (0-9-81 3D7562 (202)-783-8625 Water-Environment Health Effects Chemistry Bill Buckingham AIR FORCE MAJOR DOD Policy Dept. of State Policy (703)-321-8490 John Headen ARMY MAJOR/VA Army Policy Chemical Corps Herb Doctrine (301)-292-0396 (0)7382 22-8-67 ARMY LTC (202)-328-0860 (202)-783-8627 (703)-941-4371 (202)-783-8627 (703)-922-9421 (202)-783-8627 (30D-585-2780 (202)-783-8621 (703)-821-8673 (202)-783-8627 (202)-347-8827 (202)-783-8622 Charles Bartlett Roger Bates G St. (202)-783-8621 (0)6318/ 22-9-33 1393 or 767-5088 Army Chemical Corps Officer/Chem Opns. NAVY CDR International Affairs Mike Holmes NAVY CDR Larry Solomon PHS ICDR Environmental Science David Carpenter State Dept. — foreign Affairs William Anderson MARINE CORPS, JAG USMC — History, Operations, Policy International Affairs CACI STAFF Steve Blackhurst C.A.C.I. INC. Project Manager �Page 3 Henry McGlade Supervisor Shoreham Paralegal's (30D-229-0337 (202)-376-8858 (703)-978-2475 (202)-783-8624 (202)-686-0257 (202)-376-8858 (703)-548-7440 (202)-376-8858 (202)-364-8466 (202)-376-8858 Supervisor G Street Paralegal's (202)-882-5637 (202)-783-8624 Louis Young Paralegal (30D-664-6336 (202)-783-8624 Denise Bland Doc. Control (30D-568-6677 (202)-783-8624 Gail Whatley DDC. Control (703)-960-3182 (202)-783-8624 Elise Joyner Paralegal (301)-336-3938 (202)-783-8625 Frances Landers Document Control (703)-971-2046 (202)-783-8624 Dan Bell Data Processor (703)-660-6490 (202)-783-8624 Robert Doby Clerk (301)-921-4365 (202)-783-8624 Rick Scotton Supervisor — Safeway Paralegal's (30D-270-4251 (202)-783-8623 Elizabeth Jarrell Paralegal (30D-530-3291 (202)-783-8624 Gregory Campbell Paralegal (202)-829-8772 (202)-783-8624 Dave Simmons Paralegal (703)-525-8344 (202)-783-8627 James Hsia Paralegal (301)-495-3191 (202)-783-8624 Gary Acker Clerk (703)-892-5673 (202)-724-7954 Jean Chaffee James Norris Curtis Goffe Holly Wilson Keith Hill Paralegal Paralegal Paralegal Paralegal �THIS OOPY UPDVTED August 8, 1984 Page 1 PERSONNEL LIST Re: In re "Agent Orange" Product Liabil ity Litigation, MDL No. 381 Trial Attorneys Arvin Maskin (0)724-6744 (H)652-7139 No Negligence; U.S. acted reasonably under circumstances Gretphen Witt (0)724-6725 (H)589-5042 Federal Tort Claims Act Defenses Robert Longstreth (0)724-7953 (H)544-5803 Issues: U.S. owes no duty to Plaintiffs or Third Party Plaintiffs. Includes all contract issues. Patrick Cavanaugh Causation re Miscarriages & Birth Defects ()2-88 07468 (H)255-0908 Judith Sack (0)724-6734 (H)654-1877 No Negligence; U.S. acted reasonably under all the circumstances Leon Taranto Causation re Miscarriages & Birth Defects (0)724-6812 (H)(301)-589-5660 Faith Burton (O) 724-6701 (H) 244-4027 Contribution and Indemnification Michael Fawcett (0)724-6812 (H)536-2950 Safeway Document Coordination Clarisse Abrams (0)724-7662 (H)250-9017 Litigation Support Case Manager �Page 2 AGENT ORANGE LITIGATION PROJECT NAME AREAS PHONE Hone Robert Kainz Steve Schaub Work ARMY MAJOR CHAIRMAN "A.O." L.P. Toxicology Adverse Health Effects (30D-845-2089 (202)-783-8620 ARMY EAC (30D-795-6821 (202)-783-8625 Water-Environment Health Effects Chemistry Bill Buckingham AIR FORCE MAJOR DOD Policy Dept. of State Policy (703)-321-8490 John Headen ARMY MAJOR/VA Army Policy Chemical Corps Herb Eoctrine (301)-292-0396 (202)-783-8627 Charles Bartlett ARMY LTC (202)-328-0860 (202)-783-8627 (703)-941-4371 (202)-783-8627 (703)-922-9421 (202)-783-8627 (301)-585-2780 (202)-783-8621 (703)-821-8673 (202)-783-8627 G St. (202)~783-8621 (202)-693-1383/ 1393 or 767-5088 Army Chemical Corps Officer/Chem Opns. Roger Bates Mike Holmes Larry Solomon NAVY CDR International Affairs NAVY CDR International Affairs PHS LCDR Environmental Science William Anderson MARINE CORPS, JAG USMC — History, Operations, Policy Tim AIR FORCE, Auditor (202)-783-8625 Lynch CACI STAFF Steve Blackhurst C.A.C.I. INC. Project Manager (202)-347-8827 (202)-783-8622 �Page 3 Henry McGLade Supervisor — Shoreham Paralegal's (30D-229-0337 (202)-376-8858 Jean Chaffee Paralegal (703)-978-2475 (202)-783-8624 James Morris Paralegal (202)-686-0257 (202)-376-8858 Curtis Goffe Paralegal (703)-548-7440 (202)-376-8926 Holly Wilson Paralegal (202)-364-8466 (202)-376-8915 Keith Hill Supervisor — G Street Paralegal's (202)-882-5637 (202)-783-8624 Louis Young Supervisor — Misc. Searches Paralegal's (30D-664-6336 (202)-783-8624 Denise Bland Document Control (30D-568-6677 (202)-783-8624 Gail Whatley Document Control (703)-960-3182 (202)-783-8624 Elise Joyner Paralegal (30D-336-3938 (202)-783-8625 Frances Landers Document Control (703)-971-2046 (202)-783-8624 Dan Bell Data Processor (703)-660-6490 (202)-783-8624 Robert Doby Clerk (30D-921-4365 (202)-783-8624 Rick Scotton Supervisor — Safeway Paralegal's (30D-270-4251 (202)-783-8623 Elizabeth Jarrell Paralegal (30D-530-3291 (202)-783-8624 Gregory Campbell Paralegal (202)-829-8772 (202)-783-8624 Dave Simmons Paralegal (703)-525-8344 (202)-783-8627 James Hsia Paralegal (30D-495-3191 (202)-783-8624 Gary Acker Clerk (703)-892-5673 (202)-724-7954 Karen Katehmeric Paralegal (703)-751-4437 (202)-783-8624 Leon Anderson Paralegal (30D-439-5308 (202)-783-8624 �Agent Orange^Litigation Deposition j)igest Deponent Date of Depostion Date Red from DOJ Date Rtd to DOJ Anderson, A.W. 09/29/82 05/09/84 6/25/84 Anderson, R. 09/08/82 Anderson, G.A. 3/22/83 Andreoli, R. L. 21/23/83 07/09/84 Angel, J. 09/13/83 5/07 6/28 Arnoldi, L.B. 9/12/83 Arvan, P.G. 11/28/83 5/07 6/29 Arvan, P.G. 04/06/84 07/09/84 Atkinson, R.A. 12/20/83 5/09 Atkinson, J.C. 5/2/83 Atkinson, J.C. 6/14/83 Bak, E. 1/27/83 07/09/84 Baldeschwieler, J.D. 03/13/84 5/03 6/29 Baldeschwieler, J.D. 08/04/33 4/30 6/21 Ballman, O.K. 11/01/83 4/30 6/21 Barthel, W.F. 11/18/82 Barthel, W.F. 7/11/83 Bates R.R. 7/21/82 Bauer, G.L. 02/11/83 5/09 6/19 Beatty, G. 3/27/84 Betts, R.H. 11/10/83 5/09 7/12 Bing, P.S. 07/15/83 5/09 6/29 Birmingham, D. 8/26/82 07/09/84 Birmingham, D. 8/27/82 07/09/84 6/22 �-2- Deponent Date of Deposition Date Red from DOJ Date Rtd to DOJ / Blair, E. 03/27/84 5/09 6/21 Blair, E.H. 3/31/83 5/03 6/01 Bock, E.J. 4/17/84 07/09/84 Bohl, C.D. 3/30/84 07/09/84 Bontoyan W.R. 6/13/83 Borror, J.A. 10/21/83 5/07 Boyer, L. 2/10/83 07/09/84 Brown, H. 01/20/83 5/09 7/02 Buckley, J.L. 08/17/83 5/09 6/27 Buckley, J.L. 09/22/82 5/09 7/17 Burcham, L.T. 1/20/83 07/09/84 Burton, J.E. 3/17/83 07/09/84 Bush, J.S. jr. 2/22/83 Bushey, C.E. 2/14/83 07/09/84 Bushy, C.E. 1/19/84 07/09/84 Byerly, T.C. 12/09/82 07/09/84 Byers, D.H. 6/18/83 Callahen, J. 11/16/82 6/01 7/19 Calvin, M. 11/09/83 5/07 6/25 Calvin, M. 12/02/83 4/30 5/10 Cawthorne, D.M. 8/15/83 Chandler, E.L. 12/08/83 5/09 7/12 Chonoles, R. L. 10/17/83 5/07 7/02 Christofano, E.H. 02/09/84 5/03 5/29 Christofano, E.H. 02/10/84 5/03 5/23 7/02 �-3- Deponent Date of Depostion Date Red from DOJ Coates, J.F. 7/14/83 07/09/84 Codario, R.A. 03/25/84 4/30 Connel, G.W. 8/15/83 07/09/84 Codario, R.A. 03/26/84 4/30 5/29 Courtney D. 7/4/83 Courtney D. 7/27/82 Courtney, K.D. 3/20/84 6/05 7/19 Cox, N.H. 02/01/83 6/05 6/21 Cox, R.E. 2/07/84 07/09/84 Cox, R.E. 12/08/82 6/01 7/19 Crawford, W. 02/15/83 6/01 6/29 Creasy, W.M. 07/18/83 5/09 6/22 Crittenden, E. 2/10/84 5/03 5/23 Crummett, W. 09/16/83 5/21 6/25 Cutright, E.A. 01/18/84 4/30 7/17 Daniels, R.G. 8/09/83 07/09/84 Darrow, R.A. 07/13/82 5/03 6/01 Dashiell, T.R. 02/10/83 5/03 6/29 Delmore, F.J. 02/02/83 4/30 5/31 Dipaolo, J.A. 1/18/83 Dolin, D. 10/20/83 5/07 6/21 Dotson, L.E. 11/02/83 4/30 6/21 Doty, P. 09/07/83 4/30 6/25 Douglas, F.G. 10/04/83 5/07 7/02 Doyle, H.N. 8/30/83 Dubridge, L.A. 02/22/83 5/09 7/12 DuGuid, R. H. 8/12/83 Dunn, C.L. 03/08/84 5/03 6/27 Date Rtd to DOJ ' 6/19 �-4- Deponent Date of Deposition Date Red from DOJ Date Rtd to DOJ • Dunn, C.L. 04/28/83 5/09 6/25 Early, J.D. 11/04/83 4/30 6/28 Eckhaus, S.R. 09/23/82 5/03 7/19 Eckhaus, S.R. 10/06/82 4/30 6/12 Eckhaus, S.R. 3/13/84 5/10 6/29 Edwards, F.I. 01/13/83 5/09 6/27 Endicott, K.M. 5/2/83 Ennis, W.B. 10/19/82 4/30 5/23 Essman, G.C. 08/01/83 5/09 6/25 Evans, T.H. 03/30/84 6/01 7/02 Ewalt, G.W. 02/20/84 5/04 7/17 Ewalt, G.W. 02/21/84 5/04 7/12 Fairclough, W.A. 11/22/83 5/07 6/21 Falconer, D.W. 07/15/82 5/09 6/22 Falsey, W.F. 10/24/83 4/30 6/29 Fenner, W.A. 01/19/83 5/03 7/11 Firestone, D. 10/14/82 6/01 6/27 Firestone, D. 9/21/82 07/09/84 Fischbach, H. 1/5/83 Fishbein, L. 12/14/82 Fitzhugh, A.G. 1/20/83 Fitzhugh, A.G. 3/28/83 Ford, D.L. 02/20/84 4/30 5/31 Ford, D.L. 02/21/84 4/30 5/10 Ford, J.J. 02/09/84 4/30 7/19 Foster, j . 12/15/82 5/09 Frawley, J.P. 3/08/83 5/03 7/11 6/28 07/09/84 �-5- Deposition Date of Deposition Date Red from DOJ Date Rtd to DOJ / Frawley, J.P. 02/07/84 5/03 6/21 Frawley, J.P. 02/08/84 5/03 6/25 Fredericks, H.G. 12/17/82 07/09/84 Friess, S.L. 12/7/82 Fryklund, V.C. jr. 8/25/83 Fuhlhage, D.W. 10/04/83 5/03 5/29 Galston, A.W. 03/15/84 4/30 6/22 Galston, A.W. 03/16/84 4/30 5/10 Gardner, J.H. 02/24/83 5/03 6/01 Gastineau R.M. 6/28/83 Gehring, P.J. 01/10/84 5/03 6/22 Gerety, J.H. 2/17/83 07/09/84 Gervasoni, T.R. 2/28/84 Gill, H.H. 03/10/83 5/03 5/10 Gill, H.H. 03/25/83 5/03 5/23 Gill, H.H. 12/20/83 5/03 6/21 Gordon, N. 5/5/83 Granito, C.E. 02/07/83 5/09 6/29 Griffin, H.E. 7/11/83 07/09/84 Groth, D.H. 7/20/82 07/09/84 Hager, F.M. 3/29/84 07/09/84 Harkins, P.O. 08/22/83 4/30 5/31 Harris, B. 11/10/82 Harris, W.D. 10/25/83 5/07 6/29 Hart, E.R. 6/29/83 07/09/84 Hart, W. 10/03/83 5/09 6/29 �•6- Deponent Date of Deposition Date Red from DOJ Date Rtd to DOJ / Hay, A. 3/26/84 5/09 7/27 Hayes, W.J. 4/07/83 07/09/84 Hays, H.W. 12/09/82 07/09/84 Hayward, A.E. 03/10/83 5/03 Heaston, R. J. 8/11/83 07/09/84 Hebbeler, J.A. 12/02/82 07/09/84 Hebbeler, J.A. 07/14/83 5/09 6/33 Heiman H. 4/13/83 Helm, D.G. 11/16/83 5/09 7/02 Herrero, B.A. 8/31/83 07/09/84 Hickman, R.A. 12/01/83 4/30 Higginbotham, G.R. 9/16/82 Hobson L. 4/12/84 Hobson L. 4/13/84 Hochberg , M. 3/23/84 07/09/84 Hoffman, P.P. 11/22/83 5/07 7/11 Holdeman, G. 11/30/83 5/09 6/28 Holder, B.B. 01/6/84 5/03 6/22 Holmes, R. D. 3/23/84 07/09/84 Horton, r. 10/21/82 6/01 Horton, R. G. 8/23/83 07/09/84 Horwitz W. 5/2/83 Houk, V. 3/26/84 Houk, V. 3/27/84 Houseright, R.C. 02/03/83 5/09 6/25 Irish, K.R. 07/26/82 5/09 6/25 Jacobson K.H. 11/24/82 Jandorf, B.J. 6/29/82 6/01 7/19 5/29 6/21 7/17 �-7- Deponent Date of Deposition Date Red from DOJ Date Rtd to DOJ / Jandorf, B.J. 7/01/82 6/01 7/19 Jefferies, M.A. 02/15/84 4/30 6/25 Johnson, J. 03/07/84 5/07 7/06 Jordan, C.A. 02/24/84 6/01 7/13 Jordan, D.F. 02/23/84 5/04 6/12 Jordan, D.F. 02/24/84 5/04 6/28 Jordan, D.G. 02/22/84 5/04 5/10 Jordan, D.G. 4/30/84 5/04 5/23 Jordan, David 09/14/83 5/07 6/19 Jordan, M. 02/24/84 6/01 6/27 Kaplan, A.S. 01/25/83 5/09 6/29 Kearney, P.C. 08/03/82 5/09 7/11 Kearney, P.C. 08/16/82 5/09 6/28 Keeny, S.M. 04/29/83 5/09 7/11 Kelly, R.E. 11/30/83 5/03 7/11 Kelly, R.E. 02/14/84 5/03 7/06 Kerapson, G.C. 01/20/84 5/03 6/12 Kennedy, D.F. 01/21/83 5/09 7/02 Key, M. 07/30/82 6/01 7/13 Key, M.M. 7/8/82 King, J.O. 3/16/84 07/09/84 Kinne, B.C. 3/14/84 07/09/84 Kissinger, H. 03/02/83 6/01 Klein M. 6/23/83 Klingman, K. 12/16/82 Kolbye, A.C. 06/06/83 07/09/84 6/29 �-8- Depqser Date of Deposition Date Red from DOJ Koster, W.R. 1/27/84 07/09/84 Kratz, W.G. 10/20/83 07/09/84 Lambiotte, D.G. 02/24/84 5/04 6/28 Lambiotte, D.G. 02/25/84 5/04 6/25 Lawton, G. 02/25/83 6/01 7/19 Lawton, G.M. 8/05/83 07/09/84 Lawton, G.M. 4/07/83 07/09/84 Lawton, G.M. 1/27/83 07/09/84 Leary, J.S. 01/11/83 5/09 6/22 Lee, D.H.K. 1/18/83 Lee, D.H.K. 1/30/84 Leasure, J.K. 12/13/83 4/30 6/12 Le ng , M. 10/26/83 5/07 6/21 Lewis, J. 08/24/83 5/09 7/06 Lindsey, D. 07/06/83 5/09 7/11 Luecke, C.L. 3/23/84 07/09/84 MacDonald, G.J. 04/22/83 5/09 6/29 Magnuson, H.J. 17/12/83 5/09 6/28 Marrese, R.J. 12/13/83 4/30 6/29 Maskill, R.E. 11/17/83 5/07 7/17 Mason, J. 01/10/84 5/03 6/27 Maurey, L.G. 02/09/84 5/09 5/23 McCarville, W.J. 02/11/83 5/09 6/29 McCreesh, A.H. 8/22/83 McFarland, H.N. 6/29/83 McCollister, D. 12/14/83 5/09 6/29 Date Rtd to DOJ ' �-9- Deposer Date of Deposition Date Red from DOJ Date Rtd to DOJ' McCollister, D.D. 3/30/83 07/09/84 McDonald, G. 06/06/83 6/01 7/19 McElroy, W.D. 07/13/83 5/09 7/11 McNamara, R.S. 12/16/83 5/09 6/29 McRae, V. 04/01/83 5/09 6/21 Melvin, W. 02/15/83 6/01 7/27 Metcalf, E. 10/05/82 6/01 7/11 Miller, L. 11/09/82 6/01 7/06 Minarik, C. 07/27/82 6/01 7/12 Minarik, C. 07/28/82 6/08 7/13 Minarik, C. 07/29/82 6/01 7/11 Mitchell, I. A. 07/01/83 5/09 6/22 Morthland R.W. 2/23/83 Mukerjee, D. 13/08/84 6/05 6/29 Mukerjee, D. 03/09/84 6/05 6/29 Nummy, W.R. 10/28/83 5/07 6/29 Ognibene, A.J. 03/22/84 4/30 6/29 Ognibene, A.J. 03/23/84 4/30 7/11 Oleary, J.F. 7/21/83 Olenchuk, P.G. (requested , not received) Oliver, N.E. 8/24/83 Orris, P. 03/26/84 4/30 5/29 Osheroff, B.J. 01/18/83 5/09 7/02 Parks L.A. 08/31/83 5/09 6/22 Peterson, J.E. 10/17/83 5/07 6/27 Petrucelli, L.M. 1/12/83 �-1 fl- Oe poser Date of Deposition Date Red from DOJ Date Rtd to DOJ ' Poland, A. 03/02/83 6/01 7/19 Fossick, P.A. 1/3/83 Purdy, D.M. 01/05/84 5/03 6/28 Rabstein, M.M. 3/23/83 07/09/84 Rechtin, E. 08/30/83 5/07 Reynard, K.A. 2/25/83 07/09/84 Rhodes, V. 12/17/84 5/09 6/12 Ringenberg. M 12/01/82 5/09 6/25 Robison, V.B. 10/19/83 07/09/84 Rowe, V.K. 03/16/83 5/03 7/06 Rowe, V.K. 03/21/84 5/03 7/11 Rumer, R.R. 11/18/83 5/09 7/12 Russell, C.H. 15/02/83 5/09 6/22 Ryan, M.A. 03/05/84 5/04 7/17 Ryan, M.A. 04/04/84 5/07 7/11 Ryan, M. F. 02/23/84 6/01 7/27 Rya n, M. F. 03/06/84 5/03 7/11 Sass S. 2/28/84 07/09/84 Schambra, W.P. 11/16/83 5/09 7/12 Schlesinger, A.J, 03/01/83 5/09 7/02 Schwetz, B. 01/17/84 4/30 5/10 Scott, R.B. 02/10/84 4/30 5/31 Shade, R.A. 3/17/83 07/09/84 Sharp, D.B. 10/20/83 4/30 5/31 Shaw, W.C. 09/09/82 5/03 6/29 Shaw, W.C. 08/17/82 5/03 7/11 6/19 �-11Depqser Date of Deposition Date Red from DOJ Date Rtd to DOJ' Shead, C.G. 09/30/82 6/01 7/11 Sidwell, A.E. 03/06/84 5/03 6/01 Sidwell, A.E. 03/07/84 5/03 6/01 Silbergeld, E.K. 03/19/84 4/30 7/06 Silver, S. 4/14/83 07/09/84 Silverstein, L. 03/02/84 5/03 7/19 Sim, V.M. 07/19/82 5/09 6/29 Simmons, T.C. 08/30/83 6/01 7/19 Sinclitico, A. 12/09/83 5/09 7/02 Smeraldi, J.G. 08/17/83 5/03 5/23 Smith, T. K. 4/12/84 07/09/84 Spencer, H.C. 10/21/83 5/07 6/22 Speziale,' A.J. 10/26/83 4/30 5/29 Springgate, J.E. 10/27/83 4/30 6/21 Stanwix-Hay, A. 03/08/84 6/01 7/13 Steinberg, M. 8/16/83 07/09/84 Stephens*. J.A. 10/17/83 4/30 5/31 Steward,. F.G. 10/19/83 5/09 7/12 Stewart, C.E. 8/17/83 07/09/84 Stone, W.W. 10/26/82 4/30 6/29 Strum, J.C. 12/16/83 5/09 6/27 Sultan, W.E. 9/15/82 07/09/84 Summerson, W.H. 3/22/83 07/09/84 Sunderland, W.W. 11/02/83 4/30 5/10 Sweet, D.W. 07/06/83 5/09 7/11 �-12- Dejposer Date of Deposition Date Red from DOJ Szabo, S.S 6/03/83 07/09/84 Taves, M. 12/08/84 5/09 6/27 Taylor, M. 04/27/83 5/09 6/29 Thompson, W. 02/24/84 5/09 7/17 Thompson, W. 03/24/83 6/01 7/02 Thompson, W.T. 9/16/83 Townes, C.H. 11/07/83 5/09 6/25 Traub, J.L. 2/04/83 07/09/84 Treglia, T.A. 01/24/83 5/09 Treisback, A.L. 3/30/84 07/09/84 Udell, W.R. 5/04/83 07/09/84 Upholt, W. 8/4/82 Upton, E.T. 4/07/83 07/09/84 Upton, E.T. 4/08/83 07/09/84 Vanderventer, E.W. (ordered but not yet received) Vargas, F. 09/16/83 Verhulst, H.L. 8/19/83 Vocci, F.J. 11/03/82 Ward D.M. 8/19/83 Warnke, P. Date Rtd to DOJ , 6/29 4/30 6/12 5/09 7/17 12/09/82 6/01 7/12 Warren, H. 04/10/84 5/03 6/19 Webber, R.T. 10/31/83 4/30 6/28 Weimer, J.T. 08/18/83 6/01 6/25 Weisner, J.B. 10/06/83 5/07 6/19 Wells, R.F. 3/22/84 07/09/84 Westheimer, F.H. 09/08/83 5/07 6/12 �-13- Deponent Date of Deposition Date Red from DOJ Date Rtd to DOJ , Westmoreland, W.C. 03/03/83 6/01 7/12 Wheeler, E.P. 11/03/82 5/09 7/02 Whittam, D. 2/08/83 07/09/84 Wilkenfeld, J. 3/25/83 07/09/84 Wills, J.H. 4/12/83 07/09/84 Wiltse, M.G. 12/02/83 5/09 6/25 York, H.F. 08/03/83 4/30 6/19 Young, A.L. 4/13/84 07/09/84 Young, A.L. 4/20/84 07/09/84 Zielinski, W.L. 8/03/83 07/09/84 Zorsch, C.P. 05/03/83 5/09 (TOTAL) 350 6/29 �Document Nb.:__jS File Title: COPY: Attorney: Exhibit No. ISSUE SHEET FOR AGENT ORANGE INFORMATION Batch Roll Reviewer: Supplying Agency & Office: Author & Organization: Recipient & Organization: Title: Date: Total Pages: Page Request List: Rating Information To Look For: 12345 I. 12345 12345 Federal Tort Claims Act Defenses (GEW): A. Feres DocitrIne All injuries arose out of or were incident txTlniiTtary" service. 1. Soldiers came in contact with Agent Orange while on active duty in Vietnam: 12345 2. Ranch Hand and other defoliation teams only came in contact with AO while spraying in Vietnam: 12345 3. Persons involved in procurement, shipping, storage or loading were soldiers on active duty. 12345 B. Combatant Activities; The program was combat support. The decisions or actions which are alleged to be negligent were taken as part of combat operations of the armed forces or any harm that resulted occurred during combat operations (i.e., Vietnam). 12345 C. Foreign Country; All injury (exposure) ocurred in Vietnam, Laos, or Cambodia, or in other foreign countries where testing was being done. All decisions were made in Vietnam: 12345 D. Discretionary^ Function; The alleged negligent acts or omissions resulted fromT the"decisions that were made at the descretion of the decision maker. Look for weighing and balancing of ANY factors in decisions, MY decisions. 12345 1. Most decisions were made at high levels: 12345 2. Decisions were made following weighing of benefits of using the defoliants against the risks of using the defoliants: �•v • t Rating InfoonaticMi To look For: 12345 3. Decisions regarding deployment of defoliants in Vietnam (specific missions, etc.) followed weighing of factors: 12345 4. Decisions on instructions to users or combat troops, use of safety equipment, etc, were made after considering the combat situation. 12345 II. 12345 Exposure To Agent Orange In Vietnam Did Not Cause Plaintiff's Injuries (POC; LT): A. The type and amount of the plaintiffs' exposure to A.O. in Vietnam could not cause harm: 12345 1. Type of Exposure: 12345 2. Duration of Exposure: 12345 3. 12345 4. Alternative Substances to which soldiers may have been exposed: 12345 5. Medical Problems in Vietnam (e.g., skin diseases): 12345 12345 B. Dioxin does not cause birth defects in children and miscarriages in wives of men exposed: III. The United States was not negligent in its testing, selection, specifications for or deployment of A.O. (we were reasonable) (AM; JMS); A. 12345 Level of Dioxin to which soldiers were exposed: The Military chose a reasonable means to achieve an important end (saving U.S. lives): 1. Defoliants served a vital combat role: 12345 a. Decreased risk of ambush: 12345 b. Enabled to track enemy troop movements: 12345 c. Deprived enemy of food sources: 12345 d. Frightened enemy: 12345 2. Military did not become aware of significant health or ecological issues until the late 1960's: 12345 a. Military believed AO was non-toxic to users or persons accidentally sprayed: 12345 b. Military believed AO had only minor occupational health hazards to manufacturing employees: 12345 c. Military was not aware of presence of dioxin in AO: 12345 d. Military did not have technical ability to detect dioxin 12345 in AO: 3. __^__ Program was periodically reviewed for effectiveness: �Rating 12345 12345 In£brmation Tb Ipok_ For; B. Military chose defoliants carefully to meet their performance needs: 1. Military relied upon chemical companies: 12345 a. Military stated the purpose of the program and sought recommendation for safe, effective defoliants: 12345 b. Chemical companies gave advice on defoliants and gave proposed specifications: 12345 c. Chemical companies participated in military testing of suggested defoliants in Panama, Puerto Rico, Thailand, Florida and Hawaii: 12345 2. Military sought available, safe, commercial defoliants: 12345 a. Defoliants chosen widely used, safe, commercial products: 12345 b. Concentrations and spray rates used were necessary to defoliate triple-tiered jungle canopy; believed safe at that level: 12345 c. Chemical companies vrere aware of intended use and concentrations and spray rates: 12345 3. Military started building AO plant at Weldon Springs: 12345 4. Defoliants were effective. 12345 C. Manner of using the defoliants was reasonable given the combat situation: 12345 1. Manner of labelling: 12345 2. Manner of drumming, shipping and storage: 12345 3. Ranch Hand (Air Force aerial spray missions) operated in a reasonably safe manner given the program's goals and environment: 12345 a. Many factors considered at many levels in selecting spray sites: 12345 b. All Ranch Hand personnel received adequate instruction on spraying and safety precautions: 1 2 3 4 5 c. Failure to follow those instructions resulted solely from the combat situation: 12345 d. Every attempt made to minimize risk of spraying infantry troops: 12345 e. Spray planes often under attack: 12345 f. Aerial spraying was highly accurate: 12345 g. Ranch Hand used good equipment: �Rating Information To Look For: 12345 4. Ground forces using defoliants did so in a reasonable manner: 12345 a. Spray personnel received adequate instruction on how to spray defoliants safely: 12345 b. Sprayed in manner minimizing contact with non-spraying personnel in spray area: 12345 c. Failure to follow precautions: 12345 d. Army stored defoliants properly: 12345 5. All naval defoliation operations were conducted in a safe and reasonable manner (note any references to such operations by the navy here): 12345 6. No health problems related to spray reported by ANYONE: 12345 12345 12345 D. Decision to phase down defoliant program: IV. Contract Issues (RCL): A. Negotiating Process (note all documents that indicate U.S. issued performance bids, companies provided draft specifications): 12345 1. Companies represented that chosen defoliants were safe: 12345 2. Companies contracted voluntarily: 12345 B. Contract Terms: 12345 1. Manufacturing process: 12345 2. Reimbursable costs: 12345 3. Indemnification clauses: 12345 4. Labelling restrictions: 12345 5. Impurities (note anything that indicates what the 2% impurities permitted in the defoliant were understood to be): 12345 6. Chemical companies warranted their product against any defects: 12345 C. Satisfaction of Contract 12345 1. Meeting specifications (note anything that indicates what "meeting specifications" was intended to mean): 12345 2. Rejection of shipments (note any time a shipment was rejected or the reasons the U.S. would reject shipments): 3. Price and profits: 12345 V. Other/Miscellaneous/F.Y.I. (explain) �- x x - g"f- PROCEDURES FOR DOCUMENT REVIEWERS Read document and circle all issues on the list to which the document pertains. Be sure that you look for information that either supports or does not support the issue. For example, on causation you should identify all studies that relate to whether dioxin can cause birth defects, whether they support the U.S. 1 case (no causation) or they support the contrary position (causation). Above all, remember that you are looking for factual matter relating to the issue — not statements of the issue reflected in documents. For example, d o n ' t expect to find a document that states "Military relied on chemical companies." Instead, you will see things such as documents written to chemical companies asking for assistance in solving the defoliation problem or thanking them for their suggestions. 2. CrrcJjeL^tlie heading letter or number on the joutlj.ne for the i s s ue jtq _wfij.^RZyQjyL Jbjlieve particular intormatTon pertains . If you are not sure just what ihfoT:m^el^n~T^uTanrerate" to a particular heading, look at the Explanation Manual under that particular heading. It will give you a short explanation of what we are looking for, the type of facts that would fit within that heading and examples. We cannot stress how important it is that you have_an understanding j o f _ t h e f acts that we think would fit within a particular category. 3. Do not limit yourself to the narrow categories that subdivide major issues. Where a_ document seems to pertain to an issue__butdoes not fiT within~a"_specific heading, circle the generaiX neading in- which it fi/ts. We would rather be cautious~and make~celFEa~:trr~tfiat the~^ttbrneys see everything that might be of assistance or that must be countered. Circle every issue to which the document's information seems to apply; many documents will apply to numerous issues. 4 DO NOT ATTEMPT TO EVALUATE THE STRENGTH OF THE DOCUMENT BY CIRCLING THE RATING NUMBERS AT THE LEFTHAND MARGIN. That will be done by the attorneys. 5. When you circle_a heading^_on the_M.ainjc_JJjie__£ollowing the heading .note every page in^he dp^ument J^hich pertains to that heading. If the document is on milcroriTin7~note~the frame number instead of the document page number. 6. Fill in all blanks on the issue sheet that describe the document ( e . g . , title, microfilm roll and batch, author, etc.) where the document was obtained, and any exhibit numbers that are on the document. In addition, be sure to put your initials in the reviewer portion of the sheet. !• Return document and completed issue sheet to Frances or the secretary handling the document retention for processing* �PROCEDURES FOR DOCUMENT CONTROLLERS 1. Once a document has been reviewed and the issue sheet for that document filled out, it will be returned to Frances or the secretary in charge of document retention at Shoreham. That person will log the document and place it with other documents that are to be forwarded to Safeway for attorney review and valuation. Twice a day (unless not enough documents have been reviewed to merit bringing them to Safeway) , the documents with issue sheets attached will be brought by hand to Safeway. The entire document should be forwarded. 2. In addition, approximately one out of every twenty documents that have been reviewed and found ijrrej^yan,t_should^jbe _forwarded to Safej£ay_aj3_a precautionary check. 3. At Safeway, the documents should be delivered to Mike Faweett. Room 856. Mike will have an "In" box in his o f f i c e in whicTr~"Eb leave the documents. Mike will log the delivered documents. He will then separate the documents (with issue sheets still attached) into piles, sorting the documents according to the issues circled ( i . e . , if five FTCA Defense issues are circled and no other category has that many circled, he will put that document in the FTCA Defense pile). Once the documents are sorted, he will bring that pile of documents to the attorney (or attorneys) who have responsibility for that issue. Each of those attorneys will have an "In" box in his or her o f f i c e in which Mike can leave the documents. Mike will note when he delivered the documents and to which attorney he delivered them. 4. For those documents without issue sheets ( t h e random sampling of irrelevant documents), Mike will divide their review responsibility equally among the trial attorneys. , 5. Within 24 hours, the attorney will review the document and place values on the strength of the document by circling the valuation numbers at the left hand margin for each issue the document supports or does not support. Following that review, the attorney will return the document to Mike for processing. Mike will have a "Returned by Attorney" box in his o f f i c e for this purpose. 6. If the attorney has checked the "copy" box in the upper right hand corner of the issue sheet, Mike will copy the document and give the copy to the attorney for retention in that attorney's file. 7. Mike will then note in his log that the attorney returned the document. It will be Mike's responsibility to remind all attorneys of their responsibility to review documents within 24 hours of its delivery to the attorneys. 8. Mike will then forward thej3ocument to Shoreham for cod ing. He w il^Jiave_an.l!VQu t_"~Box Th Fis o f f i c e from "Which "a "runner from Shoreham will pick up documents twice a day. �PROCEDURES FOR ATTORNEYS 1. Twice a day, Mike Fawcett will be receiving reviewed ' documents from Shoreham. He will log the documents in and will divide them into areas of attorney responsibility. He will do so based solely on the number of issues circled, sending the document to the attorney that has responsibility for the area with the most issues checked. 2. Read the issue sheet and the pages of the document circled for that issue. Read the rest of the document if you so desire. For each issue, value the strength or weakness of the document. The valuation system will be a plus 1 through 5 and a negative I through 5. Obviously, a negative 5 is "the smoking gun" and a plus 5 is the CDC Birth Defect Study if it says no causation. It will be the attorney's responsibility to put a plus or minus sign in front of the rating number that the attorney circles for each issue. You can handle it, guys. 3. Each attorney will have some form of noting the documents that he or she has reviewed for his or her personal trial prep files. It is that attorney's responsibility. In addition, if the reviewing attorney wants a copy of the document to retain for those trial files, check the "copy" box in the upper right hand corner of the issue sheet. Remember to fill in your initials so that Mike will know to whom to return the copy. 4. Other Trial Issues. As stated, the attorney reviewing a document will be doing so on the basis of numbers (your issues were checked most often). Obviously, other members of the trial team may have an interest in the document you have reviewed. As reviewer, it is your responsibility to see that that attorney (or attorneys) has access to this document. If you are having the document copied for yourself, have additional copies made (one for each attorney that you think should see the document); note in the copy box how many copies should be made an,d to whom they should go. Mike will handle the rest. If the attorney for whom you have had the copy made doesn't want it, he or she can get rid of it. If you are not having a copy of the document made, route the document to the next attorney that you think should see it. That attorney will review the document and decide if he or she wants a copy made. 5. REMEMBER YOU SHOULD REVIEW DOCUMENTS THEIR DELIVERY TO YOUR "IN" BOX. Please Only with prompt review can we get these the computer in time to make use of them full authority to bug attorneys. WITHIN 24 HOURS OF adhere to this deadline. documents coded for for trial. Mike has 6. In addition, each attorney will have responsibility to share in the review of the sampling of documents rejected by Shoreham as irrelevant. Mike will be dividing the sample documents between the attorneys. Review to see if you agree that the document is irrelevant. If so, just give it back to Mike. If not, fill out an issue sheet by yourself and send it back to Shoreham via Mike. �EXPLANATION MANUAL / DOCUMENT IDENTIFYING INFORMATION; 1. DOCUMENT NO.: This is the number that the document has been assigned by the Shorehan project. 2. MICROFILM ROLL & BATCH NO.: This will apply to documents previously produced by the United States and placed on microfilm. The JUS roll number and the batch no. will be visible along the righthand margin on each page of the document. 3. REVIEWER: The person filling out the issue sheet for a particular document should always put his or her initials in this blank. 4. FILE TITLE: This is the title of the file in which the document will be retained at Shoreham. 5. FILE DRfiWER NO.: This is the place where the document will be filed once the review process is complete. 6. EXHIBIT NO.: This applies only if the document has come from either the plaintiffs' or the defendants' pretrial orders. In the upper righthand corner of the first page of the document, the party proffering the document will have placed an Exhibit Label with a number on it. Write that number in this blank on the issue sheet. It will help the attorneys know whether or not to expect that document to be offered against the U.S. 7. SUPPLYING AGENCY AND OFFICE: If this^ document has cgme^ from a governnent agency, the attorneys should know which one. Tt ts important for authentication purposes and for evidentiary purposes that we be able to track the document. For example, many of our documents can probably cone into evidence under the ancient documents exception to the hearsay rule. However, to make use of that rule, we need to know whether it was discovered in a place where such a document would reasonably be expected to be found. Thus fjwejnust get as much information about the document* s location_as possible. So don11 just put down""Army", put down "Industrial LiaisonlDffice, Edgewood Arsenal". DOCUMENT INFORMATION (ORIGIN); 1. AUTHOR AND ORGANIZATION: Fill in the name of the author, if at all possible. Equally as important is the author's organizational identification. If it is not clear in detail, at the very least put down "Army" or "Government" or "Dow Employee". But try to get detail where possible. 2. RECIPIENT AND ORGANIZATION: If correspondence, put down the addressee. If it is a report, check the introduction to see if the report was prepared for anyone or at someone's request. Be creative in figuring it out if it is not clear. -Tn nrHitinni notr fill pernftnn wh" •vf^'r'~trtHvir'fH~rTVillw-"^^ i n In ydn in ( I » I I J I M w u c ^11 njull^ i j 1 1 u l n l i l l , Just as was the case for the author, the organizational information can be crucial. Follow the directions for 1., supra. 3. TITLE: If it is a report, etc., it will have a title. If it is correspondence, identify it as a letter and use the "re" as the title. If there is no official title, but it is clear what the document is, indicate that here. 4. DATE: Use years or approximates if the date is not clear. You may be able to tell from the document's text. �5. TOTAL NO. OF PAGES: Count the number of pages in the document and fill in here. Indicate whether the document is complete, incomplete, missing attachments indicated in the body of the text, etc. ISSUE OUTLINE: I. . FEDERAL TORT CLAIMS ACT DEFENSES (GLW): This is the Act under which the chemical companies have sued the United States. The Act constitutes a limited waiver of the United States' immunity from suit as the sovereign. Under the Act, the United states can be sued for civil wrongs (personal injury, property damage) for which a private individual also could be liable. However, there are a number of exceptions in the Act, which means that the United States has not waived its sovereign immunity for harm caused by such excepted acts or omissions. If any act or omission for which a party brings suit is one of the exceptions, then no court can have jurisdiction over the suit. A number of these exceptions bar the Agent Orange suit. A. FERES DOCTRINE. This is a judicially invented exception to the FTCA, which the Supreme Court derived by interpreting the Act and the intent of Congress. The Feres Doctrine holds that the United States cannot be subject to suit for injuries to soldiers arising out of or occurring incident to the soldiers' military service. The doctrine's primary purpose is to protect military discipline by preventing intra-military suits and disallowing second-guessing of military orders. This is a very important doctrine for the United States. We have been successful in knocking out any suits in AD brought by veterans or brought by the chemical companies for indemnity based on the veterans' suits. However, the Judge has held that the United States can be brought to trial in suits brought by wives of veterans for miscarriages and by children of veterans for birth anomalies. The U.S. contends that these suits derive in their entirety frcm injury to servicemen arising out of or incident to their military service in Vietnam (chromosomal damage, if any damage, to servicemen following exposure to AO in Vietnam). Thus, we must prove that all injuries at issue in the lawsuit arose out of or were incident to military service. , At the heart of what we must prove is that the only place the veterans were exposed to Agent Orange is while they were in Vietnam. It does not matter as much that someone may have been exposed while on leave in Vietnam, if they were serving in Vietnam, because we would contend that the only reason they were ever there was to be on active duty. Therefore, look for any and all factual data reflecting when and where people were exposed to defoliants. 1. Soldiers came in contact with Agent Orange while on active duty in Vietnam. Many examples of what we are looking for exist.DO NOT LIMIT YOURSELF TO THE EXAMPLES. Examples: - Soldier on patrol drank water obtained frcm a bomb crater in a defoliated area. - Soldier on patrol drank water from well dug in a defoliated area or downstream from a recently defoliated area. - Soldier on patrol ate food that had been obtained from a defoliated area. - Soldier on patrol walked through a defoliated area (often described as moonscapes). - 2- �- soldier an patrol (or in base camp, on road to camp, etc.) was accidentally sprayed by plane or helicopter. -, 2. tench Hand crews and other defoliation teams came in contact with AD while spraying in Vietnam.The Ranch Hand crews were the Air Force personnel that conducted the aerial spray missions in C-123s. Other defoliation teams include ground forces (usually Army or Marine) using backpacks or trucks to spray the perimeters of base camps to clear fields of fire, Amy, Air Force, etc. helicopter crews spraying a variety of areas and naval personnel spraying river banks frcm boats. Examples: - Army private spraying fron backpack accidentally sprayed another soldier at a base camp. - Soldier out at a listening post was sitting in a recently defoliated area. - Naval patrol boat engaged in spraying river banks got caught in cross winds and the spray blew back, soaking the personnel. - Ranch Hand crews flying with windows open (either because of heat or to prevent shattering glass if hit by unfriendly fire while flying at low altitude) got soaked during spray because updrafts blew the spray in the open windows. 3. Persons involved in procurement, shipping, storage or loading were soldiers on active duty. This covers all military personnel who may have been exposed to AO, but who may not have been in Vietnam when exposed. It also covers Ranch Hand ground crews who loaded the planes. Examples: - Sailor loading ship at Gulfport, Miss., for transport of AO to Vietnam. A drum he is loading leaks and spills on him. - Soldier unloading truck at storage area drops drum, which splits and splashes AO on him. - Soldier inspecting storage area walks on ground where AO has recently seeped out of leaking drums. - Ranch Hand ground crew loading plane gets soaked while pumping AO into the spray tanks. B. COMBATANT ACTIVITIES: This is an exception that bars suit for all injury (personal or property) arising out of the combatant activities of the armed forces. There is very little caselaw interpreting this exception. But the caselaw seems to make it clear that the exception is not limited to actual battlefield injuries caused by battlefield decisions (this is the Judge's interpretation of the exception). He focusses on the negligent act; we focus on the injury. The little caselaw that does exist indicates that harm caused by acts or emissions made IN SUPPORT OF ACTUAL COMBAT constitutes harm barred from suit by the combatant activities exception. We must set up the factual basis to prove (probably to an appellate court) that any injuries in the lawsuit arose out of combatant activities, e.g., the Vietnam War. It is a fairly simple, but important defense. Look for anything that supports our contention that the only exposures were in Vietnam while there for ccmbat activities (not necessarily just soldiers out on patrol). We contend that anyone in the military who was in Vietnam was there as part of a ccmbat action and a ccmbat force. It will help you if you always remember that the defoliation program, particularly Ranch Hand, was classified as a combat support program. Therefore, it seems somewhat obvious that anyone who came in contact with AO via the Ranch Hand program - 3- �the Judge's interpretation is correct, the pertinent "negligent" acts leading to exposure were made as part of or in support of combat decisions. Look for factual material that shows that Ranch Hand and other defoliation activities were an integral part of combat operations. DO NOT LIMIT YOURSELF TO THE EXAMPLES. Be creative and note anything that you think reflects the combat support role of the program or that soldiers were exposed while in combat. Examples: - Fighter planes accompanied spray planes to protect them by clearing out enemy in spray areas. - Ranch Hand planes shot at or down by unfriendly fire. - Decision to defoliate at certain coordinates made because a number of patrols have been ambushed in that area. - Patrol sent out on patrol to intercept enemy goes through a defoliated area. - Document reflecting number of wounded Ranch Hand personnel. - Backpack spray personnel wounded while spraying (sniper, booby trap, etc.). - Decision to clear around base camp perimeters with defoliants made as part of standard military procedure clearing fields of fire to prevent enemy fron having cover on approach to base camp. - Helicopters spraying defoliants were armed. C. FOREIGN ODUNTRY: This exception to the FTCA prevents a suit arising in a foreign country. The reason the exception exists is that, under the FTCA, the law that is applied in judging a suit is the law of the place where the cause of action arose. Congress did not want the United States' actions to be judged under the law of foreign countries. Therefore, it barred all suits arising in foreign countries. For example, a serviceman's dependent in Germany who suffers injury due to alleged medical malpractice by a military doctor cannot sue the United States because the standard by which the doctor's actions must be judged is the standard of care to which a German doctor would be held. We_contend that this suit is one arising in_a foreignLcountrybecause all the 'soldTers~wBre7exposed in Vietnam (or neighboring countries) and all injury (chromosomal, genetic, etc.) occurred^irfVietnam (or neighboring countries). The Judge" has indicated that he disagrees with us; he believes that the negligent acts must have occurred in Vietnam and that the decisions to select AO and to defoliate with it was made in the United States (we don't necessarily mind this as it sets up the discretionary function exception). We contend, however, that the pertinent "negligent" acts that resulted in the soldiers' exposure were the decisions to defoliate the particular areas in which the soldiers were exposed. These decisions were made in Vietnam. Other pertinent decisions may have been the development of procedures to handle defoliants (alteration of standard procedures because of the particular situation that arose in Vietnam). In addition, the military did testing of AO and other defoliants at issue in the lawsuit in suitable foreign countries (ones with jungle). ,Jje__sure to note documents that reflect that testing to the extent_they_indicate .some exposures may hay^ which defoliants to use may have been made there. The countries to XbW~f6r~are"Thailand^ Panama and (maybe) Korea. Examples: - 4- �- Document reflecting the decisionmaking process for defoliation site selection. - Soldier exposed while on patrol in Vietnam (ate food from defoliated area, etc.) - Soldier exposed by drinking water given to him by Vietnamese (Vietnamese • stored water in former AQ drum sold to him by ARVN). - Decision to defoliate base camp perimeter despite the presence of troops in the area. - Decision to send patrol out into area just after (before or during) spray mission. - Sailor exposed while unloading ship in Vietnam. D. DISCRETIONARY FUNCTION: This exception immunizes the United States from liability for any hann "based upon the exercise or performance or the failure to exercise or perform a discretionary functignor duty on the part of a federal agency or an employee of the Government, whether of not the discretion involvecrbe abused." 28 U.S.C. §2680(a). This is a very important exception for the United States, but unfortunately is very fact-dependent. The U.S. contends that almost any decision by almost any employee of the Government can potentially fit within this discretionary exception. Some caselaw holds that "operational" decisions do not fit within this category. An operational decision is one that implements a policy decision. The U.S. says that even so-called operational decisions can be within the discretionary function exception if the decisionmaker have latitude in deciding how to implement or whether to implement. This is an issue of choice, i.e., did a person making a decision have any latitude? look for weighing and balancing of ANY factors in decisions, ANY decisions. It is pretty well accepted that if a decision involved risk-benefit analysis, it is discretionary. At the Executive Branch level (White House, Secretary of Defense, upper level decision-makers), look for weighing of policy interests, program goals, program costs, executive department duties, political and international considerations, etc. At the regional or local level (local commanders, head of Ranch Hand, etc.), look for weighing of tactioal, logistical, practical considerations. The subcategories listed after the main title in this section are by no means all inclusive. They consist of a few of the main type of decisions we are looking for. If you find something that looks like it might fit into a definition of a discretionary act, note it under the main heading. , /p* A _s>" 1. Most decisions were made at high levels. So long as a high// level decision or action is not mandatory under law, it is likely to be discre- "7 tionary. The U.S. contends that the choice of this materiel for use in furtherance of military goals and the decision to use that military is entirely discretionary with the Executive Branch (if not barred by law). look for any documents that indicate that high level types had a hand in these decisions. Examples: - Kennedy made the decision to allow defoliation missions to go forward. - The Director, Defense Research.& Engineering, DoD, decided to select Agent Orange as the defoliant of choice. �days of Ranch effectiveness - Kennedy gave final approval to defoliation missions in the early Hand. Deputy Secretaries Committee (Executive Level) reviewed the of the defoliation program. McNaraara gave continued approval to the defoliation program. 2. Decisions were made following weighing of benefits of using the the defoliants against the risks of using the defoliants.This area is important to show that the persons in charge of Ranch Hand went through a risk/benefit analysis or that they had reports reflecting such risk/benefit analysis available to them while making decisions about the program. You will probably not find a document that indicates this is what is going on; instead, you will find a document listing a wide variety o£ factors about tRe~g§fgtlation program. Among thejEactors to look for (note anydocuments that indicate any of these factors)J»:e; cost of the program, goals3pf~the program~Tsaving lives through clearing~ojjF ambush areasj__tracking l:roops3ncvementsryTpsyghologically intimidating the enemy and depriving~the en^iny_aE_fop^_s^2urces), risks of the program (charges of c±emicaTlrairfaTeT^oxi^~naiMr3s~^o~irsers or persons accidentally exposed, non-effectiveness of the program/ risk to planes and plane crews/ etc.) and logistical problems. These things go to the decision to defoliate/ the choice of defoliants/ and the decision to continue the program. Examples include: - the Rand Report (evaluation of the program - risks versus benefits. - Memorandum to JFK seeking approval of program. - Document reflecting choices of various herbicides for use in the program. - Report to Westmoreland, Abrams or McNamara regarding effectiveness of program. - Review of Ft. Detrick or Edgewcod Arsenal personnel following testing of particular defoliants or observations of program in Vietnam. 3. Decisions regarding deployment of defoliants in Vietnam (specific missions/ etc.) followed weighing of factors. This brings the discretionary activity down to the local level where defendants will claim that no discretion occurred in that these were operational activities. We claim to the contrary. Every decision to defoliate went through an elaborate chain of command in which a wide variety of factors were considered, including feasibility, presence of troops, and the need to defoliate that area. We need to find documents that reflect this fact. Examples: - Document denying request of province chief (all Ranch Hand requests apparently originated with them) to defoliate crops in a certain area because it was not clear that crops belonged to unfriendly villagers, or to defoliate particular areas of jungle because American troops were operating in the area. - Document reflecting decision not to defoliate particular area because of significant native population or area too dangerous for low altitude flight. - Document reflecting decision to fly mission several days later than planned because fighter escort was unavailable or because weather would not permit effective spraying. - Decision to allow spray mission to go forward despite presence of U.S. troops made because monsoon season was about to start (prevented all spray missions) and it was imperative to safety of troops in the area to defoliate (known enemy ambush area). - 6- �4. Decisions on instructions to users or combat troops, use of safety equipment, etc, were made after considering the combat situation. This is a way to prevent us from getting tripped up on the failure to follow "adequate" safety precautions. Remember the acts can be negligent as long as they are discretions Again, we are always looking for weighing and balancing.Examples: - Decision not to require spray personnel to wear gas masks because in jungle heat they would suffer heat stroke or because personnel could not see adequately to be aware of or prevent ambush. - Decision not to prevent Ranch Hand personnel from leaving windows open during spray (and thus getting soaked with AO) made after considering that closed windows hit by bullets often shatter and glass splinters can blind pilots. - Decision to put water facility in the middle of defoliated area made after considering that it was better protected frcm ambush (it was safer). - Decision by officer to allow soldiers under his command to drink water frcm craters in defoliated area (despite regulations prohibiting) made after considering that it was better not to lose soldiers to dehydration when no other water sources were available. II. EXPOSURE TO AGENT ORANGE IN VIETNAM DID NOT CAUSE PIAINTIFFS1 INJURIES (POC, LT): This is the causation element of the case. The United States' position will be either that it still cannot be proven that the exposure to Agent Orange caused the alleged injuries (i.e., the jury is still out) or that exposure to to Agent Orange did not cause the injuries. A. The type and amount of the plaintiffs' exposure to A.O. in Vietnam could not cause harm; Causation of injuries by exposure to toxic substances is very dose response specific, i.e., whether a substance can cause harm depends upon the concentration or amount of the substance to which a person is exposed and the duration of the exposure. In this section, you should note any and all documents that reflect facts about exposures. 1. Type of Exposure. Under this heading, you should note all documents indicating the route of exposure. Thus, you would put all documerits here that contain statements reflecting examples of the following (REMEMBER THESE EXAMPLES ARE NOT ALL INCLUSIVE): - soldiers drinking water frcm craters or streams in defoliated areas. - soldiers walking through defoliated soldiers eating local food in areas soldiers being sprayed while out on personnel loading Ranch Hand planes areas. of defoliation. patrol. spilling AO on themselves or others. - storage area personnel being spilled on while loading drums for transport to Ranch Hand planes. - backpack spray personnel spilling AO while opening drums for filling backpacks. - Ranch Hand flight crews soaked in AO while spraying due to updrafts. 2. Duration of Exposure; The duration of the exposure is also very important in determining causation. Here you are looking for information that will give us an indication of the length or frequency of a person's exposure. Examples; - 7- �- soldier out on patrol for three weeks after walking through recently defoliated area and getting uniform soaked with AO (no change of uniform and no opportunity to wash uniform. - soldier sprayed with AO while out on patrol was not able to wash spray off. - soldier walked through defoliated areas for days. - Ranch Hand pilot able to take shower and change uniform after getting soaked by AO during spray mission. - soldier wearing backpack sprayer whose backpack leaked all over his uniform was unable to change uniform. - anything reflecting how close soldiers were to defoliated areas and how soon they were there following the spray mission. 3. Level of dioxin to which soldiers were exposed; This relates entirely to how much dioxin was in the Agent Orange we used and with how much of that dioxin did soldiers ever ccme in contact. Note all documents that reflect information such as the following (REMEMBER THE EXAMPLES ARE NOT ALL INCLUSIVE): - dioxin is degradable in sunlight. - jungle canopies prevented AO from penetrating to ground level where the soldiers were. - anything reflecting the levels of dioxin that was in the AO used in Vietnam. - 2,4-D did not contain dioxin; therefore, in a 50:50 mix of D and 2,4,5-T (which contained dioxin), the amount of dioxin in AO was halved. - dioxin molecules are heavier than water molecules, therefore, water taken from the top water levels in a crater may have had less dioxin. - dioxin molecules bind with soil. 3. Alternative substances to which soldiers may have been exposed: The military did use many other substances in Vietnam which might have been toxic. The job here is to find those substances and to show that it was those substances to which the plaintiffs were exposed. Examples to look for include: - jet fuel - malathion (this was sprayed from planes to kill mosquitos due to the horrendous malaria problems encountered in Vietnam). Look for descriptions of the plane spraying a substance with which a soldier was sprayed. A silver plane would have been spraying jnalation. - dapsone. - insect repelIant - malaria pills - Agent Blue or White (other defoliants not containing dioxin). 4. Medical Problems in Vietnan (e.g., skin diseases); This is a very important area of alternative causation.Vietnam had numerous parasites, bacteria and viruses that wreaked havoc upon our combat troops. Many of the health problems that those troops now have may have resulted from diseases they had or picked up in Vietnam. A prime example is skin disease. Skin problems were rampant in Vietnam and ranged fron jungle rot, tropical acne to other very serious skin problems caused by bacterium. Many soldiers with current skin problems claim that it is chloracne when, in all likelihood, it is one of these other skin problems. Thus, look for documents reflecting - 8- - . �any medical problems in Vietnam, medical treatment in Vietnam and discussions of diseases and health problems endemic to Vietnam and tropical climates. These documents could include - monthly status reports by physicians in particular areas. were prevalent studies on different diseases in Vietnam. descriptions of skin problems in Vietnam. studies on the aftereffect of having certain diseases (which in Vietnam). B. Dioxin does not cause birth defects in children and miscarriages in wives of men exposed; This is a general category in which you should put anything at all that supports or negates this proposition. All studies, medical articles, reports, testimony, protocols for studies, physicians' reports, correspondence between chemical companies, etc. Be sure to include ALL documents that discuss the effect of dioxin on genes, chromosomes and the immune systems even if they do not discuss miscarriages and birth defects. These injuries are completely dependent upon injury to the exposed person's genes. Therefore, any genetic injury to exposed persons is important. Be sure to include animal studies in this category. Since this is a catch-all category, be overinclusive if you are not sure. III. THE UNITED STATES WAS NOT NEGLIGENT IN ITS TESTING, SELECTION, SPECIFICATIONS FOR OR DEPLOYMENT OF AO (WE WERE REASONABLE) (AM; JMS): This category goes to the merits of the United States' actions in deciding to have a defoliation program to support its combat efforts in Vietnam. The standard that we must prove we met (actually, that defendants have to prove that we did not meet) is the "reasonable person" standard, e.g., that a reasonable person would have done what we did under the circumstances. The last phrase is the critical one for the United States. Basically, it means that our decisions to go forward with this program were reasonable given the fact that we were in a war situation (it doesn't matter that it was undeclared). The individual categories in this section will break out the "United States' actions into discrete parts. Information pertaining to each category will assist us in showing that, despite whatever problems and deficiencies there may have been in the defoliation effort, the program was reasonable given the fact that we were in combat. A. The military chose a reasonable means to achieve an important end (saving U.S. lives); We must find documents that reflect the importance of the goal of the defoliation program. Basically, what all commanders do is attempt to save lives today to have soldiers able to carry on the battle tomorrow. The defoliation program was one way to do that. In addition, we must show that the means chosen to carry out that program to achieve that end was reasonable considering everything (goal, what was available to accomplish that goal, etc. Note all documents that in any way reflect this type of information. 1. Dsfoliants served a vital combat role; This is the general heading reflecting the purposes of the defoliation program. Use this to note any documents reflecting goals other than the four listed below. - 9_ �a. Decreased risk of ambush; One of the goals of the program was to decrease the risk that our troops would be ambushed out in the field. Under this heading, look for facts that show that this was one of the goals and the success of the defoliation program in meeting this goal. Examples of this are facts such as the following: - Defoliation missions cleared away bushes and jungle underbrush in which enemy could hide. - Number of ambushes in a previously heavy ambush area decreased following defoliation missions in the area. - Fewer soldiers suffered casualties in defoliated areas. b. Enabled to track enemy troop movements; One of the problems that the military faced in Vietnam was its inability to know where the enemy was infiltrating. One of the goals of the defoliation program was to remove the jungle canopy that prevented reconnaissance planes from tracking the enemy's movements. With the removal of that canopy, the military believed it would be able to track the enemy from the air. Under this heading, look for facts that show that this was one of the goals and the success of the defoliation program in meeting this goal. Examples of facts that might be pertinent to this area are the following: - Project Pink Rose: this constituted an attempt to burn leaves that had withered on trees (from defoliation) so that the ground under the trees was visible from the air. - Slides showing that, after defoliation, you could see movement in the jungle. - documents showing increase in success of reconnaissance missions following defoliation missions. c. Deprived enemy of food sources; One of the first uses of defoliants in combat situations was in Malaysia. The British used defoliants to destroy crops of Malaysian insurgents in the 1950s. This food deprivation goal was one of the goals of the defoliation program in Vietnam. However, this was a sensitive goal and crop destruction was always carefully planned and limited in scope. Look for facts showing that this was one of the goals and the success of the program in achieving the goal. Examples: - enemy had to leave defoliated areas because crops died. - Kennedy kept personal control on all crop destruction missions. - Local Vietnamese villagers complained when their crops were killed. - Enemy soldiers who have defected or been captured reported that crop destruction in their area of operation caused significant supply problems. d. Frightened enemy; One of the effects of the spray missions was to cause psychological damage to the enemy. It doesn't appear that this was an initial goal of the program, but that, once the military realized the debilitating effect the program was having on the enemy's confidence, they took full advantage. Thus, the military often conducted psychological warfare right alongside the spray missions. Look for facts that reflect that the missions had this effect. These facts could include the following: - enemy feared spray, believing it to be toxic. - enemy tried to use "protective equipment" when caught underneath a spray mission. I - 10 - �- enemy left area following spray missions because they were afraid to eat the local food once it had been sprayed. 2. Military did not become aware of significant health or ecological issues until the late 1960s; Ihis is a very critical area for factual development. The chemical companies will attempt to show that the U.S. was fully aware of anything the chemical companies knew. They will attempt to prove that we acquired this information independently so that it doesn't matter that they neglected to tell us. Therefore, under this heading, note anything that indicates the military's knowledge or lack of knowledge about problems associated with use of defoliants in Vietnam. Ihe four categories that follow are probably the most important, but there will be facts reflecting this general category that do not fit in the four specific categories. Therefore, put all such facts under this general category. These types of facts could be: - ecological damage was not expected since defoliants did not kill trees. - military had to pay damages for accidental harm to rubber trees in local plantations. a. Military believed AO was non-toxic to users or persons accidentally sprayed; This is self-explanatory. Example of pertinent facts follow; - document indicating low toxicity of all defoliants being considered for use. - no health problems incurred by users of these commercial herbicides during the many years of domestic use. - chemical companies represented during contracting phase that the defoliants were safe. - during the first few years of use in Vietnam, no health problems were suffered by the personnel handling the defoliants. - Vietnamese soldiers acting as loaders of Ranch Hand planes suffered skin rashes. - Chemical company representatives informed the President's Science Advisory Committee that the chemicals were relatively non-toxic. f b. Military believed AO had only minor occupational health hazards to manufacturing employees; In 1967, the Army decided to build its own Agent Orange manufacturing plant at Weldon Springs. During the exploration phase, a number of personnel from Edgewood Arsenal visited some chemical company plants to learn about the manufacturing process. During those visits, it seems pretty clear that they learned about the presence of dioxin in 2,4,5-T and that the chemical companies had had chloracne appear in some of their employees. Note absolutely anything that indicates the military learned about health hazards to humans during the manufacturing process. We will contend that learning about these hazards does not mean that we learned anything that would indicate that AO was harmful to endHjsers. However, remember not to limit yourself to Weldon Springs facts. It is possible we may have learned something during the initial contracting phases in 1963 and 1964. Facts to look for could include the following: - correspondence from chemical companies informing the military about the chloracne hazard to manufacturing personnel. - documents indicating that chemical company personnel had never suffered anything but chloracne. - 11 - �- documents indicating that the chemical companies did not inform the U.S. that their employees had suffered liver damage. c. Military was not aware of presence of dioxin in AO; We have every reason to believe that, until the Army started exploring the manufacturing process of AO for the Weldon Springs project, it had no idea that dioxin was an unwanted by-product in the AO manufacturing process. Note everything that supports or negates this proposition. Related facts to look for include: - definition of impurities in the contract negotiations. - correspondence from chemical companies which may or may not indicate that dioxin was the culprit causing chloracne in their employees. - Dt. Hoffmann may have known about dioxin, but he didn't know that it was an impurity in defoliants. - PSAC (President's Science Advisory Committee) knew about dioxin in AO in 1965. d. Military did not have technical ability to detect dioxin in AO: It takes highly sophisticated equipment and processes to detect aioxin. Although the chemical companies had the ability, it was still state of the art equipment and know-how that the military did not yet have. Thus, we would contend that it would not be reasonable to expect the military to discover the presence of dioxin if the chemical companies failed to inform us. Examples: - When the military wanted to get rid of the excess AO in the early 1970s, it had to test for dioxin. It did not have the capability, nor did any other governmental agency. They had to get outside assistance. - Edgewood Arsenal and Ft. Detrick did not have gas-liquid chromatography equipment in the 1960s. - Chemical companies informed Vfeldon Springs personnel that they had the means to detect the presence of dioxin down to 1 ppm. 4. Program was periodically reviewed for effectiveness; Because of the sensitivity to charges of chemical warfare, the United States constantly reviewed the defoliation program to make certain that its was achieving its goals and was effective. These reviews were both formal and informal. , They were conducted at all levels of the military. The Executive Office also conducted reviews and also hired outside consultants to do independent reviews. The reviews usually concluded that the program was working and that it was saving American lives. However, the military had to continually provide justification for the program. Note anything that appears to be an evaluation of the program no matter what the results of the evaluation were. Examples: - After Action Report discussing the results of a particular defoliation mission. - Lessons Learned discussing the outcome of a particular series of defoliation missions. - The Rand Report reviewing the defoliation program as a whole. - Progress reports to McNamara at his meetings in Hawaii. - Undersecretaries Committee review of the defoliation program for Kissinger. - President's Science Advisory Committee continually reviewed the defoliation program. - 12 - �B. Military chose defoliants carefully to meet their performance needs; Bus entire heading goes to the issue of the United States' reasonablenessTn selecting the herbicides that we did for the program. Our goal in this area is' to prove that we merely informed the chemical companies what we wanted to do (defoliate particular areas of Vietnam for the purposes stated in III.A, supra) and asked them to come up with products that would meet this need. The chemical companies, of course, contend that the U.S. told them exactly what to produce. That may have been true at the end when we issued specifications/ but those specifications were the culmination of a long negotiating process between the military and the chemical companies. look for any facts that might relate to this process of selecting herbicides for use in Vietnam. 1. Military relied upon chemical companies; Under this heading, note any fact that reflects dependence upon the chemical ccnpanies for the scientific know-how in the program. This could include; - documents reflecting lack of knowledge on the part of the scientists trying to find a defoliant that would meet the need. - correspondence from chemical company indicating willingness to meet to discuss the military's needs and how to solve the problem. - intramilitary message reflecting knowledge just acquired from a chemical company. - memorandum noting receipt of sample defoliants from chemical companies along with sales literature. a. Military stated the purpose of the program and sought recommendations for safe, effective defoliants"!Here we want to show that the military did not just go to the chemical companies and state that they wanted to purchase massive quantities of defoliants. We want to show that the chemical ccnpanies played an integral role in the selection of the defoliants. To that end, we want to find facts that indicate that the chemical companies knew what the program was and the use for which the defoliants were intended. Thus, look for anything that might support that proposition (also anything that negates it). Examples: - Request for bidding issued by the military (performance bids) in which military stated what it wanted to do and requested that companies come up with suggested products that would accomplish that goal. - Minutes of meetings between military and chemical company representatives in which the goals of the program were discussed. - Correspondence between military and chemical company in which military personnel informed chemical company about what was wanted. b. Chemical ccnpanies gave advice on defoliants and gave proposed specifications; In this heading, we are looking for the chemical industry's response to the military's request for assistance. We know that there was a fair amount of give and take in the negotiating process and now need the facts to prove it. Examples of information fitting within this heading are: - correspondence from chemical companies indicating possible defoliants would meet the military's needs. - minutes of a meeting between military and chemical companies in which the safety of certain herbicides was discussed. - internal chemical company report discussing the concentrations needed to produce the desired effect on jungle foliage and the safety of that concentrat ion. - 13 - �d. Chemical companies participated in military testing of suggested defoliants in Panama, Puerto Rico, Thailand, Florida or Hawaii:This heading goes to the chemical conpanies' claim that they had no idea what we intended tb do with the defoliants, particularly that they did not know how we intended to apply it. We believe that the chemical conpanies were right alongside the U.S. military in determining the most effective means of applying the defoliants to jungle foliage. Thus, look for anything that reflects the presence of a chemical conpany representative at any of the test sites used by the military. This could consist of: - letters responding to military's invitation to participate in defoliant testing. - reports following testing which indicates the names and affiliations of participants. - internal chemical company reports indicating the results of tests attended by the author. 2. Military sought available, safe, coimercial defoliants; We want to show that the military was not interested in inventing new defoliants for use in Vietnam. Instead, we want to show that they went to the chemical companies and asked for off the shelf products that would meet the need. Therefore, under this heading, note all documents that support or negate that proposition. a. Defoliants chosen were widely used, safe, ccnroercial products; One of the defendants' contentions is that they never produced Agent Grange before the military asked them to do so and that they never produced it after the military no longer required it. We contend that they may never have sold anything called "Agent Orange", but that they certainly sold 50:50 mixes of 2,4D and 2,4,5-T, the two components of Agent Orange. Examples of information that should fit within this heading (REMEMBER THAT THE EXAMPLE FACTS MAY OR MAY NOT EXIST? THEY ARE MERELY TO GIVE YOU GUIDANCE) are: - Commercial literature showing sale of 50:50 mix of D and T. - T was one of the most commonly used domestic herbicides. - T had never caused health hazards to end users. - memorandum showing that the defoliants being considered for use were all commonly used domestic herbicides. - Letter indicating that Dow produces 1 million pounds of T annually. b. Concentrations and spray rates used were necessary to defoliate triple-tiered jungle canopy; believed safe at that level; This heading reflects the reality that commercial defoliants might not have been sufficiently powerful to defoliate triple-tiered jungle canopies. Therefore, the military had to devise means to make these easily-available defoliants accomplish their goals. They conducted tests to determine at what concentration and at what spray rates (3 gallons/acre; 1 gallon/acre, etc.) the defoliants would work on jungle. Also included in this heading is any information that demonstrates the belief (military) that these rates of spray were safe. Examples: indicated that Test results from Eglin AFB. Dr. Brown's report after testing in Vietnam in 1962. Minutes from meetings at which military personnel there would not be any increased risk by using those concentrations. - 14 - �c. Chemical companies were aware of intended use, concentrations and spray ratest Ihis heading will support the contention in the previous heading. To the extent the military believed that the concentration and spray rates were no less safe, we want to show that that belief was promoted by the chemical companies. Examples to look for: - minutes of meeting attended by chemical company representatives in which they indicated that there would be no additional hazards if the military sprayed at the intended rates. - internal chem. company memo, reflecting the military's intention to defoliate jungle in Vietnam. - correspondence in which chem. company represented no health hazards if used in the manner indicated by military. 3. Military started building AO plant at Vfeldon Springs: Under this heading, note anything having to do with the Vteldon Springs Project in which the Army decided to build its own Agent Orange plant. The project was being run by an outside, joint venture (Ihompson-Stearns-Rx3ger). Examples: - requests to bid on the operation of the plant for the military. - trip reports reflecting Edgewood Arsenal personnel's trips to chemical plants. - operating manual for Vfeldon Springs. - correspondence from Stearns-Rodger to Edgewood Arsenal giving a progress report. - memo from government representative at plant site. - correspondence from Dow declining to participate. C. Manner of using the defoliants was reasonable given the combat situation;In this section, we want to find facts that support our contention that any failure to follow normal safety and spray techniques resulted solely from important military purposes or from the wartime situation in which the defoliants were used. Use this general heading for anything that discusses the manner in which the United States used the defoliants. * 1. Manner of labelling; The chemical companies claim that the U.S. prevented them from labelling the drums in the manner in which they would normally label. Note anything that reflects what was to be put on the drums and why that was the case. Ihis could range from the contracts to the specifications to letters between the military and the chemical companies. Some types of information that could be important are: - Limited labelling served a valid military purpose (e.g., enemy would not learn the exact defoliant being used? no one would know that American defoliants were being used). - Labelling regarding safety precautions and use instructions were not required by law for defoliants used in foreign countries by military (look for anything that might indicate why they didn't follow the law even though they didn't have to do so). - Correspondence between chemical company and military objecting to the limited labelling. - Written instructions were to accompany drums on safety and handling procedures. - 15 - �2. Manner of drumming and shippingt One of the factors that the chemical companies often bring up is the amount of defoliant that seemed to be leaking out of the drums. They allege that the U.S. was negligent in how it handled and stored these drums. We contend that our handling was reasonable given the war environment. We would note that the manufacturers contracted to provide sealed, non-leaking drums and that perhaps they provided us with defective drums. Note anything having to do with drumming, handling and shipping of the defoliant to Vietnam, including who had control of the defoliant once it arrived in Vietnam. 3. Ranch Hand (Air Force aerial spray missions) operated in a reasonably safe manner given the program's goals and environment; We contend that we did everything possible, given the war environment, to ensure that exposure to anyone was minimized while still ensuring the success of the program. Note anything that reflects how the Ranch Hand operations were conducted. a. Many factors considered at many levels in selecting spray sites; Selection of spray sites was made following consideration of a wide variety of factors. These included accessibility of the spray site, presence of local population or friendly troops, military need to defoliate that area (no VC operating there), political considerations such as keeping the Province Chief happy, etc. The selection was a continuing process that had to go through several levls of command, although the site selection initiated with the province chiefs. Note anything that discusses the decision process and include all references to who made the decisions. b. Ranch Hand personnel received adequate instruction on spraying and safety precautions; We contend that both ground and air crews received adequate instruction on how to spray and the precautions that should be taken while handling or spraying the defoliant. Note anything that might have impact upon this proposition. Examples include; - when to turn off spray. - what to do upon encountering enemy fire or spotting friendly troops. - whether to wear gloves while loading C-123s. c. Failure to follow those instructions resulted solely combat situation; Having instructed the Ranch Banders, it is fairly they did not necessarily follow those instructions. We contend that to follow those instructions or precautions resulted solely from the situation. Examples include: from the clear that any failure combat - spray planes being fired on while at low altitude had to dump their spray load in emergencies no matter who was under them. - putting down windows while spraying despite undrafting spray was done to minimize risk of shattered glass following enemy attack. d. Every attempt made to minimize risk of spraying infantry troops; Ranch Hand coordinators consulted extensively with Army to minimize the risk of exposing infantry troops. Examples; - document to Army indicating that Ranch Hand will be spraying certain coordinates on certain dates. - 16 - �- After Action Report indicating a spray mission was aborted due to presence of friendly troops. e. Spray planes often under attack; Ranch Hand missions were often under heavy fire from the enemy and Ranch Hand personnel were often decorated. Look for documents that reflect these facts. Example: Lessons Learned indicating the number of Ranch Hand planes lost in a particular time frame. f. Aerial spraying was highly accurate; We contend that the spray missions were very accurate and that everything was done to minimize exposure. Efforts included spraying in the early morning hours to avoid spray drift. Look for documents that include the following references: - accidental crop or tree damage. reparations made for accidental damage to rubber plantations. missed spray coordinates. amount of spray drift. 4. Ground forces using defoliants did so in a reasonable manner; The Army and the Marines also used defoliants to clear the perimeters around their bases. This cleared their fields of fire and prevented the enemy from sneaking up under cover. This appears to be a much more haphazard program. However, we would contend that this was reasonable in that they were more vulnerable to enemy attack. Use this general heading to note any document reflecting such use of defoliants by ground forces. a. Spray personnel received adequate instruction on how to spray defoliants safely;Personnel using backpacks or spraying from trucks or helicopters received adequate instruction on how to spray defoliants. See examples under III.C.3.b. b. Sprayed in manner minimizing contact with non-spraying personnel in spray area; Spraying was done in a manner that minimized contapt with the spray for all persons in the area. Look for any document that might indicate that areas were cleared of personnel before spraying was done, etc. c. Failure to follow precautions; It is fairly clear that not all possible precautions were taken. We contend that the reasonable precautions, given the situation, were taken. Failure to follow precautions was either due to combat situation, at an individual's choice or was unknown to the command officers. Look for documents that give any information about how ground troops acted around defoliants; e.g., they didn't wear their gas masks because of the heat. d. Army stored defoliants properly: The chemical companies indicate that the military did not store the defoliants properly and that many persons were unnecessarily exposed because of that negligent storage. Therefore, look for anything regarding drum storage: - report indicating that hundreds of drums at storage depot were leaking. - Vietnamese had control of storage depot. - Army redrummed when a leak developed. - 17 - �5. All naval defoliation operations were conducted in a safe and reasonable manner (note any references to such operations by the navy here; 6. No health problems related to spray reported by ANYONE; Examples; - Neither spray personnel nor ground troops who accidentally came in contact with defoliants complained of health problems directly related to defoliants. - Medical reports of Ranch Banders indicating no health problems. Vietnamese, friendly or not, made no complaints of health problems from the spray of defoliants, although they complained about accidental crop or tree damage. - Rallying VC indicated that villagers would get nauseated after eating food that had been sprayed with defoliants. D. Decision to phase down defoliant program; Note any documents that reference or indicate the reasons why the defoliant program ended. Examples could be: - Geneva Protocol - Bionetics Report 1 - Cutting back on the American involvement. IV. CONTRACT ISSUES (RCL); BE SURE TO NOTE ANYTHING THAT HAS ANYTHING TO IX) WITH THE UNITED STATES' CONTRACTS WITH THE CHEMICAL COMPANIES. A. Negotiating Process (note all documents that indicate U.S. issued performance bids, companies provided draft specifications); 1. Companies represented that chosen defoliants were safe; 2. Companies contracted voluntarily; look for anything that indicates that the chemical companies were willing to produce the herbicides — i.e., that they were not forced to produce under the Defense Production Act. B. Contract Terms; Note all documents relating to actual contract terms or requested terms. 1. Manufacturing process; Note anything that indicates that a specific type of process was required in manufacturing government defoliants. 2. Reimbursable costs; Note anything that indicates what was considered a cost of performance. 3. Indemnification clauses; Note anything that indicates the U.S. was either to indemnify manufacturers or hold them harmless from liability. 4. Labelling restrictions; Note anything that the U.S. prevented the chemical companies from putting additional information regarding safety precautions on the labels. 5. Impurities (note anything that indicates what the 2% inpurities permitted in the defoliant were understood to be); We believe that the inpurity clause dealt solely with inert ingredients and that dioxin was not contemplated as one of these impurities. - 18 - �6. Chemical companies warranted their product against any defects; We need to know if the contracts contain such terms. If they do, then we need to discover just what was meant as a "defect". We would contend that dioxin is such a "defect". Look for anything that discusses these warranty provisions. C. Satisfaction of Contract: 1. Meeting specifications (note anything that indicates what "meeting specifications" was intended to mean). 2. Rejection of shipments (note any tine a shipment was rejected or the reasons the U.S. could reject shipments). 3. Price and profits; Indicate anything that indicates how much chemical companies were paid and how much profit they made. - 19 - �.gent Orange Projects Office Research Section (10A7B) File system DRAW I - A through z A Agent Agent Agent Agent Orange Conference Calls Orange Organization Orange Review Orange Literature Requests - Volume I and II B Dr. Breslin Briefing for the Administrator and the Deputy Administrator Budget BVA - Agent Orange Congressional Action - Agent Orange Contractors/Consultants Delegation of Authority DM&S Issues DM&S Organizational Chart CMD Numbered Memorandums - August 11, 1983 E Equipment Folder 0 Canon 0 Lanier 0 Computer Terminal/Printer Floor Plans Freedom of Information Act VA Standard Forms and Form Letters G H Highlights �Draw I - A through Z (con't.) I Intergency Agreements/EPA/APIP/GSVWESmT/MOSHMAN Associates International Correspondence Interoffice Correspondence Inspector General's Office I.P.A. Information J Journal Requests K Dr. Kang L Letters of Agreement Local Travel M Memo for the Record Media Inquires - Agent Orange Miscellaneous Correspondence Monthly Status Report - Agent Orange Monthly Operational Report - Agent Orange Me N Newsclip O Officer Career Objective Statement Outreach Program - Agent Orange Office Services Folder Position Description Policy Proceedings Policy Coordinating Committee �Draw 1 - A through Z (con't.) Q R Reproduction Requests (Slides, Telefax) NIOSH Dioxin Registry Report of Contacts Research Section - Staffing Resource Information-Non VA Scientific Cooperation with Vietnam Scientists Institute for Public Information Space Survey - 1983 Servicemen's Group Life Insurance Program/First through the Sixteenth Annual Report Slides Adipose Tissue Analysis Agent Orange - Briefing of U.S. Congress on October 20 and 27, 1983 American Chemical Society's Meeting - August 28 through September 2, 1983 Adipose Tissue Meeting - September 1, 1983 Slides Presented for Meeting on June 29, 1983 Enviornmental Fate of TCDD T Testimony Floder Transcript - Nightline 4/15/83 Trip Reports U V VA Library H Weekly Operational Report - Agent Orange White Paper Women in Vietnam m �DRAW II - III Studies, Reports and Meetings VA Studies and Dr. Young's Speeches, Literature Review, Monograph Series , 1981 Dioxin Symposium Federally Sponsored Human Studies Related to Agent Orange Federally Sponsored Laboratory Studies and Literature Surveys Related to Agent Orange Retrospective Adipose Tissue Study Retrospective Adipose Tissue Meeting - December 13, 1982 Correspondence Retrospective Adipose Tissue Study (VA/EPA Contract) Retrospective Adipose Study Analytical Laboratory Adipose Tissue Adipose Tissue EPA - Retrospective Adipose Tissue Meeting - March 2, 1983 Retrospective Adipose Tissue Meeting - February 4, 1983 Agent Orange Correspondence 1982 GAO Report Agent Orange Registry Status Reports AFIP Agent Orange Tissue Registry Chloracne Chlorance Task Force Dioxin Research Study Melioidosis Melioidosis Soft Tissue Sarcoma Soft Tissue Sarcoma Agent Orange Data System Army/A^ Agent Orange Data System �Draw II - III Studies, Reports and Meetings (con't.) Centers for Disease Control (CDC) - Birth Defects CDC Birth Defects Vietnam Experiences Twin Study (VETS) VETS - January 7, 1983 Correspondence St. Louis Trip Budget Proposal Development Proposal Vietnam Veterans Mortality study Vietnam Veteran Mortality Study Correspondence Death Certificates - Letters/Response Mortality Study - State Death Certificates The Vietnam Experience/Wisconsin Study Vietnam Service Indicator (Patient Treatment File-PTF) Vietnam Service Indicator in PTF Non-VA studies RANCH HAND Association Study Correspondence and Newsletters Diseases of Sentry Dogs in Vietnam - DOD/AFIP Reports GAO - Improvements Needed in VA's Efforts to Assist Veterans Concerned about Agent Orange Briefing Administrator's Briefing - 12/7/82 Testimony 9/15/82 Vet's Affairs Meetings Advisory Committee Meeting - May 20, 1983 SMAG Meeting - May 18-19, 1983 - Special Medical Advisory Group Advisory Committee Meeting - February 24, 1983 CCERP Meeting NIH - January 27, 1983 PCP Meeting - January 18, 1983 PCP Meeting - December 10, 1982 �Draw II and III Studies, Reports and Meetings (con't.) SAMG Meeting - September 28-29, 1982 Veterans's Affairs Committee Meeting - September 15, 1982 Pentacholophenol Meeting - August 12, 1982 "Epi Study" Meeting - June 24-25, 1982 Monograph Series Publication Meeting - March 9, 1983 Advisory Committee Meeting - December 6,1983 The Rockefeller University Symposium "Public Health Risks of the Chlorinated Dioxins," October 19-10, 1983 Forest Pest Management Workshop Portland, Oregon - October 24-27, 1983 "Dioxin in the Environment" Symposium on December 6-9, 1983, Michigan AAD Symposium, "Dioxin, Chloracne and the Dermatologist" on 12/3-5/83, CA American Chemical Society Meeting - August 28 through September 2, 1983 Advisory Committee Meeting - September 1, 1983 Committee on Veterans' Affairs Meeting - June 15, 1983 Public Hearings Committee on Veterans' Affairs - June 22, 1983 Subcommittee on Natural Resourses, Agriculture Research and Environment Hearing on Dioxin Health Effect" - June 30, 1983 Advisory Committee Meeting - September 1, 1983 Malathion Copies of Speeches/Presentations Presentation to Dioxin Task Force Missouri Department of Natural Resources Jefferson City, MO - April 14, 1983, Part I, Part II and Part III Review of Literature on Herbicides Including Phenoxy Herbicides and Associated Dioxins Flyers Long-Terra Field Studies of a Rodent Population Continuously Exposed bo TCDD The Absence of Hepatic Cellular Anomalies in TCDD - Exposed Beach Mice - A Field Study "Preprint Extended Abstract" Dioxin in Body Fat and Health Status: A Feasibility Study "Preprint Extended Abstract" Environmental Fate of TCDD - Conclusion from Three-Long Term Field Study "Preprint Extended Abstract" Rationale and Description of the Federally-Sponsored Epidemiologic Research in the United States on the Phenoxy Herbicides and Chlorinated Dioxin Contaminants A Review of on-going Epidemiologic in the United States on the Phenoxy Herbicides and Chlorinated Dioxin Contaminants. Third International Symposium of Chlorinated Dioxins and Related Compounds, Salzbyrg, Australia - October 14, 1982 Fate of 2,3,7,8-TCDD in an Ecosystem Treated with Massive Quantities of 2,4-D and 2,4,5-T Herbicides Presented to California Weed Conference January 1982 "Persistence, Bioaccmulation, and Toxicology of TCDD in an Ecosystem Treated with Massive Quantities of 2,4,5-T Herbicides" Presented to The Western Society of Weed Science March 1981 "Persistence, Bioaccmulation and Toxicology of TCDD in an Ecosystem Treated with Massive Quantities of 2,3,4,5-T Herbicides" Presented to American Chemical Society - September 1979 �Draw II and III Studies, Reports and Meetings (con't.) Review of Use, Fate and Toxicology of Herbicides Blue 1980 Ultrastructual Comparison of Liver Tissue from Field and Lab TCDD Exposed Beach Mice. Determination of Blood Lead Elimination Patterns of Primary Lead Smelter Workers - Han K. Rang, Peter F. Infante Long-Term Field Studies of a Rodent Population Continuously Exposed to TCDD ; Monograph Series Persistence, Movement and Decontamination Studies of TCDD in Storage Sites Massively Contaminated with Phenoxy Herbicides-Third International Symposium of Chlorinated Dioxins and Related Compounds, Salzburg, Australia - October 14, 1982 Department of the Air Force Presentation of the House Veterans' Affairs Committee, Subcommittee on Oversight and Investigation Human and Environmental Risks of the Chlorinated Dioxins and Related Compounds, Plenum Press 1982. "Long-Term Studies on the Persistance and Movement of TCDD in a Natural Ecosystem" Long-Term Field Study of 2,3,7,8-TCDD Presentation to the Chemicals in the Environment Symposium - Copenhagen, Denmark - October 19, 1982 "Agent Orange- Review and update" Presented to California Weed Conference, January 1982 Fate of TCDD in Field Ecosystems - Assessment and Significance for Human Exposures/ East Lansing, Michigan - December 7, 1983 Health Surveillance of Vietnam Veterans Claiming Agent Orange Exposure/ACS Meeting - August 30, 1983 Evaluation of Veterans for Agent Orange Exposure An Overview of Laboratory and Waste Management Guidelines Monograph Chlorance Monograph Monograph Series - VA Employee Forms Dr. Annemarie Sommer - Birth Defects Monograph Dr. Terry L. Lavy - Human Exposure to Phenoxy Herbicides Dr. Ronald D. Hood - Agent Blue Literature Backup and update Material 1981 Dioxin Symposium 1981 Dioxin Symposium Manuscript Instruction 1981 Dioxin Symposium Panel Reports �Draw IV - Research Projects Office Committees Travel Dioxin Symposium - December 3, 1983 November 15, 1983 - Trenton, NJ (Talk Show) Rutgers University (Seminar) October 18-20, 1983 Rockefellow University - Public Health Risks of the Chlorinated Dioxins New York, NY Dallas, Texas - 111th Annual Meeting Public Health Association - November 14-17, 1983 Trip - St. Louis, MO - August 24, 1983 Adipose Tissue/Mission Dioxin Task Force Columbia/St. louis/Jefferson City TOY Newark, NJ - August 4, 1983 Trip Reports By 10A7 and 10A7A Atlanta, GA - June 27-28, 1983 Ft. Walton Beach, EL - July 6-15, 1983 Seveso, Italy - June 8-16, 1983/Italians Trip to Washington August 30 through September 1, 1983 St. Louis/Jefferson, MO - July 20-23, 1983 Winnipy, Canada - June 14-17, 1983 Philadelphia - May 23-26, 1983 Expert Panel - June 7, 1983 New York, NY Chicago O'Hara November 6-r7, 1982 - Illinois A.O. Commission Meeting Proposed Trip and Presentation - Wood, Wisconsin August 25, 1982 Trip - San Antonio and Houston, TX - May 4-6, 1982 Review of Air force Health Study Portland - July 17, 1983 Columbus, Ohio - June 13-14, 1982 Copenhagen - October 18-20, 1982 Chemicals in the Environment Symposium Trip to Winston Salem, NC April 26-28, 1982 - Presentation to Division of Veterans Affairs and TRIAD Vietnam Veterans Association - Major Young Binghamton - March 28-30, 1982 September 16, 1982 - Elgin AFB Tuscaloosa/Kansas City/St. Louis 1982 WSSA Meetings - Boston, MA February 9-11, 1982 TDY - San Diego January 18-21, 1982 - Dr. Young Salzburg - October 11-15, 1982, Copenhagen - October 18-20, 1982, London October 21-22, 1982, Amsterdam - October 25-28, 1982, Basle - October 26-28, 1982 Cancelled St. Louis/Fayetteville - February 6-12, 1983 New York City - January 20, 1983 St. Louis - December 5-8, 1982 �Draw IV - Research Projects Office Committees (con't.) 1982 International Dioxin Conference - Salzburg, Australia london - October 21-22, 1982 Dioxins and Human Exposure Seminar IAES (Coulston) Dioxin Conference, Bethesda, MD - October 4-7, 1981 TOY - VET Center In-Service Education Program - September 14-17, 1981 Dr. Rang 1980 Pome Dioxin Conference SE1&C - Society of environment and Toxicology Chemistry Environment Medicine Office Environmental Medicine Office Reorganization - February 1982 Agent Orange Activities History and Summaries Committees VA Advisory Committee on Herbicides 1982 Annual Report - Advisory Committee on Health-Related Effects on Herbicides AAOTP/AO Data System Army Agent Orange Task Force (AAOTF) USDA/EPA - Silvex 2,4,5-T Registration Committee VA Policy Coordinating Committee Agent Orange Wbrking Group (AOWG) Science Panel - Subcommittee on Exposure Agent Orange Wbrking Group (AOWG) Science Panel �Draw V - States Coalition of State Agent Orange/bioxin Commission California - State Dioxin/Herbicide/Agent Orange Commission Connecticut - State Dioxin/Herbicide/Agent Orange Commission Georgia - State Dioxin/Herbicide/Agent Orange Commission Hawaii - State Dioxin/Herbicide/Agent Orange Commission Illinois - State Dioxin/Herbicide/Agent Orange Commission Indiana Kansas Louisiana Maine - State Dioxin/Herbicide/Agent Orange Commission Massachusetts - State Dioxin/Herbicide/Agent Orange Commission Michigan New Jersy - State Dioxin/Herbicide/Agent Orange Commission New York - State Dioxin/Herbicide/Agent Orange Commission Minnesota Ohio Oklahoma - State Dioxin/Herbicide/Agent Orange Commission Oregon Pennsylvania - State Dioxin/Herbicide/Agent Orange Commission South Dakot Tennessee Texas - State Dioxin/Herbicide/Agent Orange Commission Washington West Virginia - State Dioxin/Herbicide/Agent Orange Commission Wisconsin - State Dioxin/Herbicide/Agent Orange Commission Specially Solicited Research Projects Agent Orange Safety Plan - Budget Agent Orange Safety Plan - VAMC Albuquerque, NM Agent Orange Safety Plan - VAMC Baltimore, MD Agent Orange Safety Plan - VAMC East Orange, NJ Agent Orange Safety Plan - VAMC Lexington Agent Orange Safety Plan - VAMC Madison, WI Agent Orange Safety Plan - VAMC Nashville, TN Agent Orange Safety Plan - VAMC San Francisco, CA Agent Orange Safety Plan - VAMC Sepulveda, CA Safety Plan - VAM&RQC Sioux Falls, SD Agent Orange Safety Plan - Washington, DC Safety Plan - VAMC West Haven, CT Safety Plan - VAMC White River Junction, VT �Draw V - States (Con't.) Safety Plan - VRMC Wbod, Wisconsin Agent Orange Safety Plan Status of Review Agent Orange Safety Plan Meeting - August 17, 1982 Program Discription 1982-1983 - Porphyrin Studies of Veterans - Ronald Codario RANCH HAND Vietnam: 1962-1971 Articles and Reports JRB Associates Austrian Veterans Health Studies UBTL - A Division of the University of Utah Research Institute National Opinion Research Center (NORC) WESTAT Res. Corp. AMVETS Meeting March 16, 1983 - Arlington, Virginia Battelle Laboratories Waste Management, Inc. Mario Negri Institute, Milan, Italy � Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource Alvin L. Young Collection on Agent Orange Description An account of the resource <p style="margin-top: -1em; line-height: 1.2em;">The Alvin L. Young Collection on Agent Orange comprises 120 linear feet and spans the late 1800s to 2005; however, the bulk of the coverage is from the 1960s to the 1980s and there are many undated items. The collection was donated to Special Collections of the National Agricultural Library in 1985 by Dr. Alvin L. Young (1942- ). Dr. Young developed the collection as he conducted extensive research on the military defoliant Agent Orange. The collection is in good condition and includes letters, memoranda, books, reports, press releases, journal and newspaper clippings, field logs and notebooks, newsletters, maps, booklets and pamphlets, photographs, memorabilia, and audiotapes of an interview with Dr. Young.</p> <p>For more about this collection, <a href="/exhibits/speccoll/exhibits/show/alvin-l--young-collection-on-a">view the Agent Orange Exhibit.</a></p> Text A resource consisting primarily of words for reading. Examples include books, letters, dissertations, poems, newspapers, articles, archives of mailing lists. Note that facsimiles or images of texts are still of the genre Text. Box The box containing the original item. 195 Folder The folder containing the original item. 5496 Series The series number of the original item. Series VIII Subseries I Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource Agent Orange Litigation Team, 1984 ao_seriesVIII https://www.nal.usda.gov/exhibits/speccoll/files/original/8bcce651617c7ed88d783b79cc531e51.pdf a6abc593ff8ac2c161fa15bf499d1a22 PDF Text Text Item D Number °5515 n (jot Scanned Author United States Court of Appeals for the Second Circuit RBDOrt/ArtiClB Titlfl A 9ent Orange Product Liability Litigation: Opinions, 1985-1987 Journal/Book Title Year 1985 Month/Day Color D Number of Images 243 Descriptor! Notes MDLNO.SSI Tuesday, March 19,2002 Page 5515 of 5611 �1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 4 Nos. 1140, 1 1 4 1 , 1097, 1 1 3 9 , 1081, 1134, 1135, 1100, 1 1 0 1 , 1098 1099, 1105, 1106, 1102, 1103, 1 1 1 5 , 1 1 1 9 , 1136, 1122, 1123 1124, 1130, 1133, 1127, 1129 August Term, 1985 5 (Argued April 9, 1986 6 Docket Nos. 84-6273, 84-6321, 85-6035, 85-6051, 85-6083, 85-6261, 85-6265, 85-6301, 86-6303, 85-6307, 85-6323, 85-6325, 85-6327, 85-6329, 85-6335, 85-6349, 85-6371, 85-6373, 85-6379, 85-6381, 85-6385, 85-6387, 85-6393, 85-6395, 85-6411. 3 7 Decided 8 9 10 IN RE "AGENT ORANGE" PRODUCT LIABILITY LITIGATION MDL No. 381 11 12 B e f o r e : 13 VAN GRAAFEILAND, WINTER, and MINER, Circuit Judges. 14 This is the first of nine opinions, all filed this date, 15 deciding appeals from various orders of the United States 16 District Court for the Eastern District of New York, Jack B. 17 Weinstein, Chief Judge, in multidistrict litigation No. 381, In 18 19 20 21 22 23 24 ; 25 26 AO 72 iRev 8 82) re "Agent Orange" Product Liability Litigation. This opinion begins with a section that summarizes the entire litigation and all of our rulings. It also sets out in detail the procedural history and general background of all the appeals, familiarity with which may be necessary to understand the other opinions. then goes on to affirm the certification of a class action and approval of the settlement. It �1 The other opinions deal seriatim with appeals from the 2 establishment of a distribution scheme for the resultant 3 settlement fund, the grant of summary judgment against plaintiffs 4 who opted out of the class action, the dismissal of an action 5 brought against the United States by veterans and derivatively by 6 their families, the dismissal of a third-party action against the 7 United States by the chemical companies, the dismissals of 8 actions against the United States and the chemical companies by 9 civilian plaintiffs, the dismissal of a "direct" action against 10 the United States by wives and children of veterans, the 11 upholding of a fee agreement among members of the Plaintiffs' 12 Management Committee, and the award of attorneys' fees by the 13 district court. 14 15 16 17 18 19 20 21 22 23 24 25 26 *> SHERMAN L. COHN, Washington, D.C.; ROBERT A. TAYLOR, JR., Washington, D.C.; RICHARD L. STEAGALL, Peoria, Illinois; BENTON MUSSLEWHITE, Houston, Texas; AVRAM G. ADLER, Philadelphia, Pennsylvania; FRANCIS KELLY, Philadelphia, Pennsylvania (Ashcraft & Gerel, Washington, D.C.; Nicoara & Steagall, Peoria, Illinois; Adler & Kops, Philadelphia, Pennsylvania; James H. Brannon, Jamison & Brannon, Houston, Texas; Joel Rome, Rome & Glaberson, Philadelphia, Pennsylvania; Marlene Penny Maynes, Cincinnati, Ohio; Richard D. Heidemen, Louisville, Kentucky; Stephen L. Toney, Werner, Beyer, Lindgren & Toney, New London, Wisconsin; Richard Ellison, Cincinnati, Ohio; James C. Barber, Dallas, Texas; William Beatty, Granite City, Illinois; John T. McKnight, Brunswick, Georgia; Richard L. Gill, Gill & Brinkman, St. Paul, Minnesota; James H. Davis, Los Angeles, California; Kenneth R. Yoffey, Newport News, Virginia; Richard L. Powell, Augusta, Georgia; 2 AO 72 iRev 8 32) �1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 AO 72 (Rev.8'82)^ i Joseph H. Latchum, Jr., Watkins, Chase, Latchum & Williams, Hampton, Virginia; Lula Abdul-Rahim, Duda, Rahim & Rotto, Oakland, California; Robert D. Gary, Gary & Duff, Lorain, Ohio; J. Edward Allen, Forston, Bentley & Griffin, Athens, Georgia; Charles 0. Fisher, Walsh & Fisher, Westminster, Maryland; William J. Risner, Tucson, Arizona; Walter L. Blair, Blair & Starks, Charles Town, West Virginia; Janet Frazier Phillips, Las Vegas, Nevada; Russell Smith, Laybourne, Smith, Gore, Akron, Ohio; H. Muldrow Etheredge, New Orleans, Louisiana; Ford S. Reiche, Barrett, Reiche & Sheehan, Portland, Maine; Sara Hayes, Gage & Tucker, Kansas City, Missouri; William Jorden, Jorden & White, Meadville, Pennsylvania; Eugene P. Cicardo, Alexandria, Louisiana; Carry R. Dettloff, Kistner, Schienke, Staugaard, Warren, Michigan; James H. Bjorum, Cox, Dodson & Bjorum, Corpus Christi, Texas; Jack E. London, Hollywood, Florida; James T. Davis, Davis & Davis, Uniontown, Pennsylvania; Robert W. Kagler, Moundsville, West Virginia; Michael Radbill, Philadelphia, Pennsylvania; William T. Robinson, III, Robinson, Arnzen, Parry, Covington, Kentucky; William Jarblum, Jarblum & Solomon, New York, New York; John R. Mitchell, Charleston, West Virginia; Dennis A. Koltun, Miami, Florida, of counsel), for Plaintiffs-Appellants Objectors to the Class Settlement. JOHN C. SABETTA, Townley & Updike, New York, New York, for Appellee Monsanto Company. GEORGE D. REYCRAFT, Cadwalader, Wickersham & Taft, New York, New York, for Appellee Diamond Shamrock Chemica] Company. �1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 AO 72 (Rev 8 82) Rivkin, Radler, Dunne & Bayh Garden City, New York, for Appellee The Dow Chemical Company. Kelley Drye & Warren, New York, New York, for Appellee Hercules Incorporated. Clark, Gagliardi & Miller, White Plains, New York, for Appellee TH Agriculture & Nutrition Company,^Inc. Shea & Gould, New York, New York, for Appellee Uniroyal, Inc. Budd Larner Kent Gross Picillo Rosenbaum Greenberg & Sade, Short Hills, New Jersey, for Appellee Thompson Chemicals Corporation. t> LAWRENCE G. SAGER, New York,' New York; STEPHEN J. SCHLEGEL, Chicago, Illinois (Irving Like, Reilly, Like & Schneider, Babylon, New York; Edward F. Hayes, III, Abruzzo, Clancy & Hayes, Huntington, New York; Clayton P. Gillette, Boston, Massachusetts; Thomas W. Henderson, Henderson k Goldberg, Pittsburgh, Pennsylvania; David J. Dean, Dean, Falanga & Rose, Carle Place, New York; Gene Locks, Greitzer & Locks, Philadelphia, Pennsylvania; Stanley M. Chesley, Waite, Schneider, Bayless & Chesley, Cincinnati, Ohio; Newton B. Schwartz, Houston, Texas; Phillip E. Brown, Hoberg, Finger, Brown, Cox & Molligan San Francisco, California; John O'Quinn, O'Quinn & Hagans Houston, Texas, of counsel), for Appellee Plaintiffs' Management Committee. �1 2 WINTER, Circuit Judge: This is the first of nine opinions, all filed on this date, 3 dealing with appeals from Judge Pratt's and Chief Judge 4 Weinstein's various decisions in this multidistrict litigation 5 and class action. 6 "Overview and Summary of Rulings" that summarizes the entire case 7 and all of our decisions. 8 Proceedings," gives the background for all of the appeals. 9 Familiarity with this section may be necessary to understand the This opinion begins with a section entitled The next section, "Detailed History of 10 various opinions that follow. The present opinion also contains 11 our rulings regarding the certification of & class action and the 12 approval of the settlement between the plaintiff class and the 13 defendant chemical companies. 14 review the propriety of the distribution scheme for the resultant 15 fund and the grant of summary judgment against those plaintiffs 16 who opted out of the class action. 17 Van Graafeiland resolve issues concerning•the liability of the 18 United States to veterans, their families, and the chemical 19 companies. » Two other opinions by this author Three opinions by Judge A fourth opinion by Judge Van Graafeiland reviews the dismissal of actions brought by civilian plaintiffs against the 20 21 United States and the chemical companies. 22 Miner resolve issues concerning the validity of a fee agreement 23 among the members of the Plaintiffs' Management Committee ("PMC") 24 and the district court's award of attorneys' fees. Most of the appeals in this litigation were argued on 25 26 AO 72 iRev.8 82) Two opinions by Judge | | �1 April 9-10, 1986. 2 distribution scheme, however, was not taken until August 19v T986 3 and was not argued until October 1 . 4 the latter appeal were in many ways interrelated with those 5 argued in April, the panel had to suspend consideration of these 6 matters until it heard the arguments in October. I. 7 8 9 The appeal from the adoption of the Because the issues raised by OVERVIEW AND SUMMARY OF RULINGS By any measure, this is an extraordinary piece of litigation. It concerns the liability of several major chemical 10 | companies and the United States government for injuries to 11 members of the United States, Australian, an"d New Zealand armed 12 forces and their families. 13 suffered as a result of the servicepersons' exposure to the 14 herbicide Agent Orange while in Vietnam. 15 •> These injuries were allegedly Agent Orange, which contains trace elements of the toxic 16 by-product dioxin,-was purchased by the United States government 17 from the chemical companies and sprayed on various areas in South 18 Vietnam on orders of United States military commanders. 19 spraying generally was intended to defoliate areas in order to 20 reduce the military advantage afforded enemy forces by the jungle 21 and to destroy enemy food supplies. 22 The We are a court of law, and we must address and decide the 23 24 nationwide interest in this litigation and the strong emotions 25 these proceedings have generated among Vietnam veterans and their 26 AO 72 ,Rev.8'82) issues raised as legal issues. We do take note, however, of the families. The correspondence to the court, the extensive �1 hearings held throughout: the nation by the district court 2 : concerning the class settlement with the chemical companies, and 3 even the arguments of counsel amply demonstrate that this 4 i litigation is viewed by many as something more than an action for 5 damages for personal injuries. 6 protest at perceived national indifference to Vietnam veterans; 7 to others, an organizational rallying point for those veterans. 8 Thus, although the precise legal claim is one for damages for 9 personal injuries, the district court accurately noted that the To some, it is a method of public plaintiffs were also seeking "larger remedies and emotional • 10 «r 11 compensation" that were beyond its power to-award. 12 Orange" Product Liability Litigation, 597 F. Supp. 740, 747 13 (E.D.N.Y. 1984). 14 In re "Agent Central to the litigation are the many Vietnam veterans and 15 ! their families who have encountered grievous medical problems. 16 It is human nature for persons who face cancer in themselves or ; 17 serious birth defects in their children to search for the causes 18 of these personal tragedies. 19 Agent Orange have led many such veterans and their families to 20 believe that the herbicide is the source of their current grief. 21 That grief is hardly assuaged by the fact that contact with the 22 herbicide occurred while they were serving their country in 23 | circumstances that were unpleasant at best, excruciating at 24 worst. 25 26 AO 72 (Rev.8'82I Well-publicized allegations about When the case is viewed as a legal action for personal injury sounding in tort, however -- and we are bound by our oaths �1 to so view it -- the most noticeable fact is the pervasive 2 factual and legal doubt that surrounds the plaintiffs' claims. 3 Indeed, the clear weight of scientific evidence casts grave doubt 4 on the capacity of Agent Orange to injure human beings. 5 Epidemiological studies of Vietnam veterans, many of which were 6 undertaken by the United States, Australian, and various state 7 governments, demonstrate no greater incidence of relevant 8 ailments among veterans or their families than among any other 9 group. To an individual plaintiff, a serious ailment will seem 10 highly unusual. 11 defect may persuade grieving parents as to Agent Orange's guilt. 12 However, a trier of fact must confront the statistical 13 probability that thousands of birth defects in children born to a 14 group the size of the plaintiff class might not be unusual even 15 absent exposure to Agent Orange. 16 confront the fact that there is almost no evidence, even in 17 studies involving animals, that exposure of males to dioxin 18 causes birth defects in their children. 19 For example, the very existence of a birth . A trier of fact must also Both the Veterans' Administration and the Congress have 20 treated the epidemiological studies as authoritative. 21 such studies do not exclude the possibility of injury and settle 22 nothing at all as to future effects, they offer little scientific 23 basis for believing that Agent Orange caused any injury to 24 military personnel or their families. 25 the plaintiffs' case consists of studies of animals and 26 industrial accidents involving dioxin. Although The scientific basis for Differences in the species examined and nature of exposure facially undermine the AO 72 (Rev.8/82). 8 �1 significance of these studies when compared with studies of the 2 veterans themselves. 3 Proving that the ailments of a particular individual were 4 caused by Agent Orange is also extremely difficult. 5 granting summary judgment against those plaintiffs who opted out 6 of the class action (the "opt-outs"), the district court 7 essentially held that such proof was presently impossible. 8 first evidentiary hurdle for such an individual is to prove 9 exposure to Agent Orange, an event years past that at the time Indeed, in The 10 did not carry its current significance. 11 consists only of oral testimony as to an individual's remembering 12 having been sprayed while on the ground and/or having consumed 13 food and water in areas where spraying took place. 14 and, in the view of the district court, insurmountable hurdle is 15 to prove that the individual's exposure to Agent Orange caused 16 the particular ailment later encountered. 17 claim that Agent Orange causes ailments that are not found in the 18 population generally and that cannot result from causes known and 19 unknown other than exposure to dioxin. 20 causation would consist largely of inferences drawn from the 21 existence of an ailmeot, exposure to Agent Orange, and medical 22 opinion as to a causal relationship. 23 24 25 26 AO 72 (Rev.8/82) Such evidence generally The second Plaintiffs do not Plaintiffs' proof of However, the �1 difficulties in excluding known causes, such as undetected 2 exposure to the same or similar toxic substances in civilian 3 life, and the conceded existence of unknown causes might make it 4 difficult for any plaintiff to persuade a trier of fact as to 5 Agent Orange's guilt. 6 indispensable element of each plaintiff's claim. 7 Causation is nevertheless an absolutely The plaintiffs' claims are further complicated by the fact 8 that an individual's exposure to Agent Orange cannot be traced to 9 a particular defendant because the military mixed the Agent 10 Orange produced by various companies in identical, unlabeled, 11 barrels. 12 instance of spraying involved a particular defendant's product. 13 In addition, the Agent Orange produced by some defendants had a 14 considerably higher dioxin content than that produced by others. 15 Because the alleged ailments may be related to the amount of 16 dioxin to which an individual was exposed, it is conceivable that 17 if Agent Orange did cause injury, only the products of certain 18 companies could have done so. 19 No one can determine, therefore, whether a particular Difficult legal problems also arise from the considerable 20 uncertainty as to which product liability rules and statutes of 21 limitations apply to the various plaintiffs. 22 from throughout the United States, Australia, and New Zealand, 23 and each would face difficult choice of law problems that might 24 be resolved adversely to their claims. 25 Finally, doubt about the strength of the plaintiffs' claims 26 10 AO 72 (Rev.8/82) The plaintiffs come �1 exists because of the so-called military contractor defense. 2 chemical companies sold Agent Orange to the United States 3 government, which used it in waging war against enemy forces 4 seeking control of South Vietnam. 5 6 7 8 9 TO 11 12 13 14 15 16 17 18 19 It would be anomalous for a company to be held liable by a state or federal court for selling a product ordered by Che federal government, particularly when the company could not control the use of that product. Moreover, military activities involve high stakes, and common concepts of risk averseness are of no relevance. To expose private companies generally to lawsuits for injuries arising out of the deliberately risky activities of the military would greatly impair the procurement process and perhaps national security itself. An illustration of the many factual and legal difficulties facing the plaintiffs is the dispute among their counsel as to how many "serious" or "strong" claims there are. The Plaintiffs' Management Committee ("PMC") estimates a much smaller number than do counsel for the class members who object to the settlement. Neither group has hard evidence to support its estimates. If by 20 "serious" or "strong" one means a case likely to prevail on 21 liability and to result in a substantial damage award, then we 22 believe that every plaintiff would encounter difficulties in 23 proving causation and even graver problems in overcoming the 24 25 military contractor defense. If a case is considered "serious" or "strong" because the plaintiff has grave ailments or has d i e d , 26 11 AO 72 (Rev.8/82) The �1 then such cases do exist, although their numbers remain in doubt. 2 What is not in doubt is that the widespread publicity given 3 allegations about Agent Orange have led to an enormous number of 4 claims alleging a large variety of highly common ailments. 5 illnesses claimants now attribute to Agent Orange include not 6 only heart disease, cancer, ajid birth defects, but also 7 confusion, fatigue, anxiety, and spotty tanning. 8 9 The The procedural aspects of this litigation are also extraordinary. Chief Judge Weinstein certified it as a class 10 action at the behest of most i)f the plaintiffs and over the - 11 objections of all of the defendants. 12 damage suffered by each plaintiff, were not, of course, to be 13 determined in the class action. 14 individual trials if the outcome of the class action proceedings 15 was favorable to the plaintiffs. 16 the class action, but their cases remained in the Eastern 17 District of New York as part of a multidistrict referral. Certain issues, such as the Instead, they were to be left to Some plaintiffs opted out of 18 The class certification and settlement caused the number of 19 claimants and the variety of ailments attributed to Agent Orange 20 to climb dramatically. 21 plaintiffs and increased the controversy surrounding this case. 22 Correspondence to this court indicates that many of the original 23 plaintiffs, most of whom joined the motions for class 24 certification, were never advised that use of the class action 25 device might lead to their being represented by counsel whom they It also has caused disunity among the 26 12 AO 72 (Rev.8/82) �1 did not select and who could settle the case without consulting 2 them. 3 Yannacone & Associates, asked to be relieved for financial 4 reasons. 5 Six of the nine members of the PMC advanced money for expenses at 6 a time when the plaintiffs' case, already weak on the law and the 7 facts, was near collapse for lack of resources. 8 furnished under an agreement that provided that three times the 9 amount advanced by each lawyer would be repaid from an eventual In the midst of this litigation, original class counsel, Control of the class action soon passed to the PMC. 10 fee award. 11 This money was These payments would have priority, moreover, over payments for legal work done on the case. The trial date set by Chief Judge Weinstein put the parties 12 13 under great pressure, and just before the trial was to start, the 14 defendants reached a S180 million settlement with the PMC. 15 size of the settlement seems extraordinary. 16 serious nature of many of the various ailments and birth defects 17 plaintiffs attributed to Agent Orange, the understandable 18 sympathy a jury would have for the particular plaintiffs, and the 19 large number of claimants, 240,000, the settlement was 20 essentially a payment of nuisance value. 21 the chemical companies' ultimately having to pay any damages may 22 have been slv-n, they were exposed potentially to billions of 23 dollars in damages if liability was established and millions in 24 attorneys' fees merely to continue the litigation. 25 26 ! 13 AO 72 The However, given the Although the chances of �1 The district judge approved the settlement. It is clear 2 that he viewed the plaintiffs' case as so weak as to be virtually 3 baseless. 4 summary judgment against the plaintiffs who opted out of the 5 class action on the grounds that they could not prove that a 6 particular ailment was caused by Agent Orange and that their 7 claims were barred by the military contractor defense. Indeed, shortly after the settlement, he granted 8 In addition, Chief Judge Weinstein awarded counsel fees in 9 an amount that was considerably smaller than had been requested 10 by the attorneys involved. The size of the award was clearly 11 influenced by his skepticism about whether the case sho'uld ever 12 have been brought. t- 13 The final extraordinary aspect of this case is the scheme 14 adopted by Chief Judge Weinstein to distribute the class 15 settlement award. 16 "compensation-based" rather than "tort-based," allows veterans 17 who served in areas in which the herbicide was sprayed and who 18 meet the Social Security Act's definition of disabled to collect 19 benefits up to a ceiling of $12,000. 20 provided to the survivors of veterans who served in such areas. 21 No proof of causation by Agent Orange is required, although 22 benefits are available only for non-traumatic disability or 23 death. 24 a foundation to undertake projects thought to be helpful to 25 members of the class. 26 Thni: scU^ie, which is described as The distribution scheme also provides for the funding of Many of the decisions of the district court were appealed, 14 AO 72 (Rev.8 82) Smaller payments are �1 and we summarize our rulings here. 2 the various challenges to the certification of a class action. 3 Although we share the prevalent skepticism about the usefulness 4 of the class action device in mass tort litigation, we believe 5 that its use was justified here in light of the centrality of the 6 military contractor defense to the claims of all plaintiffs. 7 also approve the settlement in light of both the pervasive 8 difficulties faced by plaintiffs in establishing liability and 9 our conviction that the military contractor defense absolved the In this opinion, we reject We 10 chemical companies of any liability. 11 author, No. 86-3039, we affirm the distribution scheme's 12 provision for disability and death benefits to veterans exposed 13 to Agent Orange and their survivors. 14 establishment of a foundation; however, the district court may on 15 remand fund and supervise particular projects it finds to be of 16 benefit to the class. 17 No. 85-6163, affirms the grant of summary judgment against the 18 opt-out plaintiffs based on the military contractor defense. 19 two grounds we hold that the chemical companies did not breach 20 any duty to inform the government of Agent Orange's hazardous 21 properties. 22 had as much information about the potential hazards of dioxin as 23 did the chemical companies. 24 scientific evidence does not establish that Agent Orange caused 25 injury to personnel in Vietnam. 26 breach any duty to inform the government and are therefore not We reverse the scheme's A third opinion by this author, On First, at.the times relevant here, the government Second, the weight of present The chemical companies did not liable to the opt-outs. A072 (Rev.8/82) In a second opinion by -this 15 �1 In an opinion by Judge Van Graafeiland, No. 85-6091; we 2 affirm the district court's dismissal of actions against the 3 United States by veterans on the grounds that they are barred by 4 the Feres doctrine and the discretionary function exception to 5 the Federal Tort Claims Act. 6 Van Graafeiland, No. 85-6153, affirms the dismissal of an action 7 against the United States by the chemical companies seeking 8 contribution or indemnity for the $180 million they paid in 9 settling with the plaintiff class. A second opinion by Judge A third opinion, No. 85-6161, 10 affirms the dismissal of civilian actions against the United' 11 States on discretionary function grounds and of similar" actions 12 against the chemical companies on statute of limitations and 13 military contractor defense grounds. 14 author, No. 86-6127, affirms the dismissal of the so-called 15 "direct" claims by families of veterans against the government on 16 Feres and discretionary function grounds. 17 A final opinion by the same An opinion by Judge Miner, No. 85-6365, invalidates the PMC 18 members' agreement to repay on an "up front" basis treble the 19 expenses that any of them advanced. 20 creates a conflict of interest between the attorneys and the 21 class by generating impermissible incentives to settle. 22 opinion by Judge Miner, No. 85-6305, affirms the district court's 23 award of counsel fees except with regard to the abrogation of one 24 fee award. 25 26 AO 72 iRev 8 82) We hold that this agreement A second �II. 1 2 3 1) DETAILED HISTORY OF PROCEEDINGS Early Proceedings Plaintiffs allegedly were exposed to the herbicide Agerrtr • 4 Orange as a consequence of efforts undertaken by the United 5 States military forces to defoliate the jungle in Vietnam. 6 purpose of this defoliation project, known as "Operation Ranch 7 Hand," was to clear away foliage near supply transport lines, 8 power lines, and military bases, and thus deprive enemy forces of 9 protective cover. One The herbicide was also used to destroy crops 10 available to the enemy. Some plaintiffs claim to have been • 11 directly exposed to the herbicide, while others claim that it 12 contaminated the food and water they consumed or the ground on 13 which they slept. * 14 Although various herbicides were used during the war, Agent 15 Orange was thought to be best suited for the military's purposes 16 and was used most frequently. 17 herbicides known as 2,4-D and 2,4,5-T.1 18 2,4,5-T is said inevitably to result in the production of dioxin, 19 which is alleged to be a highly toxic substance. 20 trace elements of dioxin in Agent Orange were hazardous to 21 persons in sprayed areas is sharply disputed. 22 toxicity of dioxin itself remains a controversial issue. 23 generally P. Schuck, Agent Orange on Trial 16-24 (1986); 24 M. Gough, Dioxin, Agent Orange (1986). 25 26 Agent Orange was a mixture of the Whether the Indeed, the See The Agent Orange litigation began in July 1978, with the filing of a lawsuit by Vietnam veteran Paul Reutershan, now 17 AO 72 iRev 8 82) The manufacture of �1 deceased, in Supreme Court, New York County. 2 several chemical companies alleged to have manufactured Agent 3 Orange. 4 transferred to the Eastern District of New York. 5 1979, Reutershan's estate filed an amended complaint seeking 6 relief on behalf of a class of veterans and their families 7 injured by Agent Orange. 8 similar class claims were filed in late 1978 and early 1979. 9 March 1979, counsel for Reutershan's estate and for defendant Dow The defendants were That case was removed to federal court and then On January 8, Several other complaints alleging In 10 Chemical Co. jointly petitioned pursuant to 28 U.S.C. § 14Q7(c) 11 (1982) for the establishment of a multidistrict litigation 12 proceeding. 13 established In re "Agent Orange" Product Liability Litigation, 14 MDL No. 381, in the Eastern District of New York. 15 cases were transferred to the Eastern District on May 8, 1979, 16 and nearly 600 cases have since been transferred. 17 was assigned to then District Judge Pratt. 18 The Judicial Panel on Multidistrict Litigation The first MDL No. 381 The third amended class complaint in the case designated by 19 20 jurisdiction under the "common law and/or the statxitory laws of 21 the United States." .Defendants moved to dismiss this complaint 22 for want of subject matter jurisdiction. 23 federal common law theory and accordingly denied the motion. 24 re "Agent Orange" Product Liability Litigation, 506 F. Supp. 737, 25 743-49 (E.D.N.Y. 1979). 26 AO 72 (Rev.8.82** the court as the lead action alleged federal question reversed. In re "Agent Orange" Product Liability Litigation, 635 Judge Pratt adopted the In However, a divided panel of this court 18 �F.2d 987 (2d Cir. 1980), cert, denied. 454 U.S. 1128 (1981). 1 2 3 4 The class action thereafter proceeded in federal court solely on the basis of diversity jurisdiction under 28 U.S.C. § 1332 (1982). Defendants next moved for summary judgment based on the 5 so-called military contractor defense. The motion contended that 6 the plaintiffs' claims against the chemical manufacturers were 7 barred on the grounds: (1) that they merely manufactured and supplied Agent Orange to the government pursuant to validly authorized contracts[;] (2) that Agent Orange was not manufactured before and has not been manufactured since; (3) that they completed „ their compelled manufacture of Agent Orange in strict compliance with the specifications supplied by the government, specifications that contained no obvious or "glaring" defects that would have alerted the defendants of any impending danger in following them; and (4) that they manufactured Agent Orange without any negligence on their part. 8 9 10 11 12 13 14 15 In re "Agent Orange" Product Liability Litigation, 506 F. Supp. 16 762, 795 (E.D.N.Y. 1980). Although Judge Pratt stated that this defense might be 17 available top the defendants, id. at 796, he denied defendants' 18 motion on the ground that their own descriptions of their 19 contract performance and their relationship to the government 20 raised issues of fact, requiring a trial. 21 Judge Pratt planned to hold an initial trial on the military 22 contractor defense and allowed discovery on this issue. 23 He stated: 24 The elements of the defense will be uniquely adapted to consideration and adjudication, separate and apart from the issues of liability, 25 26 i AO 72 lRev.8,'82) Id. 19 �causation and damages. As a pracH^-1 macter, discovery as to chese discrefc<= issues will be rather narrow compared co eke discovery that some of the oth««- fact issues presented by this action jn*J* require. 1 2 3 4 5 Id. lei addition, sludge Pratt stated his intention to certify a 6 class pursuant to Fed. R, Civ. P. 23(b) <3>—«£ "persons who claim 7 injury from exposure to Agent Orange and their spowses, children 8 and parents who claim direct or derivative injury th-erefror/i." 9 Id. at 788. He noted that "it may later prove advantageous to 10 create subclasses for various purposes." 11 rejected plaintiffs' request for certification of a "limited 12 fund" class action pursuant to Fed. R. Civ. P. 23(b)(1)(B), on 13 the ground that plaintiffs had failed to offer evidence that the 14 defendants were likely to become insolvent if held liable for 15 plaintiffs' injuries. 16 Id. Judge Pratt «r Id. at 789-90. Following eleven months of discovery, defendants Hercules, 17 Thompson Chemical, Riverdale Chemical, Hoffman-Taft, Dow 18 Chemical, TH Agriculture and Nutrition, and Uniroyal again moved 19 for summary judgment on the military contractor defense* 20 Defendants Monsanto and Diamond Shamrock did not join in the 21 motion. 22 Thompson Chemical, Riverdale Chemical, and Hoffman-Taft, but 23 denied the motions of Dow Chemical, TH Agriculture and Nutrition, 24 and Uniroyal. 25 565 F. Supp. 1263 (E.D.N.Y. 1983). 26 i planned separate trial on the military contractor defense was not Judge Pratt granted summary judgment to Hercules, In re "Agent Orange" Product Liability Litigation, 20 AO 72 (Rev.8.82) He also concluded that the �1 desirable. 2 the military contractor defense had revealed that the defense 3 implicated factual issues also central to both liability and 4 causation and thus should not be tried separately. 5 defendants Hercules and Thompson Chemical were reinstated as 6 defendants. 7 He noted that discovery and argument of motions on Subsequently, In 1980, Yannacone & Associates, a consortium of lawyers who 8 banded together for purposes of this litigation, was designated 9 lead counsel for the representatives of the plaintiff class. See 10 506 F. Supp. at 788 n.32. 11 and attorneys Benton Musslewhite, Steven ScKlegel, and Thomas 12 Henderson joined Yannacone & Associates as lead counsel for the 13 representatives of the class. 14 Associates moved to be relieved of its duties as class counsel, 15 citing an inability to bear the costs associated with the 16 litigation. 17 gain control of the case but failed to do so and withdrew as 18 class counsel. 19 Henderson then recruited additional attorneys to the PMC. 20 generally Schuck, Agent Orange on Trial at 73-77, 94-95, 102-110. 21 Although not a member of the PMC, Ashcraft & Gerel has continued 22 to represent plaintiffs who have opted out of the class action, 23 certain civilian plaintiffs, and certain class members who object 24 to the settlement. 25 2) 2 6 li AO 72 (Rev,8 82) In 1983, the firm of Ashcraft & Gerel » In September 1983, Yannacone & This motion was granted. Ashcraft & Gerel sought to As we describe infra, Musslewhite, Schlegel, and See Class Certification Judge Pratt's duties as a newly-appointed member of this 21 �1 court precluded him from continuing as trial judge, and in 2 October 1983, Chief Judge Weinstein assumed responsibility for 3 MDL No. 38V. 4 trial of the class claims to begin on May 7, 1984. 5 certified a Rule 23(b)(3) class, finding 6 7 8 9 10 11 After conferring with the parties, he ordered the He formally (1) that the affirmative defenses and the question of general causation are common to the class, (2) that those questions predominate over any questions affecting individual members, and (3) given the enormous potential size of plaintiffs' case and the judicial economies that would result from a class trial, a class action is superior to all other methods for a "fair and efficient adjudication of the controversy." 12 In re "Agent Orange" Product Liability Litigation, 100 F.R.D. 13 718, 724 (E.D.N.Y. 1983) ("Class Certification Opinion"). 14 Chief Judge Weinstein defined the plaintiff class as 15 16 17 18 19 20 21 22 23 those persons who were in the United States, New Zealand or Australian Armed Forces at any time from 1961 to 1972 who were injured while in or near Vietnam by exposure to Agent Orange or other phenoxy herbicides, including those composed in whole or in part of 2,4,5-trichlorophenoxyacetic acid or containing some amount of 2,3,7,8-tetrachlorodibenzo-p-dioxin. The class also includes spouses, parents, and children of the veterans born before January 1 , 1984, directly or derivatively injured as a result of the exposure. Id. at 729. 24 In addition, Chief Judge Weinstein certified a Rule 25 23(b)(1)(B) mandatory class on the issue of punitive damages, 26 though not on the ground, previously rejected by Judge Pratt, 22 AO 72 (Rev.3,82) �1 that the claims against the defendants could render them . 2 insolvent. 3 punitive damages is not to compensate but to punish, some limits 4 should be imposed on the amount of punishment meted out to the 5 defendants for a single transaction. 6 Richardson-Merrell, Inc., 378 F.2d 832, 838-42 (2d Cir. 1967) 7 (Friendly, J.). 8 damages might be awarded, if at all, only to the first plaintiffs 9 to receive a judgment. 10 11 12 13 14 15 16 Rather, he reasoned that because the purpose of See Roginsky v. Chief Judge Weinstein reasoned that punitive He concluded that it would be equitable to share [a punitive damage award] among all plaintiffs, who ultimately recover compensatory damages. Yet, if no class is certified under Rule [23](b)(1)(B), non-class members who opt out under Rule 23(b)(3) would conceivably receive all of the punitive damages or, if their cases are not completed first, none at all. 100 F.R.D. at 728. Chief Judge Weinstein also required that plaintiffs' 17 counsel, at their own expense, provide notice to the members of 18 the class as follows: 19 (1) Written notice was to be mailed to (a) all persons who 20 had filed actions in the federal district courts, or had filed 21 actions in state courts later removed to federal court, that were 22 pending in or transferred to the Eastern District; (b) all 23 persons who had intervened or sought to do so; (c) each class 24 member then represented by counsel associated with the PMC who 25 had not yet commenced an action or sought to intervene; (d) all 26 persons then listed on the United States Government's Veterans' 23 AO 72 (Rev 8 821T �1 2 Administration "Agent Orange Registry"; (2) Announcements were to be sent to the major radio and 3 television networks, and to radio stations with a combined 4 coverage of at least one half of the audience in each of the top 5 100 radio markets; 6 (3) Notice was to be published in certain leading national 7 newspapers and magazines, in servicepersons1 publications, and in 8 newspapers in Australia and New Zealand; 9 (4) A toll-free "800" telephone number was to be obtained 10 and staffed by persons who would provide callers with basic, 11 information about the litigation; 12 (5) Notice was to be sent to each state governor requesting 13 that he or she refer the notice to any state agency dealing with 14 the problems of Vietnam veterans. 15 The notice sent to individual veterans, reprinted in the 16 appendix to this opinion, informed potential class members of the 17 pendency of the class action and their right to opt out of the 18 Rule 23(b)(3) class. 19 be effectuated only by written request, and an "Exclusion Request 20 Form" was attached to the notice for convenience. 21 The notice made clear that exclusion could Following certification,of the two classes, the defendants 22 petitioned this court for a writ of mandamus to compel the 23 district court to vacate certification of the classes. 24 Diamond Shamrock Chemicals Co., 725 F.2d 858 (2d dr.), cert, 25 denied, 465 U.S. 1067 (1984). 26 that "mandamus is an extraordinary remedy," id. at 859, and that In denying the petition, we noted 24 AO 72 (Rev.8 82) See In re �1 2 "[r]eview of the many issues raised by the class certification will be available when the ramifications of each aspect of the 3 ruling will be evident." Id. at 862. 4 seems likely that some common issues, which stem from the unique 5 fact that the alleged damage was caused by a product sold by 6 private manufacturers under contract to the government for use in 7 a war, can be disposed of in a single trial. 8 some of these issues in defendants' favor may end the litigation 9 entirely." Id. at 860-61. We also stated that "it The resolution of We further observed that the notice 10 required was at least arguably the best practicable under the » 11 circumstances. Id. at 862. Various plaintiffs, as a means of challenging the 12 13 settlement, now appeal from the class certification. 14 contend that the district court lacked subject matter 15 jurisdiction, that there were insufficient common questions of 16 law and fact to justify certification, and that the notice was 17 inadequate. 18 3) 19 20 21 22 23 They The Settlement In April 1984, Chief Judge Weinstein appointed three special masters — Leonard Garment, Kenneth Feinberg, and David Shapiro -- to assist in negotiations over a settlement of the class action. trial. These negotiations intensified during the weekend before See Schuck, Agent Orange on Trial at 49-66. On May 7, 24 1984, the day the trial was to have begun, the class 25 representatives and the chemical companies agreed to settle the 26 25 AO 72 iRev.8 82) �1 class claims for $180 million. Thereafter, Chief Judge Weinstein 2 conducted eleven days of hearings on the proposed settlement in New York, Atlanta, Houston, Chicago, and San Francisco. o At these 4 hearings, nearly 500 witnesses addressed the fairness of the 5 settlement. 6 written communications from veterans, members of their families, 7 veterans' organizations and others . . . and read a large part of 8 the relevant literature, taking judicial notice of its 9 substance." Chief Judge Weinstein also considered "hundreds of In re "Agent Orange" Product Liability Litigation, 597 F. Supp. 740, 748 (E.D.N.Y. 1984) ("Settlement Opinion"); •> 10 By May 6, 1984, the day before the settlement was reached, 11 12 some 2,440 class members had opted out of the Rule 23(b)(3) class 13 action by filing requests for exclusion. 14 agreement provided for a period during which persons who had 15 opted out of the class could be reinstated as class members if 16 they filed a request with the district court. 17 Agreement K 8, id. at 865. 18 Chief Judge Weinstein stated that he would consider late 19 applications to rejoin the class "sympathetically." The settlement Settlement Some 600 such requests were received. Id. at 757. In a lengthy opinion, reported at 597 F. Supp. 740 (E.D.N.Y. 20 21 1984), Chief Judge Weinstein approved the settlement subject to 22 hearings on counsel fees and preliminary consideration of plans 23 for distribution of the settlement proceeds. Various members of 24 the class appeal from the approval of the settlement on the 25 ground that the $180 million award is inadequate. 26 26 AO 72 iRev 8 82) i !| �1 4) 2 Counsel Fees By late 1983, the three remaining members of the PMC -- 3 ii Schlegel, Musslewhite, and Henderson -- found that they lacked 4 the resources necessary to continue the litigation. In order to 5 attract new members both to finance and staff the lawsuit, the 6 members of the PMC entered into an agreement whereby those 7 members who advanced money for expenses were to be repaid at 8 three times the amount of money advanced "off the top" out of any 9 award of counsel fees. The agreement also established a formula, 10 later rescinded, by which the remainder of the fee award was'to *• 11 be distributed among the PMC members. 12 advanced money for expenses in return for a trebled repayment 13 controlled six of the nine PMC votes. 14 not informed of this agreement until after the case had been 15 settled. 16 As a result, those who had Chief Judge Weinstein was After the settlement, more than 100 applications for 17 attorneys' fees and expenses were submitted to the district 18 court. 19 and October 1, 1984. 20 issued an amended order awarding a total of $10,767,443.63 in 21 fees and expenses to 88 law firms and individual lawyers for 22 their work on behalf of the class. 23 Liability Litigation. 6 1 1 F. Supp. 1296, 1344-46 (E.D.N.Y. 1985).; 24 i 25 Hearings on these applications were held on September 26 On June 18, 1985, Chief Judge Weinstein In re "Agent Orange" Product The district court followed the so-called "lodestar" approach to attorneys' fees awards, see City of Detroit v. Grinnell Corp., I 26 ': AO 72 (Rev.8'82) 495 F . 2 d 448 ( 2 d C i r . 1 9 7 4 ) ( " G r i n n e l l I " ) , and City of D e t r o i t 27 �1 v. GrinneLl Corp.. 560 F.2d 1093 (2d Cir. 1977) ("Grinnell II"). 2 using national hourly rates of S150 for partners, $125 for, Law•., 3 | professors, and $100 for associates. The court increased sonre: 4 fee awards by a quality multiplier, ranging from 1.50 to 1.75, to 5 reward those who exhibited "exceptional or extraordinary skill" 6 in the litigation. 7 however, to apply an overall risk multiplier to the lodestar 8 amount. 611 F. Supp. at 1328. The court declined, Appeals have been taken from these rulings. 9 As noted, the PMC agreement required a trebled return of 10 funds advanced off the top of any fees awarded by the court.' 11 Some PMC members therefore stood to receive enormously greater 12 fees than they were awarded by the court, while others stood to 13 receive substantially less. 14 to have served as lead trial counsel and was awarded $1,424,283 15 in fees by the district court, would receive only $542,310 under 16 the fee-sharing agreement. 17 awarded only $41,886 by the district court, would receive 18 $513,026 under the agreement. 19 For example, David J. Dean, who was In contrast, Newton Schwartz, who was Chief Judge Weinstein denied a motion by Dean to set aside 20 the fee-sharing agreement after concluding that the agreement had 21 no adverse impact on the interests of the class. 22 In re "Agent Orange" Product Liability Litigation, 611 F. Supp. 1452, 1458-62 23 (E.D.N.Y. 1985). 24 ! soon as a fee-sharing arrangement is made its existence roust be 25 i 26 ' AO 72 (Rev 8 88*. However, he ordered that "[i]n future cases, _a_s_ made known to the court, and through the court to the class." —— Id. at 1463. Dean has appealed from that ruling. 28 �5) 1 Distribution of the Settlement A number of proposals for distribution of the settlement 2 3 fund were presented to Chief Judge Weinstein. We focus on the 4 plans submitted by the PMC, by Victor Yannacone, original lead 5 counsel for the class, and by Special Master Feinberg. 6 The PMC proposed to compensate all class members who could 7 prove that they suffered from any of 24 medical conditions that 8 the PMC's experts associated with exposure to Agent Orange. 9 These conditions included chloracne; peripheral and central 10 neuropathy; various liver disorders, including cirrhosis, chronic » 11 hepatitis, and porphyria cutanea tarda; gastrointestinal 12 conditions; hematological, endocrinal, and metabolic problems; 13 benign and malignant tumors; birth defects; and miscarriages. 14 The PMC proposal also suggested providing compensation to 15 claimants with other medical problems, such as arthritis, 16 heartburn, abdominal pain, and diarrhea, that "seem to have been 17 reported in the literature as possibly accompanying Agent Orange 18 exposure." 19 by a number of "individual discount factors" to reflect a 20 claimant's financial needs and the legal and factual difficulties 21 that the claimant would have encountered in proving his or her 22 case in court. 23 conditions might have received different monetary awards 24 ; depending, for example, on'their collateral source payments, 25 numbers of dependents, and ability to receive gratuitous 26 services; the statutes of limitations and availability .The PMC would have adjusted each compensation award Accordingly, two claimants with similar medical 29 AO 72 (Rev 8 8 2 ) (I I1 �1 of a strict liability cause of action under the applicable state i 2 i; law; their levels of exposure to Agent Orange and/or dioxin, a i 3 ! factor the PMC has abandoned on appeal; their individual and 4 5 family medical histories; "life style considerations"; and I damages. The PMC suggested that the; settlement fund might also 6 be used to provide class-wide benefits such as "preventive and 7 genetic counseling, health monitoring, research and [group life 8 and health] insurance." 9 The Yannacone proposal would have deferred any distribution 10 of the settlement fund to individual: claimants pending a survey 11 of "who the Viet Nam veterans are, what their present state of 12 health is, and how many have already died and from what causes." 13 Yannacone urged that a portion of the settlement fund be used to 14 establish a "Viet Nam Veterans Legal Assistance Foundation" to 15 assist class members in obtaining disability benefits from the 16 Veterans' Administration. 17 speak for thousands of veterans and their families who 18 "reaffirmfed] their original position that the purpose of the 19 Agent Orange litigation was to establish a trust fund for the 20 benefit of all the Agent Orange victims not to benefit any 21 individual veteran at,the expense of their [sic] 22 comrades-in-arms." 23 Yannacone's proposal purported to Special Master Feinberg proposed that the greater part of 24 25 family members in the form of death and disability benefits. 26 AO 72 (Rev.8/82) the settlement fund be distributed to individual veterans and difficulties of establishing a causa}, link between a claimant's 30 The �1 injuries amd exposure to Agent Orange were to be avoided by 2 .compensating all claimants who had been exposed to the defoliarat 3 and who later died or became disabLed as a result of 4 non-traumatic causes,, 5 remainder of the settlement fund be used to provide services to 6 the class as a whole and in particular to~~~children with birth 7 defects. The Special Master proposed, tfeat the Chief Judge Weinstein conducted a public hearing on the 8 various distribution plans on March 5, 1985. 9 More than 40 10 speakers, including members of the PMC, Yannacone, 11 representatives of veterans organizations, and individual class 12 members, participated in the hearing. 13 interested persons were allowed additional time following the 14 hearing to submit written comments on the distribution 15 proposals. The PMC and other On May 28, 1985, Chief Judge Weinstein issued an order 16 17 establishing a plan for distribution of the settlement fund. In 18 re "Agent Orange" Product Liability Litigation ("Distribution 19 Opinion") , 611 F. Supp. 1396 (E.D.N.Y. 1985). He adopted with slight modifications the Special Master's proposal, which he 20 21 described as "an elegant solution [combining] insurance-type 22 compensation to give as much help as possible to individuals who, 23 in general, are most in need of assistance, together with a 24 i •' foundation run by veterans with the flexibility and discretion to 25 | take care of individuals and groups most in need of help." 26 at 1400. The plan provided that 75 percent of the $180 million 31 AO 72 (Rev.8 82) Id. �1 settlement fund, including accrued interest, would be distributed 2 directly "to exposed veterans who suffer from long-term total 3 disabilities and to the surviving spouses or children of exposed 4 veterans who have died." 5 qualify for compensation by establishing exposure to Agent Orange 6 and death or disability not "predominantly caused by trauma, 7 whether or not self-inflicted." Id. at 1410-11. A claimant would Id. at 1412. 8 Chief Judge Weinstein offered four reasons for providing 9 individual compensation payments only to disabled veterans and to 10 survivors of deceased veterans. First, because the settlement » 11 fund was "not sufficient to satisfy the claimed losses of every 12 class member," id. at 1 4 1 1 , it would be equitable to limit 13 payments to those with the most severe injuries. 14 payments would be made only to veterans or survivors, and not to 15 children who had suffered birth defects and wives who had 16 suffered miscarriages, because "however slight the suggestion of 17 a causal connection between the veterans' medical problems and 18 Agent Orange exposure, even less evidence supports the existence 19 of an association between birth defects [or miscarriages] and 20 exposure of the father to Agent Orange in Vietnam." 21 claim processing costs would be minimized under the plan because 22 claimants would not be required to prove that they suffered from : 23 any particular disease or that the disease was caused by exposure 24 to Agent Orange; the court reasoned that any alternative 25 eligibility criteria would require "[cjreation of a costly new 26 claims-processing bureaucracy" and "impose on the applicant the 32 AO 72 iRev 8 82) Second, the Id. Third, j j �1 2 3 enormous burdens of producing volumes of medical records and paying expensive medical and legal fees for complicated processing and testing." Ml 4 Id. Finally, the distribution plan obviate[s] the necessity for particularized proof and is 'a 5 fair response to the particular difficulties that this class 6 would have in gathering and presenting evidence of damages. 1 " 7 Id. (quoting In re Chicken Antitrust Litigation American 8 Poultry, 669 F.2d 228, 240 & n.20 (5th Cir. 1982)). 9 Chief Judge Weinstein rejected as "essentially arbitrary," 10 id. at 1409, the PMC's plan to provide compensation only for 11 specified diseases. 12 for choosing or excluding any disease, since causation cannot be 13 shown for either individual claimants or individual diseases with 14 any appropriate degree of probability." 15 16 He reasoned that "[n]o factual basis exists Id. In addition, he concluded that the costs of establishing the existence of particular diseases and applying individual discount factors 17 would be burdensome and expensive for both the fund and the 18 claimant. 19 20 21 22 23 24 25 26 Id. at 1408-09. Chief Judge Weinstein set aside most of the remainder of the settlement fund to support a "class assistance foundation" that would "serve as a national focus for Vietnam veterans who are class members to mobilize themselves and others to deal with their medical and related problems." The "broad mandates" of the foundation were defined as "to fund projects to aid children with birth defects and their families and alleviate reproductive problems" and "to fund projects to help meet the 33 AO 72 «* (Rev.8 821' Id. at 1432. �1 service needs of the class as a whole." 2 district judge reasoned that the foundation was "[t]he most 3 practicable and equitable method of distributing benefits" to 4 class members who were neither disabled veterans nor survivors of 5 deceased veterans, because "[d]istribution of thousands of small 6 individual payments would trivialize the beneficial impact of the 7 settlement fund on the needs of the class." 8 9 Id. at 1437. The Id. at 1431. The court offered a number of examples of the sorts of programs for which the foundation might provide financial 10 support. The projects that might be funded for children wi,th 11 birth defects included "[p]rotection and advocacy services," "[a] 12 public hotline and referral service," "[g]rants to hospitals and 13 clinics," "insurance programs," "vocational training projects," 14 "grants to establish peer support groups to enable children with 15 birth defects to discuss their problems openly among themselves," 16 and "[g]rants or loans . . . to families in grave financial need 17 to help pay for essential medical services." 18 Other possibilities "for funding of classwide services" 19 enumerated by the court included projects to "help class member 20 veterans better obtain and utilize VA services and to monitor the 21 VA and other federal ,and state services to ensure that they are 22 responsive to the needs of the class," to "increase public 23 awareness of the problems of the class," to provide health 24 information and social service assistance to the class, and to 25 "help members of the class become a more integrated part of 26 society." Id. at 1440. 34 AO 72 iRev.8 82 Id. at 1438-39. �1 The foundation was to be administered by a board of 2 directors "comprised primarily of Vietnam veterans." Id. at 3 : 1434. 4 between 15 and 45 members, which would thereafter be 5 "self-governing and self-perpetuating." 6 only to the general supervisory authority retained by the court, 7 the board would control "every aspect of foundation 8 administration," including "investment and budget decisions, 9 specific funding priorities, a detailed grant application The court would appoint the initial board of directors of Id. at 1435. Subject 10 process, the actual grant awards, evaluation mechanisms, and' 11 fundraising strategies." 12 comparatively modest supervisory role in the operation of the 13 class assistance foundation," while retaining the power to 14 "supervise foundation operations actively and exercise control as 15 necessary to protect the interests of the class." 16 Id. The court would play "[a] Id. at 1436. Chief Judge Weinstein reappointed Special Master Feinberg to 17 oversee the implementation of the distribution plan. 18 1400. 19 services were to be funded until the appellate process was 20 completed. 21 Id. at However, no claimants were to receive payments and no Id. at 1451. The PMC filed an appeal and petition for a writ of 22 23 distribution plan. On September 5, 1986, Mr. Yannacone filed a 24 petition for a writ of mandamus/prohibition seeking removal of 25 the PMC as class counsel and implementation of his proposed 26 ! AO 72 (Rev.8.82) mandamus/prohibition on August 19, 1986, seeking to overturn the distribution plan. 35 �1 6) Dismissal of the Opt-Out Cases After settling with the class, defendants moved on July 24, 2 3 1984, for summary judgment against the opt-outs. Chief Judge 4 Weinstein dismissed the opt-outs on the grounds that, inter alia, 5 no plaintiff was able as a matter of law to produce sufficient 6 evidence to allow a trier of fact to find that Agent Orange had 7 caused the particular ailment(s) from which he or she suffered. 8 In re "Agent Orange" Product Liability Litigation, 611 F. Supp. 9 1223, 1256-63 (E.D.N.Y. 1985) ("Opt-Out Opinion"). As a second, 10 independently dispositive ground, Chief Judge Weinstein held that 11 the military contractor defense precluded recovery. 12 1263-64. 13 decisions. 14 7) Id. at Certain opt-out plaintiffs appeal from those Proceedings Against the Government and Miscellaneous Actions 15 The first direct claim against the United States was 16 asserted by veterans who believed that they had been exposed to 17 Agent Orange. 18 The plaintiffs alleged that the government and certain government 19 officials were liable under the Federal Tort Claims Act ("FTCA"), 20 21 22 23 Ryan v. Cleland, 531 F. Supp. 724 (E.D.N.Y. 1982). 28 U.S.C. § 1346(b) et se<L' > f°r failing to warn them of the possible dangers associated with exposure to Agent Orange and neglecting to provide proper medical care for those who had been injured by the herbicide. Judge Pratt held that the United 24 States was immune from suit under the FTCA on the failure-to-warn 25 claims because those claims were "incident to and arising out of" 26 the plaintiffs' military service and therefore fell within the 36 AO 72 (Rev 8 82) �1 exception to the government's waiver of sovereign immunity 2 recognized in Feres v. United States, 340 U.S. 135 (1950), and 3 its progeny. 4 complaint was dismissed on various jurisdictional grounds that 5 are not challenged on appeal. 6 531 F. Supp. at 728. The remainder of the The government refused to participate in the negotiations 7 that culminated in the settlement of the class action. See 8 Settlement Opinion, 597 F. Supp. at 879 (letter from government 9 counsel to court). In the settlement agreement, the plaintiff 10 class and the defendant chemical manufacturers "expressly 11 reserve[d] all rights and claims which they "now have, or may at 12 any time be entitled to assert against the United States, 13 including its offices, departments, agencies, representatives, 14 agents and employees." 15 Veterans and their families renewed their efforts to obtain 16 relief from the government following the settlement. 17 1984, an Eighth Amended Complaint was filed on behalf of a number 18 of named plaintiffs (the "Aguiar plaintiffs") and a proposed 19 plaintiff class composed of veterans who claimed injury from 20 exposure to Agent Orange and their spouses, parents, and 21 children. 22 complaint alleged that the government and certain government 23 officials had engaged in negligent and intentionally tortious 24 conduct that occurred before, during, and after the veterans' 25 military service. * Settlement Agreement K 1 1 , id. at 865. In an attempt to circumvent the Feres doctrine, the 26 37 AO 72 Rev 8 82) In July �1 Chief Judge Weinstein refused to certify the plaintiffs' 2 ! claims against the government as a class action, reasoning that 3 "the enormous expenditure required to notify potential class 4 members is not justified given the almost nonexistent possibility 5 of recovery against the government on the merits." 6 Orange" Product Liability Litigation, 603 F. Supp. 239, 242 7 (E.D.N.Y. 1985). 8 would unfairly preclude children with birth defects from bringing 9 suit were future scientific studies to establish the validity of In re "Agent In addition, he stated that class certification 10 their claims against the government. 11 then dismissed all claims against the government by veterans, as 12 well as all derivative claims by veterans' spouses and children 13 on such theories as loss of earnings and services. 14 Judge Pratt that the United States was immune from suit on such 15 claims under Feres, he rejected the plaintiffs' efforts to 16 circumvent the Feres doctrine. 17 been taken from that ruling. 18 Id. Chief Judge Weinstein Id. at 243-45. Agreeing with An appeal has Chief Judge Weinstein also concluded that the veterans' 19 wives and children had produced "no evidence of any probative 20 value" demonstrating that their miscarriages and birth defects 21 were caused by Agent .Orange or refuting "the government's 22 overwhelming showing of no present proof of causation." 23 247. 24 with respect to the wives' "direct" claims for independent 25 injuries. 26 •! without prejudice, reasoning that "discretion should generally AO 72 (Rev 8.82)** Id. at He therefore granted summary judgment to the government However, he dismissed the childrens' direct claims 38 �1 be exercised in favor of an infant who lacks evidence to support 2 his- or her claim but who may obtain such evidence in the future." 3 Id. at 247.2 In a related action, two former civilian employees of the 4 5 University of Hawaii and the widow of a third brought suit 6 against the United States, the manufacturers of Agent Orange, and 7 the former Regents of the University for injuries allegedly 8 sustained during Agent Orange experiments at the University in 9 1967. In re "Agent Orange" Product Liability Litigation 10 11 1985). 12 plaintiff class consisting of 35,000 unnamed residents of Kauai 13 County, Hawaii. 14 to demonstrate that they shared a common interest with the 15 remainder of the proposed class. 16 Weinstein then disposed of the individual plaintiffs' claims 17 against each of the defendants. 18 the chemical, manufacturers and the former Regents, with the 19 exception of the widow's wrongful death claim, as barred by 20 Hawaii's two-year statute of limitations for personal injury 21 actions. 22 the former Regents on the ground that Hawaii's workers' 23 compensation statute provides the exclusive remedy against an 24 employer for work-related injuries. 25 granted summary judgment in favor of all defendants, having found 26 AO 72 iRev 8 821 (Fraticelli v. Dow Chemical Co.), 611 F. Supp. 1285 (E.D.N.Y; "no admissible evidence that Agent Orange caused plaintiffs' Chief Judge Weinstein denied certification of a" proposed He reasoned that the named plaintiffs had failed Id. at 1288-89. Id. at 1288. Chief Judge He dismissed the claims against He also dismissed the claims against Id. at 1289. Finally, he �illnesses." 1 complaints against the government for indemnification or 3 contribution in January 1980. 4 Judge Pratt dismissed the third-party complaints in their entirety on the basis of Stencel 5 Aero Engineering Corp. v. United States. 431 U.S. 666 (1977), 6 which bars a defendant from obtaining indemnification or 7 contribution from the government for damages paid to a 8 serviceman-plaintiff in circumstances where the serviceman would 9 be barred by Feres from suing the government directly for his 10 injuries. 11 In re "Agent Orange" Product Liability Litigation. 506 F. Supp. 762 (E.D.N.Y. 1980). 12 However, no formal order of dismissal was entered. 13 Chief Judge Weinstein reconsidered the dismissal of the 14 third-party complaints after he took charge of the Agent Orange 15 litigation. 16 See In re "Agent Orange" Product Liability Litigation, 580 F. Supp. 1242 (E.D.N.Y.), mandamus denied, 733 17 F.2d 10 (2d Cir.), appeal dismissed, 745 F.2d 161 (2d Cir. 1984). 18 Analyzing the three rationales for the Feres doctrine, Chief 19 Judge Weinstein held that it barred suit against the government 20 only with respect to ,the claims of the veterans and the 21 derivative claims of their families. 22 24! I He against the government as to the direct claims of the veterans' wives and children for their own injuries on the ground that such claims were precluded by neither Feres-Stencel nor by any of the 40 AO 72 ,Rev,8 82) 580 F. Supp. at 1247. therefore reinstated the defendants' third-party complaints 23 26 An appeal has been taken. The defendant chemical manufacturers served third-party 2 25 Id. �1 statutory exceptions to government liability contained in the 2 FTCA. 3 summary judgment to the government on the outstanding third-party 4 claims. 5 F. Supp. 1221 (E.D.N.Y. 1985). 6 recovery against the United States "[i]n the absence of some form 7 of [governmental] misfeasance," he found no such misfeasance in 8 the instant case. 9 claim that the government had withheld information about Agent 10 Orange from them in the mid-1960s, finding that the defendants 11 and the government had "essentially the same knowledge about 12 possible dangers from dioxin in Agent Orange." 13 has been taken. Id. at 1247-56. Chief Judge Weinstein later granted In re "Agent Orange" Product Liability Litigation. 611 Id. at 1223. III. 14 Reasoning that the FTCA precludes He thus rejected the defendants' Id. An appeal CLASS MEMBERS' OBJECTIONS TO THE SETTLEMENT 15 We now addres-s the various objections to the maintenance and 16 17 settlement of the class action made by some class members. 18 1) Subject Matter Jurisdiction The third amended complaint alleged that its class action 19 20 claims were governed, inter alia, by "federal common law" and 21 that the district court therefore had federal question 22 jurisdiction. 23 I j 24 ' Liability Litigation, 506 F. Supp. 737, 749 (E.D.N.Y. 1979). 25 | F.2d 987 (2d Cir. 1980), cert, denied, 454 U.S. 1128 (1981), and Judge Pratt agreed. In re "Agent Orange" Product VJe reversed, In re "Agent Orange" Product Liability Litigation, 635 i 26 the class action was thereafter maintained solely on the basis of 41 AO 72 (Rev 8 82) �1 diversity jurisdiction. Appellants, members of the plaintiff 2 class, now contend that a diversity class action cannot be 3 brought in federal court absent complete diversity of citizenship 4 between all class members and all defendants. 5 saying that such complete diversity is lacking in this case. It goes without 6 Although we understand the need to preserve issues for 7 further review, we confess a certain surprise at the vigor with 8 which this argument was pressed in this court and the amount of 9 time that was devoted to it at oral argument. It is hornbook 10 law, based on 66 years of Supreme Court precedent, that complete 11 diversity is required only between the named plaintiffs and the 12 named defendants in a federal class action. 13 A. Miller & E. Cooper, Federal Practice and Procedure § 3606, at 14 424 (2d ed. 1986) ("[t]he courts look only to the citizenship of 15 the representative parties in a class action"). 16 Court noted in Snyder v. Harris, 394 U.S. 332 (1969): 18 19 20 21 22 23 25 394 U.S. at 340. See also United States ex rel. Sero v. Preiser, : ii 506 F.2d 1 1 1 5 , 1 1 2 9 (2d Cir. 1974), cert, denied, 421 U.S. 921 (1975). Thus, if appellants' theory of class action jurisdiction 26 42 AO 72 (Rev.8'82) As the Supreme Under current doctrine, if one member of a class is of diverse citizenship from the class" opponent, and no nondiverse members are named parties, the suit may be brought in federal court even though all other members of the class are citizens of the same State as the defendant and have nothing to fear from trying the lawsuit in the courts of their own State. See Supreme Tribe of Ben-Hur v. Cauble, 255 U.S. 356 (1921). 17 24 13B C. Wright, �I 1 2 ! is to become Law, this must be done by the Supreme Court. Appellants also argue that even if Snyder v. Harris is good 3 I law, three of the named plaintiffs were co-citizens of three of 4 the defendants. 5 F. Ryan and defendant Hooker Chemical were citizens of New York; 6 (2) named plaintiff Brian T. Quinn and defendant Riverdale 7 Chemical were citizens of Illinois; and (3) named plaintiff Dan 8 G. Jordan and defendant Diamond Shamrock were citizens of Texas. 9 Both Hooker Chemical and Riverdale Chemical effectively 10 They contend that: (1) named plaintiff Michael ceased to be parties to the case before the filing of the final » 11 amended class complaint against the Agent Orange manufacturers. 12 Hooker was granted summary judgment in February 1982, on the 13 ground that it did not manufacture Agent Orange. 14 Orange" Product Liability Litigation, 534 F. Supp. 1046, 1052 15 (E.D.N.Y. 1982). 16 judgment was granted in May 1983. 17 Product Liability Litigation, 565 F. Supp. 1263, 1272 (E.D.N.Y. 18 19 In re "Agent Riverdale's unopposed motion for summary See In re "Agent Orange" 1983). Appellants argue that because no Rule 54(b)3 certification 20 of dismissal was issued as to either Hooker or Riverdale, both 21 defendants remain in the case for purposes of determining 22 diversity jurisdiction. 23 Rule 54(b). 24 purpose" of Rule 54(b) is to provide "an opportunity for 25 litigants to obtain from the District Court a clear statement of We believe that their view misconstrues The Supreme Court has noted that the "obvious 26 :| AO 72 (Rev.8 82) ** 43 �1 what that court is intending with reference to finality, and if 2 such a direction is denied, the litigant can at least protect 3 himself accordingly." 4 338 U.S. 507, 512 (1950). 5 thus only to clarify the appealability of an order, a dismissed 6 defendant who fails to obtain a Rule 54(b) certification does not 7 remain a party to the case for purposes of determining 8 diversity. 9 Dickinson v. Petroleum Conversion Corp., Because the purpose of the rule is Appellants' allegation regarding the citizenship of Diamond 10 Shamrock is equally meritless. 11 initiated against Diamond Shamrock, its principal place of 12 business was in Ohio. 13 the domicile of named plaintiff Dan Jordan, is irrelevant for 14 diversity purposes. 15 (1957) ("jurisdiction, once attached, is not impaired by a 16 party's later change of domicile"). 17 claims that diversity of citizenship is lacking are without 18 merit. 19 At the time the action was The fact that it has since moved to Texas, See Smith v. Sperling, 354 U.S. 91, 93 n.l Thus, all of appellants' Finally, appellants contend that the district court lacked 20 21 class met the $10,000, jurisdictional requirement. 22 International Paper Co., 414 U.S. 291, 301 (1973) ("[e]ach 23 plaintiff in a Rule 23(b)(3) class action must satisfy the 24 jurisdictional amount, and any plaintiff who does not must be 25 dismissed from the case"). 26 '! AO 72 (Rev.8'82) jurisdiction over the class action because not all members of the different rule, the sum claimed by the plaintiff controls if the See Zahn v. However, "unless the law gives a 44 �1 claim is apparently made in good faith. 2 legal certainty that the claim is really for less than the 3 jurisdictional amount to justify dismissal." 4 Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288-89 (1938) 5 (footnotes omitted). 6 members made bad faith damage claims. 7 basis for determining whether such claims clearly are for less 8 than the jurisdictional amount. 9 court failed to carry out an obligation to police the damage 10 claims. It must appear to a St. Paul Mercury Appellants do not argue that any class Nor do they offer us any Instead, they claim the district No such affirmative obligation exists, however, absent •r 11 some apparent reason to make inquiry. 12 be assumed to have been good faith allegations that each of them 13 was entitled to at least $10,000 in damages. 14 challenge the bona fides of these claims, and the district court 15 thus had no reason to inquire further. 16 2) 17 Plaintiffs made "what must Defendants did not In Personam Jurisdiction Appellants contend that the district•court was barred by the 18 due process clause of the fifth amendment from exercising 19 personal jurisdiction over class members who lack sufficient 20 contacts with New York as defined in International Shoe Co. v. 21 Washington, 326 U.S. 310 (1945), and its progeny. 22 appellants concede, as they must, that Congress may, consistent 23 with the due process clause, enact legislation authorizing the 24 federal courts to exercise nationwide personal jurisdiction. 25 Mississippi Publishing Corp. v. Murphree, 326 U.S. 438, 442 26 45 AO 72 'Rev.8 82> However, See �1 (1946) ("Congress could provide for service of process anywhere 2 in the United States"). 3 U.S.C. § 1407 (1982), the raultidistrict litigation statute. 4 the instant case, the district court was acting pursuant to a 5 valid transfer order of the Judicial Panel on Multidistrict 6 Litigation that was created by that statute. 7 recognized, One such piece of legislation is 28 In As the Panel has Transfers under Section 1407 are simply not encumbered by considerations of in personam jurisdiction and venue. . . . Following a transfer, the transferee judge has all the jurisdiction and powers over pretrial proceedings in the actions transferred to him that the transferor judge would have had in the absence of transfer. 8 9 10 11 12 13 In re FMC Corp. Patent Litigation, 422 F. Supp. 1163, 1165 14 (J.P.M.D.L. 1976) (citations omitted). See also In re Sugar 15 Industry Antitrust Litigation, 399 F. Supp. 1397, 1400 16 (J.P.M.D.L. 1975) .(^ejecting due process challenge similar to 17 that raised by appellants in the instant case). 18 argument therefore fails. 19 3) 20 Appellants' Class Certification Appellants argue that the district court erred in certifying 21 the Rule 23(b)(3) class action. They make the same arguments 22 made by the defendants in petitioning for a writ of mandamus 23 seeking decertification of the class action. 24 Shamrock Chemicals Co., 725 F.2d 858 (2d Cir.), cert, denied, 465 25 U.S. 1067 (1984). 26 doubt as to the existence of any issue of fact, let alone a In denying the mandamus petition, we expressed 46 AO 72 (Rev,8 82) See In re Diamond �1 common issue, regarding "general causation." See 725 F.2d at 2 860. 3 common issues, which stem from the unique fact that the alleged 4 damage was caused by a product sold by private manufacturers 5 under contract to the government for use in a war, can be 6 disposed of in a single trial. 7 issues in defendants' favor may end the litigation entirely." 8 IdL at 860-61. 9 however, that our scope of review in the mandamus proceeding was We also stated, however, that "it seems likely that some The resolution of some of these Therefore, we denied the petition. We stressed, 10 limited to the redress of a calculated disregard of governing 11 rules, id. at 860, not the correction of ordinary error, and that 12 the propriety of a class certification might be fully reviewed on 13 a later appeal. 14 15 16 17 18 19 20 21 22 Id. at 862. This is that appeal. Rule 23(a) states: One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. Existence of the first prerequisite in this case is undisputed. Whether there are problems regarding typicality and 23 adequacy of representation depends upon the nature of the 24 questions of law or fact common to the class. 25 26 47 AO 72 (Rev 8 82) Our view of the �1 existence of the third and fourth prerequisites is thus 2 influenced by our view of the second. 3 We must also look to the requirements of Rule 23(b)(3) 4 that: 5 the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. 6 7 8 9 The comment to Rule 23(b)(3) explicitly cautions against use of 10 the class action device in mass tort cases. See Advisory t> 11 Committee Note to 1966 Revision of Rule 23(6)(3) ("A 'mass 12 accident1 resulting in injuries to numerous persons is ordinarily 13 not appropriate for a class action because of the likelihood that 14 significant questions, not only of damages but of liability and 15 defenses of liability, would be present, affecting the 16 individuals in different ways."). 17 denied certification in those circumstances. 18 Northern Dist. of Gal. Dalkon Shield IUD Products Liability 19 Litigation, 693 F.2d 847 (9th Cir. 1982), cert, denied, 459 U.S. 20 1171 (1983); Payton v. Abbott Labs. 100 F.R.D. 336 (D. Mass. 21 1983); Yandle v. PPG Industries, Inc., 65 F.R.D. 566 (E.D. Tex. 22 1974); Boring v. Medusa Portland Cement Co., 63 F.R.D. 78, 83-85 23 (M.D. Pa.), appeal dismissed, 505 F.2d 729 (3d Cir. 1974). 24 ! 25 26 AO 72 (Rev,8. Moreover, most courts have See, e^g., In re The present litigation justifies the prevalent skepticism over the usefulness of class actions in so-called mass tort !| 48 �1 cases and, in particular, claims for injuries resulting from 2 tox.ic exposure. 3 greatly exaggerated by its proponents in the present matter. 4 example, much ink has been spilled in this case over the 5 distinction between generic causation -- whether Agent Orange is 6 harmful at all, regardless of the degree or nature of exposure, 7 and what ailments it may cause -- and individual causation -- 8 whether a particular veteran suffers from a particular ailment as 9 a result of exposure to Agent Orange. 10 First, the benefits of a class action have been For It has been claimed that the former is an issue that might appropriately be tried in a •> 11 class action, notwithstanding that individual causation- must be 12 tried separately for each plaintiff if the plaintiff class 13 prevails. 14 We do not agree. The generic causation issue has three 15 possible outcomes: 1) exposure to Agent Orange always causes 16 harm; 2) exposure to Agent Orange never causes harm; and 3) 17 exposure to Agent Orange may or may not cause harm depending on 18 the kind of exposure and perhaps on other factors. 19 indisputable that exposure to Agent Orange does not automatically 20 cause harm. 21 personnel who handled and sprayed the herbicide proved that much 22 beyond a shadow of a doubt in finding no statistically 23 significant differences between their subsequent health histories 24 and those of similar personnel who had not been in contact with 25 Agent Orange. 26 of exposure to Agent Orange may cause harm. The so-called Ranch Hand Study of Air Force Further, defendants have conceded that some kinds 49 AO 72 (Rev 8 82) It is They stated at both �1 the argument of the mandamus petition and the argument of the 2 appeal that Agent Orange, like anything else, including water and 3 peanuts, may be harmful. 4 defendants rely so heavily prove no more than that Vietnam 5 veterans do not exhibit statistically significant differences in 6 various symptoms when compared with other groups. 7 exclude the possibility of injury, and tend at best to prove only 8 that, if Agent Orange did cause harm, it was in isolated 9 instances or in cases of unusual exposure. The epidemiological studies on which They in no way 10 The relevant question, therefore, is not whether Agent' 11 Orange has the capacity to cause harm, the generic causation 12 issue, but whether it did cause harm and to whom. 13 determination is highly individualistic, and depends upon the 14 characteristics of individual plaintiffs (e.g. state of health, 15 lifestyle) and the nature of their exposure to Agent Orange. 16 Although generic causation and individual circumstances 17 concerning each plaintiff and his or her exposure to Agent Orange 18 thus appear to be inextricably intertwined, the class action 19 would have allowed generic causation to be determined without 20 regard to those characteristics and the individual's exposure. That 21 The second reason for our skepticism is that, with the 22 exception of the military contractor defense, there may be few, 23 if any, common questions of law. 24 :i claims of the individual veterans, see In re "Agent Orange" 25 ProductLiability Litigation, 635 F.2d at 993-95 (rejecting cause 26 of action under federal common law), Chief Judge Weinstein 50 AO 72 (Rev.8 82l Although state law governs the �1 decided that there were common questions of law because he 2 predicted that each court faced with an Agent Orange case would 3 resort to a national consensus of product liability law. 4 Judge Weinstein's analysis of the choice of law issues in this 5 action, see In re "Agent Orange" Product Liability Litigation, 6 580 F. Supp. 690 (E.D.N.Y. 1984), with which we assume 7 familiarity, is bold and imaginative. 8 prior holding that federal common law does not govern plaintiffs' 9 claims, every jurisdiction would be free to render its own choice Chief However, in light of our 10 of law decision, and common experience suggests that the 11 intellectual power of Chief Judge Weinstein's analysis alone 12 would not be enough to prevent widespread disagreement. 13 Third, the dynamics of a class action in a case such as this 14 15 protect the interests of the class or cause the inefficient use 16 of judicial resources. 17 fact that potential plaintiffs in toxic tort cases do not share 18 common interests because of differences in the strength of their 19 claims. 20 plaintiffs who seek certification and defendants who resist. 21 This is so because many of the plaintiffs' counsel will perceive 22 in a class action efficiencies in discovery, legal and scientific 23 research, and the funding of expenses. 24 ' reasonably expect to become counsel for the class and to share in 25 | i 26 AO 72 iRev 8 32i may either impair the ability of representative parties to a substantial award of fees, the incentive to seek certification These undesirable results stem from the Before the class is certified, it is usually some of the is greatly enhanced. When counsel can Defendants will resist certification, 51 �1 hoping to defeat the plaintiffs individually through application 2 of their greater resources. 3 All plaintiffs may not desire class certification, however, 4 j because those with strong cases may well be better off going it 5 alone. 6 action claiming harm from toxic exposure and the speculative 7 nature of the exposure issue may well attract excessive numbers 8 of plaintiffs with weak to fanciful cases. 9 notwithstanding the grave doubt surrounding the factual basis of The drum-beating that accompanies a well-publicized class For example, 10 the plaintiffs' case, some 240,000 veterans and family members 11 alleging hundreds of different ailments, including many that are 12 both minor and commonplace, have filed claims for payment out of 13 the settlement fund. 14 If plaintiffs with strong claims remain members of the 15 ! class, they may see their claims diluted because a settlement 16 attractive to the defendants will in all likelihood occur. 17 plaintiffs, who may exist in very large numbers, stand to gain 18 from even a small settlement. 19 amount of money is on the table, the class attorneys will have an 20 incentive to settle. 21 percentage of this money likely to be awarded as counsel fees 22 will decline after a certain point. 23 other hand, they run the risk of losing the case and receiving no 24 compensation for what may have been an enormous amount of work. 25 There is thus great pressure to settle. 26 a case such as the instant litigation, dramatically arrived at AO 72 (Rev.8 82)** Weak Moreover, once a significant They may well anticipate that the 52 If they go to trial, on the Indeed, a settlement in �1 just before dawn on the day of trial after sleepless hours of 2 bargaining, seems almost as inevitable as the sunrise. 3 settlement, however, is not likely to lead to a fund that can be 4 distributed among the large number of class members who will 5 assert claims and still compensate the strong plaintiffs for the 6 value of their cases. 7 8 9 Such a Moreover, the ability of the district court to scrutinize the fairness of the settlement is greatly impaired where the legal and factual issues to be determined in the class action are as 10 numerous and complex as they were under the district court's 11 order in the instant case. 12 distribution plan that is both fair to the strong plaintiffs and 13 efficient in adjudicating the large number of claims may be 14 impossible. 15 all plaintiffs and the strength of the military contractor 16 defense enabled the district court to evaluate the settlement 17 accurately and to fashion an appropriate distribution scheme in 18 the instant 'matter. 19 coincidental and not to be expected in all toxic exposure cases. 20 If the strong plaintiffs opt out, however, the efficiencies Similarly, the fashioning of a Only the weakness of the evidence of causation as to We regard those factors as largely 21 22 largely of plaintiffs with weak cases, many or most of which 23 should never have been brought. 24 to settle with the class because such a settlement with the class 25 would not affect their continuing exposure to large damage awards 26 ' AO 72 (Rev.8 82) of a class action may be negative. in the individual cases brought by strong plaintiffs. The class would then consist The defendants would be unlikely 53 Both the �1 2 class action and the strong cases would then have to be tried. Were this an action by civilians based on exposure to dioxin 3 in the course of civilian affairs, we believe certification of a 4 class action would have been error. 5 cardinal fact we noted in denying the petition for writ of 6 mandamus, namely that "the alleged damage was caused by a product 7 sold by private manufacturers under contract to the government 8 for use in a war." 9 F.2d at 860. 11 12 13 14 15 16 17 18 19 21 In re Diamond Shamrock Chemicals Co., 725 In that regard, Chief Judge Weinstein noted that: Unlike litigations such as those involving DBS, Dalkon Shield and asbestos, the trial is likely to emphasize critical common defenses applicable to the plaintiffs' class as a whole. They will include such matters as ... that if any injuries were caused by defendants' product it was because of the particular use and misuse made by the government; and that the government, not the manufacturers were wholly responsible because the former knew of all possible dangers and assumed full responsibility for any damage. ... It is anticipated that a very substantial portion of a prospective four-month trial will be devoted to just those defenses. Certification would be justified if only to prevent relitigating those defenses over and over again in individual cases. 10 20 However, we return to the Class Certification Opinion, 100 F.R.D. at 723. In our view, cla,ss certification was justified under Rule 22 23(b)(3) due to the centrality of the military contractor 23 defense. 24 cases, and thus satisfies the commonality requirement of Rule 25 23(a)(2). First, this defense is common to all of the plaintiffs' See Port Authority Police Benevolent Ass'n v. Port 26 54 AO 72 iRev.8 82I �1 Authority of New York & New Jersey, 698 F.2d 150, 154 (2d Cir. 2 1983) ("Since plaintiff has satisfied the requirement of 3 common question of law or fact, Rule 23(a)(2), the denial of 4 class certification must be reversed.") (emphasis added). 5 Second, because the military contractor defense is of central 6 importance in the instant matter for reasons explained in our 7 subsequent discussion of the fairness of the settlement and in 8 our separate opinion affirming the grant of summary judgment 9 against the opt-outs, this issue is governed by federal law, and a 10 a class trial in a federal court is a method of adjudication 11 superior to the alternatives. Fed R. Civ. P. 23(b)(3). If the 12 defense succeeds, the entire litigation is disposed of. 13 fails, it will not be an issue in the subsequent individual 14 trials. 15 such as a failure to warn the government of a known hazard, might 16 well be dispositive of relevant factual issues in those trials. 17 If it In that event, moreover, the ground for its rejection, Appellants argue that the diverse interests of the class 18 make adequate representation virtually impossible. 19 If defendants had successfully interposed the military contractor 20 defense, they would have precluded recovery by all plaintiffs, 21 irrespective of the strengths, weaknesses, or idiosyncrasies of 22 their claims. 23 of the virtual identity of all of the plaintiffs' cases with 24 respect to the military contractor defense. 25 26 AO 72 (Rev. 8 82) We disagree. Similarly, the typicality issue disappears because It is true that some of the dynamics that generate pressure for an undesirable settlement will continue to operate in a class 55 �1 action limited to the military contractor defense. 2 however, that a district court's ability to scrutinize the 3 i We believe, fairness of a class settlement is greatly enhanced by narrowing 4 the legal and factual issues to this defense. We are confident, 5 moreover, that such scrutiny will be informed by the court's 6 awareness of the danger of such a settlement occurring. 7 also true that the difficulty in fashioning a distribution scheme 8 that does not overcompensate weak claimants and undercompensate 9 strong ones is not alleviated by limiting the class certification It is 10 to the military contractor defense. 11 believe use of the class action was appropriate, although many 12 potential difficulties were avoided only because all plaintiffs 13 had very weak cases on causation and the military contractor 14 defense was so strong. 15 However, on balance we, We thus conclude that certification of the Rule 23(b)(3) 16 I class action was proper. 17 from the approval of the settlement and from the grant of summary 18 judgment against the opt-outs excludes any possibility of an 19 award of punitive damages, we need not address the propriety of 20 the certification of a mandatory class under Rule 23(b)(1)(B). 21 22 23 4) Because our disposition of the appeals Adequacy of the Notice of the Class Action In addressing the defendants' petition for a writ of mandamus, we noted only that Chief Judge Weinstein's conclusion 24 , that the notice ordered was the best practicable under the 25 ! circumstances was "if not inexorable, . . . arguably correct, at 26 least before the full results [of the notice plan] are known." 56 AO 72 • Rev 8 32' �1 In re Diamond Shamrock Chemicals Co.. 725 F.2d at 862. 2 FuLL review is now necessary. •- 3 Appellants argue that both the notice required by the 4 district court, see Class Certification Opinion, 100 F.R.D. at 5 729-34, and the notice actually given were insufficient to inform 6 the class members of their rights, most importantly their right 7 to opt out. 8 meet the requirements of due process and Rule 23(c)(2) and seek 9 an additional notification period as well as an additional They contend therefore that the notice failed to opt-out period. 10 11 The portion of the order that dealt with notice, set out in 12 full in the appendix, adopted a creative approach appropriate to 13 this unique case. 14 92,275 veterans listed in the Agent Orange Registry established 15 by the Veterans' Administration in 1978 to identify potential 16 victims as well as to the 11,256 persons who had filed or 17 intervened in lawsuits or had counsel affiliated with the PMC. 18 The court concluded that these were the only class members who 19 could be identified and located through reasonable effort. 20 at 729-31. 21 notice, including announcements in various servicepersons' and 22 national publications and on radio and television. 23 the court directed that a letter be sent to every governor 24 requesting that notice of the lawsuit be provided to any state 25 agencies that might have lists of veterans. It required that letter notice be sent to the The court also required various forms of substitute 26 57 AO 72 iRev 88* r Id. In addition, �1 Rule 23, of course, accords considerable discretion to a 2 district court in fashioning notice to a class, see Reiter v. 3 Sonotone Corp., 442 U.S. 330, 345 (1979), and our standard of 4 review is "the familiar one of whether the District Court was 5 'clearly erroneous1 in its factual findings and whether it 6 'abused* its traditional discretion." 7 Moody. 422 U.S. 405, 424 (1975) (discussing "abuse of discretion" 8 standard in award of back pay under Title VII of Civil Rights Act 9 of 1964). 10 11 Albemarle Paper Co. v. See generally Anderson v. Bessemer City, 470 U.S. 564, 573-76 (1985) (elaborating on "clearly erroneous" standard).. Rule 23(c)(2) requires only that members of a Rule 23(b)(3) 12 class be given "the best notice practicable under the 13 circumstances, including individual notice to all members who can 14 be identified through reasonable effort." 15 upon Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 16 (1950), appellants nonetheless contend that actual notice to each 17 and every class member was essential. 18 Relying principally We disagree. In Mullane, the Supreme Court held that notice by 19 publication of pending settlements of accounts was 20 constitutionally sufficient as to trust beneficiaries whose names 21 and addresses were unknown to the trustee. 22 interest "in bringing any issues as to its fiduciaries to a final 23 settlement," _id_. at 313, and the beneficiary's interest in being 24 apprised of the pendency of settlements in order to "choose for 25 26 58 AO 72 iRev.8 82) Noting the state's �1 himself whether to appear or default, acquiesce or contest," jxL 2 at 314, the Court concluded that notice by publication was 3 permissible as to persons whose whereabouts or interests could 4 not be determined through due diligence or whose interests were 5 either conjectural or future. 6 where the performance of a trustee was the issue, the interests 7 of unknown beneficiaries were likely to be protected by the known 8 and notified beneficiaries, who had to b.e provided with mailed 9 notice. Id. at 317-18. It noted that The Court stated: This type of trust presupposes a large number of small interests. The individual interest does not stand alone but is identical with that of a class. The rights of each in the integrity of the fund and the fidelity of the trustee are shared by many other beneficiaries. Therefore notice reasonably certain to reach most of those interested in objecting is likely to safeguard the interests of all, since any objection sustained would inure to the benefit of all. We think that under such circumstances reasonable risks that notice might not actually reach every beneficiary are justifiable. 10 11 12 13 14 15 16 17 18 Id. at 319. Appellants contend that, unlike Mullane, the 19 interests of Agent Orange class members who were unaware of the 20 instant litigation would not be protected by those class members 21 who did receive notice. 22 It is true that the claims of the plaintiffs are highly 23 I 24 : individualistic in a number of respects. The interests of all of the plaintiffs are identical, however, with regard to the facts 25 | 26 59 AO 72 iHev.8 82) �1 and the law relevant to the military contractor defense. 2 class members with actual notice therefore would have represented 3 the interests of the class members unaware of the action. 4 The Moreover, Chief Judge Weinstein found that many of the 5 members of the class were unknown and could not be located 6 through reasonable efforts. 7 fact, and must be accepted unless clearly erroneous. 8 Franklin National Bank Securities Litigation, 599 F.2d 1109, 9 1 1 1 0 - 1 1 (2d Cir. 1979). That conclusion is a finding of In re We cannot agree with appellants that all 10 2.4 million Vietnam veterans should have been sent letter notice. * 11 First, it is undisputed that far fewer than that number were 12 exposed to Agent Orange. 13 all Vietnam veterans would thus have been considerably overbroad. 14 Second, there is no assurance that such a list could have been 15 compiled through reasonable efforts. 16 records kept by the government would have facilitated 17 individualized notice. 18 easily accessible list of veterans, as there must have been of 19 royalty holders in Phillips Petroleum Co. v. Shutts, 472 U.S. 797 20 21 22 23 A requirement that notice be given to Appellants claim that some They concede, however, that there was no (1985), and of odd-lot trading customers in Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974). We cannot find, therefore, that such a comprehensive list could reasonably have been compiled. We also note that the second phase of the plan enlisted the 24 aid of the mass media and state governments, an effort that 25 ultimately resulted in letter notice to 20,000 class members in 26 60 AO 72 (Rev.8 82) �1 addition to the more than 100,000 given notice in the first phase 2 of the plan. 3 publicity this litigation has received. 4 to whether anyone at all was injured by Agent Orange, the fact 5 that some 240,000 claims have been filed suggests that no 6 practical problem exists as to the adequacy of the notice. 7 We also take judicial notice of the widespread Given the great doubt as Appellants offer no feasible alternative to the notice plan 8 adopted by the district court for identifying and contacting 9 persons actually exposed to Agent Orange. In this regard, we are 10 informed by the statement of our late colleague Judge Friendly 11 that it is inappropriate to second-guess a district court's class 12 notice procedure, "particularly [where] no alternative method of 13 ascertaining class members' identities has been suggested to us." 14 Weinberger v. Kendrick, 698 F.2d 61, 71 (2d Cir. 1982), cert. 15 denied, 464 U.S. 818 (1983). 16 Chief Judge Weinstein was fully adequate under the 17 circumstances. 18 In sum, the notice plan adopted by Appellants also raise numerous objections to the content of 19 the notice given. 20 discrepancies among the various notices as to whether the class 21 consisted of persons who "claim injury," "were injured," or "can 22 claim injury" from Agent Orange. 23 basis for us to require the sending of new notice, however, 24 because the essential goal of the notice requirement would have 25 been accomplished by any of the above formulations. 26 AO 72 (Rev.8,82) '• They contend, for example, that there were Such objections provide no Anyone who believed that he or she had suffered injury as a result of �1 2 exposure to Agent Orange in Vietnam was on notice of the pendency of a lawsuit and was thus alerted to seek advice from counsel. Finally, appellant? point out that a large number of mailed 3 4 notices were returned undelivered. In litigation of this sort, 5 such returns must be regarded as inevitable. 6 alleged failure of clas$ counsel to ensure that all of the 7 publication and broadcast notices were provided in a timely 8 fashion. 9 misunderstanding regarding a stay we granted after denial of the They also note the These omissioijis occurred in part because of a clerical 10 defendants' mandamus petition. 11 F. Supp. at 756. 12 disseminate notice through the media, and we are convinced that 13 the omissions noted wer$ of little consequence in light of the 14 actual notice and widespread publicity. 15 5) 16 See Settlement Opinion, 597, Moreover, a major effort was made to Adequacy of Post-Settlement Procedures Appellants argue that Chief Judge Weinstein should have 17 conducted hearings to evaluate the adequacy of the settlement 18 prior to ordering notice of the settlement to the class. 19 previously noted in addressing a similar argument that "[t]he 20 21 22 23 24 We have question becomes whether or not the District Court had before it sufficient facts intelligently to approve the settlement offer. If it did, then there is no reason to hold an additional hearing on the settlement or to give appellants authority to renew discovery." Grinnell I, 495 F.2d at 462-63. Although appellants 25 have stated in attacking the settlement that Chief Judge 26 Weinstein was too involved in its negotiation, they argue here 62 AO 72 «* (Rev.8-82) �1 that he did not know enough about the settlement to assess its 2 reasonableness. 3 Judge Weinstein was thoroughly informed of the strengths and 4 weaknesses of the parties' positions. 5 therefore. 6 Their argument is totally frivolous. Chief No hearing was necessary, Appellants also challenge the validity of the notice of 7 settlement sent to class members. 8 the notice was defective because it failed to detail a 9 distribution plan. They allege, inter alia, that There is, however, no absolute requirement 10 that such a plan be formulated prior to notification of the* 11 class. 12 F.2d 195, 223-24 (5th Cir. 1981), cert, denied, 456 U.S. 998 13 (1982). 14 See In re Corrugated Container Antitrust Litigation, 643 The prime function of the district court in holding a 15 16 the amount paid is commensurate with the value of the case. 17 can be done before a distribution scheme has been adopted so long 18 as the distribution scheme does not affect the obligations of the 19 defendants under the settlement agreement. 20 the plan in a case such as this is a difficult, time-consuming 21 process. 22 fairness of a settlement follow adoption of a distribution plan 23 would immensely complicate settlement negotiations and might so 24 overburden the parties and the district court as to prevent 25 either task from being accomplished. 26 AO 72 (Rev,8 82) hearing on the fairness of the settlement is to determine that settlement must follow formulation of a distribution plan, then This The formulation of To impose an absolute requirement that a hearing on the 63 Moreover, if a hearing on a �1 reversal of any significant aspect of the plan on appeal, as has 2 occurred in the instant case with regard to the establishment of 3 a foundation, would require a remand for reconsideration of the 4 settlement, followed by yet another appeal. 5 reason to impose such procedural straitjackets upon the 6 settlements of class actions. 7 Weinstein's approval of the settlement was subject to formulation 8 of and hearings on a plan for distribution. 9 6) 10 There is no sound Finally, we note that Chief Judge Adequacy of the Settlement As required by Fed, R. Civ, P, 23(e), Chief Judge Weinetein 11 carefully reviewed the proposed settlement, and gave his approval 12 subject to hearings on attorneys' fees and approval of a 13 settlement fund distribution plan. 14 597 F. Supp. 740 (E.D.N.Y. 1984). 15 16 17 18 19 See Settlement Opinion, He stated: The court has been deeply moved by its contact with members of the plaintiffs' class from all over the nation and abroad. Many do deserve better of their country. Had this court the power to rectify past wrongs -- actual or perceived -- it would do so. But no single litigation can lift all of plaintiffs' burdens. The legislative and executive branches of government -20 state and federal -- and the Veterans Administration, as well as our many 21 22 23 24 25 private and quasi-public medical and social agencies, are far more capable than this court of shaping the larger remedies and emotional compensation plaintiffs seek. Within the sharply limited judicial role we must ask whether the settlement of the litigation proposed by the parties' 26 64 AO 72 (Rev 8.82) �representatives is acceptable. For the reasons indicated below we tentatively hold that it is. It gives the class more than it would likely achieve by attempting to litigate to the death. It provides funds to help at least some men, women and children whose hardships will be reduced in some small degree. It does represent a major step in the essential process of reconciliation among ourselves. 1 2 3 4 5 6 7 _Id_. at 747. 8 Our role in scrutinizing the approval of the settlement is 9 limited in light of the district court's extensive knowledge of 10 the parties and their respective cases. 11 I_, "so much respect is accorded the opinion of the trial court in 12 these matters that this court will intervene in a judicially 13 approved settlement only when objectors to that settlement have 14 made a clear showing that the District Court has abused its 15 discretion." 16 that "[t]he proposed settlement cannot be judged without 17 reference to the strength of plaintiffs' claims," and that "[i]f 18 the settlement offer was grossly inadequate . . . it can be 19 inadequate only in light of the strength of the case presented by 20 the plaintiffs." 21 As we stated in Grj.nnell 495 F.2d at 455 (citations omitted). We also noted Id. Appellants argue that the $180 million settlement approved 22 by the district court is woefully inadequate. 23 the PMC underestimated the strength of the class1 case, the total 24 number of claimants, the number with serious claims, and the 25 value of these claims had they been presented to juries. 26 i assert that the principal PMC negotiator estimated that there 65 AO 72 iRev.8'82) They contend that They �1 were only about 20,000 claims, 3,000 of which were serious in 2 nature. 3 20,000 serious claims, each worth at least $500,000. 4 seek to bolster their position by noting that 240,000 veterans 5 have filed claims against the settlement fund. 6 Appellants' own estimate is that there are at least Appellants We view the lack of hard information as to the number of 7 "serious" claims -- apparently a reference to the amount of 8 damage suffered since no individual Agent Orange claim is strong 9 on liability -- as a sign of the weakness of the plaintiffs' . v 10 case. 11 have been involved in the litigation for many years, continue 12 merely to speculate about the number of serious claims. 13 fact supports rather than undermines the settlement. 14 Those who challenge the settlement, including counsel who That We are also unimpressed by the use of the total number of 15 claimants as a means of attacking the settlement. 16 claimants specify hundreds of different ailments, some of which, 17 such as anxiety or fatigue, are so common that causation by Agent 18 Orange simply cannot be proved. 19 a large number of claimants proves nothing. 20 thousands of birth defects in the children of Vietnam veterans 21 exposed to Agent Orange would not statistically differentiate 22 that group from the population generally. 23 Opinion, 597 F. Supp. at 789 (quoting JAMA editorial by Bruce B. 24 Dan, M.D.). 25 from the fact that every Vietnam veteran who might have been 26 exposed to Agent Orange was invited to file a Moreover, the existence of such (Rev,8/82) For example, See Settlement The irrelevance of the number of claimants results 66 AO 72 The 240,000 �1 claim regarding any and all "adverse health effects." 2 Supp. at 869. 3 597 F. Nevertheless, tort law accords juries wide discretion, and 4 the existence of any substantial number of serious plaintiffs 5 would create a dangerous exposure for the chemical companies. 6 is true that $180 million is a lot of money. 7 number of plaintiffs had gone on to prevail at trial, however, 8 the actual exposure of the chemical companies might well have 9 been measured instead in the billions of dollars. It If even a small Jury verdicts 10 of several million dollars for disabling ailments or injuries to 11 children are not uncommon. 12 serious claim had a settlement value of $500,000, the $180 13 million would cover only 360 plaintiffs. 14 million is at best only a small multiple of, at worst less than, 15 the fees the chemical companies would have had to pay to their 16 lawyers had they continued the litigation. 17 $180 million may be, therefore, we must conclude that in the 18 circumstances it was essentially a settlement at nuisance value. 19 If, in the present litigation, each Indeed, the $180 However large a sum We believe, however, that the PMC had good reason to view 20 this case as having only nuisance value. 21 opinion sets out the.various, weaknesses of plaintiffs' case in 22 great and persuasive detail, Settlement Opinion, 597 F. Supp. 740 23 (E.D.N.Y. 1984), and our discussion assumes familiarity with that 24 opinion. 25 26 The difficulties begin with the conceded fact that all of the various ailments afflicting the plaintiffs occur in the 67 AO 72 ** lRev.8;82\ Chief Judge Weinstein's �1 population generally and have known and unknown causes other than 2 exposure to dioxin. 3 accidents and experiments with animals suggest that exposure to 4 dioxin may cause various of those ailments. 5 6 7 8 9 Id. at 782-83. Studies based on industrial Id. at 780. However, these studies involve different dosages and different species than are involved in this litigation. Studies of Vietnam veterans themselves fail to demonstrate ailments occurring among them at a statistically abnormal rate. See id. at 787-88. The weight of present scientific evidence thus does not establish. f 10 that personnel serving in Vietnam were injured by Agent Orange. 11 See III Review of Literature on Herbicides, Including Phenoxy 12 Herbicides and Associated Dioxins, II-8 to 11-10 (1984) (Joint 13 Appendix Vol. XIII at 5828-29). 14 The Ranch Hand Study compared health records of Air Force 15 personnel involved in handling and spraying Agent Orange with 16 those of Air Force personnel who performed other tasks. 17 concluded that there is little difference in the health histories 18 of the two groups. 19 studies, including many done by federal, state, and foreign 20 governments, compared the incidence of various ailments among 21 Vietnam veterans to their incidence among civilian populations. 22 These studies also concluded there are no statistically 23 significant differences. 24 25 See 597 F. Supp. at 782, 784, 788. Other See id. at 787-95. Such studies are, of course, not conclusive. The Ranch Hand Study, for example, involved personnel who ate and slept at their 26 69 AO 72 (Rev.8/82) It �1 home bases and were able to take regular showers, whereas the 2 plaintiffs were predominantly infantry alleging exposure to Agent 3 Orange through spraying or ingestion of local food and water. 4 Id. at 788. 5 suffered greater exposure than did the Air Force personnel who 6 actually handled the herbicide, the circumstances of exposure 7 were clearly different. 8 anomalies in the Ranch Hand findings. Although it is by no means clear that the plaintiffs There are, moreover, some inconclusive Id. Conclusions as to the effects of Agent Orange reached by 9 10 studies comparing Vietnam veterans with civilians are weakened by 11 the fact that portions of the civilian population may also have 12 been exposed to dioxin. 13 'all of us have probably been exposed to dioxin at some time1"). 14 The similar incidence of diseases in the two groups thus does not 15 absolve Agent Orange. 16 do not exclude the possibility of injury and that evidence of 17 such injury may someday be found cannot obscure the paucity of 18 present evidence that Agent Orange injured the plaintiffs. 19 Indeed, plaintiffs' own evidence of dioxin 1 s toxicity partly 20 undermines their case. 21 is a leading indicator of harmful exposure to dioxin, yet 22 verified cases of chloracne among Vietnam veterans are rare. 23 _Id_. at 794-95. See id. at 782 ("as one expert put it, Nevertheless, the facts that the studies That evidence establishes that chloracne 24 At bottom, the individual veterans' cases would consist of 25 oral testimony that each had been in an area where Agent Orange 26 ! 69 A072 (Rev.8/82) �1 was used, that studies of industrial accidents and animal 2 experiments show that dioxin is harmful, and that the plaintiff 3 suffers from a particular ailment. 4 indicate a causal relationship. 5 consist largely of evidence that each of these ailments has many 6 unknown causes, that most of the ailments usually cannot be 7 attributed to a particular cause, and that each exists among many 8 persons not exposed to Agent Orange. 9 plaintiff might testify to presence in an area in South Vietnam Medical testimony would The defendants' case would As a concrete example, a 10 where Agent Orange was used and development of a cancer some' 11 years later. 12 relationship. 13 similar cancers without traceable cause are statistically 14 predictable among persons not exposed to Agent Orange and that no 15 greater incidence of such cancers has been found among Vietnam 16 veterans than among the population generally. 17 Medical testimony would again indicate a causal The defendants would show that thousands of The problems of proving causation are thus substantial. 18 This is illustrated by the scientific evidence offered by the 19 opt-outs in response to the defendants' motion for summary 20 judgment.5 See Opt-Out Opinion, 611 F. Supp. 1223; In re 21 "Agent Orange" Product- Liability Litigation (Lilley v. Dow 22 Chemical Co.), 6 1 1 F. Supp. 1267 (E.D.N.Y. 1985) (individual 23 opt-out claim brought by veteran's widow). 24 heavily upon studies of industrial accidents and animals that are 25 of marginal relevance to this case. 26 70 AO 72 (Rev.8/82) Their experts relied See Opt-Out Opinion, �1 6 1 1 F. Supp. at 1236, 1238. 2 to individual causation were often highly tentative or subject to 3 impeachment. 4 1273; Opt-Out Opinion, 611 F. Supp. at 1236-38, 1252-54, 5 1265-66. 6 Also, some of the expert opinions as See Lilley v. Dow Chemical Co., 611 F. Supp. at The factual weakness of the plaintiffs' case is further 7 revealed by the difficulty of proving details about exposure to 8 Agent Orange. 9 and exposure through ingestion of water or food is a matter of. The events in question occurred many years ago, 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 71 AO 72 (Rev.8/821 �1 considerable speculation. 2 scientific evidence, the character of exposure is a critical 3 element. 4 Nevertheless, given the nature of the Plaintiffs also face formidable legal problems in 5 establishing liability. 6 of law issue that might be resolved adversely to his or her 7 claim. 8 of product liability varies from state to state, and the question 9 of which state's law would apply to a particular case is not Each plaintiff would encounter a choice As Chief Judge Weinstein recognized, the substantive law 10 easily answered. 11 See also Class Certification Opinion. 100 F.R.D. 718, 724 12 (E.D.N.Y. 1983). 13 this litigation because the alleged injuries resulted from 14 exposure to toxic materials in a foreign country while the 15 veteran plaintiffs were serving in the armed forces. 16 Weinstein concluded that each tribunal addressing a claim by an 17 individual plaintiff would apply a national consensus law. 18 F. Supp. at 713. 19 interesting choice of law problem, his analysis is, as we noted, 20 bold and imaginative. 21 jurisdictions would do 1 in individual cases, however, his 22 conclusion is patently speculative. 23 consensus law were developed and applied, there is no guarantee 24 that it would be favorable to the plaintiffs. 25 26 See 580 F. Supp. 690, 693-701 (E.D.N.Y. 1984). No single state has an overriding interest in Chief Judge 580 Viewed as an academic discussion of an Viewed as a prediction of what particular Moreover, even if a national Other legal problems facing the plaintiffs concern the applicability of various state statutes of limitations. These were discussed in detail by Chief Judge Weinstein in his opinion AO 72 * (Rev.8/82)' 72 �1 approving the settlement, 597 F. Supp. 740, 800-816 (E.D.N.Y. 2 1984), and we have little to add to that discussion other than to 3 express skepticism that all plaintiffs would overcome the defense 4 that their claims were time barred. 5 Finally, the plaintiffs might have difficulty establishing 6 the liability of any particular defendant because each 7 defendant's version of Agent Orange contained different amounts 8 of dioxin and because the government mixed the products of the 9 various manufacturers in unmarked barrels. It is therefore 10 impossible to attribute the exposure of an individual to Ag«nt 11 Orange to the product of a particular company. 12 moreover, that only the herbicide with the greater amounts of 13 dioxin was hazardous. 14 opinion, id. at 819-33, various legal theories might enable 15 plaintiffs to establish liability against each manufacturer, but 16 there is no guarantee that any of these theories would be 17 adopted. It is possible, As Chief Judge Weinstein noted in his 18 The plaintiffs had a final and in our view impossible, 19 hurdle to surmount, namely the military contractor defense. 20 detailed elaboration of our views of that defense can be found in 21 the opinion that discusses the opt-outs1 appeal from the grant of 22 summary judgment. 23 grant of summary judgment against the opt-outs, we act on our 24 belief that defendants clearly did not breach any duty to inform 25 the government of hazards relating to Agent Orange. 26 agree with Chief Judge Weinstein that a reasonable trier of fact We need note here only that in affirming the 73 AO 72 (Rev.8 82) The First, we �1 would have to have found that during the time when the defendants 2 had a duty to inform the government of known hazards, the 3 government had as much knowledge as the defendants of the dangers 4 of dioxin, then relating largely to chloracne and a rare liver 5 disease. 6 believe that the military contractor defense shields defendant 7 contractors from liability where the hazard is wholly 8 speculative. 9 clear and the issue was whether the hazard was known when Agent See Opt-Out Opinion. 611 F. Supp. at 1263. Second, we Even if this were a case in which causation was now 10 Orange was sold to the government, the plaintiffs would have 11 difficulty establishing a breach of a duty to inform. 12 Establishing such a duty on the facts here is impossible, 13 however. 14 the fact, the weight of present scientific evidence does not 15 establish that personnel in Vietnam were injured by Agent Orange, 16 and there cannot have been a breach of an earlier duty to inform 17 the government of known hazards. 18 In the light of hindsight, some 15 to 20 years after We conclude that all the plaintiffs in this litigation faced 19 formidable hurdles. 20 reach this conclusion even though we recognize that the PMC's fee 21 agreement created a conflict of interest that generated 22 impermissible incentives on the part of class counsel to settle, 23 as set forth in Judge Miner's companion opinion. 24 the invalidation of that agreement might have had on a settlement 25 in a strong liability case, it does not affect the instant The settlement was therefore reasonable. 26 74 AO 72 (Rev.8/82) We Whatever effect �1 2 settlement because of the grave weaknesses in plaintiffs' case. Affirmed. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ji 26 75 AO 72 .Rev 3 82' �FOOTNOTES 1 2 3 W "2,4-D" and "2,4,5-T" are the abbreviated names of 4 2,4-Dichlorophenoxyacetic acid and 2,4,5-Trichlorophenoxyacetic 5 acid, respectively. 6 7 2_/ A complaint essentially equivalent to the Eighth Amended 8 Complaint was subsequently filed on behalf of a second group of 9 plaintiffs (the "Adams plaintiffs") in the Southern District of 10 Texas and transferred to the Eastern District of New York. * On 11 June 19, 1986, Chief Judge Weinstein disposed of this action in 12 the same manner as he had disposed of the earlier action against 13 the government. 14 appealed in both actions; however, the summary judgment on the 15 wives' direct claims has been appealed only in the later action. The dismissal of the veterans' claims has been 16 17 18 19 20 21 22 23 24 | j 25 !ii i 26 3/ Fed. R. Civ. P. 54(b) provides: When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, 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. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not 76 AO 72 •.Rev 8 32' �terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties. 1 2 3 4 5 6 47 The PMC challenges appellants' standing to challenge any 7 aspect of the settlement other than its substantive fairness. 8 Master Brief of Appellee Plaintiffs' Management Committee at 9 66-67. It argues that appellants seek not to advance their own 10 interests, but rather those of, for example, class members .who 11 did not receive notice. 12 claims, we are not compelled to address this objection to 13 standing and therefore do not do so. Due to our disposition of appellants' 14 15 ! 5/ 16 | settlement. 17 ! not prejudiced by our consideration of it. ! This evidence came into the record after approval of the Because it supports appellants' position, they are 18 19 20 21 22 23 24 :! 25 26 77 AO 72 :Rev 8 8 �1 APPENDIX 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Chief Judge Weinstein's order with respect to notice to the members of the class provided as follows: (a) Plaintiffs' counsel, at their own expense, shall cause a copy of the written notice, attached as Exhibit A, to be mailed by first class United States mail to all persons who have filed actions as plaintiffs in the District Courts of the United States, or filed actions in state courts later removed to a federal court, which are pending in or have been transferred to this court for consolidated proceedings by the Panel on Multi-District Litigation, together with all persons who have moved to intervene or are intervenors, and each class member presently represented by counsel associated with plaintiffs' management committee who has not yet commenced an action or sought intervention. Mailing of the notice shall take place within 30 days of this Order. (b) Plaintiffs' counsel, at their own expense, shall cause to be mailed a copy of the written notice to all persons who are currently listed on the United States Government's Veteran's Administration "Agent Orange Registry." This mailing shall take place within 50 days of this Order. (c) Notice shall be mailed in envelopes that are printed only with the names of the addressee and the Clerk of this Court. Plaintiffs' counsel shall maintain a record of the name and address of each person to whom the notice is, mailed. The record shall be filed with the Clerk of the Court not later than 70 days after the issuance of this Order. (d) Plaintiffs' counsel, at their own expense, shall obtain a post office box in Smithtown, New York, 11787, in the name of the Clerk of the Court, and advise the court and the parties of the box number not later than 15 davs after the issuance of this Order. The 78 AO 72 Rev 8 82. �1 2 3 4 5 6 7 8 9 10 [ 11 I 12 13 14 15 16 17 18 19 20 21 22 23 24! 25 i I 26 AO 72 Rev 8 82i box shall be rented until further order of the court. Plaintiffs' counsel shall on a daily basis review the contents of the post office box and prepare a listing of all exclusion requests received, which shall be available to the court and the parties for inspection and copying, together with the exclusion requests. Plaintiffs' counsel shall send a copy of the notice and the exclusion request form to each person who writes to the Clerk of the Court requesting them. Each day plaintiffs' counsel shall transmit to the court and the parties copies of any communications (other than exclusion requests or requests for forms) that are received at the post office box. Plaintiffs' counsel shall maintain a record, together with the originals, of all mail returned as undelivered. (e) Plaintiffs' counsel, at their own expense, shall serve a radio and television announcement notice in the form of Exhibit B on the nationwide networks of the American Broadcasting Company, the Columbia Broadcasting System, the Mutual Broadcasting System, the National Broadcasting Company, and the Public Broadcasting and Television Networks and on radio stations with a combined coverage of at least 50 percent of the listener audience in each of the top one hundred radio markets in the United States within 50 days of this Order. Along with the radio and television notice served upon the nationwide radio and television broadcasting systems and radio stations, plaintiffs' counsel shall request that the notice be read as set forth in Exhibit B without interruption or comment, either alone or in conjunction with the showing on'television of the text of Exhibit B. Plaintiffs' counsel shall request that each participating radio and television broadcasting station advise them of the dates and times at which the notice was broadcast or shown. Within 90 days of this Order, plaintiffs' counsel shall furnish to the court and the parties a report identifying the name and 79 �1 2 3 ! 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 AO 72 (Rev.8/82I location of each radio station broadcasting the announcement, if known, and the date and time of each announcement. The court will then determine if further notice is required. (f) Plaintiffs' counsel, at their own expense, shall publish in the following newspapers and magazines an announcement in two successive weeks (but if publication is monthly, only once) in the form of Exhibit C: the nationwide edition of The New York Times, U.S.A. Today, Time Magazine, the American Ilegion Magazine, VFW Magazine, Air Force Times/Army Times"]! Navy Times, and the Leatherneck; the ten largest circulation newspapers in Australia, including The Australian; and the five largest daily circulation newspapers in New Zealand, including The Dominion. Publication shall be completed as soon as practicable, but no later than March 1 , 1984. The size of the notice shall be not less than one-eighth, nor more than one-third, of the newspaper or magazine page. (g) Plaintiffs' counsel shall, at their own expense, obtain a toll-free "800" telephone number in the name of the Clerk of the Court. The number shall be in effect no later than January 1 , 1984 to at least May 1 , 1984. The number shall be manned on a daily basis, from at least Monday to Friday, 9:00 a.m. to 5:00 p.m., E.S.T., with knowledgeable persons (or a recorded announcement and recording device) who shall tell callers where to write for further information, but who shall not give advice concerning rights and responsibilities in this litigation. A record of those calling and giving their names and addresses shall be kept. Those requesting a copy of Exhibit A shall be sent one. No oral exclusion request shall be taken. Plaintiffs' counsel shall give written instructions to those answering the phone. A copy of such instructions and any recorded announcement shall be filed with the Clerk. (h) The Clerk of the Court shall send this order and notice to the Governor of each of the states of the United States. He shall respectfully request each Governor to refer 80 �1 2 ! i 3! 4 5 6 7 the notice to any state organization created by the executive or legislative branches dealing with the problems of Vietnam veterans and request that the notice be sent to all those known Vietnam veterans who may be members of the class described in the Order, or that a list of names and addresses be supplied to this court so that notice may be mailed by the plaintiffs' counsel. The Clerk shall respectfully request a list of those to whom notice has been sent by any state agency. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 AO 72 (Rev.8-82) Exhibit A LEGAL NOTICE TO CLASS MEMBERS OF PENDENCY OF CLASS ACTION This notice is given to you pursuant to an Order of the United States District Court for the Eastern District of New York and Rule 23(c)(2) of the Federal Rules of Civil Procedure. It is to inform you of the pendency of a class action in which you may be a member of the class, and of how to request exclusion from the class if you do not wish to be a class member. None of the claims described below have been proven. It is contemplated that a trial by court and jury will take place in this court beginning in May, 1984. 1. There are now pending in the United States District Court for the Eastern District of New York claims brought by individuals who were in the United States, New Zealand, or Australian Armed Forces assigned to or near Vietnam at any time from 1961 to 1972, who allege personal injury from exposure to "Agent Orange" or other phenoxy herbicides, including those composed in whole or in part of 2,4,5-trichlorophenoxyacetic acid or containing some amount of 2 , 3 , 7,8-tetrachlorodibenzo-p-dioxin (collectively referred to as "Agent Orange"). 2. The plaintiffs include spouses, parents, and children born before January 1 , 1984, of the servicepersons who claim direct or derivative injury as a result of exposure. 81 �1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 AO 72 (Rev.8/82). Plaintiffs include children asserting claims in their own right for genetic injury and birth defects caused by their parents' exposure to "Agent Orange" and other phenoxy herbicides. Wives of veterans exposed to "Agent Orange" in Vietnam seek to recover in their own right for miscarriages. Plaintiffs' theories of liability include negligence, strict products liability, breach of warranty, intentional tort and nuisance. Damage claims of family members include pecuniary loss for wrongful death, loss of society, comfort, companionship, services, consortium, guidance and support. In addition, plaintiffs seek punitive damages for defendants' alleged misconduct in furnishing herbicides to the United States Government. 3. The defendants, who are alleged to have manufactured or sold "Agent Orange" to the United States Government, are Dow Chemical Company, Monsanto Company, T.H. Agriculture & Nutrition Company, Inc., Diamond Shamrock Chemicals Company, Uniroyal, Inc., Hercules Incorporated, and Thompson Chemical Corporation. All the defendants deny that the plaintiffs' alleged injuries were in any way caused by "Agent Orange." They assert that injury, if any, was not caused by a product produced by them. The defendants have challenged these suits on various other grounds including plaintiffs' lack of standing to sue, lack of jurisdiction, statutes of limitation, insufficiency in law, plaintiffs' contributory negligence, and plaintiffs' assumption of known risks. Each has also asserted such affirmative defenses as the "government contract defense" and the Government's misuse of its product. In third-party complaints, the defendants asserted claims against the United States of America seeking indemnification or contribution in the event the defendants are held liable to the plaintiffs. The Government has asserted its power to prevent anyone from suing it. 4. This court has certified a class action in this proceeding under Rule 23(b)(3) of the Federal Rules of Civil Procedure. The plaintiff class consists of those persons who were in the United States, New Zealand, 82 �1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 or Australian Armed Forces assigned to Vietnam at any time from 1961 to 1972 who were injured while in or near Vietnam by exposure to "Agent Orange" or othe|r phenoxy herbicides including those composed in whole or in part of 2,4,5-trichlorophenoxyacetic acid or containing some amount of 2,3,7,8-tetrachlorodibenzo-p-dioxin, The class also includes spouses, parents, and children born before January 1 , 1984, directly or derivatively injured as a result of the exposure. The court may reconsider this decision, by decertifying, modifying the definition of the class, or creating subclasses in the light of future developments in the case. The definition does not imply a conclusion that anyone within the class was injured as a result of exposure to any herbicide. 5. The court has also certified a Rule 23(b)(1)(B) class limited to claims for punitive damages. The class includes the same persons as are in the Rule 23(b)(3) class. The court has decided not to permit members of the class to seek exclusion on the issue of punitive damages. You will therefore be bound by the court's rulings on punitive damages whether or not you seek exclusion on the issue of compensatory damages. 6. Trial of the representative plaintiffs' claims is scheduled to commence before Jack B. Weinstein, Chief Judge of the United States District Court for the Eastern District of New York, and a jury on May 7, 1984. 7. If you are a member of the plaintiff class you will be deemed a party to this action for all purposes unless you request exclusion from the Rule 23(b)(3) class action covering compensatory damages. 8. If you do not request exclusion from the class by May 1 , 1984, you will be considered one of the plaintiffs of this class action for all purposes. You may enter an appearance through counsel of your own choice. You will be represented by counsel for the class representatives unless you choose to enter an appearance through your own legal counsel. 83 AO 72 {Rev.8 82) �1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 AO 72 lRev.8/82) 9. Class members who do not request exclusion will receive the benefit of, and will be bound by, any settlement or judgment favorable to the class covering compensatory damages. The class representatives' attorneys fees and costs will be paid out of any recovery of compensatory and other damages obtained by the class members. You will not be charged with costs or expenses whether or not you remain a member of the class. However, if you choose to enter an appearance through your own legal counsel, you will be liable for the legal fees of your personal counsel. 10. Class members who do not request exclusion will be bound by any judgment adverse to the class, and will not have the right to maintain a separate action even if they have already filed their own action. 1 1 . If you wish to remain a member of the class for all purposes, you need do nothing at this stage of the proceedings. 12. If you wish to be excluded from the class for compensatory damages, you must submit a written request for exclusion.For your convenience,therequestfor exclusion may be submitted on the attached form, entitled "Request for Exclusion," If you received this notice by mail, a Request for Exclusion form should have accompanied it.. If you did not receive a Request for Exclusion form, you may obtain a copy by writing to the Clerk of the Court, P.O. Box , Smithtown, New York 11787. A written Request for Exclusion may be submitted without using the Request for Exclusion form, but it must refer to the litigation as "In re 'Agent Orange' Product Liability Litigation, MDL No. 381": include your name a.nd address in your statement requesting exclusion. Any request for exclusion must be received on or before May 1 , 1984 by the Clerk of the United States District Court for the Eastern District of New York at Post Office Box , Smithtown, New York 11787 or at a federal courthouse in the Eastern District of New York. 13. Under the court's Order, all potential plaintiffs are deemed to be members of a 84 �1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 AO 72 (Rev.8 82) Rule 23(b)(1)(B) class on the issue of punitive damages. At the time of trial the court will determine whether the facts presented warrant the submission of a punitive damage claim to the jury. In the event that there is a recovery for punitive damages, it will be shared by those plaintiffs who are successful in prosecuting their claims in this or other suits on an appropriate basis to be determined by the court. If you choose to exclude yourself from this class action on the issue of compensatory damages, you may do so without necessarily losing your right to share in any punitive damages. 14. The plaintiffs in this class action are represented by a group of attorneys who have been tentatively approved by the Court as the Agent Orange Plaintiffs' Management Committee. Members of this committee include: Phillip E. Brown, Esq. Hoberg, Finger, Brown, Cox & Molligan 703 Market St. (18th Floor) San Francisco, CA 94103 Thomas W. Henderson, Esq. Baskin & Sears Frick Building (10th Fl.) Pittsburgh, PA 15219 Stanley M. Chesley, Esq. Waite, Schneider, Bayless and Chesley Co., L.P.A. 1513 Central Trust Tower Fourth and Vine Streets Cincinnati, Ohio 45202 Benton Musselwhite, Esq. & John 0. O'Quinn, Esq. 609 Fannin (Suite 517) Houston, Texas 77002 David J. Dean, Esq. Stephen J. Schlegel, Esq. Schlegel & Trafelet, Ltd, One North LaSalle Street Suite 3900 Chicago, Illinois 60602 Dean, Falanga & Rose One Old Country Road Carle Place, New York 11514 Newton B. Schwartz, Esq. Houston Bar Center Building 723 Main (Suite 325) Houston, Texas 77002 David J. Dean, Esq. has been designated by the court as plaintiffs' spokesman. The Management Committee is being aided in its duties of representing the interests of the plaintiffs by other law firms in the United States and abroad. 85 �1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 15. Examination of pleadings and papers. This noticeis not allinclusive.References to pleadings and other papers and proceedings are only summaries. For full details concerning the class action and the claims and defenses which have been asserted by the parties, you or your counsel may review the pleadings and other papers filed at the office of the Clerk of the United States District Court for the Eastern District of New York, 225 Cadman Plaza East, Brooklyn, New York 1 1 2 0 1 , on any business day from 9:00 a.m. to 5:00 p.m. 16. Interpretation of this Notice. Except as indicated in the orders and decisions of the United States District Court for the Eastern District of New York, no court has yet ruled on the merits of any of the claims or defenses asserted by the parties in this class action. This notice is not an expression of an opinion by the court as to the merits of any claims or defenses. This notice is being sent to you solely to inform you of the nature of the litigation, your rights and obligations as a class member, the steps required should you desire to be excluded from the class, the court's certification of the class, and the forthcoming trial. 16 Robert C. Heinemann Clerk, United States District Court for the Eastern District of New York 17 18 19 20 21 22 23 24 25 26 AO 72 (Rev.8/82) DATED: Brooklyn, New York January 12, 1984 EXCLUSION REQUEST FORM Clerk United States District Court for the Eastern District of New York P.O. Box Smithtown, New York 11787 Re: In re "Agent Orange" Product Liability Litigation MDL No. 381 I hereby request to be excluded from the class 86 �1 action in the above-captioned matter. 2 3 4 (signature; Name (print): Address: 5 6 7 If not a member of the armed forces who served in or near Vietnam, how are you related to such a serviceperson? 8 Armed Forces unit of serviceperson Armed forces identifying number of serviceperson 9 Period of service in or near Vietnam 10 I learned about this suit by 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 AO 72 (Rev.8/82) Exhibit B (Radio and Television Communication) SPECIAL ANNOUNCEMENT Were you or anyone in your family on military duty in or near Vietnam at any time from 1961 to 1972? If so, listen carefully to this important message about a pending "Agent Orange" lawsuit that may affect your rights.. If you or anyone in your family claim injury, illness, disease, death, or birth defect as a result of exposure to "Agent Orange," or any other herbicide in or near Vietnam at any time from 1961 to 1972, you are now a member of a class in an action brought on your behalf in the United States District Court for the Eastern District of New York, unless you take steps to exclude yourself. The class is limited to those who were injured by exposure to Agent Orange or any other Herbicide while serving in the armed forces in or near Vietnam at any time from 1961 to 1972. The class also includes members of families who claim derivative injuries such as those to spouses and children. The court expresses no opinion as to the merit or lack of merit of the lawsuit. It has ordered that this message be transmitted to 87 �1 give as many persons as is practicable notice of this suit. 2 For details about your rights In this "Agent 3 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Orange" class action lawsuit, call 1-800or write to the Clerk of the 'United States District Court, Box , Smith town, Stew York 11787. That address again is Clerk of the - United States District Coji~«-r--*1«o. Box , Smith town, New vottc M787, or call 1 ~86lfc"" EjMUBIT € . - - --(Newspaper "and M-agagjlne Not toe) TO ALL PERSONS WHO SERVED IN OR NEAR VIETNAM AS MEMBERS OF THE ARMED FORCES OF THE UNITED STATES, AUSTRALIA AND NEW ZEALAND FROM 1961-1972 If you or anyone in your family can claim injury," illness, disease, death or birth defect as a result of exposure to "Agent Orange" or any other herbicide while assigned in or near Vietnam at any time from 1961 to 1972, you are a member of a class in an action brought on your behalf in the United States District Court for the Eastern District of New York unless you take steps to exclude yourself from the class. The class is limited to those who were injured by exposure to "Agent Orange" or any other herbicide while serving in the armed forces in or near Vietnam at any time during 1961-1972. The class also includes members of families who claim derivative injuries such as those to spouses and children. The court expresses no opinion as to the merit or lack of merit of the lawsuit. 100 F.R.D. at 729-35, 21 22 23 24 25 26 88 AO 72 (Rev.8 82) �f)r UNITED STATES COURT OF APPEALS 1 FOR THE SECOND CIRCUIT 2 No. 1118-August Term, 1985 3 (Argued April 10, 1986 4 Decided 1987) Docket No. 85-6365 5 6 7 IN RE "AGENT ORANGE" PRODUCT LIABILITY LITIGATION 8 (APPEAL OF DAVID DEAN) 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 I AO 72 (Rev.8/82) Before: VAN GRAAFEILAND, WINTER and MINER, Circuit Judges. ' Appeal from an order and judgment of the United States District Court for the Eastern District of New York (Weinstein, Ch. J.) denying appellant's motion to set aside fee sharing agreement under which members of Plaintiffs' Management Committee would receive, from the pool of fees awarded by district court, a threefold return on funds advanced to the class for litigation expenses. Reversed. �1 LEON FRIEDMAN, Herapstead, NY for Appellant Dean. 2 ELIHU INSELBUCH (Gilbert, Segall and Young, New York, NY, Richard B. Schaeffer, New York, NY, of counsel) for Appellee Agent Orange Plaintiffs' Management Committee. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 AO 72 I Rev. 8; 8 2) �1 MINER, Circuit Judge: 2 Our discussion of the background and procedural history of 3 this Litigation appears in Judge Winter's lead opinion, No. 4 84-6273. This portion of the Agent Orange appeal concerns the 5 6 7 8 9 district court's approval of a fee sharing agreement entered into by the nine-member Plaintiffs' Management Committee ("PMC") in December of 1983. Under the agreement, each PMC member who had advanced funds to the class for general litigation expenses was to receive a threefold return on his investment prior to the • 10 t> distribution of other fees awarded to individual PMC members by 11 12 13 14 the district court. In result, the agreement dramatically increased the fees awarded to those PMC members who had advanced funds to the class for expenses, and concurrently decreased the fees awarded to non-investing PMC members, who only performed 15 legal services for the class. 16 David Dean, lead trial counsel for the plaintiff class and a 17 non-investing member of the PMC, challenges the validity of the 18 agreement, to which he was a signatory, contending that it 19 violates DR 5-103 and DR 2-107(A) of the ABA Code of Professional 20 Responsibility ("ABA Code"). The ABA Code provisions prohibit an 21 attorney from acquiring a proprietary interest in an action in 22 which he is involved and from dividing a fee with an attorney who 23 is not a member of his firm, unless such division is made 24 pursuant to client consent and is based upon services performed 25 and responsibility assumed. 26 AO 72 (Rev.8'82) In addition, Dean asserts that such �1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 !! AO 72 (Rev.8:82) an agreement, which premises the size of a fee on the amount advanced for expenses rather than on services rendered, violates the standards and principles developed in this circuit for the award of attorneys' fees in equitable fund class actions and inevitably places class counsel in a position at odds with the interests of the class itself. Although not informed of the existence of the fee sharing agreement until September of 1984, four months after the parties reached a settlement, the district court approved the agreement, holding that "there is no reason to believe that the existence of v the PMC's fee-sharing agreement had any appreciable untoward effect on the decision to settle." In re "Agent Orange" Product Liability Litigation, 6 1 1 F. Supp. 1452, 1461 (E.D.N.Y. 1985) ("Agent Orange I"). In essence, the court determined that the substantial financial demands placed upon counsel in complex multiparty litigation require flexibility in reviewing internal fee sharing agreements so as not to discourage future represention of large plaintiff classes. At the same time, however, the district judge ruled that, in all future cases, counsel must notify the court of any fee sharing agreement at the time o_f its inception. In this way, according to the d i s t r i c t judge, "the court at the outset can determine whether to permit the fee allocation agreement to stand before any attorney invests substantial time and funds." Id. at 1463. Because we find that the agreement before us violates established principles governing awards of attorneys' fees in �1 2 3 4 5 6 equitable fund class actions and creates a strong possibility of a conflict of interest between class counsel and those they were charged to represent, we reverse the district court's approval of the agreement. Accordingly, the fees originally allocated by the district court, based on the reasonable value of service actually rendered, will be distributed to the members of the PMC. 7 I. 8 BACKGROUND 9 In September of 1983 Yannacone and Associates withdrew as 10 11 12 13 14 15 16 17 18 19 * attorneys for the class, claiming financial and management hardships. The district court then approved appointment of the PMC as new class counsel. The PMC was comprised of three members -- attorneys Stephen Schlegel, Benton Musslewhite and Thomas Henderson. In re "Agent Orange" Product Liability Litigation, 571 F. Supp. 481 (E.D.N.Y. 1983). In later months the district court approved the expansion of the PMC to encompass six additional members, including appellant David Dean. Dean, a member of the original panel of class counsel, had been closely involved with the Agent Orange litigation since its inception in 20 21 22 23 24 25 26 AO 72 (Rev.8 1979. In October of 1983 the district court appointed him to be the attorney responsible for leading the preparation and potential trial of plaintiffs' case. In December of 1983, as a means of raising the capital necessary for the maintenance and continuation of the lawsuit, the nine PMC members entered into a written fee sharing �1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 agreement whereby six of the members each promised to advance the class $200,000 for general litigation expenses. The agreement provided that the investing members would be reimbursed threefold from the pool of attorneys' fees awarded to PMC members upon successful completion of the action. The fees remaining in the pool after the investment pay-outs would be distributed pursuant to a fifty-thirty-twenty percent formula: fifty percent of the remainder would be distributed equally among the nine PMC members, thirty percent would be distributed according to the number of hours each member expended in the case, and twenty t> ' percent would be distributed in accordance with certain quality and risk factors relating to each PMC member's work in the action, as determined by a majority vote of the PMC. members, including Dean, signed the agreement. All PMC The district court, however, was not notified of its existence. The action was settled in May of 1984 and the district court, by Order dated June 1 1 , 1984, notified counsel that petitions for attorneys' fees were to be submitted to the court no later than August 31 , 1.984. A hearing on the issue of fees was scheduled for late September. In ordering the hearing, the 20 21 22 23 24 25 26 AO 72 (Rev.8'82) district court waived application of Rule 5 of the Local Rules of the Eastern District of New York requiring notice to the class of all fee applications and fee sharing agreements prior to the hearing on such fee petitions. The court gave as its reasons "the need for continued intensive work by the attorneys until the close of the fairness hearings and . . . the complexity of the �1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 fee applications." Notice of Proposed Settlement of Class Action, reprinted rn In re "Agent Orange" Product Liability Litigation. 597 F. Supp. 740, 867 (E.D.N.Y. 1984). When the court waived application of the local rule, it was unaware of the PMC fee sharing agreement. It was not until the PMC submitted its joint fee petition that the court finally learned of the agreement. At the September hearing on the fee petitions, the district judge expressed doubts as to the agreement's propriety and requested further briefing on the issue. Faced with the reservations t> expressed by the district judge, the PMC members modified their agreement in December of 1984. The revised agreement, and the one now before us, provided that five of the six investing members of the PMC each would advance an additional $50,000 for general litigation expenses, bringing their total investments to $250,000 each. In return for these advances, as well as for the $200,000 advanced by the sixth investing member, the new agreement provided for the same threefold return as did the original agreement. The fifty-thirty-twenty percent formula for the distribution of the remaining portion of the fees, however, 20 21 22 23 24 25 26 AO 72 (Rev.8'82) was eliminated. In its place, the revised agreement called for the remainder to be distributed pro rata to each PMC member "in the proportion the individual's and/or firm's fee award bears to the total fees awarded."1 Agent Orange I, 611 F. Supp. at 1454. On January 7, 1985, the district court issued a Memorandum and Order awarding over $10 million in fees and expenses to the �1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 AO 72 , (Rev.8/82) various counsel whose work had benefitted the class, applying the principles of fee distribution in equitable fund actions set forth in City of Detroit v. Grinnell Corp.. 495 F.2d 448 (2d Cir. 1974) ("Grinnell I") and City of Detroit v. Grinnell Corp., 560 F.2d 1093 (2d Cir. 1977) ("Grinnell II"). In re "Agent Orange" Product Liability Litigation, 6 1 1 F. Supp. 1296 (E.D.N.Y. 1985) ("Agent Orange II"). As later amended and supplemented, the district court's decision awarded over $4.7 million in fees to the nine members of the PMC on an individually apportioned basis. David Dean, due to his lengthy involvement in the class action and the exceptional quality of his work, was'awarded $1,424,283.75, or over thirty percent of all fees awarded to the PMC. Each of the six investing members of the PMC was awarded a much lower percentage of the entire PMC fee award, with one investor being awarded only $41,886. The highest award to an investor was $515,1.63. Once the fee sharing agreement was applied to these awards, however, the amount of fees each PMC member was to receive changed dramatically. In Dean's case, application of the agreement reduced his award to $542,310, a reduction of $881,973. In contrast, Newton Schwartz, an investing member of the PMC to whom the district court awarded $41,886, was now to receive $513,026, equivalent to an hourly rate of $1,224.81. The awards to all other investing members were similarly enhanced and, in turn, the awards to the two other non-investing members were diminished, resulting in a distortion of the district court's �1 individual PMC member fee awards. The total of all fees awarded by the court to the members of the PMC, of course, remained 2 unchanged.2 - 3 In May of 1985, Dean moved in the district court to overturn 4 5 the fee sharing agreement, claiming that it violated professional ethics and did not protect the rights of the class. In a 6 7 8 9 Memorandum and Order issued June 27, 1985, the court denied Dean's motion and upheld the agreement, albeit with some reluctance. The court found, as a factual matter, that no conflict of interest had arisen in the litigation from the fee 10 r- 9> sharing agreement and, consequently, that the interests -of the 11 class in obtaining a fair and reasonable settlement had not been 12 impinged. Agent Orange I, 611 F. Supp. at 1461. Initially, the 13 court recognized its obligation to review the agreement in its 14 capacity as protector of the rights of the plaintiff class. It 15 then went on to examine the propriety of the agreement under DR 16 2-107(A) and DR 5-103 of the ABA Code and the practical effect of 17 the agreement on the PMC's representation of the class. 18 As to DR 2-107(A), which prohibits an attorney from 19 splitting his fee with another attorney not of the same firm 20 unless he has the consent of his client and the "division is made 21 in proportion to the service performed and responsibility assumed 22 by each," the court determined that the PMC should be viewed as 23 an aci hoc law firm "formed for the purpose of prosecuting the 24 Agent Orange multidistrict litigation," Agent Orange I, 6 1 1 F. 25 Supp. at 1458. 26 AO 72 (Rev.8/82) The court reasoned that the business realities of �1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 the litigation required the PMC to be able to perform those functions ordinarily performed by actual law firms, such as splitting fees among its members. The district court also noted that the Model Rules of Professional Conduct ("Model Rules") adopted by the ABA in 1983, although not adopted in New York, reflect "an increased, recognition" of these business realities by permitting fee sharing agreements based upon services rendered or upon written acceptance of joint responsibility by the attorneys if the client is advised of the participation and does not object and the total fee is reasonable. Model Rule 1.5(e). Recognizing the practical problem of client consent in class actions, however, the district court concluded that its duty to protect the rights of the class ordinarily could not be performed unless the attorneys involved notified the court of the existence of such an agreement "as soon as possible," Agent Orange I, 611 F. Supp. at 1459. As to DR 5-103, which prohibits an attorney from acquiring a proprietary interest in an action in which he is involved, the court found that the investing members acquired no independent interest in the action because the financial return from any 20 initial advance for expenses was to be paid from the fees 21 22 23 24 25 26 AO 72 A (Rev.8''82)' otherwise awarded to the PMC members, and thus would not affect the class fund. While the court did recognize that a conflict of interest could arise from such an agreement, it cautioned that complex class actions require a more sophisticated analysis of ethical codes than ordinary two-party cases in order not to �1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 AO 72 (Rev.8/82) "unnecessarily discourage counsel from undertaking the expensive and protracted complex multiparty litigation often needed to vindicate the rights of a class." Id. at 1460. Accordingly, the district court held that a case-by-case analysis of such fee sharing agreements to identify potential conflicts of interest should be adopted. The court conceded that an agreement of the sort before it conceivably could create an interest on the part of the investors to settle early, regardless of the benefit to, or interest of, the class. This is because an attorney whose fee is based upon the amount of funds advanced for expenses in an action will receive the same fees "whether the case is settled today or five years from now." Id. The court reasoned, however, that any possible interest to settle early would have been offset by the theoretical incentive to extend such litigation created by the lodestar formula and concluded that, as a factual matter, no conflict had arisen here. The court then set forth five additional, though nondispositive, reasons for approving the agreement. First, the returns on the investments did not affect the class fund, since they were paid from the fee awards of PMC members. Second, the court recognized that the "business" of law will at times require creative, yet ethical, methods for economical and efficient operation. Third, without the funds advanced by the PMC members, it was possible that the litigation would have collapsed and neither the attorneys nor the class would receive any payments. j �1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Fourth, the court noted that the PMC members could have earned substantial returns, though not quite threefold, on these same funds if they had undertaken more traditional investments. Fifth, if the PMC members had received the amount of fees requested in their joint petition, nearly thirty million dollars, the extent of the distortion of the fees by the investment » ' agreement would have been insubstantial. In sum, the district court determined that the practical needs of this form of litigation required an inventive method of fund raising in order to guarantee effective representation * of class rights. At the same time, however, it"labeled as "troubling" the PMC's failure to inform the court of the existence of the agreement until months after a settlement had been reached. Id. at 1462. In light of class counsel's fiduciary obligations to the class and the court's role as guardian of class rights in relation to settlement review, the district court found that both the class and the court had a right to be notified of the existence of such an agreement. To this end, the court proclaimed that in all future cases, class counsel would be obligated to make the existence of a fee sharing agreement known to the court at the time of its formation. 22 23 II. DISCUSSION 24 25 26 AO 72 (Rev.8,82) Dean's appeal presents an issue of first impression: whether an undisclosed, consensual fee sharing agreement, which 10 �1 2 3 4 adjusts the distribution of court awarded fees in amounts which represent a multiple of the sums advanced by attorneys to a class for litigation expenses, satisfies the principles governing fee awards and is consistent with the interests of the class. At the outset, we note that the fees in this case were 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 awarded pursuant to the equitable fund doctrine, first set forth in Trustees v. Greenough. 105 U.S. 527 (1882), and Central Railroad & Banking Co. v. Pettus, 1 1 3 U.S. 1 1 6 (1885). The underlying rationale for the doctrine is the belief that an attorney who creates a fund for the benefit of a class should' t> receive reasonable compensation from the fun'd for his efforts. Central Railroad, 1 1 3 U.S. at 125. Because the calculation of fees necessarily will affect the funds available to the class, this circuit has adopted a lodestar formula for fee computation. Grinnell II, 560 F.2d at 1099; Grinnell I, 495 F.2d at 471. The lodestar seeks to protect the interests of the class by tying fees to the "actual effort made by the attorney to benefit the class." Grinnell II, 560 F.2d at 1099. Accordingly, fees are calculated by taking the number of hours reasonably billed and multiplying that figure by an hourly rate "normally charged for 20 21 similar work by attorneys of like skill in the area." 1098. Id. at Once calculated, the court may, in its discretion, 22 23 24 25 26 increase or decrease this figure by examining such factors as the quality of counsel's work, the risk of the litigation and the complexity of the issues. I_d. Discretion to adjust the lodestar figure upward because of superior quality, however, is limited to AO 72 (Rev.8.82) 11 �1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 AO 72 (Rev.8.82) exceptional situations and must be supported by "specific evidence" and "detailed findings" by the district court. Pennsylvania v. Delaware Valley Citizens' Council for Clear Air, 106 S. Ct. 3088, 3098 (1986). Adherence to these principles is essential not only to avoid awarding windfall fees to counsel, but also to "avoid every appearance of having done so," Grinnell I, 495 F.2d at 469. Of equal importance to our analysis is Fed. R. Civ. P. 23(e), which requires court approval of any settlement of a class action suit and squarely places the court in the role of * protector of the rights of the class when such a settlement is reached and attorneys' fees are awarded. at 1099. Grinnell' II, 560 F.2d In fulfilling this role, courts should look to the various codes of ethics as guidelines for judging the conduct of counsel. Agent Orange I, 6 1 1 F. Supp. at 1456. In addition, where only retrospective review of counsel's conduct is available, courts should not be limited to an examination of the actual effects of such conduct on the litigation, but rather, as the ABA Code and Grinnell I imply, the appearance and potential effect of the conduct should be reviewed as well. See Grinnell !_, 495 F.2d at 469; ABA Code of Professional Responsibility Canon 9 (1975). The ultimate inquiry, therefore, in examining fee agreements and setting fee awards under the equitable fund doctrine and Fed. R. Civ. P. 23(e), is the effect an agreement could have on the rights of a class. Because we find that the agreement here 12 �1 2 3 4 5 conflicts substantially with the principles of reasonable. compensation in common fund actions set forth in Grinnell I and Grinnell II, and that it places class counsel in a potentially conflicting position in relation to the interests of the class, we reverse. 6 Initially, it is, beyond doubt that the agreement, by tying 7 the fee to be received by individual PMC members to the amounts 8 9 10 11 12 13 14 15 16 17 18 19 each advanced for expenses, completely distorted the lodestar approach to fee awards. In setting fees here, the district judge meticulously examined counsel's fee petitions in accordance with »• the Grinnell decisions and arrived at individual awards for each PMC member based upon the services that each had provided for the class. By providing for threefold returns of advanced expenses, however, the agreement vitiated these principles. The distortion was so substantial as to increase the fees awarded to one investor by over twelve times that which the district judge had determined to be just and reasonable, and, in a second case, to decrease the otherwise just and reasonable compensation of a non-investor by nearly two-thirds. There is authority for a court, under certain circumstances, 20 to award a lump sum fee to class counsel in an equitable fund 21 22 23 24 25 26 AO 72 (Rev.8,82)<* action under the lodestar approach and then to permit counsel to divide this lodestar-based fee among themselves under the terms of a private fee sharing agreement. E.g., Ruskay v. Jensen, No. 71-3169, slip op. at 1 0 - 1 3 (S.D.N.Y. Sept. 18, 1981); In re Magic Marker Securities Litigation, [1979 Transfer Binder] Fed. Sec. L. 13 �1 2 3 4 5 6 7 8 9 10 Rep. (CCH) 1 97,116, at 96,195 (E.D. Pa. Sept. 16, 1979); Valente v. Pepsico, Inc., [1979 Transfer Binder] Fed. Sec. L. Rep. (CCH) f 96,921, at 95,863 (D. Del. June 4, 1979), appeal dismissed, 614 F.2d 772 (3d Cir. 1980); In re Ampicillin Antitrust Litigation. 81 F.R.D. 395, 400 (D.D.C. 1978); Del Noce v. Delyar Corp., 457 F. Supp. 1051, 1055 (S.D.N.Y. 1978). We reject this authority, however, to the extent it allows counsel to divide the award among themselves in any manner they deem satisfactory under a private fee sharing agreement. Such a division overlooks the district court's role as protector of class interests under Fed. R. Civ. P. 23(e) and its role of assuring reasonableness in the 11 12 13 14 15 16 17 18 19 awarding of fees in equitable fund cases. See Kamens v. Horizon Corp. , [1981 Transfer Binder] Fed. Sec. L. Rep. (CCH) 1 98,007, at 91,218 & n.4 (S.D.N.Y. May 26, 1981); Steiner v. BOC Financial Corp., [1980 Transfer Binder] Fed. Sec. L. Rep. (CCH) K 97,656, at 98,490 (S.D.N.Y. Oct. 10, 1980); c_f. Jones v. Amalgamated Warbasse Houses, Inc., 721 F.2d 881, 884 (2d Cir. 1983) ("if the court finds good reason to do so, it may reject an agreement as to attorneys' fees just as it may reject an agreement as to the substantive claims"), cert, denied, 466 U.S. 944 (1984). In 20 addition, this approach overlooks the class attorneys' "duty . . . 21 to be sure that the court, in passing on [the] fee application, 22 has all the facts" as well as their "fiduciary duty to the . . . 23 24 25 class not to overreach." Lewis v. Teleprompter Corp., 88 F.R.D. 1 1 , 18 (S.D.N.Y. 1980). 26 AO 72 (Rev.8'821 14 �1 2 3 4 5 6 A careful examination of those decisions permitting internal fee sharing agreements to govern the distribution of fees reveals no case where return on investment was a factor. More important, in a number of those cases the courts apparently assumed that the internal fee sharing agreement would be based substantially on services rendered by individual counsel. E.g., Ruskay, slip op. 7 at 14 n.4 ("Since the court has satisfied itself that the 8 proposed distribution will not result in compensation beyond 9 services performed, it declines to overrule the agreement."); lr\ 10 re Ampicillin Antitrust Litigation, 81 F.R.D. at 400 ("Since the * 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 i fee application purports to be based upon the rates and time spent by the several attorneys, it is presumed that these factors also weigh heavily in this internal agreement."). Accordingly, while the practice of allowing class counsel to distribute a general fee award in an equitable fund case among themselves pursuant to a fee sharing agreement is unexceptional, we find that any such agreement must comport essentially with those principles of fee distribution set forth in Grinnell I and Grinnell II. This does not mean that a fee sharing agreement must replicate the individual awards made to PMC members under the district court's lodestar analysis. Even after the court makes the allocation, the attorneys may be in a better position to judge the relative input of their brethren and the value of their services to the class. Litigation, 81 F.R.D. at 400. See In re Ampicillin Antitrust Nor does this mean that class counsel need follow, line by line, the lodestar formula in AO 72 iRev.8'82) 15 �arriving at an agreement as to fee distribution. 1 Obviously, the needs of large class litigation may at times require class 2 counsel, in assessing the relative value of an individual 3 attorney's contribution, to turn to factors more subjective than 4 a mere hourly fee analysis. 5 It does mean that the distribution of fees must bear som.e relationship to the services rendered. 6 In our view, fees that include a return on investment 7 8 present the clear potential for a conflict of interest between 9 class counsel and those whom they have undertaken to represent. "[Wjhenever an attorney is confronted with a potential for 10 choosing between actions which may benefit himself financially 11 and an action which may benefit the class which he represents 12 there is a reasonable possibility that some specifically 13 identifiable impropriety will occur." 14 Inc., 578 F.2d 102, 104 (5th Cir. 1978). 15 "for those situations, short of actual abuse, in which the 17 client's interests are somewhat encroached upon by the attorney's 18 interests." 19 Court Awarded Attorney Fees, Report of the Third Circuit Task Force, 108 F.R.D. 237, 266 (Oct. 8, 1985). 20 Such conflicts are not only difficult to discern from the terms of a 21 particular settlement, but "even the parties may not be aware 22 that [they exist] at the time of their [settlement] discussions," 23 id. 24 This risk is magnified in the class action context, where full disclosure and consent are many times difficult and 25 AO 72 (Rev.8/82) The concern is not necessarily in isolating instances of major abuse, but rather is 16 26 Zylstra v. Safeway Stores, : frequently impractical to obtain. 16 In re Mid-Atlantic Toyota �1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 AO 72 (Rev.8.82) Antitrust Litigation, 93 F.R.D. 485, 490-91 (D. Md. 1982); Gould v. Lumonics Research Ltd., 495 F. Supp. 294, 297 n.,6 (N.D. 111. 1980). The district court recognized that the agreement provided an incentive for the PMC to accept an early settlement offer not in the best interests of, the class, because "[a]n attorney who is promised a multiple of funds advanced will receive the same return whether the case is settled today or five years from now." Agent Orange I, 611 F. Supp. at 1460. Given the size and complexity of the litigation, it seems apparent that the r ' potential for abuse was real and should have been discouraged. Unlike the district court, however, we conclude that the risk of such an adverse effect on the settlement process provides adequate grounds for invalidating the agreement as being inconsistent with the interests of the class. The conflict obviously lies in the incentive provided to an investor-attorney to settle early and thereby avoid work for which full payment may i I not be authorized by the district court. Moreover, as soon as an i I offer of settlement to cover the promised return on investment is made, the investor-attorney will be disinclined to undertake the risks associated with continuing the litigation. The conflict was especially egregious here, since six of the nine PMC members were investing parties to the agreement. The district court's factual finding, that the adequacy of the settlement demonstrated that the agreement had no effect on the PMC's conduct, is not dispositive. The district court's 17 �1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 'I AO 72 (Rev.8'82r* retrospective appraisal of the adequacy of the settlement cannot be the standard for review. The test to be applied is whether, at the time a fee sharing agreement is reached, class counsel are placed in a position that might endanger the fair representation of their clients and whether they will be compensated on some basis other than for legal services performed. Review based on a fairness of settlement test would not ensure the protection of the class against potential conflicts of interest, and, more important, would simply reward counsel for failing to inform the court of the existence of such an agreement until after a f settlement. We also reject the district court's finding that its authority to approve settlement offers under Fed. R. Civ. P. 23(e) acts to limit the threat to the class from a potential conflict of interest. At this late stage of the litigation, both class counsel and defendants seek approval of the settlement. The court's attention properly is directed toward the overall reasonableness of the offer and not necessarily to whether class counsel have placed themselves in a potentially conflicting position with the class. It would be difficult indeed for a court at this stage to hold that, regardless of the terms of the settlement, class counsel had not fulfilled its obligation to the class. Given this focus and other administrative concerns that may come to bear, we find the approval authority, in this context, to be insufficient to assure that the ongoing interests of the class are protected. See Alleghany Corp. v. Kirby, 333 8 �F.2d 327, 347 (2d Cir. 1964) (Friendly, J., dissenting) (at this 1 stage of litigation, "[a] 11 the dynamics conduce to judicial" 2 approval of such settlements"), cert, dismissed. 384 U.S. 28 3 (1966); In re Mid-Atlantic Toyota Antitrust Litigation, 93 F.R.D. 4 5 at 491 (court authority to review settlement offers not adequate 6 to safeguard against dangers of conflict of interest); Coffee, 7 The Unfaithful Champion; 8 Litigation, 48 Law & Contemp. Probs. 5, 26-27 (Summer 1985) 9 (judicial review not a significant barrier to collusive settlements). 10 that the potential incentive to settle early is offset by an 12 incentive, fostered by the lodestar formula, to prolong the 13 litigation. 14 While a number of commentators have asserted that use of the lodestar formula encourages counsel to prolong 15 litigation for the purpose of billing more hours, e.g., Wolfram, 16 The Second Set of Players; 17 Lawyers, Fee Shifting, and the Limit of Proportional Discipline, 47 Law & Contemp. Probs. 293, 302 18 (Winter 1984), the formula's effect in this regard is far from 19 clear, see Coffee, supra, at 34-35 ("the claim that the lodestar 20 formula results in excessive fees is nonetheless a red herring"); 21 Mowrey, Attorneys Fees In Securities Class Action and Derivative 22 Suits, 3 J. Corp. Law. 267, 343-48 (1978) (attorneys' fees awards 23 by district courts have not risen since adoption of lodestar 24 analysis); see also 7B C. Wright, A. Miller & M. Kane, Federal 25 Practice and Procedure § 1803, at 508 (1986) (no empirical data 26 (Rev.8.821 f Equally unpersuasive is the district court's determination 11 AO 72 The Plaintiff As Monitor In Shareholder i 19 �1 show any incidence of district courts awarding excessive fees). Moreover, the court's authority in reviewing fee petitions and 2 approving or disapproving hours billed in an equitable fund 3 4 5 6 7 8 9 action works as a substantial and direct check on counsel's alleged incentive to procrastinate. In re Equity Funding Corporation of America Securities Litigation. 438 F. Supp. 1303, 1328 (C.D. Gal. 1977); 7B C. Wright, A. Miller & M. Kane, supra, § 1803, at 511. Consequently, we do not view the lodestar system as countervailing the clear interest in early settlement created by the private agreement. 10 » Additionally, potential conflicts of interest in class 11 contexts are not examined solely for the actual abuse they may 12 cause, but also for potential public misunderstandings they may 13 cultivate in regard to the interests of class counsel. Susman v. 14 Lincoln American Corp., 561 F.2d 86, 95 (7th Cir. 1977); Prandini 15 v. National Tea Co., 557 F.2d 1015, 1017 (3d Cir. 1977). While 16 today we hold that the settlement reached here falls within that 17 range of reasonableness permissible under Fed. R. Civ. P. 23(e), 18 we are not insensitive to the perception of many class members 19 and the public in general that it does not adequately compensate 20 the individual veterans and their families for whatever harm 21 Agent Orange may have caused. To be sure, the settlement does 22 not provide the individual veteran or his family substantial 23 compensation. Given the facts of this settlement, the 24 potentially negative public perception of an agreement that 25 awards an investing PMC member over twelve times the amount the 26 AO 72 (Rev.8>82) 20 �1 2 district court has determined to be the value of his services to the class provides additional justification for invalidating the agreement and applying the lodestar formula. 3 We find the various additional rationales for approving the 4 fee sharing agreement set out in the district court's decision 5 equally unpersuasive. First, the fact that the returns on the 6 7 8 9 advanced expenses did not directly affect the class fund is of little consequence, since we have already determined that the district court's responsibility under Grinnell I and Grinnell II, as well as under Fed. R. Civ. P. 23(e), goes beyond concern for 10 » only the overall amount of fees awarded and requires attention to 11 the fees allocated to individual class counsel. Second, while we 12 sympathize with counsel regarding the business decisions they 13 14 must make in operating an efficient and manageable practice and agree that a certain flexibility on the court's part is 15 essential, we are not inclined to extend this flexibility to 16 encompass situations in which the bases for awarding fees in an 17 equitable fund action are so clearly distorted. Third, whether 18 this class action would have collapsed without an agreement 19 calling for a threefold return is a matter of speculation. Any 20 such collapse, however, would have been due to the pervasive 21 weaknesses in the plaintiffs' case. Fourth, we find wholly 22 unconvincing the district court's suggestion that the investors 23 could have made a sizeable return on their funds if they had 24 invested them in other ventures. We take notice of the fact that 25 a threefold return on one's money is a rather generous return in 26 ! AO 72 (Rev.8/82) 21 �.1 2 3 any market over a short period of time. Fifth, while the effect of this fee sharing agreement might have been dwarfed to the point of insignificance if the fees awarded to counsel had been 4 much greater, this simply is too speculative to defend the 5 agreement as not affecting the interests of the class. 6 we do not find class counsel to have formed an ad_ hoc partnership. 7 They merely are a group of individual lawyers and law firms 8 associated in the prosecution of a single lawsuit, and they lack 9 the ongoing relationship that is the essential element of 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 AO 72 (Rev.8'82) Finally, attorneys practicing as partners. * We do agree with the district court's ruling that in all future class actions counsel must inform the court of the existence of a fee sharing agreement at the time it is formulated. This holding may well diminish many of the dangers posed to the rights of the class. Only by reviewing the agreement prospectively will the district courts be able to prevent potential conflicts from arising, either by disapproving improper agreements or by reshaping them with the assistance of counsel to conform more closely with the principles of Grinnell I and Grinnell II. In the present case, however, where the district court was not made aware of the agreement, and the potential for a conflict of interest arising was substantial, the adoption of a rule for future cases in no way alleviates the fatal flaws of this agreement and does not offset the need for its invalidation. Although appellant Dean is successful on this appeal, his conduct has been far from praiseworthy. 22 He freely consented to �1 the formation of the agreement in December of 1983 and later to its revision in 1984. He did not even inform the district court 2 3 4 5 6 of the existence of the agreement or of his objections to it until long after the settlement was reached. If he had called the agreement into question immediately, a great deal of time and expense could have been saved. 7 8 III. CONCLUSION 9 10 11 12 13 14 15 Having determined that the fee sharing agreement violates v the principles for awarding fees in an equitable fund action and places class counsel in a position potentially in conflict with the interests of the class which they represent, we reverse. award all the PMC members the fees to which the district court determined that they were entitled. 16 17 18 19 20 21 22 23 24 25 26 23 AO 72 (Rev.8 We �FOOTNOTES 1 2 3 4 5 6 7 8 9 10 11 12 13 1. The agreement, in pertinent part, provided as follows: When and if funds are received, either by the AOPMC or individual members thereof, the first priority distribution will be to distribute to Messrs. Brown, Chesley, Henderson, Locks, O'Quinn and Schwartz, an amount equivalent to the actual monies expended for which these six signatories were responsible toward the common advancement of the litigation up to $250,000.00 with a multiplier of three (i.e., none of these six individuals will receive more than $750,000.00 each), which shall be paid to them for having secured the funds for the AOPMC and to Messrs. Dean, Schlegel and Musslewhite an amount equivalent to the actual monies expended by these three signatories toward the common advancement oflitigation up to $50,000.00 with a multiplier of three (i.e., none of these three signatories will receive more than $150,000.00 each). Any additional expenses will be reimbursed without a multiplier as ordered by the Court. 14 15 16 17 18 All of the expenses plus the appropriate multiplier will be deducted from the total fees and expenses awarded by the Court to all of the AOPMC firms. The remaining fees will then be distributed pro rata to each signatory in the proportion the individual's and/or firm's fee award bears to the total fees awarded. 19 20 In Re Agent Orange Product Liability Litigation, 6 1 1 F. Supp. 1452, 1454 (E.D.N.Y. 1985) (quoting Revised Fee-Sharing Agreement, Dec. 1 3 , 1984). 21 22 2. The effect of the fee sharing agreement on the district court's fee awards to the individual PMC members is shown by the following chart. 23 Amount of Fees Awarded by District Court 24 Amount of Fees Awarded Under the Agreement Net Effect of the Agreement 25 26 I AO 72 (Rev.8 82) Dean (noninvestor) $1,424,283 24 $542,310 -$881 ,973 �3 Schlegel (noninvestor) 944,448 Musslewhite (noninvestor)344,657 Schwartz (investor) 41 ,886 O'Quinn (investor) 132,576 Brown (investor) 348,331 Locks (investor) 487,208 Chesley (investor) 475,080 Henderson (investor) 515,163 4 Brief for Appellant at 8. 1 2 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 AO 72 (Rev.8/82) 25 393,312 206,991 513,026 541,128 608,162 651,339 647,534 659,975 549 136 137 666 471 140 408 552 259 831 164, 171 172, 456 144, 812 �UNITED STATES COURT OF APPEALS 1 FOR THE SECOND CIRCUIT 2 No. 1097-August Terra, 1985 3 (Argued April 10, 1986 4 5 6 Decided 1987) Docket Nos. 85-6305, 85-6325, 85-6343, 85-6345, 85-6347, 85-6351, 85-6353, 85-6355, 85-6357, 85-6359, 85-6361, 85-6363, 85-6383, 85-6389, 85-6397 7 8 IN RE "AGENT ORANGE" PRODUCT LIABILITY LITIGATION 9 (APPEAL OF ATTORNEYS' FEE AWARDS) » 10 11 Before: ™ *" VAN GRAAFEILAND, WINTER and MINER, "Circuit Judges. 12 Appeal from an order and judgment of the United States 13 District Court for the Eastern District of New York (Weinstein, 14 Ch. J.) awarding fees to those counsel who performed services 15 beneficial to the class. 16 use of national hourly rates, the level of quality multipliers 17 allowed, and the failure to award a risk multiplier and to credit 18 certain hours and expenses. 19 20 21 22 23 24 25 26 AO 72 (Rev.8'82) Various counsel challenge the court's Affirmed in part and reversed in part. �1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 AO 72 * (Rev.8/82) PAUL M. BERNSTEIN, New York, NY (Bernstein Litowitz Berger & Grossmann, New York, NY, Edward A. Grossmann and Penny P. Domow, New York, NY, of counsel) for Appellant Agent Orange Plaintiffs' Management Committee. EDWARD F. HAYES, III, Huntingdon, NY for Appellants McMillan, Bigg, Lonnie, Davison and MacLaren. BENTON MUSSLEWHITE, Houston, TX, Pro Se. ROBERT A. TAYLOR, JR., Washington, DC (Ashcraft & Gerel, Wayne M. Mansulla, Washington, DC, of counsel) for Appellant Ashcraft & Gerel. LEON FRIEDMAN, Hempstead, NY for Appellants Dean, Falanga & Rose. (Henderson & Goldberg, Pittsburgh,* PA, Thomas W. Henderson and Antonio D. Pyle, Pittsburgh, PA, of counsel) for Appellant Henderson & Goldberg, P.C, (Greitzer and Locks, Philadelphia, PA, Neil R. Peterson, Philadelphia, PA, of counsel) for Appellants Greitzer and Locks, Schlegel & Trafelet, Henderson & Goldberg, O'Quinn, Hagan & Whitman, Newton B. Schwartz, P.C.. WaiteT Schneider, Bayless & Chesley and Hoberg, Finger, Brown, Cox & Milligan. (Edward J. Nowakoski, West Caldwell, NJ, of counsel) for Appellant Kraft & Hughes. (Sullivan & Associates, Daniel C. Sullivan and Gregory A. Stayart, Chicago, IL, of counsel) for Appellant Sullivan & Associates, Ltd"I (Stephen J. Schlegel, Chicago, IL) Pro Se. (Richard D. Heideraan, A. Thomas Johnson, Heideman Law Offices, Louisville, KY, of counsel) for Appellant Estate of Lowell M. Coffey. (Townley & Updike, New York, NY, Richard J. Barnes and John E. Sabetta, New York, NY, of counsel) for Appellee Monsanto Company. �(Kelley Drye & Warrenr New York, NY, William M. Crowley and Patricia C. Tui, New York, NY, of counsel) for Appellee Hercules Incorporated. _ J 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 AO 72 (Rev.8/82) �1 MINER, Circuit Judge: 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Our discussion of the background and procedural history of the litigation appears in Judge Winter's lead opinion, No. 84-6273. The nine members of the Plaintiffs' Management Committee ("PMC") and various outside counsel appeal, on a number of grounds, the district court's decision setting attorneys' fees. On June 18, 1985, the district court issued an amended order, awarding over seven million dollars in fees and three million dollars in expenses to eighty-eight attorneys and law firms * involved in the action. 1 In re "Agent Orange ' Product Liability Litigation, 6 1 1 F. Supp. 1296 (E.D.N.Y. 1985) ("Agent Orange"). The nine members of the PMC, individually and as a group, challenge the district court's use of a national hourly rate in calculating the fee awards under the lodestar formula set forth in City of Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir. 1974) ("Grinnell 1"), and City of Detroit v. Grinnell Corp., 560 F.2d 1093 (2d Cir. 1977) ("Grinnell II"), the level of the quality multipliers it set, and its failure to apply a risk multiplier to the fee awards and to credit certain hours and expenses. Four 20 outside counsel challenge the district court's findings as to the 21 22 23 24 25 26 AO 72 (Rev.8/82) value of their work to the class and the decision to abrogate various contingency fee arrangements between counsel and certain class members. For the reasons set forth below, we affirm in part and reverse in part. �I. 1 BACKGROUND 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 In May of 1984, on the eve of trial, a settlement was reached with the chemical company defendants, calling for the establishment of a $180 million dollar fund for the benefit of the class. By order dated June 1 1 , 1984, the district court required fee petitions to be filed no later than August 31, 1984, and scheduled hearings on the petitions for the early fall. Notice of Proposed Settlement of Class Action, reprinted in. In re "Agent Orange" Product Liability Litigation, 597 F. Supp. 740., 867 (E.D.N.Y. 1984). Pursuant to this procedure, well over *100 attorneys and law firms filed petitions, claiming -tens of thousands of hours of work performed for the benefit of the class, The fee petitions fell into three categories: those filed by the nine members of the PMC; those filed by members of Yannacone and Associates, the original consortium of attorneys in charge of the action; and those filed by attorneys not connected with any court-appointed entity representing the class. In reviewing fee petitions, the district court developed guidelines falling into two categories -- one covering the hours 20 to be credited for work performed and the other covering the 21 expenses to 'be reimbursed. The hourly guidelines were as 22 23 24 25 26 AO 72 (Rev.8<82! follows: 1. Court Time: One half of the time requested for review of court orders was permitted on the ground that the majority of court orders were made in open court or after extensive briefing. Telephone conference time with court personnel was awarded in full, except that no time was awarded for conferences relating to �1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 internal management difficulties of the PMC. Attendance at, and preparation for, court hearings was awarded in full. Review of hearing transcripts was awarded in full for those attorneys attending the hearing. Nonattending attorneys were awarded for only half such time. Travel f° -iiU rrom hear.in.gs aod court appearances also w««» awarded on a fifty percent basis. 2. Management Committee Meetings: All time. £»»meetings 0n""substantive issues was permitted. Travel to and from such meetings was awarded on a fifty percent basis. No time was awarded for meetings on nonsubstantive topics. The same division was made for telephone conferences among PMC members. 3. Educational Reading -. Time for review of scientific materials relating to the causation issue and other issues in the case was awarded on a fifty percent basis on the ground that such knowledge could foe vised by counsel in future cases. 4. Depositions ; Half of the time was awarded for travel to and from depositions, for attendance by nonparticipating attorneys, and for review and reading. All time for preparing and summarizing depositions was granted. No limit on the length of depositions was enforced. 5. Document Preparation: All time for review and preparation of legal documents was awarded, except that those hours used to prepare documents concerning internal PMC organizational issues were not credited. 6. Mail : If a short period of time for review of a substantial amount of mail was requested, no time was awarded under the assumption that counsel simply was opening the mail. If a lengthy period of time was claimed for review of only a few letters, all time was credited under the assumption that counsel was reviewing a letter brief. 7. Intra-Firm Conferences: This time was credited on a fifty percent basis when related to substantive issues . 23 Agent Orange. 611 F. Supp. at 1320-21, 1350-51. 24 guidelines were as follows: 25 26 AO 72 (Rev. 8/8 2) The expense 1 . Travel : Documented expenses for hotels were reimbursed at ninety dollars per day. Meals were reimbursed at fifty dollars per day and twenty dollars �per day if the attorney was in his home city. 1 2 2. Paralegal Time: Paralegals were treated as an expense and reimbursed at a rate of twenty dollars per hour. 3 4 3. Out-of-Pocket Expenses: Telephone, mailing, duplication and similar expenses were reimbursed in full if adequately documented. 5 6 7 4. Percentage Approval; When counsel submitted adequate documentation to prove expenses but were unable to establish that those expenses were all related to cotnpensable activity, expenses were reimbursed on a percentage basis. 8 9 10 11 12 5. Fees for Non-Causation Experts; A cap of $5,000 per expert was set on the ground that their input was not substantial and not reasonably related to class interests. Id. at 1321-22, 1351. Following these guidelines and applying the lodestar formula 13 14 Grinnell I, 495 F.2d at 471, the district court awarded 15 $10,767,443.63 in individual fees and expenses to various counsel 16 who, in the court's view, had performed work beneficial to the 17 class. 18 national hourly rates of $150 for the work of a partner, $100 for 19 the work of an associate, and $125 for the work of a law 20 professor. 21 its discretion, further applied quality multipliers, ranging from 22 1.50 to 1.75, to the fees allowed various members of the PMC and 23 other counsel who had exhibited exceptional skill in the 24 litigation and settlement negotiations. Id. at 1328. The 25 district judge, however, declined to apply a risk multiplier to 26 ! AO 72 for calculating attorneys' fees in an equitable fund action, see the lodestar figure. In arriving at the lodestar figure, the court employed Agent Orange, 611 F. Supp. at 1326. Id. The court, in �1 Not satisfied with these awards, two groups of attorneys, including the PMC, now raise numerous objections on appeal. 2 3 II. DISCUSSION 4 5 A. PMC Members 6 7 The district court awarded the individual members of the PMC 8 an aggregate of $4,713,635.50 in fees and $650,356.97 in 9 individual expenses. In addition, the court awarded the PMC, as 10 *> a whole, expenses in the sum of $1,711,155.87. These attorneys 11 now raise four specific challenges to their individual awards. 12 13 1. National Hourly Rates 14 15 Faced with a flood of fee petitions from counsel located in 16 all regions of the country, the .district court utilized national 17 hourly rates for calculating the fee awards for each attorney. 18 While it recognized that the general rule for fee calculation in 19 this circuit requires the use of "the hourly rate normally 20 charged for similar work by attorneys of like skill in the area," 21 Grinnell II, 560 F.2d at 1098, the district court noted that 22 special problems arise "in applying this general standard in a 23 complex raultidistrict litigation that is national in scope, 24 involves counsel from all over the country and extends over many 25 26 AO 72 (Rev.8/82) �1 years during which the rates for particular lawyers and classes of lawyers are changing," Agent Orange, 611 F. Supp. at 1308. 2 Specifically, the court pointed out that if the general rule 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 were interpreted to require imposition of the rates normally imposed within the district, the rule would make little sense in the context of this action, given that the vast majority of counsel involved were non-local. Alternatively, if the rule were interpreted to require imposition of varying rates depending upon the location of each counsel's practice, the district judge perceived that such a rule would minimize the court's familiarity with the rates to be awarded, require an almost unworkable case-by-case review of such rates, and consistently benefit non-local counsel at the expense of the class fund. The district judge concluded that in large multiparty litigation, where substantial numbers of specialized non-local attorneys are involved, utilization of a national hourly rate is appropriate because it "recognizes the national character of the lawsuit and of class counsel while retaining a vitally important administrative simplicity together with an essential neutrality of result as between fee applicants and fund beneficiaries." Id. 20 21 at 1309. Relying on five separate sources, the district court 22 developed the national rates to be applied in this action. 23 First, the court considered data compiled in the National Law 24 25 26 AO 72 (Rev.8/82) Journal Directory of the Legal Profession (B. Gerson, M. Liss & P. Cunningham eds. 1984), a periodical that provided rate �information concerning law firms of fifty or more attorneys 1 throughout the country as of March 1983. Second, the court 2 reviewed the submissions of counsel, in particular the 3 defendants' Memorandum Concerning Plaintiffs' Lawyers' 4 Applications for Attorneys' Fees and for Reimbursement of 5 Expenses, which provided further information on national rates. 6 Third, the court reviewed various surveys of law firm economics, 7 dated 1980 through 1984, and other periodicals relating to the 8 manner in which firms bill their clients. Fourth, the court took 9 notice of its own experience in setting fee awards in class f 10 actions. Finally, the district judge reviewed recent fee awards 11 by other courts to understand more fully the manner in which 12 other jurisdictions set appropriate rates. Agent Orange, 6 1 1 F. 13 Supp. at 1325-28 (citing, inter alia, In re Fine Paper Antitrust 14 Litigation, 751 F.2d 562, 590 n.22 (3d Cir. 1984); Grendel's Den, 15 Inc. v. Larkin, 749 F.2d 945, 955-56 (1st Cir. 1984)). From an 16 analysis of this data, the district court arrived at national 17 hourly rates of $150 for partners, $100 for associates and $125 18 for law professors. 19 The members of the PMC challenge the use of national rates 20 on the ground that they do not comport with the principles 21 governing attorneys' fee awards in equitable fund actions. They 22 assert that the practice in this and other circuits required the 23 court to review independently the hourly rate for each attorney 24 in order to ensure that he was compensated at a level 25 commensurate with that of other counsel of like skill in the area 26 AO 72 (Rev.8;82) I �1 2 3 4 5 6 7 8 9 in which he practices. See, e.g., In re Fine Paper, 751 F.2d at 590-91 (classifying application of national hourly rates as legal error on the grounds that the district court presented no evidentiary basis for their establishment and such rates ignored the market rates that the attorneys would command in their respective communities). Relying on large class action cases in other circuits where courts have awarded varying rates to counsel from different localities, e.g., In re Equity Funding Corp. of America Securities Litigation, 438 F. Supp. 1303 (C.D. Cal. 1977), they argue that, while the task may be a difficult one', 10 11 other jurisdictions routinely undertake it. In passing on the efficacy of national hourly rates, we note 12 13 14 that fees in this action were awarded under the equitable fund doctrine, which seeks to ensure that counsel who have performed services beneficial to the class receive fair and just 15 16 17 18 compensation for their respective efforts. Greenough, 105 U.S. 527, 536 (1882). Trustees v. In order to provide counsel with such compensation and, at the same time, temper these awards to prevent windfalls, we have adopted a lodestar formula for 19 calculating fees in equitable fund and statutory fee contexts. 20 Grinnell II, 560 F.2d at 1099; Grinnell I, 495 F.2d at 469-71. 21 Under the formula, the district court initially multiplies the 22 number of hours reasonably billed by the hourly rate normally 23 charged for equivalent work by similarly-skilled attorneys in the 24 area. Grinnell II, 560 F.2d at 1098. Once calculated, the 25 district court then may, in its discretion, upwardly or 26 AO 72 (Rev.8.82) �downwardly adjust this figure by considering such factors as the 1 quality of counsel's work, the probability of success of the 2 litigation and the complexity of the issues. Id. 3 While at least one circuit looks to the rates employed in 4 the area in which the attorney practices, Cunningham v. City of 5 McKeesport, 753 F.2d .262, 267 (3d Cir. 1985), we traditionally 6 have interpreted Grinnell I and Grinnell II as requiring use of 7 the hourly rates employed in the district in which the reviewing 8 court sits, Polk v. New York State Department of Correctional 9 Services. 722 F.2d 23, 25 (2d Cir. 1983). We generally have ' 10 adhered to this rule whether the attorney involved was local or 11 non-local. Id.; accord Donnell v. United States, 682 F.2d 240, 12 251-52 (D.C. Cir. 1982), cert, denied, 459 U.S. 1204 (1983); 13 Chrapliwy v. Uniroyal, Inc., 670 F.2d 760, 768-69 (7th Cir. 14 1982), cert, denied, 461 U.S. 956 (1983); Avalon Cinema Corp. v. 15 Thompson. 689 F.2d 137, 140-41 (8th Cir. 1982) (in bane). We and 16 other circuits have strayed from this rule only in the rare case 17 where the "special expertise" of non-local counsel was essential 18 to the case, it was clearly shown that local counsel was 19 unwilling to take the case, or other special circumstances 20 existed. Polk. 722 F.2d at 25; Avalon Cinema, 689 F.2d at 21 140-41. 22 Accordingly, the issue for review here is whether the 23 district court erred in deviating from this established precedent. 24 While we concede that such conduct in the ordinary case would 25 constitute legal error and require recalculation of the lodestar, 26 AO 72 ** I Rev.8/8 2) �we conclude that, in an exceptional multiparty case such as this, 1 where dozens of non-local counsel from all parts of the country 2 are involved, public policy and administrative concerns call for 3 the district court to be given the necessary flexibility to 4 impose a national hourly rate when an adequate factual basis for 5 calculating the rate exists. 6 An examination of the alternatives to the use of national 7 rates in large multiparty class actions of this sort readily 8 establishes the necessity for affording district courts this 9 discretion. Use of our forum rule would distort dramatically the 10 purposes of the lodestar calculation itself -- to ensure fair and 11 just compensation to counsel and to prevent the award of windfall 12 fees. 13 This distortion would occur because, in cases in which the vast majority of attorneys involved are non-local, the forum rule 14 necessarily will either overcompensate or undercompensate a 15 substantial number of non-local attorneys. Undercompensation 16 could deny counsel their right to fair and just fees; 17 overcompensation would not be consistent with the need to prevent 18 windfalls. 19 Adherence to the forum rule in cases in which the inherent limitations of the rule are magnified, i.e., where few 20 local counsel and vast numbers of non-local counsel are involved, 21 therefore, makes little sense. 22 Resort to a varying approach, depending upon the area in 23 which the individual practices, fares no better. In an action 24 of the magnitude of Agent Orange, in which well over one hundred 25 26 AO 72 (Rev.8'82) j fee petitions were filed by counsel throughout the country, such 10 �1 an approach would pose an administrative nightmare for: the district court. '. As the district judge here noted, " [ i imp licit y s 2 becomes an especially important goal in a complex case involving 3 4 5 6 7 8 9 a hundred or more fee applications and tens of thousands of pages of supporting documentation and requiring a number of years for prosecution during which rates for particular attorneys and geographic locations change in different ways." 611 F. Supp. at 1308. Agent Orange, While administrative interests normally should not be the primary concern of a court in formulating substantive rules of review, we observe that the attorney-by-' 10 11 12 13 14 attorney approach recommended by the PMC simply would overtax the capacity of a district court to review fee petitions adequately. Cf. New York Association for Retarded Children v. Carey, 7 1 1 F.2d 1136, 1146 (2d Cir. 1983) (burden-saving measures may be taken by district court in light of voluminous fee petitions). 15 16 17 18 19 Although not a panacea, the use of national hourly rates in exceptional multiparty cases of national scope, where dozens of non-local counsel are involved, appears to be the best available method of ensuring adherence to the principles of the lodestar analysis. The risk of overcompensation or undercompensation on a 20 large scale, apparent under the forum rule, is somewhat 21 neutralized, while, at the same time, the administrative burden 22 on the district court, apparent under the varying rate rule, is 23 24 25 26 AO 72 (Rev.8/82) reduced to a manageable level. In granting the district court this discretion, however, we caution that such rates should be employed only in the exceptional case presenting problems similar 11 �to those presented here. 1 2 3 We further caution that, even in similar cases, national hourly rates should be employed only when the district court is presented with an adequate evidentiary basis on which to fix such rates. Once the court is satisfied 4 with the evidence, it should make clear, factual findings that 5 support its determination. 6 We are aware that at least one circuit has rejected the 7 imposition of national hourly rates on the ground that they do 8 not comport with the lodestar principle. In re Fine Paper, 751 9 F.2d at 591. To the extent, however, that the Third Circuit's •> 10 decision was based upon the fact that the national rates employed 11 did not comport with that circuit's rule requiring the hourly 12 rate to reflect the rate normally charged in the locale in which 13 counsel practices, we already have rejected its analysis by 14 following a forum rate rule. See Polk, 722 F.2d at 25. In 15 addition, In re Fine Paper, though not entirely clear on this 16 point, may be read to condemn only national hourly rates not 17 based on an adequate evidentiary record. The Third Circuit, in 18 reversing the district court's adoption of such rates, indicated 19 that the district court there had not referred to any evidence 20 supporting the existence of such rates, 751 F.2d at 590, and 21 noted that "the subject is not one on which judicial notice is 22 appropriate," id. If read in that context, our decision is in 23 accord with that of the Third Circuit, since we limit the 24 utilization of national rates to those instances in which an 25 adequate evidentiary basis exists. 26 ' AO 72 (Rev.8 82) 12 Finally, even assuming that �In re Fine Paper stands for an absolute prohibition on the 1 imposition of national hourly rates, we note that, subsequent to 2 that decision, the Third Circuit Task Force on Court Awarded 3 Attorney Fees, organized at the behest of the Chief Judge of that 4 Circuit, recommended that the court permit the utilization of 5 such rates in exceptional cases. Court Awarded Attorney Fees, 6 Third Circuit Task Force, 108 F.R.D. 237, 260-62 (Oct. 8, 1985).1 7 Given our determination that the utilization of national 8 hourly rates in limited circumstances is proper, we further 9 10 conclude that the district court did not abuse its discretion' in » calculating the specific hourly rates in the' present case. In 11 its decision, the court set forth the five bases upon which it 12 computed these rates. The PMC does not challenge specifically 13 those bases and we find little reason to question them. Hourly 14 rates for counsel in this action were difficult to calculate 15 because the majority of attorneys involved normally would have 16 been compensated through contingency fee arrangements rather than 17 on an hourly basis. Difficulties aside, however, the district 18 judge, in our view, took adequate steps to ensure a fair and just 19 hourly rate of compensation. We therefore hold that the national 20 hourly rates of $150 for partners, $100 for associates and $125 21 for law professors constituted an element of fair and just 22 compensation for counsel in the context of this case. 23 24 2. Quality Multipliers 25 26 AO 72 (Rev. 8/8 2) 13 �Having computed the initial lodestar figure, the district 1 court awarded discretionary quality multipliers of 1.5, and in 2 one case 1.75, to six members of the PMC on the ground that these 3 4 attorneys had exhibited exceptional skills in the litigation and settlement negotiations. 5 The six PMC recipients now challenge the level of the multipliers as being unjustifiably low and 6 further challenge the district court's failure to award quality 7 multipliers in connection with the fees of the three other PMC 8 members. 9 The decision to allow a quality multiplier rests in the^ 10 sound discretion of the district court, Hens ley v. Eckerhart, 461 11 U.S. 424, 437 (1983); Grinnell II, 560 F.2d at 1098, due to 12 "the district court's superior understanding of the litigation 13 and the desirability of avoiding frequent appellate review of 14 what essentially are factual matters." 15 Hens ley, 461 U.S. at 437. The Supreme Court, however, in Blum v. Stenson, 465 U.S. 886, 899 16 (1984), and more recently in Pennsylvania v. Delaware Valley 17 Citizens' Council for Clear Air, 106 S. Ct. 3088 (1986), has 18 severely restricted those instances in which a district court may 19 allow such a multiplier.2 20 In Blum, a decision concerning application of the lodestar 21 analysis to a fee award under 42 U.S.C. § 1988, the Court 22 determined that factors such as quality of representation are 23 presumed to be fully reflected in the initial lodestar figure, 24 derived by multiplying the number of hours reasonably billed by 25 26 AO 72 a» (Rev.8;82) ' : the court-established hourly rate. 14 Blum, 465 U.S. at 899. �Accordingly, the Court concluded that an adjustment to the 1 lodestar figure for such a factor would only be proper in "the 2 rare case where the fee applicant offers specific evidence to 3 show that the quality of service rendered was superior to that 4 one reasonably should expect in light of the hourly rates charged 5 and that the success was 'exceptional.'" Id. (emphasis added). 6 In Delaware Valley Citizens' Council, a decision concerning 7 application of the lodestar analysis to a fee award under section 8 304(d) of the Clean Air Act, 42 U.S.C.A. § 7604(d) (West 1983), 9 the Court reaffirmed the narrow approach taken in Blum, declaring 10 that calculating fee awards under the lodestar analysis "leaves 11 very little room for enhancing the award based on [counsel's] 12 post-engagement performance." Delaware Valley Citizens' Council, 13 106 S. Ct. at 3098. 14 Given these pronouncements, the issue, in our view, is not 15 whether the quality multipliers awarded by the district court 16 here were set too low, but rather whether they should have been 17 awarded at all. In what we consider to be a close case, we 18 conclude that the district court did not abuse its discretion in 19 awarding the multipliers for quality to six of the PMC members, 20 or in failing to award them to the other three members. 21 The district court specifically found that these six 22 attorneys, as well as several outside counsel who have not 23 appealed, deserved to be awarded quality multipliers at various 24 rates because each had "demonstrated an unusual degree of skill 25 in presenting complex and often novel issues to the court," Agent 26 AO 72 (Rev.8'82) 15 �Orange, 6 1 1 F. Supp. at 1328, or had "shown a level of 1 organization and efficiency that goes beyond what is usually 2 expected," id. 3 4 Under ordinary circumstances, even assuming the high level of work performed by counsel here, we would be constrained to reverse the district court's award in light of the 5 severe restrictions set forth in Blum and Delaware Valley 6 Citizens' Council. 7 While the work indeed may have been of high quality, the presumption is that such factors already are 8 reflected in the initial lodestar figure. 9 In this case, however, we find that the use of a national 10 hourly rate skews the normal lodestar analysis enough to require 11 consideration of quality factors in order to satisfy the 12 requirements of just and fair compensation. 13 While we affirm the use of national rates in the present case, we realize that such 14 rates inherently cannot be calculated as precisely as those 15 under the forum rule, or those under the varying locale rule. 16 Consequently, the Blum and Delaware Valley Citizens' Council 17 presumption of inclusion of quality factors within the initial 18 lodestar figure should not, in our view, apply to those instances 19 in which the district court utilizes this less precise analysis. 20 21 3. Risk Multiplier 22 23 The district court declined to award a risk multiplier to 24 any attorney involved in the case. 25 26 AO 72 (Rev.8/82) ! It reasoned that risk of success should not be judged solely from the vantage point of 16 �whether a complete recovery at the conclusion of the action is 1 viable, but also should include an evaluation of the likelihood 2 that the parties will reach a settlement. In this regard, the 3 court noted that it was probable that the defendant chemical 4 companies would settle the case "to avoid the further burden of 5 litigation and to improve their respective financial pictures." 6 Agent Orange, 611 F. Supp. at 1 3 1 1 . The court also recognized 7 that awarding risk multipliers in a case such as Agent Orange, 8 which held out little chance for a victory on the merits but a 9 significant chance of settlement, would fuel the filing of f 10 nuisance litigation "in which settlement becomes the main object 11 and attorney fee awards an overpowering motivating force." Id. 12 Furthermore, the court indicated that strict application of 13 inversely proportionate risk multipliers to cases such as Agent 14 Orange, which it described as a high-risk case of highly 15 questionable merit, would lead to a confounding disparity in the 16 treatment of cases falling just above and just below the standard 17 for frivolousness under Fed. R. Civ. P. 1 1 . Attorneys in 18 successful cases bordering on the frivolous, yet falling just 19 above the proscriptions of Rule 1 1 , would be awarded the highest 20 21 risk multipliers, since the risk of success in such cases obviously would be great. In contrast, counsel in similar cases 22 falling just below Rule 1 1 ' s proscriptions, would not only 23 receive no risk multiplier, but also would be subject to 24 court-imposed sanctions for having brought such a case. 25 26 ! A072 (Rev.8'82) 17 �1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Finally, the court took note that, as a matter of public policy, the need to utilize a risk multiplier in a given case must be viewed in relation to the equally important concerns of judicial administration and legal morality. To this end, the refusal to allow a multiplier here would force the legal community "to think a,t least twice before initiating sprawling, complicated cases of highly questionable merit that will consume time, expense and effort on the part of all concerned, including the courts, in a degree vastly disproportionate to the results eventually obtainable." Id. at 1312. While such a policy would f not reward the filing of these questionable cases, the court did note that counsel's entitlement to a lodestar award without a multiplier would nonetheless serve adequately to encourage attorneys to represent plaintiffs in cases of this nature. The PMC challenges the district court's failure to allow a risk multiplier on the ground that it does not comport with principles of just and fair compensation. While conceding that plaintiffs' case would have been difficult to prove, the PMC members strongly take exception to the district court's description of the action as being of dubious or questionable 20 21 22 23 24 25 merit. As to the probability of the parties reaching a settlement in the action, the PMC members point to the fact that such a settlement was not reached until the eve of trial, and label as "economic suicide" the notion that they advanced funds and spent thousands of hours working on the case with some inner 26 i AO 72 (Rev.8*82) 18 �assurance that defendants would make a reasonable settlement 1 proposal because of the bothersome nature of the litigation. 2 We have labeled the risk-of-success factor as "perhaps the 3 foremost" factor to be considered under the second prong of the 4 lodestar analysis. Grinnell I, 495 F.2d at 471. The multiplier 5 takes into account th,e realities of a legal practice by rewarding 6 counsel for those successful cases in which the probability of 7 success was slight and yet the time invested in the case was 8 substantial. Id.; see 7B C. Wright, A. Miller & M. Kane, Federal 9 Practice and Procedure § 1803, at 524-27 (1986). 10 As the chance ^ ^ ^ V B ^ H M B B V ^ of success on the merits or by settlement increases, the 11 justification for using a risk multiplier decreases. Grinnell I, 12 495 F.2d at 471. The need for this type of multiplier is 13 magnified when the "diminutive character of the individual 14 claims" forces counsel to bring the action on a class basis. 7B 15 C. Wright, A. Miller & M. Kane, supra, § 1803, at 527. Without 16 the prospect of some consideration for the risks and 17 uncertainties of the action, "the necessary incentive [for 18 prosecuting such a suit] would be lacking and a major weapon for 19 enforcing various public policies would be blunted." 20 Id. The problem with risk multipliers, however, is that they 21 tend to reward counsel for bringing actions of dubious merit. If 22 such multipliers are awarded on a perfectly proportionate basis, 23 i.e., the greater the chance that the case would not succeed the 24 higher the multiplier, "the net effect . . . would be to make a 25 marginal case as attractive to bring as a very strong case." 26 AO 72 «* (Rev.8.82) ' 19 �Laffey v. Northwest Airlines, Inc., 746 F.2d 4, 27 (D.C. Cir. 1 1984), cert, denied, 105 S. Ct. 3488 (1985). This, in turn, 2 would provide an incentive for counsel to flood "the courts with 3 unmeritorious litigation," McKinnon v. City of Berwyn. 750 F.2d 4 1383, 1392 (7th Cir. 1984), "leading ... to a situation in 5 which every conceivable claim would be litigated, subject only to 6 the ability of the courts to handle the burden," Laffey, 746 F.2d 7 at 27; accord Leubsdorf, The Contingency Factor in Attorney Fee 8 Awards, 90 Yale L.J. 473, 491 (1981). 9 The net result, of course, would be a dilution of the judiciary's ability to handle thos-e v 10 cases with potentially meritorious claims. 11 A court, therefore, in adjudging whether to award a risk 12 multiplier, should examine closely the nature of the action in 13 order to determine whether, as a matter of public policy, it is 14 the type of case worthy of judicial encouragement. In our view, 15 the case here clearly is not and, consequently, we agree with the 16 district court's decision not to impose a risk multiplier. 17 From the outset, the factual and legal difficulties 18 hindering the successful prosecution of plaintiffs' case have 19 been staggering. Factual evidence of causation has been at best 20 tenuous and, if not for the last-minute settlement, the military 21 contractor defense would have prevented class members from 22 realizing any recovery at all. When these significant weaknesses 23 in plaintiffs' case are viewed in light of the sheer magnitude of 24 the action and the thousands of hours of court time that this 25 type of action requires, it becomes clear that the federal courts 26 AO 72 (Rev.8/82) 20 �should not actively encourage the bar to file such dubious 1 actions in the future. 2 Besides matters of public policy, the settlement itself 3 presents a rationale for denying counsel's request. While today 4 we hold that the settlement falls within the range of 5 reasonableness under Fed. R. Civ. P. 23, we are aware that the 6 $180 million settlement provides a very small return to the class 7 in light of the claims asserted. In our estimation, the 8 relatively small size of the settlement reflects class counsel's 9 realization of the extreme difficulty they would incur in 10 overcoming the inherent weaknesses of their case, in particular 11 the military contractor defense, and the defendant chemical 12 companies' realization'that they could end a burdensome 13 litigation at very low cost. Award of a risk multiplier in such 14 circumstances, as the district court reasoned, only would further 15 the unwelcome prospect of nuisance litigation being brought in 16 federal courts. 17 In denying class counsel their requested multiplier, we note 18 that each attorney has received the fair value of his services to 19 the class under the lodestar analysis. An additional award of a 20 risk multiplier not only would provide excessive compensation but 21 would encourage counsel to accept similar matters for litigation 22 in the future. We find no reason to do more to encourage 23 litigation that could substantially occupy the federal judiciary 24 in matters of little merit. 25 26 AO 72 (Rev.8,821 21 �1 4. Hours and Expenses 2 The PMC members challenge the district court's guidelines 3 on the grounds that they improperly failed to credit certain 4 hours and reimburse certain expenses. Specifically, they 5 challenge the court's, decision to disallow fifty percent of the 6 time spent on reading scientific literature, to disallow fifty 7 percent of the time spent on travel, to disallow a portion of the 8 9 10 time spent reviewing mail and on the telephone, to disallow fifty percent of the time spent reviewing depositions, and to disallow » a substantial amount of post-settlement work; As to expenses, 11 they challenge the court's decision to reduce expenses by a 12 percentage when such expenses could not be connected with 13 corapensable activity, to set a maximum fee for noncausation 14 expert witnesses, and to treat paralegals as a cost. In sum, 15 they allege that, taken together, if not separately, such radical 16 deductions in their hours and expenses billed constituted an 17 abuse of the court's discretion. 18 The district court is given broad discretion in setting fee 19 awards. Hens ley, 461 U.S. at 437; Carey, 7 1 1 F.2d at 1146. We 20 cannot reverse a district court's finding in this regard merely 21 because we might have weighed the information provided in the fee 22 petitions differently or might have found more of the hours 23 billed as being beneficial to the class. Cf. Anderson v. 24 Bessemer City, 105 S. Ct. 1504, 1 5 1 1 - 1 2 (1985). The district 25 judge is in the best position to weigh the respective input of 26 AO 72 (Rev.8/82) 22 �1 counsel, considering its "superior understanding of the litigation." Hensley, 461 U.S. at 437. Accordingly, we will 2 reverse a district court's findings as to which hours to 3 compensate "only when it is apparent that the size of the award 4 is out of line with the degree of effort reasonably needed to 5 prevail in the litigation." Carey, 711 F.2d at 1146. 6 We find no abuse of discretion here. The critical inquiry 7 when reviewing hours billed to the common fund in a class action 8 is whether the work performed resulted in a benefit to the class. 9 See Grinnell II. 560 F.2d at 1099. In determining which hours 10 were beneficial, we note that there "are no hard-and-fast rules," 11 Siegal v. Merrick, 619 F.2d 160, 164 n.9 (2d Cir. 1980), but that 12 "[ajraple authority supports reduction in the lodestar figure for 13 overstaffing as well as for other forms of duplicative or 14 inefficient work," id. Moreover, we and other circuits have held 15 that in cases in which substantial numbers of voluminous fee 16 petitions are filed, the district court has the authority to make 17 across-the-board percentage cuts in hours "as a practical means 18 of trimming fat from a fee application." Carey, 7 1 1 F.2d at 19 1146; accord Ohio-Sealy Mattress Manufacturing Co. v. Sealy Inc., 20 776 F.2d 646, 657 (7th Cir. 1985); Copeland v. Marshall, 641 F.2d 21 880, 903 (D.C. Cir. 1980) (in bane). But see In re Fine Paper, 22 751 F.2d at 596 (court roust identify with some specificity any 23 disallowed hours). Under such circumstances, no item-by-item 24 accounting of the hours disallowed is necessary or desirable. 25 Ohio-Sealy. 776 F.2d at 658. 26 A072 (Rev.8/82) 23 �Here, the fee petitions, to say the least, were voluminous, 1 consisting of tens of thousands of pages of billing sheets and 2 other exhibits. To suggest that the district court could not 3 take advantage of percentage reductions in such a context would 4 be absurd. In reviewing these across-the-board cuts, we find 5 nothing that we could classify as an abuse of discretion. 6 Moreover, it is not unusual for hours of travel time, deposition 7 time and other quasi-administrative items to be compensated at 8 lower rates. E.g., Sun Publishing Co. v. Mecklenburg News, Inc., 9 594 F. Supp. 1512, 1520 (E.D. Va. 1984); Steinberg v. Carey, 470 10 F. Supp. 471, 479-80 (S.D.N.Y. 1979). But see Crumbaker v. Merit 11 Systems Protection Board, 781 F.2d 191, 193-94 (Fed. Cir. 1986) 12 (reasonable travel time should be compensated at the same rate as 13 other working time). The district judge gave reasons, though 14 somewhat generalized, for each percentage cut that he made. We 15 find these to be an adequate reflection of the benefit that the 16 class derived from counsel's work. 17 We also find no abuse of discretion in the district court's 18 guidelines for expenses. Counsel are entitled to reimbursement 19 only for those expenses incurred in the course of work that 20 benefitted the class. In re Armored Car Antitrust Litigation, 21 472 F. Supp. 1357, 1388-89 (N.D. Ga. 1979), modified and remanded 22 23 on other grounds, 645 F.2d 488 (5th Cir. 1981). other extravagances are not recoverable. Overstaffing and Id. 24 Given this standard, the district court's finding that the 25 reports of the non-causation witnesses were of only marginal use 26 AO 72 ** (Rev.8/82) 24 �1 to the class and were "uniformly inadequate" suggests that the court in fact was generous in setting the cap for fees to these 2 experts at $5,000 each. Report and Recommendation of United 3 4 5 6 7 8 9 States Magistrate, Re: Fee Petitions, appendixed to and incorporated in Agent Orange, 611 F. Supp. 1296, 1351 (1985). We also find no abuse of' discretion in the district court's determination that expenses connected with those hours disallowed as not being beneficial to the class should not be reimbursed. See In re Fine Paper Antitrust Litigation. 98 F.R.D. 81, 85 (E.D. Pa. 1983), rev'd on other grounds. 751 F.2d 562 (3d Cir. 1984). 10 Finally, although we concede that under certain circumstances it 11 may be appropriate not to treat paralegal time as an expense in a 12 13 14 large class action, see Dorfman v. First Boston Corp., 70 F.R.D. 366, 374-75 (E.D. Pa. 1976), we note that the district court in so doing was simply following our prior directive, see Grinnell 15 I_, 495 F.2d at 473. We decline to reevaluate that rule here. 16 17 B. Outside Counsel 18 19 1. Ashcraft & Gerel 20 21 Ashcraft & Gerel, a Washington, D.C. law firm that assisted 22 the PMC in this action between March of 1983 and October of 1983, 23 appeals the district court's fee and expense award. In its 24 initial fee calculations, the district court awarded Ashcraft & 25 Gerel fees in the amount of $78,935 and expenses in the amount of 2 6 i| AO 72 I Rev.8/82) �1 $46,233.18. The district court limited the fees and expenses to the work performed between the above dates. Pursuant to the 2 recommendation of the Magistrate, Ashcraft & Gerel's fee and 3 expense awards then were increased to $138,788 and $54,897.39. 4 This increase primarily reflected the recommendation of the 5 Magistrate that review of Ashcraft & Gerel's work not be limited 6 to the short time period, but should include as well the period 7 prior to March of 1983. 8 The Magistrate's recommendation, adopted by the district 9 court, also reflected a negative quality multiplier of .25 on' 10 the ground that in 1983 the firm had withdrawn from the 11 litigation when the PMC refused its request to be given exclusive 12 control of the action. When the firm withdrew, other counsel 13 involved were forced to perform numerous services that Ashcraft & 14 Gerel already had performed. The Magistrate thus concluded that 15 the firm "failed to discharge [its] burden when it decided to 16 cease work on the case, thereby requiring other attorneys to 17 duplicate its work." Agent Orange, 6 1 1 F. Supp. at 1367. 18 In adopting the Magistrate's recommendations, however, the 19 district court offset the fee awarded to Ashcraft & Gerel against 20 the benefits obtained by the firm's many opt-out clients from 21 "the use of discovery materials assembled through the 22 multidistrict discovery process and paid for by the class." Id. 23 at 1343. The district court further found that the value of such 24 services for the opt-outs far exceeded the firm's services to the 25 26 ! AO 72 (Rev.8/82) 26 �1 class. Consequently, the court abrogated any fee award to the firm, but maintained the modified expense award. 2 While we find that the district court's award of fees and 3 expenses prior to abrogation reflects fair and just compensation 4 for Ashcraft & Gerel's services to the class, we conclude that 5 abrogation of the fee. award constituted an abuse of discretion. 6 In analyzing the general problem of individual use of discovery 7 materials, the district court properly determined that, in return 8 for the use of discovery materials obtained in the raultidistrict 9 litigation, such individual plaintiffs "could be assessed a 10 r reasonable fee, to be paid back into the fund as their fair share 11 of the legal expenses assumed by the class." Id. at 1317. The 12 court then suggested two ways in which this could be done. 13 First, the court could require counsel in the opt-out cases to 14 report to the district court any fee received from the opt-out 15 plaintiffs so that .the court could deduct the appropriate amount. 16 Id. Second, the court could assess the opt-out plaintiffs for 17 the cost of the discovery at the time they made use of it. Id. 18 Neither of these means of assessment permitted the court to 19 offset Aschcraft & Gerel's opt-out clients' payments for use of 20 discovery materials, against fees awarded to the firm for its 21 representation of class members. The fee awarded the firm here 22 has no relation to services performed for the opt-outs. 23 Abrogation of the fee, therefore, has the net effect of relieving 24 the class from its responsibility to pay Ashcraft & Gerel fair 25 and just compensation for services it provided, rather than 26 j AO 72 (Rev. 8/821 27 �1 2 assessing the opt-out plaintiffs for use of the discovery materials. Accordingly, we conclude that Ashcraft & Gerel should be 3 awarded the fee that the district court, accepting the 4 Magistrate's Recommendation, determined to be fair and just. 5 6 2. Sullivan & Associates 7 8 Sullivan & Associates, a law firm primarily involved in the 9 litigation during the early days of the action, challenges the 10 district court's fee award on the ground that the court 11 improperly determined that much of its work was not beneficial to 12 the class. The district court awarded the firm $52,311 in fees 13 and $20,573.08 in expenses. The court, upon recommendation of 14 the Magistrate, denied the firm's motion to supplement the award. 15 The court found that the hours requested were excessive and that 16 the firm had spent most of its time furthering the interests of 17 its opt-out clients. 18 After reviewing the district court's calculations, we 19 conclude that there was no abuse of discretion. 20 The district court was in a much better position to determine whether the work 21 performed by the firm benefitted the class. For the same reasons 22 as given in section II(A)(4), supra, we find no basis upon which 23 to question the district court's figures. 24 25 3. Australian Counsel 26 AO 72 (Rev.8/82) 28 �1 William T. McMillan, Ross V. Lonnie, Paul J. Davison, Roger 2 L. MacLaren, and Michael S. Bigg, all Australian attorneys, 3 appeal the district court's awards of fees and expenses. The 4 district court awarded McMillan $3,650 in fees and $27,178.34 in 5 expenses, Lonnie no fees and $3,055.93 in expenses, Davison no 6 fees and $2,042.08 in expenses, MacLaren no fees and $3,683.39 in 7 expenses, and Bigg $5,700 in fees and $22,561.76 in expenses. 8 The basis for the challenge to these awards is that they do not 9 adequately reflect the services that counsel performed for the 10 » class. 11 We again find no abuse of discretion. Appellants have given 12 us no adequate reason to question the district court's 13 calculations and we decline to do so. 14 15 4. Kraft & Hughes 16 17 Kraft & Hughes, a New Jersey firm peripherally involved in 18 the litigation, challenges the district court's award. The court 19 awarded the firm $2,425 in fees and $3,935.48 in expenses. The 20 firm now argues that this is no more than the out-of-pocket costs 21 of its involvement and substantially undercredits its 22 contribution to the litigation. Moreover, the firm contends that 23 it was improper for the district court to abrogate the 24 contingency fee agreements that the firm had with a number of 25 class members. 26 A072 (Rev.8/82)4 29 �Kraft & Hughes concedes in its presentation to this court 1 2 that it cannot establish the factual findings of the district court to be clearly erroneous. Consequently, the firm bases its 3 appeal primarily on the ground that its fee agreements with its 4 clients, as a matter of law, should not have been abolished. We 5 find this argument, however, to be without merit. 6 It is well established that a district court, pursuant to 7 its rulemaking authority or on an ad hoc basis, may review a 8 contingency fee agreement. Boston and Maine Corp. v. Sheehan, 9 10 Phinney, Bass & Green, P.A., 778 F.2d 890, 896 (1st Cir. 1985); * Dunn v. H.K. Porter Co.. 602 F.2d 1105, 1108-(3d Cir. 1979). 11 When dealing with an equitable fund action, "the court has an 12 even greater necessity to review the fee agreement for [Fed. R. 13 Civ. P. 23(e)] imposes upon it a responsibility to protect the 14 interests of the class members from abuse." Dunn, 602 F.2d at 15 1109. That is exactly what the district court did here in 16 requiring counsel, prior to receiving fees from the settlement, 17 to certify that he or it had retained no fees or expenses from 18 any class members. We find no basis to overrule the district 19 court's decision in this regard. 20 21 III. CONCLUSION 22 23 To summarize: we affirm the district court's utilization of 24 national hourly rates and conclude that they may be used in 25 the circumstances revealed here. We further affirm the district 26 AO 72 (Rev.8/82) 30 �court's award of quality multipliers to various counsel, and the 1 2 3 district court's denial of risk multipliers. We affirm the district court's decision regarding hours credited and expenses reimbursed to the PMC. We reverse the decision to offset 4 Ashcraft & Gerel's fee against the use of the raultidistrict 5 discovery materials by the firm's opt-out clients and order the 6 reinstatement of the previously approved fee without allowance 7 for a risk multiplier. As to all other aspects of the district 8 court's decision respecting attorneys' fees, we affirm. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 31 AO 72 (Rev.8/82) �1 FOOTNOTES 2 3 4 5 6 7 8 1. The Task Force made its recommendation in the context of certain statutory fee cases. It also recommends the abolition of the lodestar formula for equitable fund cases and suggests such fees be based upon a percentage of the recovery. 108 F.R.D. at 254-59. 2. Blum and DeTaware Valley Citizens' Council are statutory fee cases whereas here fees were awarded under the equitable fund doctrine. While the lodestar formula applies to both types of cases, equitable fund cases may afford courts more leeway in enhancing the lodestar, given the absence of any legislative directive. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 32 AO 72 (Rev.8/82) �t1 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 Nos. 328, 306, 329, 330, 331 4 (Argued October 1 , 1986 5 August Terra, 1986 Decided Docket Nos. 86-3039, 86-3042, 86-6171, 86-6173, 86-6174 6 7 IN RE "AGENT ORANGE" PRODUCT LIABILITY LITIGATION 8 MDL No. 381 9 10 B e f o r e : 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 AO 72 (Rev.8'82) VAN GRAAFEILAND, WINTER, and MINER, Circuit Judges. Appeal from an order of the U n i t e d States D i s t r i c t Court for the Eastern D i s t r i c t of New Y o r k , Jack B. W e i n s t e i n , Chief Judge, in Mult i d i s t r i c t L i t i g a t i o n No. 3 8 1 , establishing a plan for d i s t r i b u t i o n of the s e t t l e m e n t fund in the Agent Orange class action l i t i g a t i o n . . A f f i r m e d in part, reversed in p a r t , and remanded. Petition for writ of mandamus or prohibition seeking removal of the P l a i n t i f f s ' Management C o m m i t t e e as class counsel. Denied. NEIL R. P E T E R S O N , P h i l a d e l p h i a , Pennsylvania ( G r e i t z e r and Locks, P h i l a d e l p h i a , P e n n s y l v a n i a , Thomas W. H e n d e r s o n , Henderson & G o l d b e r g , P i t t s b u r g h , P e n n s y l v a n i a , of c o u n s e l ) , f o r Pet i t i o n e r - A p p e l l a n t P l a i n t i f f s ' Management Committee in Nos. 86-3039 and 8 6 - 6 1 7 3 ; £or Respondent-Appellej? in N o s . 8"6"^305r"and 86-61 7f7~^ KENNETH R. FEINBE-RG, W a s h i n g t o n , D . C . ( K a y e , Scholer, F i e r m a n , Hays & H a n d l e r , W a s h i n g t o n , D . C . , of �1 counsel) , as Amicus Curiae _a_t the request of the court. 2 VICTOR J. YANNACONE, J R . , Patchogue, New York, for P e t i t i o n e r s in N o . 86-3042 ancTApp ell ants in No. 8 6 - 6 1 7 1 . 3 4 Benton Musslewhite, Houston, Texas, f o r Appellants in No. 86-6174. 5 6 WINTER, .Circuit Judge'; 7 This opinion addresses challenges by the P l a i n t i f f s ' 8 Management Committee ("PMC") and by certain p l a i n t i f f s represented 9 by Victor Yannacone to Chief Judge W e i n s t e i n ' s adoption of a plan 10 for the d i s t r i b u t i o n of the fund established as a result of the 11 class settlement with the defendant chemical companies. 12 "Agent Orange" Product L i a b i l i t y L i t i g a t i o n , 611 F. Supp. 1396 13 ( E . D . N . Y . 1985) ( " D i s t r i b u t i o n O p i n i o n " ) . 14 this l i t i g a t i o n is adverse to the PMC, we requested that Special 15 Master Kenneth Feinberg defend the d i s t r i c t c o u r t ' s d i s t r i b u t i o n 16 order essentially in the role of an amicus curiae. 17 discussion of the development and selection of the d i s t r i b u t i o n 18 plan appears in the f i r s t of this series of opinions, f a m i l i a r i t y 19 with which is assumed. 20 See In re Because no party to A detailed Certain p l a i n t i f f s r e p r e s e n t e d by M r . Yannacone have also 21 f i l e d a p e t i t i o n for w r i t of mandamus or p r o h i b i t i o n to have the 22 PMC removed as class counsel. 23 herein. 24 1. 25 That issue is also addressed The T i m e l i n e s s of the Pending Appeals A party seeking to appeal a f i n a l decis-ion of a d i s t r i c t 26 : court in any case w h e r e , as h e r e , the U n i t e d S t a t e s is a party AO 72 (Rev.8 82) �1 must file a notice of appeal w i t h i n 60 days after entry of the 2 decision. 3 Mr. Yannacone is concededly untimely. Fed. R. App. P. 4 ( a ) ( 1 ) . The notice of appeal f i l e d by That appeal is therefore 4 dismissed. 5 The Special Master argues that the P M C ' s pending appeal is 6 also untimely because 1 it was noticed on August 19, 1986, more than 7 60 days after the distribution plan was adopted on May 28, 1985. 8 However, important aspects of the distribution plan remained to be 9 decided as of the earlier date, including, for example, the means 10 of compensating veterans from Australia and New Zealand, 6 1 1 - F . 11 Supp. at 1443-45; the criteria for establishing a claimant's 12 exposure to Agent Orange, id. at 1 4 1 7 ; and the entities that were 13 to implement and administer the individual payment program, id. at 14 1427. 15 e n t i r e d i s t r i b u t i o n plan as final until July 3 1 , 1986, when he 16 entered an order pursuant to Fed. R. Civ. P. 54(b) designed to 17 "constitute a final judgment upon this C o u r t ' s D i s t r i b u t i o n 18 Opinion of May 28, 1985." 19 Moreover, C h i e f Judge W e i n s t e i n apparently did not view the We do not believe that appellants were faced with the choice 20 21 order was appealable is of great doubt. 22 order that "did not make any step toward f i n a l d i s p o s i t i o n of the 23 m e r i t s of the case and will not be merged in final j u d g m e n t , " 24 Cohen v. B e n e f i c i a l Industrial Loan C o r p . , 337 U . S . 541 , 546 25 (1949). 26 AO 72 (Rev.8'82? of appealing from the May 28 order or not at all. be e f f e c t i v e l y reviewed as part of the f i n a l j u d g m e n t . Whether that It was not a collateral U n l i k e such a collateral order, the May 28 o r d e r could Id. Seg �1 also Coopers & Lybrand v. Livesay, 437 U . S . 463, 468 ( 1 9 7 8 ) ; Eisen 2 v. Carlisle & Jacquelin, 417 U . S . 1 5 6 , 1 7 1 - 7 2 ( 1 9 7 4 ) . 3 Even if the May 28 order was appealable under Cohen, there is 4 still no reason to bar an appeal from the July 31 order, which was 5 clearly intended by the district court to be f i n a l . 6 W r i g h t , A. Miller & E.1 Cooper, Federal Practice & Procedure 7 See 15 C. § 3909, at 452 n.38 (1976) ("There is often little reason to deny 8 review on appeal from a clearly final judgment on the theory . . . 9 that an earlier order that did not terminate the entire proceeding 10 was nonetheless so final as to have been appealable. 11 designed to facilitate 12 Doctrines intermediate appeals to avoid hardship o f t e n do not serve any corresponding interest in protecting 13 opposing parties and the courts against delayed a p p e a l s . " ) . 14 Dickinson v. Petroleum Conversion C o r p . , 338 U . S . 507 (1950), is a 15 rare case in which the Supreme Court dismissed an appeal on the 16 ground that it should have been f i l e d prior to the entry of f i n a l 17 judgment. 18 The instant case is distinguishable from Dickinson in at least two respects, however. 19 First, the order that would have been appealable in Dickinson dismissed all claims raised by the 20 appellant. 21 "could not possibly have been a f f e c t e d " by any action that 22 remained to be taken by the d i s t r i c t court. 23 c o n t r a s t , the p l a i n t i f f s here continued to have an active i n t e r e s t 24 in the l i t i g a t i o n a f t e r the May 28 decision. 25 recognized in Dickinson that the case had ar-isen before the The Court thus noted that the appellant's i n t e r e s t s Id. at 5 1 5 . In Second, the C o u r t 26 i adoption of R u l e 5 4 ( b ) , a p r o v i s i o n w i t h the "obvious purpose" of !| AO 72 (Rev.8/82) �1 "redacting] as far as possible the uncertainty and the hazard 2 assumed by a litigant who either does or does not appeal from a 3 judgment of the character we have here." 4 5 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 AO 72 (Rev.8/82) The Court therefore expressly refused to "try to lay down rules to embrace any case but this." 6 7 Id. at 512. Id. Accordingly, we conclude that the P M C ' s appeal from the district court's distribution plan was timely filed. We t h e r e f o r e need not consider the P M C ' s petition for a writ of mandamus, which raises the same issues. 2. General Principles District courts enjoy "broad supervisory powers over the administration of class-action settlements to allocate the proceeds among the claiming class members . . . equitably." Beecher v. Able, 575 F . 2 d 1 0 1 0 , 1016 (2d Cir. 1 9 7 8 ) . In reviewing allocations of class settlements, t h e r e f o r e , we will d i s t u r b the scheme adopted by the district court only upon a showing of an abuse of discretion. In the present case, a relatively modest settlement fund must be allocated equitably among a large and diverse group of claimants. There are 240,000 claimants dispersed throughout the United States, Australia, and New Zealand. They s u f f e r from an immense variety of ailments and have d i f f e r e n t medical and financial needs. Having pursued a number of o f t e n i n c o n s i s t e n t goals in this l i t i g a t i o n , they are as sharply divided over the d i s t r i b u t i o n of the s e t t l e m e n t fund as they-are over its adequacy. The PMC seeks what it regards as a conventional scheme f o r �1 "tort-based" recovery by individuals; Mr. Yannacone's clients want 2 the fund devoted largely to establishing a f o u n d a t i o n ; the 3 district court adopted a compensation based scheme to distribute 4 the bulk of the fund with the remainder to be used to establish a 5 6 foundation. (1986). 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 AO 72 (Rev.8/82) See P. Schuck, Agent Orange on Trial 2 1 1 - 1 3 , 220 The d i s t r i c t court was not bound to choose among only those plans offered by class members who spoke out. Rather, it had to "exercise its independent judgment to protect the interests of class absentees, regardless of their apparent indif f erence," ..In re T r a f f i c Executive Association -- Eastern Railroads, 627 F.2d 631 , 634 (2d C i r . 1980), as well as to protect the interests of more vocal members of the class. The district judge therefore had discretion to adopt whatever d i s t r i b u t i o n plan he determined to be in the best interests of the class as a whole notwithstanding the objections of class counsel, see, e.g., Distribution Opinion, 611 F. Supp. at 1409 (criticizing d i s t r i b u t i o n plan proposed by PMC on ground that "too great a share of the fund would go to lawyers and medical e x p e r t s " ) ; Plummer v. Chemical Bank, 668 F . 2 d 654, 659 (2d Cir, 1982) (district courts cannot rely solely on "the arguments and recoramendations of counsel" in evaluating propriety of class settlements), or of a large number of class members. See TBK Partners, Ltd, v. Western Union C o r p . , 675 F.2d 456, 462 (2d Cir. 1982) ( h o l d i n g in s h a r e h o l d e r s ' derivative suit that even "majority opposition . . . cannot serve as an automatic bar to a settlement that a d i s t r i c t j u d g e a f t e r weighing all the s t r e n g t h s �1 and weaknesses of a case and the risks of Litigation, determines 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 AO 72 (Rev.8,82) to be m a n i f e s t l y reasonable"). See also Cotton v. H i n t o n . 5 5 9 " F.2d 1326 (5th Cir. 1977) (approving settlement over objections of counsel purporting to represent almost 50 percent of c l a s s ) ; Bryan v. Pittsburgh Plate Glass C o . . 494 F.2d 799 (3d C i r . ) (approving settlement over objections of almost 20 percent of c l a s s ) , cert. denied, 419 U.S. 900 (1974). 3. Choice of Law In adopting a distribution plan that departed from traditional tort principles by not requiring "a particulariz-ed showing of individual causation and injuries," id. at 1402, the d i s t r i c t court held that such a plan would be consistent with "the consensus of state law," id. 'at 1403, that figured in its c e r t i f i c a t i o n of a class action. In re "Agent Orange" Product Liability Litigation, 100 F . R . D . 718 ( E . D . N . Y . 1983). In the mandamus proceeding, we expressed "considerable skepticism" as to whether such a consensus would emerge among Che states with respect to the legal rules applicable to the p l a i n t i f f s ' claims. In re Diamond Shamrock Chemicals C o . , 725 F.2d 858, 861 (2d C i r . ) , cert, denied, 465 U . S . 1067 ( 1 9 8 4 ) . In the first of this series of opinions we have stated that the district court's conclusion as to the national consensus was Co be praised more for its analysis than for its u t i l i t y as a p r e d i c c o r of what various courts would do. However, our d i s a g r e e m e n t w i t h use of -the national consensus in certifying a class does not foreclose its use as a method of �1 establishing criteria for distributing a class settlement fund. 2 As another Court of Appeals has observed in the class action 3 c o n t e x t , "the allocation of an inadequate fund among competing 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 complainants is a traditional equitable function, 'equity1 to denote not a particular type of remedy, procedure, or j u r i s d i c t i o n but a mode of judgment based on broad ethical principles rather than narrow rules." Curtiss-Wright Corp. v. Helfand, 687 F.2d 1 7 1 , 174 (7th Cir. 1982) (citation omitted) (citing Zients v. La Morte, 459 F.2d 628, 630 (2d Cir. 1 9 7 2 ) ) . Use of a single national standard, regardless of what law various courts might have chosen in Agent Orange cases, is a permissible method of disbursing the fund. An individual claimant state-by-state approach would seriously deplete the portion of the fund going directly to veterans by diverting a substantial amount to lawyers and to the adjudicators necessary to implement the PMC's complex scheme. The diversion might be so great as to reduce benefits for all claimants, including those who would be subject to the most favorable state laws. We thus agree with the approach of the district court on this question, although on a 20 d i f f e r e n t rationale. 21 4. 22 23 i 24 25 26 AO 72 using Payments for Death or Disability of Exposed Veterans The PMC contends that the district court abused its discretion in compensating individual disabled veterans and families of deceased veterans without requiring "a p a r t i c u l a r i z e d showing of i n d i v i d u a l causation and i n j u r i e s . " 1402. 611 F. Supp. at The PMC argues that a portion of the settlement fund w i l l �1 thereby be distributed to undeserving claimants whose i n j u r i e s 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 AO 72 (Rev.8;82) were not caused by Agent Orange. Even if that outcome is the case, we do not believe that it is a grounds for altering the distribution scheme. Chief Judge Weinstein did not deem necessary proof that a veteran's death or disability resulted from exposure to Agent Orange 1 because he found the available evidence insufficient to establish which non-traumatic injuries could have been caused by Agent Orange and which could not. In other words, as between exposed veterans suffering from diseases for which the PMC would provide compensation and exposed veterans suffering from other non-traumatic diseases, the district court concluded that the former had no stronger claim for benefits than the latter because "causation cannot be shown for either individual claimants or individual diseases with any appropriate degree of p r o b a b i l i t y . " 611 F. Supp. at 1409. Chief Judge Weinstein did not abuse his discretion in adopting a distribution plan that reflected this conclusion. He was not obligated to adopt a plan that conformed to a theory of the relationship between Agent Orange and certain diseases that has little or no s c i e n t i f i c basis. Further, he could take into account the very s u b s t a n t i a l countervailing evidence that Agent Orange was not h a r m f u l to any personnel in Vietnam. See In re "Agent Orange" Product Liability Litigation, 597 F. Supp. 740, 782-95 ( E . D . N . Y . 1984) ("Settlement Opinion-') (reviewing s c i e n t i f i c data on e f f e c t s of Agent Orange and concluding that �1 "all that can be said is that persuasive evidence of causality has 2 not been produced"). 3 difficulty of proving that any particular plaintiff was injured by 4 Agent Orange in making an equitable allocation of the limited 5 settlement fund. 6 (equitable allocation 'of a class action settlement fund may be 7 accomplished over party's objection without "resolv[ing] 8 9 10 11 12 13 14 He could also consider the substantial See Curtiss-Wright Corp., 687 F.2d at 174-75 trial-type issues of liability" based on district court's independent "weighting of] the relative deservedness" of claimants). Moreover, he was correct in seeking a distribution scheme governed by criteria that are relatively easy and inexpensive to apply. Furthermore, as became clear at oral argument, the PMC itself would no longer require proof that a veteran was actually exposed 15 to Agent Orange in order to qualify a claimant for benefits under 16 its distribution plan. 17 Thus, servicepersons who spent their entire tour of duty far away from sprayed areas could receive 18 payments under the PMC plan merely by developing any of the 24 19 medical conditions that the PMC claims are associated with Agent 20 Orange. 21 evidence of exposure.2 22 distribution plan is overbroad with regard to ailments, that fact 23 hardly renders it less desirable than the PMC's plan, which is 24 clearly overbroad with regard to exposure. 25 26 In contrast, the district court's plan would require some Even if the district court's We further note that the distribution plan adopted by the district court does not entirely disregard traditional tort 10 AO 72 (Rev.8/82) �1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ! kO 72 Rev.8/821 principles of causation. For example, it provides payments only to veterans who have become disabled from non-traumatic, non-accidental, non-self-inflicted causes and to the survivors of veterans who have died from such causes. Consequently, a veteran who died or became disabled as a result of an auto collision, a gunshot wound, or a narcotic overdose, all causes clearly unrelated to Agent Orange exposure, would have no claim to payments from the settlement fund. In sum, given the inconclusive state of the scientific evidence as to what injuries, if any, were caused by Agent Orange, the district court did not abuse its discretion in holding that all exposed veterans who have suffered non-traumatic death or disability have stated "colorable legal claims against d e f e n d a n t s . . . [ s u f f i c i e n t ] to allow them to share in the settlement f u n d . " In re Chicken Antitrust Litigation American Poultry, 669 F.2d 228, 238 (5th Cir. 1982), quoted in Distribution Opinion, 611 F. Supp. at 1411 . We emphasize that the d i s t r i c t court is free to alter the distribution plan in the future to s i m p l i f y it even more or to clarify standards as concrete issues arise. We also ask the district court to review its procedures for establishing exposur to Agent Orange in light of A t t a c h m e n t s 2 and 3 to the P M C ' s r brief and recent news reports concerning the possible discov a biological " f i n g e r p r i n t " left in veterans' blood by diox Researchers Report F i n d i n g Telltale Sign of'Agent Orange T i m e s , Sept. 18, 1986, § A at 2 8 , col. 3 (late city f i r 11 �5. Class Assistance Programs We turn now to the district court's proposal to establish "a class assistance foundation . . . to fund projects and services that will benefit the entire class." 611 F. Supp. at 1432. The PMC contends that use of the settlement fund for class assistance programs would contravene the decisions of this court in Eisen v, Carlisle & Jacquelin. 479 F.2d 1005 (2d Cir. 1973), vacated and 8 remanded on other grounds, 417 U.S. 156 (1974) (remedy proposed 9 before finding of liability in order to make class manageable; 10 rejected because 11 it benefitted future odd-lot Boeing Co. . 553 F.2d 812 (2d Cir. 1977) (rejecting proposal that 13 would have p e r m i t t e d unclaimed portion of damage award to be paid 14 to class members who had already been made whole). 15 We do not believe that the district court was necessarily 16 foreclosed by Eisen and Van Gemert f r o m using a portion of the 17 settlement fund to provide programs for the class as a whole. 18 The instant case is, of course, distinguishable from Eisen and Van 19 Gemert in several important respects. 20 First, the class that will benefit from the district c o u r t ' s 21 distribution plan is essentially equivalent to the class that 22 claims injury from Agent Orange. 23 Eisen or Ven Gemert. 24 That was not the case in either In Eisen, the proposed recovery scheme would primarily have b e n e f i t t e d not the class of persons who claimed 25 injury from p r i o r odd-lot transactions but instead a class of 26 ' persons who would engage in such transactions in the f u t u r e . i (Rev.8/82) rather than past investors who had s u f f e r e d loss), and Van Gemert v. 12 AO 72 investors 12 In �1 Van Gemert, the proposal at issue would have distributed the 2 unclaimed portion of a damage award to class members who had 3 already recovered their losses in full, a group the court charac4 terized as a "next best class." 553 F.2d at 815. Hence, the 5 distribution plan adopted by Chief Judge Weinstein simply lacks 6 the sort of "fluidity" between the class claiming injury and the 7 class receiving recovery that existed in Sis en and Van Gemert. 8 Second, we were particularly concerned in Risen that the 9 availability of "fluid class recovery" would have allowed 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 AO 72 p l a i n t i f f s to satisfy the manageability requirements of Rule .23 where they otherwise could not. The damages to the average class member in Eisen were estimated at no more than $3.90, see 479 F.2d at 1010, and, as counsel for the named p l a i n t i f f conceded, " [ i ] f each [member] had to present his own personal claim for damages, the class, indeed, would not be manageable." Id. at 1017. We foresaw that such an unwarranted relaxation of the manageability requirements would have induced p l a i n t i f f s to pursue "doubtful" class claims for "astronomical amounts" and thereby "generate . . . leverage and pressure on defendants to settle." 1019. Id. at However, the instant case, unlike E is en, was maintainable as a class action regardless of the form of recovery available to the p l a i n t i f f class. A c c o r d i n g l y , our concern in Eisen that the availability of a particular form of recovery would vastly enlarge the number of class actions in the f e d e r a l courts is not p r e s e n t in the instant case. Finally, the instant case, unlike Eisen and Van Gemert, 13 �arises out of a pretrial settlement. As the Supreme Court has recognized, a district court may "provide[] broader relief [in an action that is resolved before trial] than the court could have awarded after a trial." Local Number 93, International Association of Firefighters v. City of Cleveland, 106 S. Ct. 3063, 3077 (1986). Indeed, we have previously recognized that some "fluidity" is permissible in the distribution of settlement 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 AO 72 (Rev.8'82) proceeds. See Beecher v. Able, 575 F.2d at 1016 n.3; West Virginia v. Chas. Pfizer & Co., Inc.. 314 F. Supp. 710, 728 (S.D.N.Y. 1970), aff'd, 440 F.2d 1079 (2d dr.), cert, denied, 404 U.S. 871 (1971). We thus conclude that a district court may, in order to maximize "the beneficial impact of the settlement fund on the needs of the class," 611 F. Supp. at 1431, set aside a portion of the settlement proceeds for programs designed to assist the class. However, we believe that the district court must in such circumstances designate and supervise, perhaps through a special master, the specific programs that will consume the settlement proceeds. The district court failed to do so in the instant case. Instead, it provided that the board of directors of a class assistance foundation would control, inter alia, "investment and budget decisions, specific funding priorities, . . . [and] the actual grant awards," id. at 1435, and that the court would retain only "[a] comparatively modest supervisory role" in such decisionmaking. Id. at 1436. We are unwilling for several reasons to permit the 14 �1 distribution of any settlement proceeds to a largely independent 2 foundation. 3 supervisory authority over the distribution of a class s e t t l e m e n t , 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 F i r s t , while a d i s t r i c t court is permitted broad see Beecher v. Able, 575 F.2d at 1 0 1 6 , there is no principle of law authorizing such a broad delegation of judicial authority to private parties. We perceive no assurance that the "self-governing and self-perpetuating" board of directors of the class assistance foundation, or any other such body that might be devised by the court, will possess the independent, disinterested judgment required to allocate limited funds to benefit the class as a whole. One of the d i s t r i c t court's prime functions in distributing such a fund is to protect the less vocal and less activist members of the class. The proposed foundation is not well designed to perform that f u n c t i o n . Moreover, given the very evident discord among various veterans as to the use of the settlement fund, we see great hazards in t r a n s f e r r i n g that d i s c o r d to a foundation having permanent control over portions of that fund. There is a great danger that the fund would be expended in ways that generate more controversy than benefits and would create 20 even more f r u s t r a t i o n among a group already frustrated enough by 21 perceived political and legal setbacks. 22 this is an action f o r personal i n j u r i e s , and we believe that only 23 24 25 26 However unique it may be, direct j u d i c i a l supervision can assure that the settlement fund is expended for appropriate purposes. We acknowledge the strong sentiment among some veterans for the creation of such a foundation. We also note, however, their great expectations f o r the foundation are similar to the AO 72 (Rev.8,82) 15 �1 expectations that prompted this class action l i t i g a t i o n . Those 2 latter expectations were frustrated when confronted with the 3 reality of legal proceedings. Great expectations underlying the 4 foundation proposal still exist because the concrete tasks to be 5 undertaken by it remain unclear, and the reality of hard and 6 controversial choices'concerning use of the fund has not yet been 7 8 9 10 11 12 13 14 15 16 17 18 19 confronted. Moreover, we are concerned that the broad mandate given the class assistance foundation, which must remain an arm of the court however loosely connected, would permit settlement proceeds £o be expended on activities inconsistent with the j u d i c i a l function. For example, activities to "help class member veterans better obtain and u t i l i z e VA services" and to "increase public awareness of the problems of the class," id. at 1440, might include political advocacy. We do not believe that the proceeds of a court-administered settlement ought to be used for such a purpose. Finally, we are concerned t h a t , even given the expressed intention to allow the f o u n d a t i o n great latitude, the d i s t r i c t 20 court and this court would repeatedly be asked to intervene in 21 foundation decisions alleged not to b e n e f i t the class. 22 claims are made, they call for greater scrutiny than is 23 contemplated by the d i s t r i c t c o u r t ' s exercise of only a "modest 24 25 26 AO 72 (Rev.8 82! supervisory role." When such In a d d i t i o n , endless legal argument over the disbursement of the settlement fund would s-iraply prolong the s u f f e r i n g and f r u s t r a t i o n s of the class. 16 �1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 We explicitly note, however, that the district court may in the exercise of its d i s c r e t i o n and after consultation w i t h veterans' groups undertake to use portions of the fund for class assistance programs that are consistent with the nature of the underlying action and with the judicial function. Accordingly, the district court on'remand may designate in detail such programs and provide for their supervision. A reserve fund for as yet undefined programs may be established. Alternatively, the court may reallocate any or all of the funds earmarked for the class assistance foundation to augment the awards to individual class members. The court may choose either to increase the awards to disabled veterans and the survivors of deceased veterans or to provide awards to other class members who have suffered less than total d i s a b i l i t y . 6. Yannacone Petition for Writ of Mandamus/Prohibit ion The petition for a writ of mandamus or prohibition filed by Mr. Yannacone seeks the removal of the PMC as lead counsel. Mr. Yannacone contends that a "conflict of interest" exists between the PMC and the p l a i n t i f f class, as evidenced by the d i f f e r e n c e s 20 between the distribution plan submitted by the PMC and the plan 21 submitted by Mr. Yannacone. He also argues that the p l a i n t i f f s 22 are entitled to "a reasonable o p p o r t u n i t y to be heard through 23 24 25 26 counsel of their own choosing who can and will speak independently on their b e h a l f . " The p e t i t i o n is f r i v o l o u s . . We note that Mr. Yannacone was among the attorneys who f i r s t sought class c e r t i f i c a t i o n and that he served for some time as the 17 AO 72 I Rev. 8/8 2) �1 lead counsel for the class. Nevertheless, his present petition 2 reveals a fundamental m i s u n d e r s t a n d i n g of the nature of a cl-ass 3 action. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 A p l a i n t i f f who joins in a class action, as many p l a i n t i f f s did through Mr. Yannacone, gives up his or her right ta control the l i t i g a t i o n in return for the economies of scale available under Fed. R. Civ. P. 23. In the related context of a shareholders' derivative suit, we have rejected any notion that "each individual plaintiff and lawyer must be permitted to do what he pleases in litigation as complex as this, and can behave in total disregard of the interest of other litigants and of t h e ' class." Farber v. Riker-Maxson Corp.. 442 F."2d 457, 459 (2d Cir. 1971) (per curiam). The selection of lead counsel for the p l a i n t i f f class is l e f t to the d i s c r e t i o n of the d i s t r i c t court "guided by the best interests of [the class], not the entrepreneurial initiative of the named p l a i n t i f f s ' counsel." Cullen v. New York State Civil Service Commission, 566 F . 2 d 846, 849 (2d Cir. 1 9 7 7 ) . "Unless there are exceptional circumstances, . . . the exercise of discretion should be left untouched by the appellate court." Id. 20 See also Weight Watchers of P h i l a d e l p h i a , Inc. v. Weight Watchers 21 International, I n c . , 455 F . 2 d 7 7 0 , 7 7 5 (2d C i r . 1 9 7 2 ) ('"we do not 22 -- indeed may not -- issue mandamus with respect to orders r e s t i n g 23 24 25 26 AO 72 in the d i s t r i c t c o u r t ' s d i s c r e t i o n , save in most extraordinary c i r c u m s t a n c e s ' " ) ( q u o t i n g Donlon I n d u s t r i e s , Inc. v. F o r t e , 402 F.2d 935, 937 (2d C i r . 1 9 6 8 ) ) . Mr. Yannacone has f a i l e d even to suggest, much less 1 �1 establish, any "exceptional circumstances" that might warrant 2 removal of the PMC as lead counsel. Indeed, he has suggested 3 nothing more than a d i f f e r e n c e of opinion between the PMC and 4 himself with respect to the appropriate distribution of the 5 settlement fund. Moreover, these differences were fully aired 6 before the district c6urt, which thoroughly evaluated the merits 7 of each plan in the course of its distribution opinion. See 611 8 F. Supp. at 1403-10. 9 Finally, even if we were to order the removal of the PMC as 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 A072 (Rev.8/82) lead counsel, we have no reason whatsoever to expect the dispfict court to appoint Mr. Yannacone to take its place. We have even less than no reason to expect the district court to abandon its own distribution plan in favor of the plan proposed by Mr. Yannacone. Accordingly, the petition is denied. Affirmed in part, reversed in part, and reminded for further proceedings in accordance with this opinion. �1 FOOTNOTES 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 j_/ The court adopted the Social Security A c t ' s d e f i n i t i o n of " d i s a b i l i t y , " namely an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." (1982). 42 U.S.C. § 4 2 3 ( d ) ( 1 ) ( A ) The court provided that "[a]ny veteran claimant c e r t i f i e d as disabled by the Social Security Administration will be considered disabled for purposes of the payment program, unless the disability was predominantly caused by a traumatic, or s e l f - i n f l i c t e d injury." 611 F. Supp. at 1413. accidental A claimant who has not been found disabled by the Social Security A d m i n i s t r a t i o n may still qualify for payments by submitting satisfactory medical evidence to the disbursing authority; in such cases, "the payment program will take into account, as evidence, a Social Security determination that the veteran is not d i s a b l e d , or c e r t i f i c a t i o n s of disability from other entities such as the Veterans Administration or private insurers." Id. 21 22 23 24 25 26 AO 72 (Rev.8/82) 2/ The plan would require a claimant to make " [ s ] o m e substantial showing of exposure" to Agent Orange, 611 F. Supp. at 1 4 1 5 , by demonstrating that he held a job involving direct handling or application of Agent O r a n g e , " id. at 1 4 1 6 , or that he "was present in a sprayed area when the s p r a y i n g occurred" or in or near such 20 �an area within some s p e c i f i e d period t h e r e a f t e r . Id. at 1 4 1 7 . The court would rely primarily on the HERBS tape, a computerized record of herbicide dissemination missions in Vietnam, to determine the exposure of ground troops to Agent Orange. However, "[b]ecause the HERBS tape does not account for all possible exposures," veterans who could not establish exposure on the basis of the HERBS tape would be able to present alternative evidence of 8 exposure to "an independent board of review." 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 AO 72 (Rev.8/82) 21 Id. �d I 1 UNITED STATES COURT OF APPEALS 2 7 FOR THE SECOND CIRCUIT 3 Nos. 1085, 1095, 1104 4 (Argued April 9, 1986 5 August Term, 1985 Decided Docket Nos. 85-6163, 85-6269, 85-6337 6 7 IN RE "AGENT ORANGE" PRODUCT LIABILITY LITIGATION 8 MDL No. 381 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 B e f o r e : VAN GRAAFEILAND, WINTER, and MINER, Circuit Judges. 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. ROBERT A. TAYLOR, JR. and WAYNE M. MANSULLA, Washington, D.C. (Ashcraft & Gerel, Washington, D.C., of counsel), for Plaintiffs-Appellants. RICHARD J. BARNES, New York, New York (Townley & Updike, New York, New York, of counsel), for Appellee Monsanto Company. Cadwalader, Wickersham & Taft, New York, New York, for Appellee Diamond Shamrock Chemicals Company. Rivkin, Radler, Dunne & Bayh, Garden City, New York, for Appellee The Dow Chemical Company. AO 72 (Rev.8/821 �1 v elley Drye & Warren, New York, New York, for Appellee Hercules Incorporated. 2 3 Clark, Gagliardi & Miller, W h i t e Plains, New York, for Appellee TH Agriculture & Nutrition Company, Inc. 4 5 Shea & Gould, New York, New York, for Appellee Uniroyal, Inc. 6 Budd, Larner, Kent, Gross, Picillo, Rosenbaum, Greenberg & Sade, Short Hills, New Jersey, for Appellee Thompson Chemicals Corporation. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 AO 72 (Rev.8/82) WINTER, Circuit Judge: This opinion addresses the disposition of 287 appeals irf cases brought by plaintiffs who chose to opt out of the Agent Orange class action. These cases remained in the Eastern D i s t r i c t 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 p l a i n t i f f s , most of whom now appeal. 1 To avoid repetition, this opinion assumes familiarity with the discussion of the fairness of the settlement in the f i r s t of this series of opinions, No. 84-6273, and with Chief Judge W e i n s t e i n ' s opinions reported at: 597 F. Supp. 740, 7 7 5 - 9 9 , 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 . 1 9 8 5 ) ("Lilley O p i n i o n " ) . A f t e r 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 d i s p o s i t i v e grounds that no opt-out p l a i n t i f f could �1 2 3 4 5 6 7 8 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. 1263-64; Lilley Opinion. 611 F. Supp. at 1285. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 AO 72 ** (Rev.8/82) See Opt-Out Opinion, 611 F. Supp. at 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 p l a i n t i f f s were inadmissible. Chief Judge Weinstein held that the opinions lacked a reliable basis and were therefore inadmissible under Fed. R. Evid. 703. 2 S.ee 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. 403.3 S_ee Opt-Out Opinion, 611 F. Supp. at 1 2 5 5 - 5 6 ; 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 o f t e n mixed the Agent Orange of d i f f e r e n t manufacturers and always stored the herbicide in unlabeled barrels. See Opt-Out Opinion, 6 1 1 F. Supp. at 1 2 6 3 (citing Settlement O p i n i o n . 597 F. �1 Supp. at 816-44). 2 theories of enterprise and alternative liability that it had 3 discussed in evaluating the settlement. 4 597 F. Supp. at 820-28. 5 for the grant of summary judgment because we affirm on the 6 military contractor defense.41 The court also rejected sub silentio various See Settlement Opinion. We do not address either of these grounds 7 The district court granted summary judgment on military 8 contractor grounds because it found no genuine factual dispute as 9 to whether the government possessed as much information as the 10 chemical companies about possible hazards of Agent Orange at * 11 pertinent times. 12 information concerned an association between dioxin exposure and 13 cases of chloracne and liver damage. 14 court that the information possessed by the government at 15 pertinent times was as great as, or greater than, that possessed 16 by the chemical companies. 17 the grant of summary judgment based on the military contractor 18 defense. 19 does not establish that Agent Orange injured personnel in Vietnam, 20 even with regard to chloracne and liver damage. 21 companies therefore could not have breached a duty to inform the 22 government of hazards years earlier. 23 See Opt-Out Opinion, 611 F. Supp. at 1263. This We agree with the district We add a further reason for affirming Even today, the weight of present scientific evidence The chemical Our consideration of the military contractor defense has been 24 greatly impaired by the inexplicable and unjustifiable failure of 25 the opt-outs' counsel to brief the issue even though it was a 26 AO 72 (Rev.8/82) �1 dispositive ground for the grant of summary judgment. 5 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 On ,S~' appeal, their brief offers only the conclusory statement that "[t]he 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."6 N0 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. 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. 21 22 U.S.L.W. 3337 (U.S. Oct. 23, 1986) (No. 86-674); Shaw v. Grumman 23 Aerospace Corp., 778 F.2d 736 (11th Cir. 1985), petition for cert, 24 filed, 54 U.S.L.W. 3632 (U.S. 25 v. FMC Corp., 770 F.2d 556 (5th Cir. 1985); Tillett v. J.I. Case 26 AO 72 (Rev.8/82) granted. 107 S. Ct. 872 (1987) (No. 86-492); Tozer v. LTV Corp., 792 F.2d 403 (4th Cir. 1986), petition for cert, filed, 55 Co., 756 F.2d 591, 596-600 (7th Cir. 1985); Koutsoubos v. Boeing Mar. 17, 1986) (No. 85-1529); Bynum �1 Vertol, 755 F . 2 d 352 (3d C i r . ) » c e r t , d e n i e d . 106 S. Ct. 72 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ( 1 9 8 5 ) ; McKay v. Rockwell I n t ' l C o r p . , 704 F.2d 444 (9th Cir. 1983), cert, denied, 464 U . S . 1043 (1984), and has figured prominently in the instant l i t i g a t i o n , see In re Diamond Shamrock Chemicals Co., 725 F.2d 858, 861 (2d C i r . ) , cert, denied. 465 U.S. 1067 (1984); In re "Agent Orange" Product Liability Litigation. 597 F. Supp. at 847-50; 580 F. Supp. 690, 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 d e f e n s e is similar to that recently expressed by the Court of Appeals for the Fourth Circuit: T r a d i t i o n a l l y , 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, 4T£, 84 L.Ed. 554 ( 1 9 4 0 ) . In its original form, the defense covered only construction projects, McKay y. Rockwell I n t ' l Corp. . 704 F . 2 d 444, 448 (9th Cir. 1983). cert, denied, 464 U.S. 1043, 104 S. Ct. 7 1 1 , 79 L . E d . 2 d 175 (1984). Its application to m i l i t a r y 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 m i l i t a r y procurement. Tozer. 792 F.2d at 405. Subjecting m i l i t a r y contractors to full tort liability would 25 inject the j u d i c i a l branch into political and m i l i t a r y d e c i s i o n s 26 that are beyond its constitutional authority and institutional competence. AO 72 (Rev.8/82) See G i l l i g a n v. Morgan, 413 U . S . 1, 10 ( 1 9 7 3 ) ("The �1 complex, subtle, and p r o f e s s i o n a l decisions as to the composition, 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 | 25 26 AO 72 (Rev.8/82) training, equipping, and control of a military force are essentially professional military j u d g m e n t s , 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-avers en ess of potential enemies. Moreover, military goods may u t i l i z e advanced technology that has not 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 our defense effort to push technology towards its limits and thereby to incur risks beyond those that would be acceptable for ordinary consumer goods") . Whereas judges and juries may demand extensive safety testing for goods marketed in the civilian sector, such testing could impose costs and delays inconsistent with military imperatives. The procurement process would also be severely impaired if military contractors were exposed to liability for injuries arising from the m i l i t a r y ' s use of their products. Military contractors produce goods for the government according to �1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 AO 72 ** (Rev.8/82) specifications provided by the government and for uses determined by the government. As long as the government is aware of known hazards, the decision to take the risk is made by the government, and it would be destructive of the procurement process and thereby detrimental to national security itself to hold manufacturers liable for injuries caused by the military's use of their products. Costs of procurement would escalate if contractors were exposed to liability. Contractors would find insurance difficult or impossible to procure, and bankruptcies might occur among companies supplying products essential to national security.' Firms would take steps to avoid entering into government contracts, including resort to litigation. The effect on procurement would be particularly acute where claims of toxic exposure might be made and the number of potential claimants would be impossible to determine. We also note that, absent the shield of the military contractor defense, the legal exposure of the contractor would be much greater than the exposure of a manufacturer that sells to a private corporation that uses its product. In the latter case, the user corporation will also be a defendant and bear some or all of the exposure. Under Feres v. United States. 340 U.S. 135 (1950), and Stencel Aero Engineering Corp. v. United States, 431 U.S. 666 (1977), however, the government cannot be sued and need not even cooperate with the contractor in defending personal injury litigation. Obtaining discovery from the government as a non-party might be difficult or even barred by a claim of national 8 �1 security privilege. 2 3 4 5 6 7 8 9 10 11 12 13 14 The military contractor thus faces the great exposure of being the sole "deep pocket" available. In the instant matter, for example, the U n i t e d States has avoided all claims against it and has refused to participate in settlement negotiations. Moreover, while the Veterans' Administration ("VA") and the Congress have declined to recognize any ailments other than chloracne and porphyria cutanea tarda ("PCT") , a rare liver disorder, as related to Agent Orange exposure, see infra, the chemical companies found it prudent to pay $180 million notwithstanding the weakness of the p l a i n t i f f s ' case. At various stages in this litigation, Judge Pratt and Chief Judge Weinstein articulated somewhat different standards to govern the military contractor defense. Judge Pratt stated that each defendant would be required to prove the following elements: 15 1 . That the government established the specifications for "Agent Orange"; 16 2. That the "Agent Orange" manufactured by the defendant met the government's specifications in all material respects; and 17 18 19 3. That the government knew as much as or more than the defendant about the hazards to people that accompanied use of "Agent Orange". 20 21 22 23 that a defendant could not employ the defense if it "was aware of 25 hazards that might reasonably have a f f e c t e d the government's 26 (Rev.8/82) 1055. 24 AO 72 In re "Agent Orange" Product Liability Litigation, 534 F. Supp. at decision about the use of 'Agent O r a n g e , ' " id. at 1057, but f a i l e d In elaborating on the third element, Judge Pratt stated �1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 AO72 (Rev.8/82) I to disclose them to the government. Id. at 1058. A f t e r discovery and various motions, Judge Pratt concluded that disputes of material fact were involved in determining the third element -- the relative knowledge possessed by the government and the chemical companies. See In re "Agent Orange" Product Liability Litigation. 565 F. Supp. at 1275. However, he concluded that all def»»d««n.s were entitled to summary judgment with respect to the first two elements -- tkat the government established the specifications for Agent Orange and that the Agent Orange manufactured by the defendants met these specifications ica all material respects. See id. at 1274. In approving the settlement, Chief Judge Weinstain addressed the military contractor defense as a potential bar to recovery by the p l a i n t i f f s . See Settlement Opinion, 597 F. Supp. at 843-30,. While adopting the first two elements of the defense as defined by Judge Pratt, he modified the third element as follows: A plaintiff would be required to prove, along with the other elements of his cause of action, that the hazards to him that accompanied use of Agent Orange were, or reasonably should have been known, to the defendant. The burden would then shift to each individual defendant to prove (1) that the government knew as much as or more than that defendant knew or reasonably should have known about the dangers of Agent Orange or ( 2 ) , even if the government had had as much knowledge as that defendant should have had, it would have ordered production of Agent Orange in any event and would not have taken steps to reduce or eliminate the h a z a r d . 10 �1 Id. at 849. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 AO 72 (Rev.8/82) "In practical terms," Chief Judge Weinstein explained, this standard means "that a defendant would not be liable despite the fact that it negligently produced a d e f e c t i v e product if it could show either that the government knew of the defect or that it would not have acted any d i f f e r e n t l y even if it had known." I_d. at 850. We need not d e f i n e the precise contours of the defense because we believe that under any formulation, and regardless of which party bears the burden of proof, the defendants here were entitled to summary judgment. * Agent Orange was a product whose use required a balancing of the risk to friendly personnel against potential military advantage. That balancing was the exclusive responsibility of military professionals and their civilian superiors. The responsibility of the chemical companies was solely to advise the government of hazards known to them of which the government was unaware so that the balancing of risk against advantage was informed. Given the purpose of the duty to inform, a hazard that triggers this duty must meet a two-pronged test. F i r s t , the existence of' the hazard must be based on a substantial body of s c i e n t i f i c evidence. A court addressing a motion for summary judgment based on the military contractor defense must thus look to the weight of s c i e n t i f i c evidence in determining the existence of a hazard triggering the duty to inform. The hazard cannot be established by mere speculation or idiosyncratic opinion, even if 11 �1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 that opinion is held by one who qualifies as an expert under Fed. R. Evid. 702. A military contractor is no more obligated to inform the government of speculative risks than it is entitled to claim speculative benefits. Second, the nature of the danger to friendly personnel created by the hazard must be serious enough to call for a weighing of the risk against the expected m i l i t a r y benefits. Otherwise, the hazard would not be substantial enough to influence the military decision to use the product. prong of the test is satisfied in the case of Agent Orange. The use of Agent Orange in Vietnam was believed necessary to deny enemy forces the benefits of jungle concealment along transportation and power lines and near friendly base areas. Its success as a herbicide saved many, perhaps thousands of, lives. At the time of its use, both the government and the chemical companies possessed information indicating that dioxin posed some danger to humans. Indeed, there is evidence that the chemical companies feared that the presence of dioxin in Agent Orange might lead the government to restrict the sale of pesticides and herbicides in the civilian market. Trial 85-86 (1986). See P. Schuck, Agent Orange on However, the knowledge of the government and the chemical companies related to chloracne and certain forms of liver damage, ailments now known to be very rare among Vietnam veterans, and not to the numerous other ailments alleged in the instant l i t i g a t i o n . Moreover, for the reasons stated in Chief Judge W e i n s t e i n ' s o p i n i o n s , see Opt-Out Opinion, 611 F. Supp. at 1263; Settlement Opinion, 597 F. Supp. at 795-99, we agree that 12 A072 (Rev.8/82) Neither �1 the critical mass of information about dioxin possessed by the 2 government during the period of Agent Orange's use in Vietnam was 3 as great as or greater than that possessed by the chemical com- 4 panies. 5 Agent Orange. 6 Nevertheless, the government continued to order and use The second prong of the test is therefore not met. Because of the paucity of scientific evidence that Agent 7 Orange was in fact hazardous, the first prong also is not met. 8 This is not a case in which a hazard is known to have existed in 9 hindsight and the issue is whether the defendant had sufficient 10 knowledge at an earlier time to trigger an obligation to inform. 11 Rather, this is a case in which subsequent study indicates the 12 absence of any substantial hazard and therefore negates any claim 13 that the chemical companies breached a prior duty to inform. 14 When Agent Orange was being used in Vietnam, there was some 15 evidence, possessed as we have said by both the government and the 16 chemical companies, relating chloracne and liver damage to 17 exposure to dioxin. 18 does not prove the same of Agent Orange, which contained only 19 trace elements of dioxin. 20 any, was thus a matter of speculation at the time of its use. 21 Now, some 15 to 25 years after military personnel were exposed to 22 Agent Orange, we have considerably more information about the 23 effects of Agent Orange. 24 settlement, No. 84-6273, and explained in greater detail in the 25 district court's opinions approving the settlement, 597 F. Supp. 26 at 787-95, and granting summary judgment against the opt-outs, 611 Of course, the fact that dioxin may injure The precise hazard of the herbicide, if As noted in our opinion upholding the 13 A072 * (Rev.8/82) ' �1 F. Supp. at 1231-34, epidemiological studies of those very 2 personnel and their families fail to show that Agent Orange was 3 hazardous, even with regard to chloracne and liver damage. 4 the decisions to use Agent Orange were being made, the most 5 relevant question was not, "What will dioxin do to animals?" or 6 even, "What will dioxin do to humans exposed to it in industrial 7 accidents?" 8 Orange do to friendly personnel exposed to it?" 9 epidemiological studies ask the latter question in hindsight and While The most relevant question was, "What will Agent The 10 answer, "Nothing harmful so far as can be told." 11 the epidemiological studies do not exclude the possibility of harm 12 in isolated or unusual cases or in future cases is of no moment 13 because it does not constitute evidence material to the military 14 decisions in question. 15 is known to be absolutely risk free. 16 of a hazard of which the government should have been informed 17 remains unproven to this date, long after the relevant events. 18 Indeed, although chloracne is a leading indicator of exposure to 19 dioxin, it is very rare among Vietnam veterans. 20 there never was information about material hazards that should 21 have been imparted by the chemical companies to the government. Hardly any product of military usefulness 22 23 24 25 26 14 AO 72 (Rev.8/821 The fact th*at Consequently, the existence Accordingly, �1 The military decision to use Agent Orange was, therefore, not 2 ill-informed, much less ill-informed as a result of any action by 3 the chemical companies. 4 actions of the VA and the Congress in addressing claims by 5 veterans asserting injury by Agent Orange. 6 only chloracne and PCT as ailments related to Agent Orange. 7 May 1984, it had granted only 13 chloracne and two PCT claims. 8 later concluded that none of the 13 chloracne claims actually 9 involved chloracne. This conclusion is underscored by the The VA has recognized See Settlement Opinion, 597 F. Supp. By It at 856 10 (citing remarks of Senator Cranston). 11 Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. 12 No. 98-542, 98 Stat. 2725 (1984), Congress declined to compensate 13 veterans claiming exposure to Agent Orange for ailments other than 14 chloracne and PCT. 15 that would have compensated such veterans for other medical 16 conditions, including soft tissue sarcomas and birth defects. 17 M. Gough, Dioxin. Agent Orange 225 (1986); Settlement Opinion. 597 18 F. Supp. at 855-57 (E.D.N.Y. 1984) (discussing earlier 19 In adopting the Veterans' It thus rejected earlier versions of the Act See legislation). 20 The VA and the Congress thus continue to act on the factual 21 conclusion that Agent Orange was hazardous, if at all, only with 22 23 24 25 26 15 AO 72 (Rev.8/82) �1 regard to chloracne and PCT. 2 3 4 5 6 7 We believe these actions further demonstrate that the military decision to use Agent Orange was fully informed. To hold the chemical companies liable in such circumstances would be unjust to them and would create a devastating precedent so far as military procurement is concerned. Affirmed. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 16 AO 72 (Rev.8/82) �1 FOOTNOTES 2 3 ]_/ 4 against whom summary judgment was granted in a separate opinion. 5 See In re "Agent Orange" Product Liability Litigation. 611 F. 6 Supp. 1 2 6 7 ( E . D . N . Y . 1985) ("Lilley Opinion"). The appellants include Anna M. Lilley, an opt-out p l a i n t i f f 7 8 2/ Fed. R. Evid. 703 provides: 9 The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. 10 11 12 13 14 15 3/ Fed. R. Evid. 403 provides: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. 16 17 18 19 20 4/ 21 response to the motion for summary judgment. 22 appeals on causation as well as m i l i t a r y contractor grounds. Twenty-eight appellants made no evidentiary submission in We a f f i r m those 23 24 25 5/ Counsel have also f a i l e d to brief the second ground for granting summary j u d g m e n t , the indeterminate defendant issue. 26 17 A072 (Rev. 8/82) �1 2 3 4 5 6 7 8 9 6/ The opt-outs 1 brief states in a footnote: P l a i n t i f f s have placed in the appendix a number of documents and deposition excerpts which were submitted in opposition to defendants' motions for summary jugdraent [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, pp7T9-70. 10 We cannot agree that an editing of this 75-page brief, which e'an 11 hardly be described as tightly written, would not have permitted a 12 discussion of the military contractor issue. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 18 AO 72 Jt (Rev.8/821 �UNITED STATES COURT OF APPEALS For the Second Circuit Nos. 1077, 1078, 1079 -- August Term, 1985 (Argued April 10, 1986 Decided £PR 2 1 1987 ) Docket Nos. 85-6091, 85-6093, 85-6095 IN RE "AGENT ORANGE" PRODUCT LIABILITY LITIGATION PHILIP J. AGUIAR; WESLEY L. BELL; ROBERT BLAKE', 'II, individually and as guardian ad litem for JESSICA L. BLAKE; RICK L. BUTLER; ANTHONY A. DE RAPS; JAMES K. EFISHOFF; JUAN H. GONZALES; CHARLES t HALL; WILLIE N. HOWARD; CLIFFORD N. HUCKABAY, individually and as guardian ad litem for GINA MARIE HUCKABAY; RAY C. JONES; GLEN J. MARTIN, JR.; TIMOTHY J. MC CORMICK; MICHAEL J. MC TIGHE; BEVERLY NEHMER, individually and as guardian ad litem for RICHARD ALLAN NEHMER; CLARENCE A. PERRY, individually and as guardian ad litem for SHON CARLOS PERRY and BRANDON VIDAL PERRY; ALVIN G. RINEBARGEF individually and as guardian ad litem for IAN L. -RINEBARGER, STRAr K. RINEBARGER, and BROGUE C. RINEBARGER; ROBERT EL. L, SHIPPEN; LLOYD W. SNYDER; JOE VALENZUELA; WILLIAM G. WAMSLEY; JAMES A. ABERNATHY; FRANCES J. BARNES; RICHARD A. BUNKER; JOHN F. BISSELL; RUFUS DIAGLE; MERLE J. FULTON-SCOTT; RICHARD A. GARCIA; ROBERT r.v. GILLESPIE; KATHLEEN E. GILLESPIE; JIMMY L. GILYARD; ROOSEVELT GIVENS; RANDOLPH HARRIS; SAM HAYNES; JOHN MANKOWSKI; MICHAEL L. MATTHEWS; TOMMY L. NEWTON; ALLAN L. NYHART; JOHN T. PEEFF; ANDREW D. ROMEROI; RAUL G. SCHOENSTEIN; JOHN R. SHAW, III; JOHN L. SHUMPERT; GEORGE T. SOUZA; PETER S. TIFFANY; JOSEPH L. VARGAS; WAYNE C. YOUNG; GERRIE CLAY, individually.and as guardian ad Hcer for TREALIFA CLAY and PENNIE CLAY; each of said plaintiffs individually and as representative of all those similarly situated, Plaintiffs-Appellants, v. UNITED STATES OF AMERICA; JOSEPH MAXWELL CLELAND, Administracer, United States Veterans Administration, and his successors, R03ER1 E. NIMMO and HARRY N. WALTERS; GUY MC MICHAEL, General Counsel United States Veterans Administration, and his successor, JOHN MURPHY; DONALD CUSTIS, Chief Medical Director, United States Veterans Administration, and the Acting Chief, JOHN GRONVALL; CHARLES PECKARSKY, Chief Benefits Director, United States Veteran: Administration, and his successor, DOROTHY STARBUCK; and the AO '2A 32' �VETERANS ADMINISTRATION of the UNITED STATES and other departments and agencies of the United States Government, as their several interests may appear, and successors to the above officials, as necessary, Defendants-Appellees . DAN FORD, and his wife, CHRISTINA FORD; individually, and as members and representatives of a class, Plaintiffs-Appellants,, v. UNITED STATES OF AMERICA, et al., Defendants-Appellees. DANIEL C. BATTS, Plaintiff, v. UNITED STATES OF AMERICA, et al., Defendants-Appellees. LOUGHERY, et al., Plaintiffs-Appellants, v. UNITED STATES OF AMERICA, et al., Defendants. BEFORE: VAN GRAAFEILAND, WINTER and MINER, Circuit Judges. Appeal from a summary judgment of the United States District Court for the Eastern District of New York (Weinstein �1 (.J.), dismissing so-called "Agent Orange" complaints against the 2 United States. 3 Dismissed in part and affirmed in part. JOAN M. BERNOTT, Special Litigation Counsel, Torts Branch, Civil Division, Department of Justice, Washington, D.C. (Richard K. Wlllard, Ass't Att'y Gen., Arvin Maskin, U.S. Att'y, Washington, D.C., , and Raymond J. Dearie, United States Attorney 'for the Eastern District of New York, of Counsel), for Defendant-Appellee United States of America. 4 5 6 7 8 NEIL R. PETERSON, Philadelphia, Pa. (Gene Locks, Greitzer and Locks, Philadelphia, Pa., of Counsel), for Plaintiffs-Appellants. 9 10 David W. Moyer and Philip E. Brown, Hoberg, Finger, Brown, Cox & Molligan, San Francisco, Ca. , of Counsel), 'for Plaintiffs-Appellants. 11 12 13 Thomas Henderson, Pittsburgh, Pa. (Henderson & Goldberg, Pittsburgh, Pa., of Counsel), for Plaintiffs-Appellants. 14 15 David J. Dean, Carle Place, N.Y. (Dean, Falanga & Rose, Carle Place, N.Y., of Counsel), for Plaintiffs-Appellants. 16 17 John O'Quinn, Houston, Texas (O'Quinn, Hagan & Whitman, Houston, Texas, of Counsel), for Plaintiffs-Appellants. 18 19 Stanley M. Chesley, Cincinnati, Ohio (Waite, Schneider, Bayless & Chesley, Cincinnati, Ohio, of Counsel), for Plaintiffs-Appellants. 20 21 Newton B. Schwartz, Houston, Texas, for Plaintiffs-Appellants. 22 23 Stephen J. Schlegel, Chicago, 111. (Schlegel & Trafelet, Chicago, 111., of Counsel), for Plaintiffs-Appellants. 24 25 26 VAN GRAAFEILAND, Circuit Judge: Our discussion of the background and procedural history of this litigation appears in Judge Winter's lead opinion, No. AO 72 (Rev,8/82) 84-6273. I �1 In addition to the numerous individual claims spawned bv 2 Agent Orange, two large class actions were brought. 3 against the chemical companies, was settled. 4 the United States, was dismissed, and the dismissal is being 5 challenged on this appeal. 6 The first, The second, against At the outset of''this litigation, ingenious counsel, 7 concerned that they might not be able to state a claim for relief 8 under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. 9 ("FTCA"), attempted to invoke federal court jurisdiction by also 10 alleging constitutional and civil rights violations, mandamus and 11 equitable jurisdiction. 12 exercise of jurisdiction were properly rejected by the district 13 court. 14 1982); see Chappell v. Wallace, 462 U.S. 296 (1983). 15 not been asserted on this appeal. These additional grounds for the —____—_____ 531 F. Supp. 724, 730-33 (E.D.N.Y. t Ryan v. Cleland, They have Appellants' claims now before 16 i us are predicated solely on the provisions of the FTCA. I 17 ! Because the case comes to us in a rather peculiar posture, 18 familiarity with the administrative claim requirements of the 19 FTCA is necessary for an understanding of the discussion that 20 follows. 21 U.S.C. S 2675(a), prohibit an action seeking money damages from 22 the United States for personal injury or death unless the 23 claimant has first presented the claim to the appropriate federal 24 agency and it has been denied. 25 provide that the claim must be presented in wlriting by the 26 AO 72 . 4 (Rev.8/82)' The administrative claim requirements of the FTCA, 28 Interpretative regulations �1 injured person or his duly authorized agent or legal represenra- 2 tive and must be for "money damages in a sum certain." 28 C.F.H. 3 §§ 14.2(a), 14.3(b). 4 two-year limitation period for the filing of claims. Section 2401(b) of 28 U.S.C. sets up a Shortly after the original class action was brought in 1979, 5 6 the plaintiffs moved1'to be relieved of the requirement of filing 7 separate claims in order to protect their individual rights. 8 Then District Judge George Pratt, to whom the case was assigned, 9 correctly held that the filing requirements were jurisdictional 10 in nature and that the court could not order the Government to 11 ignore the statutory requirements. 12 Liability Litigation, 506 F. Supp. 757, 760-61 (E.D.N.Y. 19bO). 13 : In re "Agent Orange" Produce As might have been expected, plaintiffs' attorneys thereafter i 14 " 15 ; 18 I I : i 19 | i 20| j 21 j 22| ii 23 24 i 25 jj 26 However, after the class action against the chemical companies was settled in 1984, an "Eighth Amended Complaint" was 16 17 concentrated most of their Eire on the chemical companies. filed against the Government and certain Government officials on behalf on the above-captioned "Aguiar" group of plaintiffs and Dan and Christina Ford. The complaint identified a proposed class as: persons who were in the United States, New Zealand or Australian Armed Forces and assigned to Vietnam during the hostilities from 1961 to Iy72, who claim injury from exposure to Agent Orange (and other phenoxy herbicides) and their spouses, parents and children born before September 1, 1984 (or*»such other later date as may be fixed by �1 this Court) who claim direct, indirect, independent or derivative injury as a result of such exposure. 2 3 ' In a Memorandum Order and Judgment, 603 F. Supp. 239, Chief 4 Judge Weinstein, who succeeded Judge Pratt, denied the 5 plaintiffs' motion for class certification, id. at 242, and 6 granted the Government's motion for summary judgment against "all 7 claims direct or derivable of the veterans and their wives and 8 against all of the children's derivative claims" and dismissed 9 the direct claims of the children without prejudice. Id. at 248. V Three notices of appeal then were filed. 10 The caption of the 11 first contained the names of all the above-captio.ned plaintiffs- 12 appellants. 13 Management Committee", which did not identify itself as It was filed by the "Agent Orange Plaintiffs' 15 j representing any of the individual plaintiffs-appellants in this 1/ action against the Government." The caption of the second 16 contained only the names of the first group of plaintiffs- 14 I appellants above named, beginning with "Aguiar" and ending with "Clay", and was filed by the firm of Hoberg, Finger, Brown, Cox 18 & Molligan as "Attorneys for Plaintiffs". The third caption 20 | contained only the names of the cases referred to in the district 21 ! court's opinion as having been "previously dismissed", beginning 22 with "Loughery v. United States" and concluding with "Xirau v. 23 : Dow Chemical Co.". 24 appeal also was filed by the Agent Orange Plaintiffs' Management 25 ;'jj I 26 ' AO -2 Be-. 3 82> 603 F. Supp. at 248-49. This notice of �1 Committee, which did not describe itself as the attorney for anv 2 of the plaintiffs in that group of cases. The Government contends at the outset that the appeal should 3 4 be dismissed as academic because class certification was denied 5 in the instant action and there is no individual appellant. 6 "Instead", the Government argues, "this appeal is brought by 7 Committee counsel acting exclusively as a pro bono fiduciary for 8 a decidedly uncertified class, many or most of whose numbers 9 disavow the complaint." This, we think, misstates the legal .issue •> 10 which the Management Committee's unusual procedure has created. 11 ! i The denial of class certification does not preclude individual 12 :. plaintiffs properly before the court from pressing their own 13 claims, 7B C. Wright, A. Miller & M. Kane, Federal Practice and : , 14 ' 15 > Procedure § 1795 at 322. These may include an appellate challenge to the denial of class certification. United Airlines. 16 Inc. v. McDonald, 432 U.S. 385, 393 (1977). The question, then, 17 is not whether the individual party-plaintiffs could make an effective decision to appeal, but whether the Management 19 Committee had the authority to make this decision for them. 20 i Ii 21 Massachusetts v. Feeney, 429 U.S. 66 (1976)(per curiam). 22 that the question must be answered in the negative. 23 Orange Plaintiffs' Management Committee claims to represent a 24 class, an uncertified class at that, not any individual 26 AO ~2 *#>. 3 32' Insofar as the first and third notices of appeal are concerned, we think *> *• 25 Se_e plaintiffs. The Agent �1 The above described second notice of appeal presents a 2 stronger case for appealability, since it was filed by attornevs 3 claiming to represent all of the individual plaintiffs in the 4 Aguiar group. 5 proceeded to muddy the waters with regard to this appeal with a 6 letter to the Court'Clerk in which he stated: Mr. Moyer and I, on behalf of the AOPMC, represent the class, as opposed to any particular individuals on this appeal. The only exception is that Mr. Moyer's firm represents additionally and individually all the plaintiffs in the Aguiar matter (82-780). However, only class issues are here being raised on behalf of those plaintiffs. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 i 24 25 26 AC 72 P-,. P S7I However, counsel for the Management Committee After some intervening explanatory paragraphs, the letter concluded: This explains why we are withdrawing the third issue pertaining to wives' independent claims for miscarriages. The District Court's determination in that regard could not apply to the class and any appeal thereof would have to be in individual cases in which we have no authorization to proceed and no attorney-client relationship. If the foregoing statements are correct -- and it does appear that the arguments in appellants' briefs are confined co class issues rather than those of any individual plaintiff -this appeal can be quickly disposed of. It is well established that neither the district court nor this Court has jurisdiction over a Federal Tort Claims class action whete, as here, the �1 administrative prerequisites of suit have not been satisfied by 2 or on behalf of each individual claimant. 3 j See, e.g. , Keene Corp. v. United States, 700 F.2d 836, 841 (2d Cir.), cert, denied, 464 4 U.S. 864 (1983); Lunsford v. United States. 570 F.2d 221, 224-27 5 (8th Cir. 1977); Commonwealth of Pennsylvania v. National Ass'n 6 of Flood Insurers, 520 F.2d 11, 23-25 (3d Cir. 1975); Luria v. 7 Civil Aeronautics Board, 473 F. Supp. 242 (S.D.N.Y. 1979); Kantor 8 v. Kahn, 463 F. Supp. 1160, 1162-64 (S.D.N.Y. 1979); Founding 9 Church of Scientology v. Director, FBI, 459 F. Supp. 748, 754-56 10 (D.D.C. 1978). 11 | 12 ! i 13 ' 14 | 15 ; Assuming that the appeals herein were intended to, and did, include the individual party-plaintiffs' claims, we nonetheless would have no jurisdiction to consider the claims of those plaintiffs who had not met the administrative prerequisites of suit. Although we night remand those cases to the district court 16 i tj for a determination as to which, if any, of the plaintiffs in 17 . this group had complied with the FTCA's administrative claim 18 | i 19 I 20 requirements, we see no purpose in doing this if the district 21 i 22 ! court acted correctly in dismissing the cases on the merits. believe that it did. In an effort to allege a viable cause of action, plaintiffs' counsel assign their claims of government wrongdoing to three 23 separate time periods -- pre-induction, in-service, and posc- 24 service. 25 ! 26 iO We The pre-induction claims are based largely upon an alleged failure to warn of the Agent Orange**health hazards co �1 which the inductees would be exposed. The in-service claims deal 2 with the allegedly negligent acts that led to and accompanied the 3 actual exposure. The post-service allegations deal with the 4 Government's failure to warn plaintiffs of the health hazards 5 they faced and to treat or monitor the treatment for plaintiffs' 6 Agent Orange-related illnesses. All of these claims were 7 summarily rejected by the district court. 603 F. Supp. at 8 242-45. 9 The ultimate policy decision to use Agent Orange was made by 10 President Kennedy. 11 Commander in Chief of the Armed Forces with "decision-making 12 responsibility in the area of military operations." 603 F. Supp. at 244. 13 i Laird, 471 F.2d 1146, 1154 (2d Cir. 1973). He, of course, was* DaCosta v. However, in making 14 decisions of this nature, the President does not act alone. 15 Article I, section 8 of the Constitution empowers Congress to 16 "raise and support Armies" and to "make Rules for the Government 17 and Regulation of the land and naval Forces." 18 Goldberg, 453 U.S. 57, 59 (1981). 19 Congress has designated the Department of Defense as an Executive 20 Department of the United States, 10 U.S.C. § 131, and has 21 directed the Secretary of Defense, with the assistance of the 22 Joint Chiefs of Staff and advisory committees and panels, to make 23 recommendations and reports to Congress concerning existing and 24 proposed weapon systems, 10 U.S.C. §§ 139, 141, 174. 25 also has created the office of Under Secretary of Defense for 26 "• 8 AO 72 (Rev.8/82) See Rostker v. Pursuant to that authority, Congress �1 2 Research and Engineering, whose duties include supervising aLL : research and engineering activities in the Department of Defense i 3 I and advising the Secretary on scientific and technical matters, 4 10 U.S.C. § 135. 5 wisdom of the decisions made by these concurrent branches of the 6 Government should not be subject to judicial review. 7 Absent a substantial constitutional issue, the Orderly government requires that the judiciary be as scrupulous not to inter- 8 fere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters. 9 10 Chappell v. Wallace, supra, 462 U.S. at 301', quoting Qrloff v. 11 Willoughby, 345 U.S. 83, 94 (1953). 12 In Gilligan v. Morgan, 413 U.S. 1 (1973), in which the Court 13 | reversed a Circuit Court order directing a district court to 14 j i 15 !| examine the "pattern of training, weaponry and orders in the Ohio 16 .j ! 17 : 18 | j 19 j 20 21 22 | 23 i ; 24 ,l 25 i| i 26 ' National Guard", id. at 4, Chief Justice Burger said: It would be difficult to think of a clearer example of the type of governmental action that was intended by the Constitution to be left to the political branches directly responsible -- as the Judicial Branch is not -- to the electoral process. Moreover, it is difficult to conceive of an area of governmental activity in which the courts have less competence. 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. The ultimate responsibility for these decisions is appropriately vested in branches of the government which are periodically subject to electoral accountability. It is this power of over- �1 sight and control of military force by elected representatives and officials which underlies our entire constitutional system; the majority opinion of the Court of Appeals failed to give appropriate weight to this separation of powers. 2 3 4 5 Id. at 10-11. Two well-established doctrines make the foregoing principles 6 7 of restraint peculiarly applicable to the instant FTCA actions, 8 which ask the judiciary to pass judgment upon Che discretionary 9 military decisions involving Agent Orange. The first of these, is » 10 the so-called "discretionary function" exception to the 11 Government's waiver of immunity under the FTCA, 28 U.S.C. 12 § 2680(a), which we discuss in the Hogan v. Dow Chemical opinion, 13 Nos. 85-6223, 85-6341, filed herewith. 14 Government was performing a discretionary function while 15 field-testing Agent Orange in Hawaii. 16 so-called "Feres doctrine", originating in the seminal case of 17 Feres v. United States, 340 U.S. 135 (1950), which prohibits the 18 judiciary from imposing liability upon the United States for 19 injuries to servicemen that "arise out of or are in the course of 20 activity incident to service." 21 difference between these doctrines as they relate to the facts of 22 the instant case. 23 decisions. 24 1978); Builders Corp. of America v. United States, 320 F.2d 425 25 (9th Cir. 1963), cert, denied, 376 U.S. 906 (1964). Both The second is the Id. at 146. There is little Both apply to discretionary military Perkins v. Rumsfeld, 577 F.2d 366, 368 (6th Cir. 26 10 AO 72 (Rev.8.-821 There, we hold that the �1 preclude judicial "second-guessing" in FTCA litigation of 2 ( discretionary legislative and executive decisions such as those 3 that were made concerning Agent Orange. See United States v. 4 S.A. Empresa De Viacao Aerea Rio Grandense (Varig Airlines), 467 5 U.S. 797, 814 (1984)(the discretionary function exception) and 6 United States v. Shearer, 473 U.S. 52, 57-59 (1985)(the Feres 7 doctrine). 8 Appellants have concentrated their attack on Feres which, 9 they say, consists of "perversely overstretched trappings of- 10 sovereign immunity", "warped logic", and "balderdash". 11 Confronted with the affirmation of the Feres hold-ing in United 12 States v. Shearer, supra, which followed the filing of 13 i i ! 14 ; 15 ! I 16 appellants' original brief, appellants assert in their reply brief that Chief Justice Burger, who wrote Shearer, "rambled i n t o ; Feres as dictum." Although Feres has not been without its properly less caustic critics, see, e.g., Bozeman v. United ""~J ii 17 i i States, 780 F.2d 198, 200 (2d Cir. 1985), it remains the law of 18 the land and is binding on this Court. 19 Chappell v. Wallace, supra, 462 U.S. 296, and Stencel Aero 20 Engineering Corp. 21 22 23 i 24 ' 25 ; 'I 26 Id. at 202. See also v. United States, 431 U.S. 666, 673-74 (1977). The recovery which the veterans seek for pre-induct ion negligence is dependent upon and inseparably intertwined with the injuries they allegedly sustained while in service. In a situation such as this, overwhelming authority holds that Feres U �1 bars recovery. 2 325 (S.D.N.Y.), aff'd on opinion below, 295 F.2d 958 (2d Cir. 3 1961); Satterfield v. United States, 788 F.2d 395, 399 n.3 (6th 4 Cir. 1986); Joseph v. United States. 505 F.2d 525 (7th Cir. 5 1974); Glorioso v. United States, 331 F. Supp. 1 (N.D. Miss. 6 1971); Redmond v. United States, 331 F. Supp. 1222 (N.D. 111. 7 1971). 8 See, e.g., HeaLy v. United States, 192 F. Supp. Application of the discretionary function rule leads 9 ineluctably to the same result. Dalehite v. United States, 346 10 U.S. 15 (1953), the leading case in this field, involved, among 11 other things, a failure to warn. 12 ! 13 ;! which follow Dalehite have reached the same result. 14 United States, 768 F.2d 788, 789 (7th Cir. 1985); Begav v. Unitedl 15 Id. at 42, 46-4.7. Lower courts See Ford v. American Motors Corp., 770 F.2d 465 (5th Cir. 1985); Cisco v. j i States, 768 F.2d 1059, 1066 (9th Cir. 1985); Shuman v. United 16 !, States, 765 F.2d 283, 291 (1st Cir. 1985); General Public 17 ; Utilities Corp. v. United States, 745 F.2d 239, 243, 245 (3d Cir. 18 1984), cert, denied, 469 U.S. 1228 (1985); Green v. United 19 States. 629 F.2d 581, 585-86 (9th Cir. 1980). 20 If the Feres doctrine is to have any meaning at all, the 21 claim for in-service injuries is a classic case for its 22 application. At issue is a decision of the veterans' highest 23 ' military superiors that was designed to help the veterans in 24 fighting the armed conflict in which they were engaged. "Here, ^ 25 i Che parties do not dispute that the government's motives in us in 26 12 AO -2 P-v 3 32' i �1 Agent Orange in southeast Asia were valid military objectives: i 2 ' defoliate jungle growth to deprive enemy forces of ground cover I 3 ! and destroy enemy crops to restrict enemy's food supplies." 506 I 4 F. Supp. at 779; see also 603 F. Supp. at 244. 5 whatever in appellants' 6 estopped from relyin'g on Feres because, 7 certain veterans' We find no merit argument that the Government should be in subsequently opposing claims for benefits, the Government argued that 8 their injuries were not service related, while it contends here 9 that the same injuries were "incident to service." This is a 10 distortion of the Government's position, which is that, if'che 11 veterans' injuries were caused by exposure to Agent Orange, a 12 contention which the Government consistently .has rejected, they 13 ; were "incident to service". 14 473 F.2d 814, 816 (9th Cir.), cert, denied, 414 U.S. Sl9 (1973), 15 regarding the inapplicability of the doctrine of estoppel in FTCA 16 'j 17 -! 18 See also Henninger v. United States, cases. In Dalehite v. United States, supra, 346 U.S. at 37, the Court said, "That the cabinet-level decision to institute the i i 19 ! fertilizer export program was a discretionary act is not 20 I seriously disputed." 21 to Agent Orange. 22 applicable to the veterans' in-service injuries. 23 ' 24 i 25 ! The same statement may be made with regard The discretionary function exception clearly is We agree with both Judge Pratt and Chief Judge Weinstein that the veterans' claims for post-service injuries are inseparably entwined with and directly related to their m i l i t a r y 26 12 -2 3 82! �1 service. 2 The majority of other Circuits would rule similarly. 3 Heilman v. United States. 731 F.2d 1104, 1108 (3d Cir. 1984); 4 Gaspard v. United States, 713 F.2d 1097, 1100-01 (5th Cir. 1983), 5 cert, denied, 466 U.S. 975 (1984); Lombard v. United States, 690 6 F.2d 215, 220-23 (D.CV Cir. 1982), cert, denied. 462 U.S. 1118 7 (1983); Laswell v. Brown, 683 F.2d 261, 264-67 (8th Cir. 1982), 8 cert, denied, 459 U.S. 1210 (1983). 9 States, 465 U.S. 848, 854 (1984). 10 See 506 F. Supp. at 779 and 603 F. Supp. at 244-45. See, e.g., See also Kosak v. United We are not persuaded by plaintiffs' attempts to frame a* 11 theory of independent post-service wrongdoing to bring their 12 claims within the ambit of United States v. Brown, 348 U.S. 110 13 (1954), and cases such as Broudy v. United States, 661 F.2d 125 14 (9th Cir. 1981), and Stanley v. United States, 786 F.2d 1490 16 15 j (llth Cir.), cert, granted, 107 S. Ct. 642 (1986), which follow i Brown. The district court did not simply reject plaintiffs' 17 373-paragraph complaint as an inadequate pleading; the 18 Government's motion was in the alternative, i.e., for dismissal 19 or summary judgment, 603 F. Supp. at 241, and the district court 20 granted summary judgment, id. at 248. 21 reviewing an appellate record of over 16,000 pages, reading 22 hundreds of pages of briefs, and listening to two full days of 23 oral argument, it is that the weight of present scientific 24 evidence does not establish that Agent Orange injured military 25 personnel in Vietnam. Plaintiffs cannot disguise this fact by 26 14 AO 72 (Rev.8/82) If anything is clear after �what the district court termed "'inventive presentation or:artful pleading.'" 603 F. Supp. at 245. The very paucity of proof concerning the possible deleterious effects of Agent Orange made the decision whether to issue a nationwide health warning even more clearly an exercise * of discretion. The reasoning of the discretionary function cases cited in connection with our discussion of pre-induction failure 8 to warn is equally applicable here. See In re Consolidated U.S. Atmospheric Testing Litigation. 616 F. Supp. 759, 774-77 (N.D.10 Cal. 1985). 11 we are not bound to apply common law tort rules concerning the 12 duty to warn as they may differ' from State to State. 13 discretionary function exception of the FTCA does not exist in In considering the discretionary function exception, Since the 14 private tort litigation, "state tort standards cannot adequately 15 control those governmental decisions in which, to be effective, 16 the decision-maker must look to considerations of public policy 17 and not merely to established professional standards or to 18 standards of general reasonableness." 19 418 F.2d 774, 783 (2d Cir. 1969). Hendry v. United States, See Mitchell v. United States, 2/ 20 787 F.2d 466, 468 (9th Cir. 1986).21 22 23 CONCLUSION Insofar as the appeals purport to be taken on behalf of a class, they are dismissed. Insofar as the appeals purport to be 24 taken on behalf of individuals, the judgment appealed from is * • 25 affirmed. ^ No costs to the Government on the appeals. 26 15 AO 72 (Rev. 8/82) �FOOTNOTES 1/ 1 2: 3 The Agent Orange Plaintiffs' Management Committee is the successor to a committee appointed in 1930 to represent a tentatively certified plaintiffs' class in an acti'on against the chemical companies. 4 See In re "Agent Orange" Product Liability Litigation, supra, 506 F. Supp. at 788; 534 F. Supp. 1046, 5 1052-53; 611 F. Supp. 1452, 1454. 6 7 27 8 the Veterans Administration to provide adequate medical 9 treatment, we agree with Judge Pratt that appellants seek 10 precisely the type of judicial review that Congress, in enacting 11 33 U.S.C. § 211(a) , expressly prohibited. 12 n !| i j ,| 14 | y. Administrator . of the Veterans Admin. , 762 F.2d 8 ( 2 d C i r . : •' p e r 91-1166, 91st Cong., 2d Sess. (1970), reprinted in 1970 U.S. Code 17 Cons, ft Ad. News 3723, 3729-31. I 19 | 20 ! l 21 ;i i 22 ; ! 24 25 • 26 See also Pappanikoloaou States, 615 F. Supp. 446, 443-50 (E.O.N.Y. 1985); H.R. No. 16 23 531 F. Supp. 724, 731 (E.D.N.Y. 1982). See Ryan v. Cleland, curiam) , cert, denied, 106 S. Ct. 150 (1985); Hartmann v. U'nica-J 15 18 Insofar as appellants' post-service claims allege failure of �7 «r UNITED STATES COURT OF APPEALS 1 FOR THE SECOND CIRCUIT 2 No. 343 3 (Argued October 1 , 1986 August Terra, 1986 4 Decided^pp 2 1 1987 Docket No. 86-6127 5 6 IN RE: "AGENT ORANGE" 7 PRODUCT LIABILITY LITIGATION 8 9 THOMAS ADAMS, et al., 10 Plaintiffs-Appellants, 11 12 v. UNITED STATES OF AMERICA, et al., 13 Defendants-Appellees. 14 15 16 17 18 19 BEFORE: VAN GRAAFEILAND, WINTER and MINER, Circuit Judges. Appeal from order and judgment of the United States District Court for the Eastern District of New York (Weinstein, C.J.) dismissing post-settlement Agent Orange claims. Judgment affirmed except as to the grant of summary judgment dismissing the 20 so-called direct claims of wives and children. 21 as to said direct claims vacated and these claims remitted to the 22 district court with instructions to dismiss them for lack of 23 jurisdiction. 24 25 26 AO 72 (Rev.8/82) Summary judgment BENTON MUSSLEWHITE, Houston, Texas, for Plaintiffs-Appellants. ROBERT C. LONGSTRETH, Trial Attorney, Torts Branch, Civil Division, Department of Justice, Washington, D.C. (Richard K. Willard, Ass't Att'y Gen., Washington, D.C., Andrew J. Maloney, United States Attorney for the Eastern District of �1 New York, and Joan M. Bernott, Special Litigation Counsel, Washington, D.C., of counsel), for Defendant-Appellee United States of America. 2 3 4 VAN GRAAFEILAND, Circuit Judge: 5 Our discussion of the background and procedural history of 6 this litigation appears in Judge Winter's lead opinion, No. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 AO 72 (Rev,8/82) 84-6273. �1 Following settlement of the class action against the chemical 2 companies and the dismissal of all claims against the Government, 3 this action was commenced in the United States District Court for 4 the Southern District of Texas. In January of 1986 it was 5 transferred to the Eastern District of New York by the Judicial 6 Panel on Multidistrict Litigation, and on June 19, 1986 the 7 complaint, like those that preceded it, was dismissed. The claims 8 of the veterans and the derivative claims of their wives and 9 children were dismissed for lack of jurisdiction. The direct 10 claims of the wives and children were dismissed by way of summary 11 judgment for lack of proof of medical causal relation. 12 that the direct claims of the wives and children, like those of 13 the veterans themselves, should have been dismissed for lack of 14 jurisdiction. 15 16 17 We hold In companion Agent Orange opinions filed herewith, we define the Government's decision to use Agent Orange as a military decision, a political decision and the exercise of a discretionary 18 19 challenging it. 21 Claims] Act, but they relate to the cause of injury rather than to 22 the character of a claimant who may seek to recover damages for 23 his injuries." 24 Cir. 1949), aff'd, 340 U.S. 135 (1950). 25 for example, to characterize a governmental de'cision as political 26 (Rev.8/82! nature of the governmental action, not the identity of the person 20 AO 72 function. or discretionary in an action brought by a serviceman but as These definitions were arrived at by scrutinizing the "There are twelve exceptions to the [Federal Tort Feres v. United States, 177 F.2d 535, 536-37 (2d It would be anomalous, �1 apolitical or mandatory in an action brought by the serviceman's 2 wife or child. 3 of the above categories, military, political and discretionary, it 4 is imperative that a court look primarily to the "cause of injury 5 rather than to the character of a claimant." 6 the decision properly may be placed in only one of the three 7 categories, a court should use great circumspection in deciding 8 whether it is the type of governmental action that should be 9 subjected to judicial second-guessing. 10 When a challenged decision falls within all three However, even when Some of the post-Feres cases brought by wives, widows and 11 children of servicemen have had their origin in States where the 12 plaintiffs' claims are held to be ancillary or derivative to those 13 of the servicemen. 14 plaintiffs' causes of action have been held to be independent of 15 those of the servicemen. 16 the claims are held barred by Feres and Stencel Aero Engineering 17 Corp. v. United States. 431 U.S. 666 (1977). 18 Others have arisen in States where the The result in most cases is the same -- The following cases are typical of those arising in the 19 20 States, 715 F.2d 96 (3d Cir. 1983), cert, denied, 465 U.S. 1U23 21 (1984); Mondelli v. United States, 711 F.2d 567 (3d Cir. 1983), 22 cert, denied, 465 U.S. 1021 (1984); Lombard v. United States, 690 \ 23 F.2d 215 (D.C. Cir. 1982), cert, denied, 462 U.S. 1118 (1983); 24 Scales v. United States, 685 F.2d 970 (5th Cir." 1982), cert. 25 denied, 460 U.S. 1082 (1983); Laswell v. Brown, 683 F.2d 261 (3th 26 AO 72 (Rev 8 32) "ancillary or derivative claims" jurisdictions: Hinkie v. United j Cir. 1982), cert, d e n i e d , 459 U.S. 1210 (1983); Monaco v. United j I �1 States, 661 F.2d 129 (9th Cir. 1981), cert, denied, 456 U.S. 989 2 (1982); Harten v. Coons, 502 F.2d 1363 (10th Cir. 1974), cert, 3 denied, 420 U.S. 963 (1975). 4 United States, 680 F.2d 922 (2d Cir. 1982). 5 illustrates, civilian status alone is not sufficient to lift the 6 bar under Feres when a claim involves the same issues as if a 7 serviceman himself sued, for then the relevant policy 8 considerations apply with equal force." 9 Monaco, supra). This Court is in accord. Kohn v. "As Stencel itself Id. at 926 (citing 10 One of the cases in the "non-derivative or independent . 11 claims" group, a case which moved through this Court, was Harrison 12 v. United States, 479 F. Supp. 529 (D. Conn. 1979)', aff'd without 13 opinion, 622 F.2d 573 (2d Cir.), cert, denied, 449 U.S. 828 14 (1980). 15 wife, who resided in Michigan where her claim was considered to be 16 separate and distinct from that of her husband. 17 Feres rationale as reaffirmed and strengthened in Stencel, supra, 18 then Chief Judge Clarie held that it barred the claim of the 19 serviceman's wife. 20 21 22 23 24 25 26 i AO 72 «* tRev,3'82! This was a suit for loss of consortium by a serviceman's He said: There has been no suggestion in the legislative history of the Act that Congress was aware that the Tort Claims Act might be interpreted in such an anomalous manner that a serviceman-husband performing his military duty would be denied recovery against the Government whose employee's negligence may have caused him serious injury, while his spouse is allowed recovery as a consequence of the same set of facts. Applying the �1 479 F. Supp. at 535. The following cases from other "non- 2 derivative or independent claims" jurisdictions are in accord: 3 Gaspard v. United States, 713 F.2d 1097 (5th Cir. 1983) , cert. 4 denied, 466 U.S. 975 (1984); De Font v. United States. 453 F.2d 5 1239 (1st Cir.), cert, denied. 407 U.S. 910 (1972); United States 6 v. Lee, 400 F.2d 558 (9th Cir. 1968), cert, denied. 393 U.S. 1053 7 (1969); Van Sickel v. United States. 285 F.2d 87 (9th Cir. 1960); 8 Sigler v. LeVan, 485 F. Supp. 185 (D. Md. 1980). 9 Of particular interest is an action brought in the United 10 11 1982 by Louise Shearer, the mother of a deceased serviceman. 12 Pennsylvania, a cause of action for wrongful death, 42 Pa. C.S.A. 13 § 8301, is possessed by certain specified relatives of the 14 deceased, who recover in their own behalf and not as beneficiaries 15 of the deceased's estate. 16 278 (1981), vacated on other grounds, 497 Pa. 610 (1982). 17 obvious reference to section 8301, the district court held that 18 "[t]he Feres doctrine applies in cases in which a personal 19 representative brings an action under a state death statute which 20 is not derivative in nature, but is an original and distinct cause 21 of action granted to such individuals to recover damages sustained 22 by them by reason of the wrongful death of the decedent." 23 F. Supp. 672, 673 n.1. 24 wrongdoing "relate directly to decisions of military personnel 25 made in the course of the performance of thei<r military duty," id. 26 AO 72 (Rev.8-82) States District Court for the Eastern District of Pennsylvania in at 674, the court granted summary judgment dismissing the In MeClinton v. White, 285 Pa. Super. 271, With 576 Finding that plaintiff's allegations of �1 complaint. 2 without discussing the Pennsylvania wrongful death statute, 723 3 F.2d 1102 (3d Cir. 1983), but was in turn reversed by the Supreme 4 Court in United States v. Shearer, 473 U.S. 52 (1985), a decision 5 that is considered to be a major reaffirraation of Feres and 6 Stencel. 7 wrongdoing "goes directly to the 'management' of the military", 8 that it "would require Army officers 'to testify in court as to 9 each other's decisions and actions'", and that "[t]o permit this The Court of Appeals for the Third Circuit reversed The Supreme Court stated that plaintiff's allegation of 10 type of suit would mean that commanding officers would have'to 11 stand prepared to convince a civilian court of the wisdom of a 12 wide range of military and disciplinary decisions." 13 3043-44. 14 105 S. Ct. at These were simply restatements and affirmations of language 15 used time and again by the lower courts that have denied recovery 16 by family members. 17 I 711 F.2d at 568-69; Lombard, 690 F.2d at 223-26; Monaco, 661 F.2d 18 ! at 133-34; Scales, 685 F.2d at 970-74. 19 See, e.g., Hinkie, 715 F.2d at 98; Mondelli, Where, as here, the military decision is of such a nature 20 that it properly may be termed a discretionary function, denial of 21 recovery by both military and nonmilitary personnel is doubly 22 warranted. 23 I 1972); Maynard v. United States, 430 F.2d 1264 (9th Cir. 1970). 24 Like the Court of Appeals for the District of Columbia, "[w]e will Abraham v. United States, 465 F.2d 881 (5th Cir. »• 25 26 AO ~2 • Rev 3 82) not permit a suit for damages occasioned by activities that are not meaningfully separable from a protected discretionary �1 function." 2 cert, denied, 465 U.S. 1100 (1984). 3 Gray v. Bell, 712 F.2d 490, 516 (D.C. Cir. 1983), In a companion opinion filed herewith, 85-6153 et seq., we 4 discuss the political nature of the President's decision to 5 authorize the use of Agent Orange and point to that factor as a 6 third cogent reason why there should be no second-guessing by the 7 judiciary. 8 9 The judgment of the district court is affirmed except as to that portion which dismisses the so-called direct claims of the 10 wives and children by way of summary judgment. 11 the judgment is vacated, and the wives' and childrens1 so-called 12 direct claims are remanded to the district court with instructions 13 to dismiss them for lack of jurisdiction. 14 15 16 17 18 19 20 21 22 23 24 25 26 AO 72 iRe^ 3 82) No costs to any party. That porticm of �UNITED STATES COURT OF APPEALS For the Second Circuit Nos. 1083, 1087, 1088, 1089, 1090, 1092, 1093, 1094, 1096, 1125, 1126 -- August Terra, 1985 (Argued April 10, 1986 Docket Nos. 85-6225, 85-6287, 85-6295, DecidedAPR 2 1 1S87 ) 85-6153, 85-6231, 85-6289, 85-6375, 85-6165, 85-6263, 85-6293 85-6377 IN RE "AGENT ORANGE" PRODUCT LIABILITY LITIGATION THE DOW CHEMICAL COMPANY, DIAMOND SHAMROCK CHEMICALS COMPANY, HERCULES INCORPORATED, MONSANTO COMPANY, T H AGRICULTURE & NUTRITION COMPANY, INC., THOMPSON CHEMICALS CORPORATION and UNIROYAL, INC. Defendants-Appellants, v. UNITED STATES OF AMERICA, et al., Appellees. BEFORE: VAN GRAAFEILAND, WINTER and MINER, Circuit Judges. Appeal from a judgment of the United States District Court for the Eastern District of New York (Weinstein, C.J.) dismissing all of appellants' third-party claims against the United States for contribution or indemnity under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. AO 72A ,* (Rev. 8/82F Affirmed. �JOAN M. BERNOTT, Special Litigation Counsel, Torts Branch, Civil Division, Department of Justice, Washington, D.C. (Richard K. Willard, Ass't Att'y Gen., Washington, D.C., and Raymond J. Dearie, United States Attorney for the Eastern District of New York, of Counsel), for Appellee United States of America. LEONARD L. RIVKIN, Garden City, New York (Rivkin, Radler, Dunne & Bayh, Garden City, N.Y., of Counsel), for Defendant-Appellant The Dow Chemical Company. Wendell B. Alcorn, Jr., Cadwalader, Wickersham & Taft, N.Y., N.Y., of Counsel, for Defendant-Appellant Diamond Shamrock Chemicals Company. William Krohley, Kelley Drye & Warren, N.Y.., N.Y., of Counsel, for Defendant-Appellant? Hercules Incorporated. John Sabetta, Townley & Updike, N.Y., N.Y., of Counsel, for Defendant-Appellant Monsanto Company. Morton Silberman, Clark, Gagliardi & Miller, White Plains, N.Y., of Counsel, for Defendant-Appellant T H Agriculture & Nutrition Company, Inc. David R. Gross, Edwin R. Matthews, and Budd, Larner, Kent, Gross, Picillo, Rosenbaum, Greenberg & Sade, Short Hills, N.J., of Counsel, for Defendant-Appellant Thompson Chemicals Corporation. Judy Spanier, Shea & Gould, N.Y., N.Y., of Counsel, for Defendant-Appellant Uniroyal, Inc. VAN GRAAFEILAND, Circuit Judge; Our discussion of the background and procedural history of this litigation appears in Judge Winter's lead opinion, No. 84-6273. AO 72A (Rev. 8/82) �1 In this opinion, we address the third-party claims of the 2 chemical companies ("appellants") against the United States which 3 were dismissed by the district court. 4 the reasons that follow, we conclude that the district court did 5 not err in thus disposing of the claims. 6 611 F. Supp. 1221. For Transfer of the first batch of Agent Orange cases to the 7 Eastern District of New York pursuant to the Multidistrict 8 Litigation Statute, 28 U.S.C. § 1407, was followed promptly by a 9 variety of motions, one of which was addressed to appellants' • | r 10 third-party complaints. 11 Engineering Corp. v. United States. 431 U.S. 666 (1977), then 12 District Judge Pratt granted the Government's motion to dismiss 13 the third-party pleadings. 14 However, Judge Pratt did not enter a final order to that effect. 15 See 534 F. Supp. 1046, 1050-51. Relying largely on Stencel Aero 506 F. Supp. 762, 772-74, 798. 16 17 order by granting the Government's motion to dismiss "only as to 19 the claims by the veterans and the derivative claims by their 20 family members." 21 involved the "independent claims of the plaintiffs' wives and 22 children." 23 settlement of the class action against appellants, Chief Judge 24 Weinstein granted the Government.1 s motion to dismiss that portion 25 of the third-party complaint which involved the independent 26 (Rev.8/82) motion for reconsideration of Judge Pratt's order, amended the 18 AO 72 In 1984, Chief Judge Weinstein, responding to appellants' claims of the wives and children. He denied the Government's motion insofar as it 580 F. Supp. 1242, 1244. However, following 611 F. Supp. at 1222. Thus, �1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 all third-party claims against the Government in the instant action were dismissed. Appellants now ask this Court to reverse the order and judgment of dismissal, insisting that the Government should reimburse them in whole or in part for the $180 million they paid pursuant to the settlement agreement. They ask us to reject the Stencel holding and the Feres doctrine upon which it was based, see Feres v. United States, 340 U.S. 135 (1950), contending that Feres should not be applied to the "massive tort claims alleged in this unique litigation." We believe that the exact conve'rse is true, and that the Feres doctrine was specifically intended to apply to the "[significant risk of accidents and injuries [that] attend such a vast undertaking" as is involved herein. Stencel, supra, 431 U.S. at 672. The greater the scope of a military decision and the more far-reaching its effect, the more it assumes the aspects of a political determination, which, in and of itself, is not subject to judicial second-guessing, Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp.. 333 U.S. 103, 111 (1948). See, e.g., DaCosta v. Laird, 471 F.2d 1146, 1147 (2d Cir. 1973) 20 (President Nixon's tactical decision to mine North Vietnam 21 harbors held to create a non-justiciable political question); 22 23 24 25 Holtzman v. Schlesinger, 484 F.2d 1307, 1310 (2d Cir. 1973) (bombing of Cambodia hel,d to involve diplomatic and military expertise not vested in judiciary and thus political in nature), 26 -2AO 72 (Rev.8/82) �1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 cert., denied. 416 U.S. 936 (1974); Pauling v. McNamara. 331 F.2d 796, 798-99 (D.C. Cir. 1963)(explosion of nuclear bombs held to constitute a large matter of basic national policy and to present no judicially cognizable issue), cert, denied, 377 U.S. 933 (1964). See also In re "Agent Orange" Product Liability Litigation, Nos. 85-6091, 85-6093, 85-6095, at 7-13. As the bombing in Cambodia was designed to protect United States military and civilian personnel from a "grave risk of personal injury or death", Holtzman, supra., 484 F.2d at 1311 n.l, so also v was the President's decision to use Agent Orange to defoliate Vietnamese jungle trails, a decision in which the South Vietnamese military, to some extent at least, participated. Recognizing as we must that our judicial system is ill-equipped to handle service-related tort claims involving hundreds of thousands of soldiers, we believe that it is in massive cases such as the instant one where the Feres doctrine is best applied. Once the continuing vitality of the Feres doctrine is acknowledged, see, e.g., United States v. Shearer, 473 U.S. 52 (1985); H.R. Rep. No. 97-384, 97th Cong., 1st Sess. 5 (1981), 20 reprinted in 1981 U.S. Code Cong. & Ad. News 2692, 2695, 21 recognition of Stencel as binding authority against recovery by 22 appellants inevitably must follow. A court considering the 23 24 25 merits of appellants' claims would be required to answer the same questions concerning the discretionary military and political 26 -3A072 (Rev.8/82) �1 decisions of the Executive and Legislative Branches of Government 2 that it would not feel qualified to answer in suits by individual 3 servicemen. F 4 Stencel, supra, 431 U.S. at 673. The litigation would take virtually the identical form in either case, and at issue would be the degree of fault, if any, on the part of the Government's agents and the effect upon the serviceman's safety. The trial would, in either case, involve second-guessing military orders, and would often require members of the Armed Services to testify in court as to each other's decisions and actions. 5 6 7 8 9 Id. 10 —WM ^ Moreover, a recovery by appellants in the instant case would 11 violate well-established principles of tort law. Appellants 12 contend that they are entitled to recover both contribution and 13 indemnity from the Government. In support of this contention, 14 they advance a most unique theory of law, i.e. , that they are 15 entitled to recover even though the claims they settled were 16 without merit. Both appellants and the Government have 17 contended, and continue to contend, that Agent Orange did not 18 cause the injuries of which the plaintiffs complain. "Third 19 party defendants as well as third party plaintiffs agree that 20 Agent Orange cannot be shown to have caused any injury to any 21 member of the class." 611 F. Supp. at 1222. Nonetheless, 22 appellants assert that they are entitled to reimbursement from 23 the Government. They say that "[t]he district court's finding 24 that there is no proof that Agent Orange caused harm is not 25 26 -4AO 72 (Rev.8/82) �1 relevant here." 2 justifies recovery against the Government, asserting that "[t]he 3 overwhelming evidence in the record that Agent Orange caused no 4 harm provides strong justification for spreading the risk." 5 Whether we view appellants' claims against the Government as 6 seeking contribution or indemnity, we find no merit in the above 7 contentions. 8 Indemnity Co., 609 F.2d 669, 674 (2d Cir. 1979). 9 They argue that the very absence of liability See HS Equities, Inc. v. Hartford Accident & Contribution is the proportionate sharing of liability among *> 10 tortfeasors. 11 240 n.12 (2d Cir.), cert, denied, 389 U.S. 931 (1967). 12 "Typically, a right to contribution is recognized when two or 13 more persons are liable to the same plaintiff for the same injury 14 and one of the joint tortfeasors has paid more than his fair 15 share of the common liability." 16 Transport Workers Union of America, 451 U.'S. 77, 87-88 (1981). 17 "Contribution rests upon a finding of concurrent fault." 18 Stevedoring Co. v. Fritz Kopke. Inc., 417 U.S. 106, 115 (1974). 19 Where, as here, a third-party plaintiff insists that it is not at 20 fault, it cannot contend successfully that the third-party 21 defendant is a joint tortfeasor. 22 Commercial Casualty Ins. Co., 31 F.2d 817, 819 (3d Cir.), cert, 23 denied, 280 U.S. 577 (1929); 18 Am. Jur. 2d Contribution §§ 121, 24 127; 18 C.J.S. Contribution § 3. 25 26 A072 Ingham v. Eastern Air Lines, Inc.. 373 F.2d 227, Northwest Airlines, Inc. v. Cooper Southern Surety Co. v. �1 Assuming that appellants would abandon their "no-fault" 2 stance if their third-party action were tried, they nonetheless 3 could not recover contribution from the Government. 4 Feres, supra, 340 U.S. at 141-42, held that the effect of the 5 Tort Claims Act was "to waive immunity from recognized causes of 6 action" but that "no American law . . . ever has permitted a 7 soldier to recover for negligence, against either his superior 8 officers or the Government he is serving." 9 thus was holding that there was n-o judicially established The Court in In effect, the Court 10 standard of care against which the alleged negligence of a 11 serviceman's superior officers could be measured. 12 Nelms, 406 U.S. 797, 800-801 (1972); Donham v. United States. 536 13 F.2d 765, 774-75 (8th Cir. 1976), aff'd sub nom. Stencel Aero 14 Engineering Corp. v. United States, supra, 431 U.S. 666. 15 16 17 18 19 20 21 22 23 24 25 Even if New York law held a private person liable, that fact would not be dispositive of the question of the United States' liability in this case, because the language of § 1346(b), the jurisdictional provision, does not expand the limited waiver set forth in §§ 2674 et seq. Rather, § 1346(b) is expressly made "[s]ubject to the provisions of" §§ 2671-2680, and the liability that a state would impose on a private individual may not, under § 2674, be imposed on the government except in "like circumstances." The "like circumstances" language in § 2674 means that "the liability assumed by the Government . . . is that created by 'all the circumstances,' not that which a few of the circumstances might create." Feres v. United States, 340 U.S. 135, 142, 71 S. Ct. 153, 157, 95 L. Ed. 152 (1950). Thus, notwithstanding any circumstances in which state law would hold a private person liable for his acts, if those circumstances are in 26 -6AO 72 (Rev,8/82) See Laird v. �1 any material respect not "like" those in which the government's act occurred, there has been no FTCA waiver of sovereign immunity. 2 3 Caban v. United States, 728 F.2d 68, 73-74 (2d Cir. 1984); see 4 Arvanis v. Noslo Engineering Consultants, Inc., 739 F.2d 1287, 5 1292 (7th Cir. 1984), cert, denied, 469 U.S. 1191 (1985). 6 Feres created a bar against recovery that was substantive, 7 not procedural, Lockheed Aircraft Corp. v. United States, 460 8 U.S. 190, 197 n.8 (1983), and has been held in some cases to go 9 to the very jurisdiction of the court, Labash v. United States f 10 Department of the Army. 668 F.2d 1153, 1154-55 (10th Cir.)(citing 11 United States v. Testan, 424 U.S. 392, 399 (1976)), cert, denied, 12 456 U.S. 1008 (1982). 13 the contribution they seek. 14 714 F.2d 714, 721-22 (7th Cir. 1983); Carter v. City of Cheyenne, 15 649 F.2d 827, 828-30 (10th Cir. 1981); Certain Underwriters at 16 Lloyd's v. United States. 511 F.2d 159, 163 (5th Cir. 1975); 17 Newport Air Park, Inc. v. United States, 419 F.2d 342, 346-47 18 (1st Cir. 1969); Maddux v. Cox, 382 F.2d 119, 124 (8th Cir. 19 1967). 20 It precludes appellants from recovering See Hillier v. Southern Towing Co., The result would be the same if appellants sought indemnity 21 on a tort theory of active-passive negligence or primary- 22 secondary liability. 23 second-guessing the wisdom and propriety of the discretionary 24 military and political decisions at issue herein, it hardly is in 25 a position to decide whether the Government was guilty of active If the district court is precluded from 26 -7A072 (Rev.8/82) �1 or passive negligence. 2 secondary liability is inappropriate when established law says 3 that there can be no finding of liability at all. 4 United States to be the active wrongdoer, however, it must first 5 be a wrongdoer." 6 at 721 (citing Slattery v. Marra Bros., Inc.. 186 F.2d 134, 139 7 (2d Cir.)(L. Hand, C.J.), cert, denied, 341 U.S. 915 (1951)). 8 9 Moreover, a finding of either primary or "For the Hillier v. Southern Towing Co., supra, 714 F.2d Appellants seek to avoid the preclusive effect of Stencel by arguing that the governmental wrongdoing upon which they base f 10 their claim to indemnity was directed against them rather than 11 against the servicemen, and that, therefore, it is irrelevant 12 whether the servicemen have a right of recovery against the 13 Government. 14 Government compelled them to manufacture Agent Orange in 15 accordance with government specifications while suppressing 16 information concerning Agent Orange's hazardous nature known only 17 to the Government. 18 appellants by the Government's motion for summary judgment, see 19 Celotex Corp. v, Catrett, 106 S. Ct. 2548, 2552-53 (1986), we 20 find neither factual nor legal basis for this contention. 21 Their contention, in substance, is that the Bearing in mind the burden imposed upon Our review of the record places us in complete accord with 22 Chief Judge Weinstein's findings that "[t]he government and 23 [appellants] had essentially the same knowledge about possible 24 dangers from dioxin in Agent Orange" and that "[appellants'] 25 position that they were unaware of the possible dangers of Agent 26 - 8AO 72 (Rev.8/82) �1 Orange and were misled to their detriment by the government's 2 failure to reveal what it knew in the mid-1960's has no basis in 3 fact." 611 F. Supp. at 1223. In view of the "years of 4 discovery" that preceded the dismissal of appellants' third-party 5 claims, 611 F. Supp. 1223, 1260, it is inconceivable that 6 appellants would not have uncovered and disclosed to the district 7 court any governmental knowledge of hazardous effects that might 8 have precluded such dismissal. 9 factual support for the theory they now espouse, appellants have Instead of coming forward with * 10 argued from the outset that there is no medical causal relation 1.1 between Agent Orange and plaintiffs' injuries. 12 appellants are permitted some inconsistency in their pleadings, 13 Fed. R. Civ. P. 8(e)(2), when those pleadings are put to the 14 test by a motion for summary judgment, appellants must, after 15 adequate time for discovery, "make a showing sufficient to 16 establish the existence of an element essential to [their] case, 17 and on which [they] will bear the burden of proof at trial." 18 Celotex, supra, 106 S. Ct. at 2553. 19 appellants have not shown any knowledge on the part of the 20 Government, exclusive or otherwise, that Agent Orange was a 21 competent producing cause of the plaintiffs' injuries. 22 23 24 25 26 AO 72 ** (Rev.8/821 Although On the present record, Assuming for the argument only that there is sufficient substance in appellants' above-described contention to permit �1 their third-party action to go to trial, the very proof that 2 would be necessary to support that contention on trial would also 3 establish appellants' right to a government contract defense. 4 That defense, which also is discussed in detail in 85-6163 filed 5 herewith, provides in substance that a manufacturer who, in time 6 of war, supplies materials to the Army in accordance with 7 government specifications, is not liable for injuries resulting 8 from a defect in the specifications. 9 that, in appellants' view, would warrant their recovery against Accordingly, the same facts 10 the Government, would preclude a recovery by' the plaintiffs 11 against appellants. 12 announce inconsistent findings of fact and conclusions of law on 13 this issue in order to make the government contract defense 14 inapplicable. 15 claim against the Government, there can be no liability on their 16 part, potential or actual, against which the Government should be 17 required to indemnify them. 18 Cir.), cert, denied, 314 U.S. 689 (1941); Tankrederiet Gefion A/S 19 v. Hyman-Michaels Co.. 406 F.2d 1039, 1042 (6th Cir. 1969); 20 Trojcak v. Wrynn, 45 A.D.2d 770 (1974)(mem.)(citing Dunn v. 21 Uvalde Asphalt Paving Co., 175 N.Y. 214, 218 (1903)). 22 The district judge could not properly 89 C.J.S. Trial § 636. If appellants have a valid See The Toledo, 122 F.2d 255 (2d We find no merit in appellants' contention that the 23 protection against liability provided by Feres and Stencel 24 applies only to the Government and not to its officials, 25 Chappell v. Wallace, 462 U.S. 296 (1983); Rotko v. Abrams, 338 26 -10A072 �1 F. Supp. 46 (D. Conn. 1971), aff'd on opinion below, 455 F.2d 992 2 (2d Cir. 1972); Hefley v. Textron, Inc., 713 F.2d 1487, 1491 3 (10th Cir. 1983), or that it does not apply to claims of 4 constitutional infringement, Trerice v. Pedersen, 769 F.2d 1398, 5 1400-01 (9th Cir. 1985). 6 of appellant, Thompson Chemical Corporation, that the district 7 court erred in not specifically considering its claim of a 8 contractual right of reimbursement. 9 this claim was contained in a contract providing for We also find no merit in the contention The provision giving rise to 10 participation by Thompson in the proposed modification of a- 11 government-owned facility at Weldon Spring, Missouri, which would 12 have enabled that facility to produce Agent Orange. 13 Agent Orange ever was produced at the Welden Spring plant, there 14 were no Agent Orange deaths or injuries "arising out of the 15 performance of this contract" which would bring the contractual 16 indemnification clause into play. 17 respond to the Government's contention that the proper tribunal 18 to hear Thompson's contract claim was the Court of Claims. 19 Hefley. supra. 713 F.2d at 1492; 28 U.S.C. §§ 1346(a)(2) and 20 1491. 21 This being so, we need not See Dismissal of appellants' third-party claims against the 22 Government was proper. 23 affirmed. The order and judgment of dismissal are 24 25 26 -11AO 72 (Rev.8/82) Because no �UNITED STATES COURT OF APPEALS For the Second Circuit Nos. 1084, 1 1 1 0 , 1 1 1 1 , .1137 -- August Term, 1985 (Argued April 10, 1986 Decided^pfl £ 1 19Q7 Docket Nos. 85-6161, 85-6223, 85-6339, 85-6341 IN RE "AGENT ORANGE" PRODUCT LIABILITY LITIGATIO GERALD HOGAN, M.D., Plaintiff-Appellant. v. THE DOW CHEMICAL COMPANY; DIAMOND SHAMROCK CHEMICALS COMPANY; HERCULES INCORPORATED; MONSANTO COMPANY; T H AGRICULTURE & NUTRITION COMPANY, INC.; and UNIROYAL, INC. Defendants-Appellees. CLARA FRATICELLI, et al. , Plaintiffs-Appellants, v. THE DOW CHEMICAL COMPANY; DIAMOND SHAMROCK CHEMICALS COMPANY; HERCULES INCORPORATED; MONSANTO COMPANY; T H AGRICULTURE & NUTRITION COMPANY, INC.; UNIROYAL, INC.; THE UNITED STATES OF AMERICA; and TEN FORMER REGENTS OF THE UNIVERSITY OF HAWAII, Defendants-Appellees. BEFORE: VAN GRAAFEILAND, WINTER and MINER, Circuit Judges. Appeals from summary judgments and a Rule 37(b)(2) dismissal of the United States District Court for the Eastern AO 72A (Rev. 8/82) ) �c District of New York (Weinstein, C.J.) entered in favor of defendants in actions brought by civilian plaintiffs seeking recovery for injuries allegedly sustained through exposure to Agent Orange. Dismissal of Hogan action pursuant to Fed. R. Civ. P. 37(b)(2) affirmed. Summary judgment in favor of appellees and against appellants, Oshita and Takatsuki, affirmed. Dismissal of appellant Fraticelli's claim against appellee chemical companies vacated and matter remanded to district court for further proceedings. Summary judgment dismissing Fraticelli's cause of action against the United States vacated and this cause of action remanded to the district court with instructions to dismiss for lack of jurisdiction. ROBERT A. TAYLOR, JR., Washington, D.C. (Wayne M. Mansulla and Ashcraft & Gerel, Washington, D.C., of Counsel), for Plaintiffs-Appellants. ROBERT C. LONGSTRETH, Trial Attorney, Torts Branch, Civil Division, Department of Justice, Washington, D.C. (Richard K. Willard, Ass't Att'y Gen., Washington, D.C., Raymond J. Dearie, United States Attorney for the Eastern District of New York, and Joan M. Bernott, Special Litigation Counsel, Washington, D.C., of Counsel), for Defendant-Appellee United States of America. JOHN C. SABETTA, New York, N.Y. (Townley & Updike, N.Y., N.Y., of Counsel), for Defendant-Appellee Monsanto Company. LEONARD L. RIVKIN, Garden City, N.Y. (Rivkin, Radler, Dunne & Bayh, Garden City, N.Y., of Counsel), for Defendant-Appellee The Dow Chemical Company. �c STEVEN S. MICHAELS, Deputy Attorney General, State of Hawaii, Honolulu, Hawaii, (Corinne K.A. Watanabe, Attorney General, State of Hawaii, Honolulu, Hawaii, of Counsel), for Defendants-Appellees Regents of the University of Hawaii. Clark, Gagliardi & Miller, White Plains, N.Y., on the brief, for Defendant-Appellee T H Agriculture & Nutrition Company, Inc. Shea & Gould, N.Y., N.Y., on the brief, for Defendant-Appellee Uniroyal, Inc. Kelley Drye & Warren, N.Y., N.Y., on the brief, for Defendant-Appellee Hercules Incorporated A072A �VAN GRAAFEILAND, Circuit Judge: 1 The above captioned appeals raise a number of issues 2 distinct from that of causal relation, the dominant issue in most 3 Agent Orange cases, and will be disposed of largely on the basis 4 of those unrelated issues. The appeals are from a dismissal 5 pursuant to Fed. R. Civ. P. 37(b)(2) and from summary judgments, 6 granted by Chief Judge Weinstein of the United States District 7 Court for the Eastern District of New York in opinions reported 8 at 611 F. Supp. 1290 and 611 F. Supp. 1285. The Rule 37(b)(2) 9 dismissal was against Dr. Gerald Hogan, a resident of Nevada. . •> 10 The summary judgments dismissed the complaints- of three residents 11 of Hawaii, James K. Oshita and Masao Takatsuki, who sue for 12 personal injuries, and Clara Fraticelli, who sues for the 13 wrongful death of her husband, William. Our discussion of the 14 background and procedural history of this litigation appears in 15 Judge Winter's lead opinion, No. 84-6273. 16 convenience, the appeals were briefed and argued together. 17 For purposes of THE HOGAN APPEAL 18 In 1966, Gerald Hogan, a thirty-five-year old doctor, spent 19 four months in Vietnam under contract with the United States 20 Agency for International Development. 21 at a civilian hospital in Da Nang. 22 months, he was a patient in a United States hospital in the same 23 city. 24 suffers were, caused by exposure to Agent Orange which had 25 accumulated on the clothing of native patients or was carried by 26 dust in the air. For one month, he worked During the remaining three He now claims that a variety of illnesses from which he In 1981, Dr. Hogan sued to recover for his injuries, and, in AO 72 �1 due course, his case became part of the raultidistrict litigation 2 in the Eastern District of New York. On March 15, 1985, the 3 magistrate appointed by Chief Judge Weinstein to control 4 discovery ordered that Dr. Hogan's oral deposition be taken on 5 March 21 and 22. The deposition was commenced in the yard of Dr. 6 Hogan's home but was discontinued after several hours when Dr. 7 Hogan, claiming that he was suffering from cardiac arrhythmia (an 8 alteration in the rhythm of the heart beat), refused to continue. 9 The magistrate ordered plaintiff examined by an independent f 10 physician, who reported that the deposition could be continued 11 without adversely affecting the plaintiff's health. Nonetheless, 12 with a conceded understanding of the possible consequences of his 13 refusing to continue with the deposition, Dr. Hogan refused. The 14 district court found that plaintiff's claim of ill health was 15 unfounded, "an excuse to prevent being embarrassed by a searching 16 deposition", and a "blatant attempt to frustrate discovery." 611 17 F. Supp. at 1294-95. 18 In view of the district court's factual findings, which are 19 not clearly erroneous, and Dr. Hogan's awareness of the 20 consequences of his refusal to obey the magistrate's order, we 21 reject Dr. Hogan's contention that the district court erred in 22 dismissing his complaint. Although dismissal unquestionably was 23 strong medicine, the "[hjarshest of all . . . orders," Cine 24 Forty-Second Street Theatre Corp. v. Allied Artists Pictures 25 Corp., 602 F.2d 1062, 1066 (2d Cir. 1979), disposition of the 26 A072/O 1\ in . Q almost unprecedented volume of Agent Orange cases would be �1 interminably delayed if the participants were permitted to 2 disobey court orders with little fear of sanction. 3 of such epic proportions as this, it is particularly important 4 that "the most severe in the spectrum of sanctions provided by 5 statute or rule must be available to the district court . . . , 6 not merely to penalize those whose conduct may be deemed to 7 warrant such a sanction, but to deter those who might be tempted 8 to such conduct in the absence of such a deterrent." 9 Hockey League v. Metropolitan Hockey Club. Inc.. 427 U.S. 639, In litigation National 10 643 (1976); see United States Freight Co. v^ Penn Central Transp. 11 Co.. 716 F.2d 954 (2d Cir. 1983)(per curiam); Trans World 12 Airlines, Inc. v. Hughes, 332 F.2d 602, 615 (2d Cir. 1964), cert, 13 dismissed. 380 U.S. 248 and 249 (1965). 14 district court is affirmed. 15 16 The judgment of the THE HAWAIIAN APPEALS In 1967, while James Oshita, Masao Takatsuki and William J. 17 Fraticelli were working for the University of Hawaii at its 18 College of Tropical Agriculture and Human Resources, they 19 allegedly sustained injuries caused by exposure to Agent Orange 20 which was being tested in the fields by University employees. 21 All three filed Worker's Compensation claims, Oshita and 22 Fraticelli in 1979 and Takatsuki in 1981, and all were awarded 23 benefits. 24 Oshita and Takatsuki presented administrative claims to the 25 United States pursuant to 28 U.S.C. S 2401(b); no such claim has Fraticelli died in April 1981. 26 -377 On January 12, 1981, �1 been filed by Fraticellt's widow, Clara. 2 Oshita, Takatsuki, and Clara Fraticelli, on behalf of herself and 3 her husband's estate, commenced this suit in the United States 4 District Court for the District of Hawaii seeking relief not only 5 for themselves but also for a proposed class consisting of 6 everyone on the Island of Kauai who had been exposed to Agent 7 Orange. 8 allegedly manufactured the injurious herbicide, the complaint 9 named as defendants ten Regents or former Regents of the On January 11, 1982, In addition to the several chemical companies which 10 University of Hawaii, together with the United States and its 11 Department of Defense. 12 case was transferred to the Eastern District of New York by the 13 Judicial Panel on Multidistrict Litigation. 14 Over the objection of the plaintiffs, the In Hawaii, an action for personal injuries must be brought 15 within two years after the cause of action accrues. 16 Stat. § 657-7. 17 plaintiff discovers or reasonably should have discovered the 18 complained of act, the injury and the causal connection between 19 the two. 20 P.2d 689 (1982). 21 plaintiffs' personal injury claims were concerned, the two-year 22 statute started to run no later than 1979, and appellants concede 23 that the Hawaiian statute, standing alone, would have barred 24 their common-law, personal injury claims prior to the bringing of 25 their suits in 1982. A claim accrues under this statute when the Yamaguchi v. Queen's Medical Center, 65 Haw. 84, 648 The district court held that, insofar as the However, relying on American Pipe & 26 .. 4 An T) Haw. Rev. �1 Constr. Co. v. Utah. 414 U.S. 538 (1974), and Crown. Cork & Seal 2 Co., Inc. v. Parker, 462 U.S. 345 (1983), they contend that the 3 running of the statute was tolled by the bringing of the 4 principal Agent Orange class action. 5 misplaced. 6 This reliance is The limitation periods of American Pipe and Crown, Cork were 7 derived from federal statutes. 8 Hawaii's limitation statutes. 9 tolling in a situation such as exists here, it is doubtful Pthat 10 either American Pipe or Crown, Cork can be treated as applicable 11 precedent. 12 (1983); Board of Regents v. Tomanio. 446 U.S. 478, 483-86 (1980); 13 Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 466-67 14 (1975). 15 Here, we are dealing with Because none of them provides for See Chardon v. Fumero Soto, 462 U.S. 650, 660-62 We note, however, Justice Rehnquist's categorical statement 16 in his Chardon dissent that "[i]f the law of a particular State 17 was that the pendency of a class action did not toll the statute 18 of limitations as to unnamed class members, there seems little 19 question but that the federal rule of American Pipe would 20 nonetheless be applicable." 21 "the purposes of litigatory efficiency served by class actions", 462 U.S. at 667. Assuming that for 22 Johnson, supra, 421 U.S. at 467 n.12, the district court agreed 23 with this observation, Oshita 1 s and Takatsuki's claims against 24 the chemical companies still were properly barred. 25 in American Pipe, the Court declared the pertinent tolling 26 -5AO 72 �1 2 rule to be that the commencement of a class action tolls the applicable statute of limitations "as to all asserted members of 3 the class who would have been parties had the suit been permitted 4 to continue as a class action." 5 case, the principal Agent Orange action upon which these personal 6 injury claimants base their claim of tolling was certified as a 7 class action and continued as such until it was settled. 8 Hawaiian claimants never became part of that action. 9 stated above, they attempted unsuccessfully to initiate the^r own 414 U.S. at 554. In the instant These Instead, as 10 class action on behalf of the populace of Kauai. 11 attorney, in an affidavit opposing the removal of their action to 12 the Eastern District of New York, stated that the issues involved 13 in the Hawaiian plaintiffs' suit were "substantially different" 14 from those in the other actions and that the causes of action 15 were "separate and distinct" from those in the already-removed 16 actions. 17 Moreover, their To some extent, at least, he was correct. From the very outset, the district court recognized the 18 principal Agent Orange class action as one brought on behalf of 19 "Vietnam war veterans and members of their families claiming to 20 have suffered damage as a result of the veterans' exposure to 21 herbicides in Vietnam." 22 was based upon a fair reading of the original class action 23 complaints. 24 consisted of such veterans, their spouses, parents, and children, 506 F. Supp. 762, 768. This recognition The class which the district court certified 25 26 -6- �1 who were injured as a. result of the veterans' Vietnam exposure. 2 100 F.R.D. 718, 731-32. 3 The intent of the American Pipe rule is to preserve the 4 individual right to sue of the members of a proposed class until 5 the issue of class certification has been decided. Crown, Cork, 6 supra, 462 U.S. at 354 (Powell, J., concurring). Its purpose is 7 not to toll the statute of limitations for persons such as these 8 Hawaiian plaintiffs who were not members of either the proposed 9 or certified class. The district court did not err therefore i.n f 10 dismissing the personal injury claims as against the chemical 11 companies and the University of Hawaii Regents. 12 Mrs. Fraticelli's cause of action for the wrongful death of her 13 husband did not accrue until his death in 1981, Haw. Rev. Stat. 14 § 663-3, her action against the chemical companies, brought in 15 1982, was not barred by the two-year personal injury statute of 16 limitations, Haw. Rev. Stat. § 657-7. 17 However, because Dismissal of all personal injury and related wrongful death 18 claims against the Regents was required because the Hawaiian 19 compensation statute provides the exclusive remedy against fellow 20 21 22 23 24 25 26 AO 72 IRnu 8/821 �1 employees for work-related injuries. Haw. Rev. Stat. § 386-5. 2 Appellants' claim under 42 U.S.C. § 1983 against the Regents, 3 based on the same injuries, is so devoid of merit, see j)aniels v. 4 Williams, 106 S. Ct. 662 (1986); McClary v. O'Hare. 786 F.2d 83 5 (2d Cir. 1986), that appellants do not even contend on appeal 6 that their action against the Regents should be reinstated. 7 Although the timeliness of actions against the United States 8 is not governed by the Hawaiian statute of limitations, section 9 2401(b) of 28 U.S.C. provides time limitations that are more ' 10 restrictive in that they are jurisdictional 'in nature. That 11 section provides in substance that a tort claim against the 12 United States is barred unless made in writing to the appropriate 13 federal agency within two years after the claim accrues and an 14 action is brought thereon within six months after the claim is 15 denied. 16 compliance with the statutory requirements. 17 Motors Acceptance Corp., 298 U.S. 178, 182 (1936); Altman v. The burden is on the plaintiff to both plead and prove McNutt v. General 18 Connally, 456 F.2d 1114, 1116 (2d Cir. 1972) (.per curiam); Bruce 19 v. United States, 621 F.2d 914, 918 (8th Cir. 1980); Clayton v. 20 Pazcoquin. 529 F. Supp. 245, 247-49 (W.D. Pa. 1981). 21 absence of such compliance, a district court has no subject 22 matter jurisdiction over the plaintiff's claim. 23 24 25 Wyler v. United States. 725 F.2d 156, 159 (2d Cir. 1983). Plaintiffs' complaint does not allege that the filing requirements of section 2401(b) were complied with. Moreover, it 26 -8A072 In the �1 appears to be conceded that Mrs. Fraticelli did not file a claim 2 for her husband's death. 3 file, her complaint against the United States should have been 4 dismissed for lack of jurisdiction. 5 542 F. Supp. 188, 191 (M.D. Pa. 1982). However, the Government 6 concedes that Oshita and Takatsuki filed claims, and therefore 7 the complaint could be amended upon remand to allege that fact. 8 Accordingly, we will assume an amendment and address their claims 1/ on the merits." 9 10 Because of Mrs. Fraticelli's failure to Gallick v. United States. A well-recognized exception to the Government's waiver of 11 immunity for tort liability is the "discretionary function" 12 exception found in 28 U.S.C. § 2680(a). 13 which the Hawaiian plaintiffs complain fall within this 14 exception. 15 use Agent Orange as a defoliant was anything but a discretionary 16 act. 17 a contract with the University of Hawaii to perform field tests 18 with the herbicide. 19 during the course of those field tests, cannot remove them from 20 the category of discretionary functions by vague and irrelevant 21 allegations of negligent labeling, shipping, handling, etc. 22 Dalehite v. United States, 346 U.S. 15, 37-45 (1953); First 23 National Bank in Albuquerque v. United States, 552 F.2d 370, 24 374-77 (10th dr.), cert, denied, 434 U.S. 835 (1977). It cannot be seriously contended that the decision to In pursuance of this decision, the Government entered into Plaintiffs, who claim to have been injured 25 26 -9AO 72 The governmental acts of See �1 The Supreme Court's holding in Dalehite is summarized well 2 in United States v. S.A. Empresa De Viacao Aerea Rio Grandense 3 (Varig Airlines), 467 U.S. 797, 810-11 (1984), where Chief 4 Justice Burger, writing for the Court, said: 5 6 7 8 9 10 11 12 Dalehite involved vast claims for damages against the United States arising out of a disastrous explosion of ammonium nitrate fertilizer, which had been produced and distributed under the direction of the United States for export to devastated areas occupied by the Allied Armed Forces after World War II. Numerous acts of the Government were charged as negligent: the cabinet-level decision to institute the fertilizer export program, the failure to experiment with the fertilizer to determine the possibility of explosion, the drafting of the basic plan of manufacture, and the failure properly to police the storage and loading of the fertilizer. 13 14 15 The Court concluded that these allegedly negligent acts were governmental duties protected by the discretionary function exception and held the action barred by § 2680(a). 16 In Varig, the Court held that the failure of Federal Aviation 17 Administration employees to check certain potentially dangerous 18 items in certifying the safety of an airplane was the exercise of 19 a discretionary function for which the Government was not liable. 20 467 U.S. at 820. 21 These two decisions teach us that, where, as here, the 22 Government is performing a discretionary function, the fact that 23 discretion is exercised in a negligent manner does not make the 24 discretionary function exception inapplicable. 25 26 -1077 See also Cisco v. �1 United States, 768 F.2d 788, 789 (7th Clr. 1985); Begay v. United 2 States, 768 F.2d 1059, 1062-66 (9th Cir. 1985); General Public 3 Utilities Corp. v. United States. 745 F.2d 239, 243, 245 (3d Cir. 4 1984), cert, denied, 105 S. Ct. 1227 (1985); Green v. United 5 States, 629 F.2d 581, 585-86 (9th Cir. 1980). 6 The dismissal of appellant Hogan's complaint pursuant to 7 Fed. R. Civ. P. 37(b)(2) is affirmed. The summary judgment in 8 favor of appellees and against appellants, Oshita and Takatsuki, 9 is affirmed. The chemical companies moved for summary judgment » 10 against Mrs. Fraticelli on the ground that her claim was barred 11 by the military contractor defense. 12 rule upon this claim, and we address it only in general terms. 13 Mr. Fraticelli was a civilian. 14 Agent Orange occurred after the United States government had 15 purchased the herbicide and while the government was testing it 16 for military use. 17 contractor defense, as discussed in Judge Winter's opinion 18 affirming summary judgment against the opt-out plaintiffs, No. 19 85-6163, applies to Mrs. Fraticelli's claim. 20 dismissal of her claim and remand to the district court for a 21 determination on the motion for summary judgment. 22 judgment dismissing Fraticelli's cause of action against the 23 United States is vacated and this cause of action is remanded to 24 the district court with instructions to dismiss for lack of 25 jurisdiction. Nevertheless, his exposure to We believe, therefore, that the military No costs to any party. 26 AO 72 The district court did not 11 We vacate the The summary �FOOTNOTE 1 j_/ 2 disposed of in the same manner as Oshita's and Takatsuki's. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 A072 If addressed on the merits, Mrs. Fraticelli's claim would be � Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource Alvin L. Young Collection on Agent Orange Description An account of the resource <p style="margin-top: -1em; line-height: 1.2em;">The Alvin L. Young Collection on Agent Orange comprises 120 linear feet and spans the late 1800s to 2005; however, the bulk of the coverage is from the 1960s to the 1980s and there are many undated items. The collection was donated to Special Collections of the National Agricultural Library in 1985 by Dr. Alvin L. Young (1942- ). Dr. Young developed the collection as he conducted extensive research on the military defoliant Agent Orange. The collection is in good condition and includes letters, memoranda, books, reports, press releases, journal and newspaper clippings, field logs and notebooks, newsletters, maps, booklets and pamphlets, photographs, memorabilia, and audiotapes of an interview with Dr. Young.</p> <p>For more about this collection, <a href="/exhibits/speccoll/exhibits/show/alvin-l--young-collection-on-a">view the Agent Orange Exhibit.</a></p> Text A resource consisting primarily of words for reading. Examples include books, letters, dissertations, poems, newspapers, articles, archives of mailing lists. Note that facsimiles or images of texts are still of the genre Text. Box The box containing the original item. 196 Folder The folder containing the original item. 5515 Series The series number of the original item. Series VIII Subseries I Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Description An account of the resource <strong>Corporate Author: </strong>United States Court of Appeals for the Second Circuit Date A point or period of time associated with an event in the lifecycle of the resource 1985 Title A name given to the resource Agent Orange Product Liability Litigation: Opinions, 1985-1987 ao_seriesVIII https://www.nal.usda.gov/exhibits/speccoll/files/original/7f48fa6984dbc649d65e5b31e8ef7527.pdf f4309e67a3cf4acd9b6a00e7d8724b05 PDF Text Text Hem B Number 05531 D NotgGannBd Author Corporate Author Report/ArtiCloTTtlO Agent Orange Update JOUmal/BoOk Title Congressional Record - Senate Year 1987 Month/Day September 18 Color Number of ImaQes n ° Descrlpton Notes Tuesday, March 19, 2002 Page 5531 of 5611 �S12392 CONGRESSl6NAL RECORD — SENATE trie continuing- commitment of the American people. I appreciate the opportunity to speak with you today and to have the opportunity to work wtih you to formulate a reasonable, rational, and pragmatic space policy and space program. I deeply admire the work you do and your dedication to this are* of extraordinary national effort. If we work together, we can keep America in its pioneering role in space—a* we have only really Just started the process of unlocking the secrets of the universe and taking man Out to the furthest reaaftc* of the heavens. We are making progress, ai'itf I .':'**) the momentum building s.<j MASA d»y by c5*y, The recent mccess 01 the ^paco sr.attie solid rocket iwoater test, the recent announceaietst that DOD will procure 2 addtional Titais X VX th* recent signing of a new space shuttle contract by NASA and Rockwell, of commercial customers by Martin Marietta find McDonnell Douglas, all point to the forward movement of the U.S. space program—civil and military. For nearly twenty-five years, the United States enjoyed a Golden Age In space and space exploration, much of it produced by people In this community and many of you in this room today. We have done much for which we can be proud. Imagine a 25-year record where not a single life was lost on an operational mission. We should conclude this meeting today with an iron commitment to overselves and each other—that we will produce space results over the next 25 years every bit as daring and Important as our past achievements. Make no mistake about it, the U.S. space program Is alive and well. While we are sorting out our precise goals for the future—an often frustrating process—that debate and list of options is a sign of strength, purpose, and commitment. We will hammer out these decisions and go on to build the U.S. space future with all the skill and determination our nation can command—and with you In Huntsville leading that effort. AGENT ORANGE UPDATE Mr. CRANSTON. Mr. President, my distinguished colleague, the ranking minority member of the Committee on Veterans' Affairs, the Senator from Alaska [Mr. MURKOWSKI], yesterday introduced a bill, S. 1697, to provide a presumption of service connection for Vietnam veterans suffering from nonHodgkin's lymphoma CNHLJ. I agree with Senator MURKOWSKI that serious questions have been raised regarding veterans' exposure In Vietnam to agent orange and its highly toxic contaminant, dioxin. Indeed, these questions have long been of serious concern to me and many of my colleagues. Accordingly, a major focus of my efforts and those of the Committee on Veterans' Affairs in both Houses has been on research which might eventually lead to a greater understanding of the health effects of agent orange exposure and how best to address the special needs of those veterans who may have been exposed to this herbicide. Based on the best available science at this time, I do not think that the answers to these questions have been found, or that an association between agent orange exposure In Vietnam and non-Hodgkin's lymphoma has been demonstrated. The questions which have been raised about the health effects of agent orange are scientific ones, which require scientific research and analysis. They are not susceptible to quick and easy answers. Rather, meaningful answers must be found, not. jun: '.'or purposes of providing compesisaiujn but so that we can know the full viiiana of any threat which may exist to the health of our Vietnam veterans,. Major studies are well underway at this time—in addition to research carried out by the Veterans' Administration CVA], the Centers for Disease Control [CDC] is conducting three studies on the health of Vietnam veterans pursuant to congressional mandate, the status of which I will now outline. Mr. President, at this time I would like to review the major scientific evidence regarding a possible association between agent orange exposure in Vietnam and NHL. CDC EFIDBMIOLOCICAL STUDIES In 1979, through legislation which I authored—enacted in the Veterans' Health Programs Extension and Improvement Act of 1979, Public Law 98151—Congress mandated that the VA conduct an epidemiological study of the possible health effects of exposure to herbicides and dioxin—a highly toxic contaminant of agent orange—on veterans who served in Vietnam. The scope of that study was expanded in 1981, through legislation which I introduced—enacted in the Veterans' Health Care, Training, and Small Business Loan Act of 1981, Public Law 97-72—to authorize the inclusion of an evaluation of the impact on the health of Vietnam veterans of other environmental factors which may have occurred in Vietnam. In 1983, as I had urged for more than 3 years, the CDC took over responsibility for this study. Public Law 96-151, in order to provide assurance that the study would be designed and carried out in a fully appropriate and acceptable manner, requires that, before the study will begin, the Office of Technology Assessment COTAJ will have to approve the protocol and thereafter monitor the conduct of the study. The CDC is conducting the epidemiological study of the health of Vietnam veterans in 3 components. The CDC's protocols for these studies were extensively reviewed in accordance with scientific peer-review criteria and were approved by both the OTA and the Science Panel of the Cabinet Council's Agent Orange Working Group [AOWGJ. The first component, the Vietnam Experience Study ["VES"I, is a three-part effort designed to demonstrate whether or not there is any difference in the health of veterans of the Vietnam era who served in Vietnam compared to the health of veterans who served elsewhere during the same period of time. The second component of the CDC effort, the agent orange study, is de- September 18, 1987 signed to determine whether troops who were exposed to that herbicide during service in Vietnam have suffered long-term adverse health effects as a result of that exposure. The third component, the selected cancers study, is designed to determine whether there is an Increase among Vietnam veterans in the incidence of several serious, but relatively rare, cancers—Including NHL—which have in some studies been suggested to be linked to dioxin exposure. Vietnam experience study. The VES has three parts: A mortality study; detailed health interviews; and comprehensive medical, psychological and laboratory evaluations of veterans. In January 1987, the CDC released the results from the first VES part—an analysis of postservice mortality of over 18,000 Vietnam era veterans. No increase In the number of deaths from NHL for Vietnam veterans was found. The CDC did find an excess of deaths—primarily due to external causes such as motor vehicle accidents and suicides—in the first 5 years after service. However, after that period, except for drug-related deaths, the study found no increase in the death rate for Vietnam veterans as compared to their veteran counterparts who did not serve in Vietnam—including no increase for deaths from NHL. Although the mortality study comprises only one of the three areas of research being conducted in the VES and its results thus do not provide the final results from the VES, it is nevertheless significant that no Increase in deaths from NHL was found. When the final report from the VES is released—which I understand is expected in stages, to begin at the end of this year—I will examine it carefully for any additional information regarding whether Vietnam veterans, as a consequence of their exposure to agent orange or of some other factor, are suffering from an increase in NHL or any other health problem. Agent orange study. The CDC's agent orange study had been stalled since January 1986, pending the outcome of efforts to determine if assumptions about a veteran's exposure to agent orange for purposes of assigning the veteran to a particular study cohort can be validated on the basis of a review of military records. However, during late 1986. the CDC refined a methodology for detecting residuals of dioxin in blood samples which, it was believed, could be used to validate a very intricate exposure-measuring methodology, developed by the defense Department In consultation with CDC, based on military records. This ,blood-testing method of determining dioxin exposure has also been validated and used successfully in other studies, including studies of civilians with known exposures to dioxin. The CDC serologlcal study found, In preliminary results published in July 1987, no significant dioxin exposure �September 18, 1987 CONGRESSIONAL RECORD — SENATE among the Vietnam veterans studied regardless of whether their military records indicated high, intermediate, or low clioxin exposure; moreover, all of the Vietnam veteran participants, with one exception, had dloxln levels well below the upper limit for U.S. residents without known dioxin exposure. Whether the CDC results indicate that, by and large, Vietnam veterans were not exposed to significant amounts of.dioxin, or whether they merely show that exposure cannot be determined from military records remains unclear. Both the OTA and the AOWG are currently evaluating the CDC findings. The OTA, at a meeting in August of its Agent Orange Panel, preliminarily indicated that the CDC blood dioxin study appears to have been properly conducted and to be scientifically valid. Of course, the CDC results do not directly address the issue of a possible association between NHL and agent orange exposure. However, they do raise questions about the amount of exposure Vietnam veterans may actually have received. The CDC and the White House Domestic Policy Council will be determining in the next few months whether the agent orange exposure study, at least as originally envisioned, can be carried out, and the OTA will be reviewing their determinations. The Veterans' Affairs Committee will be very closely monitoring these activities, and I plan to hold a hearing in the next several months, on the status of agent organge study. The selected cancer study is underway at this time. The CDC is still In the process of data collection, and results are expected in early 1989. RANCH HAND STUDY In 1979, the Air Force began an epidemiological study of ranch hand personnel, the former Air Force pilots who flew the planes which sprayed agent orange In Vietnam, to determine whether these veterans suffered adverse health effects from herbicide exposure. In this study, the health of these veterans is being compared with that of Vietnam veteran counterparts who were not exposed to herbicides. The ranch hand veterans clearly received significant amounts of agent orange exposure, probably the highest of any group of Vietnam veterans. Four mortality reports have been released thus far—the most recent in January 1987—and all of them indicate that the ranch hand personnel as a group have not suffered adverse health effects from their exposure to agent orange. None of the four reports demonstrate any health effects which can be conclusively attributed to dioxin exposure—and none of them suggest any link between such explosure and NHL. VA MORTALITY STUDY The VA recently completed a proportionate mortality study of Army and Marine Corps Vietnam veterans. The VA compared causes of death among 24.235 such veterans with that among 25.685 non-Vietnam veterans. Among the Marine Corps Vietnam veterans—who comprised approximately one-fifth of the study subjects—there was a statistically significant two-fold Increase of NHL. Among the Army veterans, who comprised about 80 percent of those studied, there was no increase, indeed there was a deficit— which was not statistically significant—of deaths from NHL. As to all cancers and as to deaths in general, there was no marked difference between causes of death among the Vietnam veterans as compared to the nonVietnam veterans. The VA study certainly supports the suggestion in several studies of a link between NHL and dioxin exposure, and I, along with the chairman of the House Veterans' Affairs Committee, Mr. MONTGOMERY, already have written to the OTA, the AOWG, and the VA Advisory Committee on Environmental Hazards, requesting that each evaluate the study. I think that such review by Independent scientific entitles^-includlng OTA, whose primary mandate is to provide scientific analysis to the Congress—is essential before we can properly evaluate the impact of any scientific study and determine what, if any, legislative response may be appropriate. Moreover, I believe that such independent review is particularly necessary in the case of this VA study, because I understand that—contrary to standard procedure in a scientific study of this magnitude—its protocol was never submitted to peer review, and because it has been rejected for publication in a scientific journal and remains unpublished at this time. Publication in a reputable scientific Journal carries with it clearance through a peer-review process designed to confirm scientific validity. The VA's Advisory Committee expects to meet and discuss the study in October. It may well be that the VA study is scientifically valid, but to proceed without benefit of review by outside scientific entitles would seem to be very unwise. The VA Itself needs to examine additional questions which have been raised by the study including, for example, the health status of Army Vietnam veterans who served in "I" Corps, the area in Vietnam where the majority of the Marine veterans served. As to "I" Corps, my understanding is that in terms of agent orange spray intensity in Vietnam, 2,250,430 gallons were sprayed there but that the greatest intensity of spray was in the "III" Corps where 5,255,938 gallons were sprayed. Mr, President, at this time I would like to note that, contrary to recent assertions, I know of no evidence indicating that the results of this VA study were suppressed. Rather, my understanding is that the VA has been unsuccessfully trying to get the study accepted for scientific publication and S12393 that once it is made public it is no longer eligible for scientific publication. Apparently, the report from tho study has been rejected for publication by one journal, the Journal of the American Medical Association, and the VA is awaiting a decision as to whether another journal will accept It. NON-VETERAN HERBICIDE STUDIES In addition to studies of the effects of dioxin exposure on .Vietnam veterans, other independent studies have examined the effects of herbicide exposure on agricultural, forestry, and industrial workers exposed occupationally. Some of these studies have found some excesses of NHL among exposed workers. Studies conducted in Sweden by L. Hardell and others on the effect of years of occupational exposure to phenoxy herbicides. Including in some cases compounds containing dioxin. have been inconsistent with respect to finding an association between such exposure and NHL. Certain of these studies have found fivefold to sixfold increases in NHL. However, others of these studies have not found an increase. A similar study conducted in New Zealand has found no link at all between NHL and herbicide exposure. In September 1986, the results of a study entitled "Agricultural Herbicide Use and Risk of Lymphoma and SoftTissue Sarcoma" ("Kansas Study"), conducted by the National Cancer Institute and the University of Kansas, were published. This study examined the effect of exposure to certain herbicides—which, almost exclusively, were not contaminated with dioxin— through agricultural use, including any relationship with NHL. The components of some of the herbicides were also present in agent orange. The report of the Kansas Study found a significant Increase of NHL among the agricultural workers. At my request, the OTA and the AOWG reviewed this study. As is described more fully in my statement in the CONGRESSIONAL RECORD on February 7. 1987 (page S1769), both the OTA and the AOWG raised significant questions about the significance of the Kansas study results as far as Vietnam veterans were concerned. Concerns were expressed regarding the small number of cases on which the NHL findings were based. More importantly, both entities noted that almost all of the herbicide exposure evaluated in the study consisted of exposure to 2,4-dichlorophenoxyacetic acid ("2,4-D"), rather than to dioxin. Although 2,4-D is one of the components of agent orange, because it does not persist in the environment substantial exposure in Vietnam would have required either direct contact with agent orange or exposure very shortly after spraying. Accordingly, as OTA observed, few Vietnam veterans would have been exposed to 2,4-D. and the results of the Kansas study do "not provide strong support for attributing the occurrence of non-Hodgkin's �312394 CONGRESSIONAL RECORD — SENATE lymphomas In Vietnam veterans to agent orange". Another recent study on this issueentitled "Soft Tissue Sarcoma and Non-Hodgkins Lymphoma in Relation to Phenoxy Herbicide and Chlorinated Phenol Exposure in Western Washington" which was published in the May 1987 issue of the Journal of the Na'tional Cancer Institute—sought to "investigate the relationship between the incidence of soft tissue sarcomas and NHL and past exposure to phenoxy herbicide and chlorinated phenol using a population-based case-control approach." This study found "small but significantly Increased risks for developing NHL in association with some occupational activities involving exposure to phenoxy herbicides, particularly for prolonged periods, and possibly, in combination with other chemicals." The study did not demonstrate "a positive association between increased cancer risks and exposure to any specific phenoxy herbicide product alone." Mr. President, the Senate and House Veterans' Affairs Committees have asked OTA, the AOWG. and the VA Advisory Group to review this study and provide their views on it and its relevance to issues relating to Vietnam veterans. Finally, it is very important to keep in mind in evaluating the evidence regarding a possible link between dioxln exposure and NHL that the group of Vietnam veterans who likely had the heaviest dioxin exposure—and therefore would be the likeliest group to experience an Increase in dioxin-related diseases—the ranch hand veterans, has not shown an excess of NHL above its non-Vietnam-veteran counterparts and that the CDC mortality study showed no excess in NHL deaths among Vietnam veterans above their rion-Vietnam-veteran counterparts. CONCLUSION the efforts underway to find answers to those questions. To that end, once we have received the decision of the executive branch, through the AOWG and the Domestic Policy Council, regarding the CDC agent orange study, and the evaluations of the VA mortality study from the three bodies we have requested to make such evaluations, I plan to schedule hearings of the Veterans' Affairs Committee on the agent orange issue. In the meantime, the committee is moving forward with the legislation mandating a review by. the National Academy of Sciences [NAS1 of all the scientific literature,, evidence, and studies pertaining to the human health effects of exposure to agent orange, as provided in S. 1510, introduced by the Senator from Massachusetts [Mr. KERRY] and myself and approved by our committee on July 31. as part of S. 9. I hope to bring S. 9 before the Senate later this month or next. Mr. President, the evidence associating non-Hodgkin's lymphoma with exposure to agent orange is suggestive at best. Substantial additional scientific Information is expected in the next few months, including the evaluations of the VA mortality study and the Washington study and a decision on the CDC agent orange study. I do not believe that we can justify prematurely proceeding with the enactment of piecemeal legislation to benefit only a very small number of the Vietnam veterans who believe they suffer from agent orange-related diseases. I do not think that an association between agent orange and NHL must be established beyond a reasonable doubt; but when there is no indication that conclusive scientific answers cannot be found, action establishing a presumptive connection while pertinent studies are ongoing must surely have a strong basis in valid and accepted scientific evidence. Should that evidence be found, I will lead the way to the enactment of legislation to provide compensation for those veterans who are .entitled to it. Mr. President, I have been in close communication regarding .the agent orange issue with my counterpart in the other body* House Veterans' Affairs Committee Chairman G.V. "SONNY" MONTGOMERY. I am confident that he and I share a commitment to doing what is right for Vietnam veterans on this issue and we and our ranking minority members, Senator FRANK MURKOWSKI and Representative GERALD SOLOMON, and our two committees will be working closely together in the days and months ahead as we continue to grapple with this very complicated, divisive, intensely felt, vitally important issue. I recognize that the issue of veterans' exposure to agent orange through their service in Vietnam is an emotional and divisive one for many Vietnam veterans, as well as for their families and others. That is why we have required that the results of the CDC's blood dioxin analysis and of the VA's recent mortality study be reviewed by three independent scientific entities. It would be ironic—and, I think, irresponsible—if the Congress, after working for so many years to mandate epidemiological studies of Vietnam veterans, and after over $50 million has been spent on them, were now to act on the basis of limited and disputed scientific knowledge, .when the results from the CDC VES study and the evaluation of the results from the VA . study are expected to be available in only a few months. Mr. President, I do not believe that this Is an appropriate time for legislaMESSAGES FROM THE tive action to establish presumptions PRESIDENT of service connection for certain diseases occurring in Vietnam veterans. Messages from the President of the Rather, we must focus more closely on United States were communicated to September 18, 1987 the Senate by Ms. Emery, one of his secretaries. EXECUTIVE MESSAGES REFERRED As in executive session, the Presiding Officer laid before the Senate messages from the President of the United States submitting sundry nominations, which were referred to the appropriate committees. * (The nominations received today are printed at the end of the Senate proceedings.) ANNUAL REPORT OF THE REHABILITATION SERVICES ADMINISTRATION—MESSAGE FROM THE PRESIDENT—PM 66 The PRESIDING OFFICER laid before the Senate the following message from the President of the United States, together with an accompanying report; which was referred to the Committee on Labor and Human Resources: To the Congress of the United States: In accordance with Section 13 of the Rehabilitation Act of 1973, as amended, I am pleased to transmit the annual report of the Rehabilitation Services Administration. The report, prepared by the Department of Education, covers activities supported .under the Act in Fiscal Year 1986. RONALD REAGAN. THE WHITE HOUSE, September 18,1987. MESSAGES FROM THE HOUSE At 2:42 p.m.. a message from the House'Of Representatives, delivered by Ms. Goetz, one of Its reading clerks, announced that the House had passed the following bills, in which it requests the concurrence of the Senate; • H.R. 442. An act to implement the recommendations of the Commission on Wartime Relocation and Internment of Civilians; and H.R. 3269. An act to amend the ExportImport Bank Act of 194$. MEASURES PLACED ON THE CALENDAR The following bill was read the first and second times by unanimous consent, and placed on the calendar: H.R. 3289. An act to amend the ExportImport Bank Act of 1945. INTRODUCTION OF BILLS AND JOINT RESOLUTIONS The following bills and joint resolutions were introduced, read the first and second time by unanimous consent, and referred.as indicated: By Mr. HATCH: S. 1701. A bill to Improve the administration and enhance the utility of the National Assessment of Educational Progress: to the Committee on Labor and Human Resources. By Mr. NICKLES: 8. 1702. A bill to provide that any requirement to substantiate a deduction under the Internal Revenue Code of 1986 for business � Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource Alvin L. Young Collection on Agent Orange Description An account of the resource <p style="margin-top: -1em; line-height: 1.2em;">The Alvin L. Young Collection on Agent Orange comprises 120 linear feet and spans the late 1800s to 2005; however, the bulk of the coverage is from the 1960s to the 1980s and there are many undated items. The collection was donated to Special Collections of the National Agricultural Library in 1985 by Dr. Alvin L. Young (1942- ). Dr. Young developed the collection as he conducted extensive research on the military defoliant Agent Orange. The collection is in good condition and includes letters, memoranda, books, reports, press releases, journal and newspaper clippings, field logs and notebooks, newsletters, maps, booklets and pamphlets, photographs, memorabilia, and audiotapes of an interview with Dr. Young.</p> <p>For more about this collection, <a href="/exhibits/speccoll/exhibits/show/alvin-l--young-collection-on-a">view the Agent Orange Exhibit.</a></p> Text A resource consisting primarily of words for reading. Examples include books, letters, dissertations, poems, newspapers, articles, archives of mailing lists. Note that facsimiles or images of texts are still of the genre Text. Box The box containing the original item. 197 Folder The folder containing the original item. 5531 Series The series number of the original item. Series VIII Subseries I Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Source A related resource from which the described resource is derived Congressional Record - Senate Date A point or period of time associated with an event in the lifecycle of the resource September 18 1987 Title A name given to the resource Agent Orange Update ao_seriesVIII https://www.nal.usda.gov/exhibits/speccoll/files/original/fcae7b4d06fed181b1c1c9e750ddcd9b.pdf d7c01d7f6ad72cc307465cadf65bba4c PDF Text Text ItomD Number 05725 G NotScann8d Author Corporate Author RepOrt/ArtlClO TltlB A 9ent Orange Working Group (AOWG) Membership with transmittal note Journal/Book Title Year 000 ° Month/Day Color Numbor of Images n 8 Descrtpton Notes Tuesday, March 26, 2002 Page 5725 of 5743 �AGENT ORANGE WORKING GROUP .MEMBERSHIP DEPARTMENT OF HEALTH AND HUMAN SERVICES Lead Representatives: Mr. James Stockdale (Chair, AOWG) Deputy Under Secretary for intergovernmental Affairs Room 622-E HHH Building 200 Independence Avenue, S.W. Washington, D.C. 20201 (202) 245-0409 Mr. Bart Kull (Chair, AOWG Public Affairs Panel and Substitute Chair, AOW^) Special Assistant to the Deputy Under Secretary for Intergovernmental Affairs Room 632-F HHH Building 200 Independence Avenue, S.W. Washington, D.C. 20201 (202) 245-6156 Dr. Vernon Houk (Chair, AOWG Science Panel)* Acting Director Center for Environmental Health Centers for Disease Control 1600 Clifton Road, N.E. Atlanta, Georgia 30333 FTS 236-4111 Commercial (404) 236-4111 Ms. Maureen Corcoran (AOWG Legal Counsel) Special Assistant to the General Counsel HHH Building Room 707-F 200 Independence Avenue, S.W. Washington, D.C. 20201 (202) 245-6313 Dr. Peter Beach (AOWG Staff Director) Director of Veterans Affairs Office of the Under Secretary HHH Building, Room 346-E 200 Independence Avenue, S.W. Washington, D.C. 20201 (202) 245-2210 �DEPARTMENT OF HEALTH AND HUMAN SERVICES Dr. David Rail* Director, National Institute of Environmental Health Sciences P.O. Box 12233 Research Triangle Park, NC 27709 FTS 629-3201 Commercial (919) 541-3201 Dr. Carl Keller* Epidemiologist National Institute of Environmental Health Sciences Room 2B55, Building 31 National Institute of Health Bethesda, Maryland 20205 (301) 496-3511 Dr. James S. Dickson III* Senior Advisor for Environmental Affairs Office of the Assistant Secretary for Health Room 701-H HHH Building 200 Independence Avenue, S.W. Washington, D.C. 20201 (202) 245-6811 Dr. Renate Kimbrough* Research Medical Officer Centers for Disease Control 1600 Clifton Road, N.E. Atlanta, Georgia 30333 FTS (236-4176) Commercial (404) 452-4176 Dr. Philip Landrigan, Director* Division of Surveillance, Hazard Evaluations and Field Studies 4673 Columbia Parkway Cincinnati, Ohio 45226 FTS (684-2427) Commercial (513) 684-2427 Dr. Herbert E. Christensen* NIOSH Room 8A53, Parklawn Building 5600 Fishers Lane Rockville, Maryland 20857 (301) 443-1650 �DEPARTMENT OF HEALTH AND HUMAN SERVICES Dr. Patricia A. Honchar" EIS Officer NIOSH Robert A. Taft Laboratories 4647 Columbia Parkway Cincinnati, Ohio 45226 FTS (684-3593) Ms. Jane O'Connell Policy Coordinator OS/ES HHH Building, Room 635-<7 200 Independence Avenue, S.W. Washington, D.C. 20201 (202) 245-6824 Dr. Peter ^reenwald " Director, Division of Resource Centers and Community Activities National Cancer Institute 9000 Rockville Pike Bethesda, Maryland 20205 WHITE HOUSE OFFICE OF POLICY DEVELOPMENT Lead Representative: Ms. Shannon Fairbanks Senior Policy Adviser Office of Policy Development Executive Office of the President Room 213 Old Executive Office Building Washington, D.C. 20500 (202) 456-2884 WHITE HOUSE OFFICE OF SCIENCE AND TECHNOLOGY POLICY Leid Representative: Dr. Denis Prager* Associate Director for Human Resources & Social Services Office of Science & Technology Policy Executive Office of the President Room 360 Old Executive Office Building Washington, D.C. 20500 (202) 456-6272 VETERANS ADMINISTRATION Lead Representative: Charles Hagel Deputy Administrator Veterans Administration 810 Vermont Avenue, N.W. Washington, D.C. 20420 (202) 389-5411 �VETERANS ADMINISTRATION Dr. Barclay Shepard (102)* Special Assistant to the Chief Medical Director for Environmental Medicine Veterans Administration 810 Vermont Avenue, N.W. Washington, D.C. 20420 (202) 389-5411 Dr. Lawrence B. Hobson (102)* Clinical Assistant Office of Environmental Medicine Veterans Administration 810 Vermont Avenue, N.W. Washington, D.C. 20420 (202) 398-5411 Major Alvin L. Young, USA? (102)* Specialist in Environmental Sciences Office of the Special Assistant to the Chief Medical Director Veterans Administration 810 Vermont Avenue, N.W. Washington, D.C. 20420 (202) 389-5411 DEPARTMENT OF DEFENSE Lead Representative: Captain Peter Flynn* Special Assistant for Professional Activities OASD (Health Affairs) Room 3E182 The Pentagon Washington, D.C. 20301 (202) 697-8973 Dr. Jerome G. Bricker* Special Assistant for Legislation OASD (Health Affairs) Room 3E182 The Pentagon Washington, D.C. 20301 (202) 697-8973 �DEPARTMENT OF DEFENSE Major Phillip G. Brown* Asst. for Bioenvironmental Engineering USAF/SEGES Boiling Air Force Base Washington, D.C. 20232 (202) 767-5078 DEPARTMENT OF AGRICULTURE Lead Representative: Dr. Philip Kearney* Chief, Pesticide Degradation Lab U.S. Department of Agriculture BARC-West Bldg. 050 - Room 100 Beltsville, Maryland 20705 (301) 344-3533 Dr. Warren Shaw* Nat'l Research Program Leader - Weed Control National Program Staff BARC-West Room 329 - Bldg. 005 Beltsville, Maryland 20705 (301) 344-3301 ENVIRONMENTAL PROTECTION AGENCY Lead Representative: Dr. John Todhunter Assistant Administrator for Pesticides and Toxic Substances Environmental Protection Agency 401 M Street, S.W. Room 635 - East Tower Washington, D.C. 20460 (202) 382-2902 Dr. Donald Barnes * Environmental Scientist Office of the Assistant Administrator for Pesticides and Toxic Substances Environmental Protection Agency 635 East Tower 401 M Street, S.W. Washington, D.C. 20460 (202) 382-2897 �DEPARTMENT OF LABOR Lead Representative: Mr. William C. Plowden, Jr. Assistant Secretary for Veterans' Employment Room S1315 Frances Perkins Building 200 Constitution Avenue, N.W, Washington, D.C. 20210 (202) 523-9116 Dr. David Logan* Research and Medical Officer OSHA Room N-3656 200 Constitution Avenue, N.W. Washington, D.C. 20210 (202) 523-7193 ACTION Lead Representative: Mr. Thomas W. Pauken Director ACTION 806 Connecticut Avenue, N.W. Room 500 Washington, D.C. 20525 (202) 254-3120 Mr. Jack Wheeler Special Assistant for Veterans Affairs ACTION 806 Connecticut Avenue, N.W. Room 1006 Washington, D.C. 20525 (202) 254-8270 Mr. William Jayne Deputy Director The President's Vietnam Veterans Leadership Program ACTION 806 Connecticut Avenue, N.W. Room 1006 Washington, D.C. (202) 254-8270 20525 �COUNCIL OF ECONOMIC ADVISERS Lead Representative: Dr. Geoffrey Carliner Senior Staff Economist Council of Economic Advisers Room 304 Old Executive Office Building Washington, D.C. 20500 (202) 395-5096 OFFICE OF MANAGEMENT AND BUDGET Lead Representative: Mr. Donald W. Moran Associate Director for Human Resources, Veterans & Labor Office of Management and Budget Room 262 Old Executive Office Building Washington, D.C. 20503 (202) 395-5044 Mr. Bernard H. Martin Deputy Associate Director for Labor, Veterans & Education Division Office of Management and Budget Room 7025 New Executive Office Building Washington, D.C. 20503 (202) 395-3971 CONGRESSIONAL OFFICE OF TECHNOLOGY ASSESSMENT (OBSERVER) Lead Representative: Dr. Michael Gough* Senior Analyst United States Congress Office of Technology Assessment Washington, D.C. 20510 (202) 226-2070 -v Ms. Hellen Gelband Analyst Office of Technology Assessment United States Congress Washington, D.C. 20510 (202) 226-2070 � Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource Alvin L. Young Collection on Agent Orange Description An account of the resource <p style="margin-top: -1em; line-height: 1.2em;">The Alvin L. Young Collection on Agent Orange comprises 120 linear feet and spans the late 1800s to 2005; however, the bulk of the coverage is from the 1960s to the 1980s and there are many undated items. The collection was donated to Special Collections of the National Agricultural Library in 1985 by Dr. Alvin L. Young (1942- ). Dr. Young developed the collection as he conducted extensive research on the military defoliant Agent Orange. The collection is in good condition and includes letters, memoranda, books, reports, press releases, journal and newspaper clippings, field logs and notebooks, newsletters, maps, booklets and pamphlets, photographs, memorabilia, and audiotapes of an interview with Dr. Young.</p> <p>For more about this collection, <a href="/exhibits/speccoll/exhibits/show/alvin-l--young-collection-on-a">view the Agent Orange Exhibit.</a></p> Text A resource consisting primarily of words for reading. Examples include books, letters, dissertations, poems, newspapers, articles, archives of mailing lists. Note that facsimiles or images of texts are still of the genre Text. Box The box containing the original item. 202 Folder The folder containing the original item. 5725 Series The series number of the original item. Series VIII Subseries II Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource Agent Orange Working Group (AOWG) Membership with transmittal note ao_seriesVIII Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource Alvin L. Young Collection on Agent Orange Description An account of the resource <p style="margin-top: -1em; line-height: 1.2em;">The Alvin L. Young Collection on Agent Orange comprises 120 linear feet and spans the late 1800s to 2005; however, the bulk of the coverage is from the 1960s to the 1980s and there are many undated items. The collection was donated to Special Collections of the National Agricultural Library in 1985 by Dr. Alvin L. Young (1942- ). Dr. Young developed the collection as he conducted extensive research on the military defoliant Agent Orange. The collection is in good condition and includes letters, memoranda, books, reports, press releases, journal and newspaper clippings, field logs and notebooks, newsletters, maps, booklets and pamphlets, photographs, memorabilia, and audiotapes of an interview with Dr. Young.</p> <p>For more about this collection, <a href="/exhibits/speccoll/exhibits/show/alvin-l--young-collection-on-a">view the Agent Orange Exhibit.</a></p> Text A resource consisting primarily of words for reading. Examples include books, letters, dissertations, poems, newspapers, articles, archives of mailing lists. Note that facsimiles or images of texts are still of the genre Text. Box The box containing the original item. 197 Folder The folder containing the original item. 5535 Series The series number of the original item. Series VIII Subseries I Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Description An account of the resource <strong>Corporate Author: </strong>National Vietnam Veterans Coalition Date A point or period of time associated with an event in the lifecycle of the resource 1988-11-01 Title A name given to the resource Agent Orange, Pending New Legislation ao_seriesVIII Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource Alvin L. Young Collection on Agent Orange Description An account of the resource <p style="margin-top: -1em; line-height: 1.2em;">The Alvin L. Young Collection on Agent Orange comprises 120 linear feet and spans the late 1800s to 2005; however, the bulk of the coverage is from the 1960s to the 1980s and there are many undated items. The collection was donated to Special Collections of the National Agricultural Library in 1985 by Dr. Alvin L. Young (1942- ). Dr. Young developed the collection as he conducted extensive research on the military defoliant Agent Orange. The collection is in good condition and includes letters, memoranda, books, reports, press releases, journal and newspaper clippings, field logs and notebooks, newsletters, maps, booklets and pamphlets, photographs, memorabilia, and audiotapes of an interview with Dr. Young.</p> <p>For more about this collection, <a href="/exhibits/speccoll/exhibits/show/alvin-l--young-collection-on-a">view the Agent Orange Exhibit.</a></p> Text A resource consisting primarily of words for reading. Examples include books, letters, dissertations, poems, newspapers, articles, archives of mailing lists. Note that facsimiles or images of texts are still of the genre Text. Box The box containing the original item. 191 Folder The folder containing the original item. 5393 Series The series number of the original item. Series VIII Subseries I Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Creator An entity primarily responsible for making the resource Lacey, Pamela Vincent A. Lacey Source A related resource from which the described resource is derived The Journal of Legal Medicine Date A point or period of time associated with an event in the lifecycle of the resource 1982 Title A name given to the resource Agent Orange: Government Responsibility for the Military Use of Phenoxy Herbicides ao_seriesVIII https://www.nal.usda.gov/exhibits/speccoll/files/original/b9290cd678909240fd2b3ef1505d2d96.pdf 1c7fbdd28b202637319c8ccdc8c7e5a1 PDF Text Text Item D Number °5537 D |fot Scanned Author Corporate Author RepOrt/ArtlClB Titte A 9ent Orange: Ten Years of JOUrnal/BOOk TltlO Congressional Record - Senate Struggle 1989 Month/Day Color Numbor of Images November 21 n ° Doscrlpton Notes Tuesday, March 19, 2002 Page 5537 of 5611 �S16540 CONGRESSIONAL RECORD — SENATE With that, Mr. President, I thank the Chair and I yield the floor. I suggest the absence of a quorum. The PRESIDENT pro tempore. The clerk will call the roll, the absence of a quorum having been suggested. The legislative clerk proceeded to call the roll. Mr. FORD. Mr. President, I ask unanimous consent that the order for the quorum call be rescindea. The PRESIDENT pro tempore. Without objection, it is so ordered. NOMINATION SEQUENTIALLY REFERRED Mr. FORD. Mr. President, I understand that this has been cleared on the Republican side. It is a sequential referral. As if in executive session, I ask unanimous consent that when the nomination of Susan J. Crawford to be inspector general at the Department of Defense is reported by the Committee on Armed Services, it be referred to the Committee on Governmental Affairs for not to exceed 20 days. The PRESIDENT pro tempore. Without objection, as in executive session, it is so ordered. The Senator from Kentucky is recognized. Mr. FORD. I thank the Chair. (The remarks of Mr. FORD pertaining to the introduction of legislation are located in today's RECORD under "Statements on Introduced Bills and Joint Resolutions.") Mr. FORD. Mr. President, I suggest the absence of a quorum. The PRESIDENT pro tempore. The clerk will call the roll. The legislative clerk proceeded to call the roll. Mr. BIDEN. Mr. President, unanimous consent that the order for the quorum call be rescinded. The PRESIDENT pro temi Without objection, it is so ordered. The Senator from Delaware is re/tpgnized. Mr. BIDEN. I thank the Chair. (The remarks of Mr. BIDEN peftjaining to the introduction of S. 197tyand S. 1972 are located in today's RECORD under "Statements on Introduce,! Bills and Joint Resolutions.") Mr. BIDEN. Mr. President, I /suggest the absence of a quorum. The PRESIDENT pro tempdre. The clerk will call the roll, the absence of a quorum having been suggested. The assistant legislative clerk proceeded to call the roll. Mr. KASTEN. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded. The PRESIDENT pro • tempore. Without objection, it is so ordered. The Senator from Wisconsin [Mr. HASTEN] is recognized. Mr. KASTEN. Mr. President, I rise today to honor a good sailor and a good friend. Capt. Michael L. Bowman is leaving the Senate, having completed his tour of duty as Principal Deputy to the Secretary of the Navy for Senate liaison. In that post, he was a principled and effective advocate for the needs of the U.S. Navy. I have stood with Mike on the deck of the U.S.S. Wisconsin and discussed the awesome task he and many others have in defending our country. He gave many of us in this body an excellent education in naval affairs, an education for which I myself am particularly indebted to him. His courage and patriotism were in evidence in Vietnam, where he completed 200 missions flying an A-7A aircraft. And these qualities have stood him in good stead ever since. Mike Bowman is an officer and a gentleman. We will all miss him. But I am confident that he will bring to his new task—flying the F18 fighterattack aircraft once again—the same commitment to excellence which he brought to his tasks as Senate liaison. I join all my colleagues in wishing Mike and Sally Bowman a bright future. Mr. President, I suggest the absence of a quorum. The PRESIDENT pro tempore. The clerk will call the roll. The assistant legislative clerk proceeded to call the roll. Mr. DASCHLE. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded. The PRESIDENT pro tempore. Without objection, it is so ordered. Mr. DASCHLE. Mr. President, I ask unanimous consent to speak as if in morning business. The PRESIDENT pro tempore. The Senate is in morning business and the Senator is AGENT ORANGE: TEN YEARS OF STRUGGLE Mr. DASCHLE. Mr. President, we are nearing the end of this session, and it appears very likely that once again the Congress will not pass legislation to provide for compensation for victims of agent orange. There are deep-seated feelings on both sides of this issue, and I personally respect my colleagues on the other side of the aisle, as well as in the other body, who are as convinced about their point of view as I am about mine. I respect their point of view, and I hope that they will respect mine. In that vein, with every good intention, I would like to take a few minutes this evening—I ask the Republican leader if he has an interest in speaking at the moment because I intend to take a few minutes. If he has no interest in doing so, I would like to take a few minutes to talk a little bit about why I feel the way I do and perhaps set the record straight and prepare the record for next year, because this issue is not going to go away. Hopefully, at some point, we can find a meeting of the minds; hopefully, at some point, we can take those who are r 21, 1989 adamantly opposed to doing anything with regard to agent orange compensation and bring them together with those of us who strongly feel the need to find a meaningful solution to this seemingly interminable problem. It is my fundamental belief that agent orange victims, for whatever reason, have been singled out and have not received the care, have not received the attention, have not been given the kind of priority that virtually every other class of veteran suffering from a service-connected disability—or what he or she claims to be a service-connected disability—has received. Fifty-four diseases are currently on the VA's list of presumptive disabilities. These presumptions were made"—some by Congress and some by the VA—because it was determined that they were just as connected to military service as a wound from a bullet, bomb, or grenade. That is what we are saying about diseases associated with exposure to agent orange. I ask unanimous consent at this time to have all 54 of these diseases printed in the RECORD. There being no objection, the material was ordered to be printed in RECORD, as follows: Anemia, primary. Arteriosclerosis. Arthritis. Atrophy, progressive muscular. Brain hemorrhage. Brain thrombosis. Bronchiectasis. Calculi of the kidney, bladder, or gallblad- der. Cardiovascular-renal disease, including hypertension. Cirrhosis of the liver. Coccldioidomycosis. Diabetes mellitus. Encephalitis lethargica residuals. Endocarditis. Endocrinopathies. Epilepsies. Hansen's disease Hodgkin's disease. Leukemia. Lupus erythematosus, systemic, Myasthcnia gravis. Myelitis. Myocarditis. Nephritis. Organic diseases of the nervous system. Osteitis deformans (Paget's disease). Osteomalacia. Palsy, bulbar. Paralysis agitans. Psychoses. Purpura idiopathic, hemorrhagic. Raynaud's disease. Sarcoidosls. Scleroderma. Sclerosis, amyotrophic lateral. Sclerosis, multiple. . Syringomyelia. Thromboangiitis obliterans (Buergcr's disease). Tuberculosis, active. Tumors, malignant, or of the brain, or spinal cord. Ulcers, peptic (gastric or duodenal). (A) Leukemia (other than chronic lymphocytic leukemia). f (B) Cancer of the thyroid. (C) Cancer of the breast. (D) Cancer of the pharynx. .... • (E) Cancer of the esophagus. �November 21,1989 CONGRESSIONAL RECORD — SENATE (F) Cancer of the stomach. (0) Cancer of the small intestine. < H) Cancer of the pancreas. (1) Multiple myeloma. (J> Lymphomas (except Hodgkins disease),, ,.v <K)£ancer of the bile ducts. (L) Cancer of the gall bladder. (M) Primary liver cancer (except if cirrhosis or hepatitis B is indicated. completed we can expect to see'even stronger correlations of dioxin exposure and NHL/ STS. 2. Previous studies were not sensitive enough to detect small, but statistically significant increases in NHL/STS. He further states in his letter: As time progresses, and additional evidence is forthcoming, it will be increasingly difficult for anyone to deny the relationship between dioxin exposure and NHL/STS. When we (military scientists) initiated the herbicide program in the 1960's, we were aware of the potential for damage due to dioxin contamination in the herbicide. We were even aware that the "military" formulation had a higher dioxin concentration than the "civilian" version, due to the lower cost and speed of manufacture. However, because the material was to be used on the "enemy", none of us were overly concerned. We never considered a scenario in which our own personnel would become contaminated with the herbicide. And, if we had, we would have expected our own government to give assistance to veterans so contaminated. Mr. DASCHLE. Thirteen diseases on this list are associated with atomic radiation. We passed those last year. There is also a presumption for spastic colon In former prisoners of war. That presumption was made by Congress. There is a presumption for cardiac disease in amputees. That presumption was made by the VA. In each and every one of these cases we have given the benefit of the doubt to the veteran, as we should. Several of the presumptive disabilities have far less evidence associating them with military service than do disI might emphasize to my colleagues eases associated with agent orange, such as soft-tissue sarcoma, non-Hodg- this was written by one of those scienkin's lymphoma, skin cancer, chlor- tists who wrote the Ranch Hand histoacne, birth defects in veterans' chil- ry. If this is true, then several agencies dren, and other disabilities. I am not here to object to those pre- of the Federal Government have spent sumptions, for those veterans also de- decades trying to keep the truth about serve the benefit of the doubt. But it agent orange from the general public. is important to point out that in many You need only read Dr. Clary's letter cases the scientific evidence is not as to come to that conclusion. In spite of Government efforts to strong as the evidence supporting agent orange compensation, so you obfuscate and manage the science, the cannot help but sympathize with vet- ' truth has been leaking out slowly over erans suffering as a result of their ex- the years. And yet there are those hi posure to agent orange who ask of us, this Congress, in the administration, why them and not us? Why give them and throughout the country who continue to claim that there is not enough the benefit of the doubt and not us? This struggle has been going on for evidence to support compensation. No over 10 years. In fact, it started even evidence, some say. For some, hiding before the Vietnam war began. It is the truth seems to be a full-fledged obbecoming increasingly clear that session. Perhaps, since we have a little almost 20 years ago chemical compa- time, I could set the record straight tonies and military scientists knew that night. Let me say at this point, Mr. agent orange was at least potentially President, that I have the documents to support everything I am saying toharmful to humans. In New Jersey insurance companies night. If any of my colleagues would are now suing chemical companies and like to see any of it, they need only to uncovering evidence that chemical contact me. The first studies with regard to companies knew in the 1950's, over 30 years ago, that agent orange was humans and agent orange occurred in the period from 1974 to 1983. Dr. Lenharmful. I have a letter from Dr. James Clary, nart Hardell was the principal author an Air Force scientist who served in of several of the so-called Swedish Vietnam, saying that he and others in- studies, which began in 1974, with an volved in writing the history of Oper- additional study in 1981. These studation Ranch Hand, the operation that ies, for the first time, showed a link involved the actual spraying of agent between exposure to pesticides made orange, knew that agent orange was of agent orange components and both soft-tissue sarcoma and non-Hodgkins harmful at the time it was used. Dr. Clary, in a letter to me dated lymphoma. As concerns grew, the Congress comSeptember 9, 1988, states, and I will quote' a couple of segments of the missioned a large-scale epidemiological study, to be performed through the letter: I was the scientist who prepared the final VA, of ground troops' exposure to roport on Ranch Hand: Herbicide Oper- agent orange and of potential health ations in Southeast Asia, July 1971, while effects. It was legislation I offered in assigned to the Department of Life Sci- 1979. onces, USAPA, afler completing my work in After a series of revelations that the Vietnam. VA was being less than evenhanded The current literature on dioxins and nonHodgkin's lymphoma and soft-tissue sarco- with the study, there was general consensus that the study should be transma can be characterized by the following: 1. It underestimates (reduced risk esti- ferred from the VA to the Centers for mates) the effect of dioxins on human Disease Control. We later learned that tissue systems. As additional studies are was a mistake. S 16511 Later, In 1984, the Air Force published its first morbidity report on the health status of those involved in operation Ranch Hand. The February 1984 Baseline Morbidity Report concluded that Its results should be viewed as "reassuring." During a February 1984 press conference, the Air Force emphasized that the study was "negative" and that the results were, again, "reassuring." The word "reassuring" has become very familiar, and it seems to be the only one the Air Force is willing to use to describe its findings, regardless of what the findings are. Rest assured, no matter what the study shows, it will be "reassuring." Sometimes, the evidence points to a serious problem, and, yet, the Air Force statement is, "It is reassuring." At the same February press conference, one of the Air Force scientists—a principal investigator, chief statistician, and designer of the study—added some simple words of caution that further study was required and that some concerns remained. For having said that, he was taken off the project. We will come back to the Ranch Hand study in just a few minutes. Later in 1984, we finally passed Public Law 98-542, compensation legislation that codified the reasonable doubt standard, provided for softtissue sarcoma compensation, and required the VA to establish standards for general agent orange and atomic radiation compensation. For the first time, the Corigress addressed in somewhat of a comprehensive manner exposure to agent orange and what we ought to do about it. And yet, in all these years, having passed that legislation more than 6 years ago, not a single veteran was ever compensated for soft-tissue sarcoma, and to this date only a handful of veterans have received compensation for chloracne, a disease acknowledged by virtually everyone to be associated with agent orange exposure. Although it was clear that the Veterans' Administration did not want to provide compensation. Public Law 98542, at least in theory, established for the first time the reasonable doubt principle that might have prevented the need for further legislation had it been followed, and had the Federal Government acted in good faith in its scientific efforts. Since 1984, Public Law 98-542 has been virtually ignored. In spite of the intent of Congress, in spite of the efforts of everyone involved in the writing of that law, in spite of our promises to veterans at that time that at long last, after all these years, they would be given the benefit of the doubt, not one veteran in this country has been compensated for any disease other than chloracne. In 1985 and 1986, the New Jersey Agenty Orange Commission reported that they were working on a blood test that could identify trace levels of �November 21, 1989 CONGRESSIONAL RECORD — SENATE dioxin and help approximate exposure ments (two) which were extracts from Gen- person was exposed, regardless of rank, mulin certain veterans. They pointed out eral Murray's report were deleted by Mr. tiple tours, multiple re-enlistments, or time One attachment which Mr. that they could not rule out exposure, Brick.(See Tab B) was an extract Brick de- in a line company and so forth. The man's leted detailing for exposure score should be but that they could confirm exposure. General Murray's recommendations for the opportunity one priority. By expanding the the number In the summer of 1986, the House Agent Orange Study. The other deleted at- window out of III Corps, South Vietnam, Veterans' Affairs Subcommittee on tachment (See Tab C) concerned General and examining the records of 300 BattalHospitals and Health Care hearing Murray's explanation of his alternative rec- ions, the ability to identify subjects is vastly that I cochaired called witnesses from ommendations. increased. General John E. Murray's report the Office of Technology Assessment, 3. Congressman Daschle Question No. 3: (Page 52) dated 27 May 1986, offers this as Mr. Brick deleted information concerning an option". (Reference Tab B of this the Centers for Disease Control and the blood serum study others, to come before the Congress to the problems about explaining how the De- report.) 13. Congressman Ridge Question No. 10: explain what had happened with the and the paragraph deprived veterans of partment of Justice CDC agent orange exposure study in ESG's findings. OSD(HA) stated these para- No changes were made. r-ecent years. OTA reported that the graphs were personal opinions of Mr. Chris- 14. Congressman Ridge Question No. 11: Centers for Disease Control had tian's and not official Army policy. The fact No changes were made. Question No. 12: 15. Congressman Ridge changed the protocol for the study that ESG findings can be and should be Mr. Brick has changed Mr. Christian's dewithout authorization, OTA also re- used "to support contentions of veterans in finitive answer. Mr. Brick used his own ported at that particular hearing that civil court cases, where proof is not scientif- thoughts to answer this question. Mr. Chrisand the prepetty arguments at CDC were interfer- ic, but based on jury findings essential part tian's answer to the questions were "yes". ponderance of evidence" is an ing with the study's progress and that of Mr. Christian's answer. This could realis- He stated "we do our best research when we progress had virtually come to a stand- tically become the most important discovery are provided data for case control studies.'. still. I should point out that this hear- of the Congressional Hearings. That is to say we are provided- the names ing reported no progress in 1986, seven 4. Congressman Ridge Question 'No. 1: No and units first. It can be, and is done. However, CDC : exiled volunteers from the years after the study was commis- changes were made. 5. Congressman Ridge Question No. 2: Mr. study". sioned. response and Well, after spending millions of dol- Brick shortened, the statements deleted 16. Congressman Ridge Question No. 13: lars on the study protocol, the Centers important and trueanswers. Mr. from Mr. No changes were made. Question No. 14: Christian's original 17.. Congressman Ridge for Disease Control suggested that a leted the statements "ESG never Brick de- Mr. Brick deleted all reference to General heard of valid ground troop study could not the minimal 14-day exposure until it was Murray and his report. This eliminated imeven be done. They said there was no discussed during the Congressional Hear- portant recommendations. Tab B of this way to determine exposure and that ings on 31 July 1986 and that ESG had document will show the recommendations military records were inadequate. never been provided an approved Exposure that were deleted, thus changing Mr. ChrisThey reported the last resort would be Opportunity Index." Question No. 3: Mr. tian's answer. 6. Congressman 18. Congressman Ridge Question -No. 15: to explore blood tests for validating Brick deleted twoRidge paragraphs pertaining to Mr. Brick deleted a sentence that states exposure. ESG's Pilot Study that was completed in ESG 143 The military records experts from April 1986. The attachment, ESG's Pilot study will complete CDCdata elements on a subject but, will disqualify the Army-Joint Services Environmen- Study report was deleted. This deleted at- veteran later. Mr. Brick also deleted the the attal Support Oroup, led by Richard tachment (See Tab D) provided the first tachment which was the Agent Orange PerChristian, testified that military documented assessment of individual expo- sonnel Data Collection Form (See Tab E). opportunity records were adequate and that, in his sureSpecial White and was a major part of Mr. Brick indicated that the form should be the House Science Sub-Panel judgment, the Centers' for Disease conclusions and final report. withdrawn as they, the Congress would not Control could do a valid study if they 7. Congressman Ridge Question No. 4: No understand it. The form illustrates the enormous amount of data that had to be wanted to. We sent some followup changes were made. questions to Mr. Christian at the time. 8. Congressman Ridge Question No. 5: Mr. compiled for each veteran who met all the ; DOD officials altered his followup tes- Brick changed a definitive answer by Mr. criteria requirements. Even this did not timony before it was sent to the Hill, Christian to reflect his own thoughts. Mr. insure the veteran would not be disqualified CDC at a later deleting his information challenging Christian's answer to Congressman Ridge by19. Congressmandate. Ridge explanaCDC's claims. I ask unanimous con- was an emphatic "No." Mr. Brick'sthan Mr. No changes were made. Question No. 16: sent that a DOD memo documenting tion for the answer was different MAXIE M. TENBERG, this action be printed in the RECORD at Christian's. Major, USA, , 9. Congressman Ridge Question No. 6: Mr. this point. Chief, Scientific Support Division. Brick deleted all of Mr. Christian's profesThere being no objection, the mate- sional observations as a technical expert on Mr. DASCHLE. Mr. President, in rial was ordered to be printed in the the Agent Orange Epidemiological Study. September 1986, the New Jersey Agent Mr. Brick deleted an important statement RECORD, as follows: ".. . the '14 day exposure' score was a sur- Orange Commission announced they SEPTEMBER 22,1086. prise announcement at the 31 July hear- had tested several veterans suspected A COMPARATIVE ANALYSIS OF MAJOR DIFFER- ing." This comment was necessary to show to have high agent orange levels and ENCES BETWEEN MR. RICHARD CHRISTIAN'S that CDC had never previously provided verified for the first time, that some ORIGINAL ANSWERS AND MR. SAM BRICK'S ESG an approved exposure index score. Vietnam veterans were subjected to CHANGED RESPONSES CONCERNING CONGRES10. Congressman Ridge Question No. 7: SIONAL QUESTIONS FROM THE HONORABLE Mr. Brick deleted information that was nec- extremely high levels of dioxin expoBOB EDGAR, THE HONORABLE TOM DASCHLE, essary to clarify the answer. Mr. Christian sure. They cautioned that, because of AND THE HONORABLE TOM RIDGE stated, the main objective of the Pilot Study the half-life of dioxin and the fact 1. Congressman Daschle Question No. 1: was .to confirm a units' location in a sprayed that 20 years had passed, the blood All proposed ESG recommendations were area within 2 kilometer 6 days. Late in the test would drastically underestimate changed. Mr Brick's version does not fully Pilot Study ESG was requested to identify exposure. respond to the question. All reference to and provide exposure opportunity scores on At the same time, the House Energy General Murray and his report is'deleted. as many men as we could to complete the and Commerce Committee uncovered The original attachment which was an ex- Pilot Study. He also stated "all criteria retract from General Murray's report was de- quirements such as the 180 days in a line an OMB effort to stop all dioxin releted by Mr. Brick. The significance of this company were eliminated for the Pilot search. It blasted OMB at the time for OMB's claim that there had been attachment (See Tab A) verified Mr. Chris- Study". tian's statement concerning the bizarre 11. Congressman Ridge Question No. 8: "enough" dioxin research and that the methodology that CDC employed in the Basically, no changes were made. Federal Government should stop worcongressionally mandated Agent Orange 12. Congressman Ridge Question No. 9: rying about it. Study as documented by Major" General Mr. Brick completely changed the meaning In 1986, there was a key stuay inJohn E. Murray during his peer review of and answer to this question. All reference to ESG. General Murray and his report was deleted. volving Kansas farmers completed at 2. Congressman Daschle Question No. 2: Mr. Christian had stated "the less stringent the National Cancer Institute. That Mr. Brick deleted all reference to General the criteria, the easier to qualify study sub- study indicated a sixfold increase in Murray and his .report. The original attach- jects. The important criteria is whether a non-Hodgkin's lymphoma among 3-16542 �November 21,1989 CONGRESSIONAL RECORD — SENATE Kansas farmers exposed to 2,4-D, a primary ingredient of agent orange. I hope you will notice the progression of evidence here. OTA announced that CDC changed its protocol. The ArmytJoint Services Environmental Support Group, reported that CDC was studying the wrong people and denying the usefulness of military records that, by the way, have since been shown to be amazingly useful. The New Jersey Agent Orange Commission came forth, and through their blood testing capability provided a major scientific breakthrough. And then the NCI study of Kansas farmers, .completely independent, indicated once again a dramatic increase in the number of farmers experiencing a terminal cancer as a result of exposure to a prime ingredient, of agent orange. How much more evidence is needed? How much farther does one have to go to draw the comparison to other presumptions, to acknowledge that relationship, to do what we have said we were going to do in 1984—simply to provide the benefits of the doubt to the veteran. Not to the chemical companies, not to the Government, but to the veteran. • But the incoming tide of evidence did not stop in 1986. In 1987, a VA mortality study was released—only after being leaked to the New York Times, and it was reported in the Times that that particular study indicated a serious problem in Vietnam veterans who were likely to have been exposed to agent orange. That study, entitled "Proportionate Mortality Study of Army and Marine Corps Veterans of the Vietnam War," a Veterans' Administration study, indicated a 110-percent higher rate of non-Hodgkin's lymphoma in marines who served in heavily sprayed areas as compared with those who served in areas that were not sprayed—a 110-percent higher rate of non-Hodgkin's lymphoma. This was not some scientist from New Jersey. This was not some group of malcontents. This was the VA itself indicating for the first time a 110-percent higher incidence of non-Hodgkin's lymphoma than is a likely result of exposure to agent orange in Vietnam. The VA study also found a 58-percent higher rate of lung cancer. And yet, with that release of new data, the VA tried to discredit the study, tried to say that there were still some doubts about its validity, which was supported by independent scientists. Increases in soft-tissue sarcoma and non-Hodgkin's lymphoma are found in veterans throughout the country. A Washington State study again verified that in 1987. Another VA study found an eightfold increase in soft-tissue sarcoma among veterans most likely to have been exposed to agent orange. This was of borderlne statistical significance, but the findings were nevertheless remarkable. All this as the Centers for Disease Control released its "findings" that the agent orange exposure study could not be done validly. CDC based that announcement on a small group of veterans' blood tests, saying the people they chose for blood tests do not have enough dioxin in their blood, and concluding that military records, therefore, could not be used. Furthermore, they argue that because these few tests were "negative," the "study," which was never conducted, proves that there is no problem at all. Scientists, veterans groups and military records experts all challenge the CDC claims and called the CDC decision scientifically insupportable and medically irresponsible. Some of the people within CDC itself have since hinted that they disagreed with the decision. But there it was. Returning to Ranch Hand, in 1987 I began my own investigation and discovered that those who have insisted that the Ranch Hand study is negative were wrong. Compensation opponents inisted that Ranch Hand offered irrefutable proof that agent orange is not a problem at all—their theory being that Ranch Handers were the most heavily exposed veterans and that they had no problems, proving that no veterans have • problems relating to their exposure to agent orange. And yet, when we pressed the Ranch Hand scientists about much of this, we found there were important discrepancies between a January 1984 draft and the final February 1984 Ranch Hand report. We found that Air Force statements and Air Force facts were not the same. The facts, which had become known to the Air Force by late 1984, still had not been released. We learned that there was an unpublished report showing a doubling of birth defects in Ranch Hand children. That was not released or discussed publicly. The January 1984 draft Ranch Hand morbidity report stated, "It is incorrect to interpret this base line study as 'negative.'" The draft also reported that the Ranch Handers were less well than the controls by a ratio was 5 to 1. It stated that the finding "clearly shows an overwhelming directionality of results: The Ranch Handers have the. predominance of adverse findings." Remember those words, "not negative," Ranch Handers were worse off by 5 to 1 and an "overwhelming directionality of results." The reason I say remember them is because they were never released in the Ranch Hand report. The Air Force chose for some reason to delete those words, those segments of the report. It was "reasurring," they said. Sure, it is reasurring if you delete some of the most damaging, the most critical information suggesting a relationship between agent orange and some of these diseases. Of course, it is reasurring. The Air Force deleted these findings from the final report at the suggestion of a Ranch Hand Advisory Committee S16543 set up by the White House Agent Orange Working Group. They also, for whatever reason, chose to dismiss the increased birth defects in the Ranch Hand children. You did not hear about that at the 1984. press conference either. It is no wonder when I go to the House or when I talk to people here time and again I am told, well, there was no effect, no relationship between Ranch Handers and problems associated with agent orange. Look at the report; where are the findings? They were deleted. . In 1987 Air Force scientists confirmed to me that birth defects in the Ranch Hand children are double those of children of the controls and are not "minor" as originally reported in the 1984 report. That is not TOM DASCHLE saying that; that is hot some flakey scientists in South Dakota or New York or California. These are Air Force scientists who are confirming Ranch Hand information that was deleted from the 1984 report. And they also confirm that they had completed a draft report on birth defects in the Ranch Hand children in December 1984 in followup to the February 1984 Ranch Hand morbidity report. That birth defects report has never been released. Why was it not released? Why did scientists who worked on the Ranch Hand report not want this information to get out? Why was there a coverup? The Ranch Hand Advisory Committee under the White House Orange Working Group told them not to finish it. Later the advisory committee told them to do more work—to check some of the data. Five years later, there is still no report. It took 10 months to write the draft, and so far it has taken 5 years to check the data. Five years later, there is still no public acknowledgementother than what I have reported—of some of this information left out of the original report. There are several other findings that I think are very interesting, and we ought to put it in the CONGRESSIONAL RECORD as we close this session and set the stage for consideration of agent orange legislation next year. Air Force scientists confirmed that there is an increase in skin cancers in the Ranch Hand group and that skin cancers are not related to overexppsure to the Sun, as was suggested in the 1984 report. They confirmed that misclassification in the Ranch Hand exposure index is far-reaching and has the potential to hide other problems in the Ranch Hand group. They admitted that Air Force and White House management representatives became involved in scientific decisions at Ranch Hand in spite of the study protocol's ban on such involvement. The Air Force admitted that Veterans are not represented on the Ranch Hand Advisory Committee in spite of a �S 16544 CONGRESSIONAL RECORD — SENATE protocol requirement that they be represented. Yet another inconsistency was discovered through two different responses to my inquiries. We learned that there are two versions of the minutes of a February 1984 Advisory Committee meeting advising the Air Force scientists to change the conclusions in the 1984 Ranch Hand report. To change the conclusions. Keep in mind, the scientists have all been studying this. They have come together; they put all this information together; they made their report and at the very, last minute, they are told'by a White House advisory committee, "We do not care what you are telling us, what your conclusions may be. We want you to change the report, delete that conclusion, delete that table, minimize the relationship you are talking about. The version of the minutes the Air Force scientists received and sent to me clearly directed the Air Force scientists to "Rephrase the statement, 'This base line report is not negative'," and to take out the table and language showing Ranch Handers were less well than the controls by a 5-to-l ratio. The version I received from the Agent Orange Working Group dated 2 days later did not contain that language, though it was identical in almost every other way. None of these findings were made public. By this time it was January 1988, and the public and the veterans had had no update on Ranch Hand since 1984 in spite of these findings. So you cannot help but understand why somebody, whoever It may be, in response to pur desire on the basis of scientific information to provide compensation to veterans afflicted by agent orange, would point to the Ranch Hand report and say, well, there is no relationship; the Ranch Hand report says so. It says so all right, but why it says so ought to be investigated by both the Veterans' Committees, and by everyone else interested in good g_overnment and how decisions are made in this town, because what happened there was a fraud perpetrated by people whose names we still do not know. In January 1988, I met with Air Force scientists and representatives from the Air Force Surgeon General's office in my office. At that time, the Air Force could not explain the two • versions of the minutes of the Advisory Committee meeting, but confirmed that the memo the Air Force scientists received was an accurate reflection of the meeting. The Air Force refused my request to release the 1984 draft of the birth defects report. The Air Force scientists confirmed mistakes in the 1984 Ranch Hand morbidity report, and confirmed that three Air Force scientists, all three of whom were present—CoL William Wolfe, Dr. Richard Albanese and Dr. Joel Michalek—jointly wrote a technical paper to provide an update on the Ranch Hand results that had not been announced since late in 1984 when they were discovered in the first place. I advised the Air Force officials at that time that either they would publish this paper and announce the changes, or I would announce them. The Air Force agreed to publish a paper written by the three scientists. That was in January. In February, the Air Force published a technical paper with the name of only one of the scientists. Dr. Albanese, who happened to be the scientist they kicked off the Ranch Hand project in 1984. Then the Air Force set out to discredit the paper—the same paper. I might add, that they defended earlier in my office. The Air Force continues to misrepresent the Ranch Hand study findings, and in February of that year continued to call the Ranch Hand findings "negative" and "reassuring." On May 12 of that year the Senate Veterans' Affairs Committee held a hearing. The CDC released its Agent Orange Exposure Study findings again and announced that they would terminate the study, that it could not be done. This, however, did not stop them from continuing to speak about the study as if it were proof that agent orange is not a problem—that no one was exposed. Yet, the testimony contradicted the CDC's published study results. CDC also released its Vietnam Experience Study findings with great fanfare, saying that it, too, showed there is no problem. Yet, the testimony did not even mention an increase In nonHodgkin's lymphoma found in the study, and CDC later suggested that the increase was not verified. In the same hearing, the Air Force officials tried to distance themselves from the February report on Ranch Hand and to belittle its importance but admitted under questioning that it was technically correct and that all three scientists wrote it. The Air Force officials admitted at this hearing that veterans were not represented on the Ranch Hand Advisory Committee, and they had no explanation for this violation of the study protocol. The Air Force officials denied there was any governmental interference in the Ranch Hand science in spite of the fact they had acknowledged such interference in writing to me and in a meeting in my office. For his part, the VA Deputy Director testified at this hearing that there was not a "shred" of evidence that Agent Orange is associated with any veterans' disabilities. When asked what would constitute a "shred" or "reasonable doubt," the Deputy Director refused to answer, saying we should stop worrying about Agent Orange. He suggested that the entire problem was nothing more than a figment of veterans' imaginations. Several days after the May 12 hearing, however, CDC acknowledged in a letter to the chairman and ranking mi- November 21, 1989 nority member of the committee that the increase in non-Hodgkin's lymphoma was real, and bigger than first thought. A sixfold increase, they said. And yet there was no press release from CDC, no public information. Can you blame veterans for wondering what is going on? Can you blame their families who continue to watch all of this unfold, and not share their sense of frustration, their sense of indignation at the conflicting comments, the duplicity, the obfuscation that occurs time and time again when Government officials at the highest level are being called upon to inform the public, but they cover up information instead? You have a VA Deputy Director testifying before a committee of the Congress that there is not a "shred of evidence," in spite of the numerous suggestive studies. You have CDC saying in. a public hearing with press all around that nothing is wrong, and then, just a few days later, they acknowledge in a quiet letter to the same committee that there is a sixfold increase in non-Hodgkin's lymphoma for Vietnam veterans. Late in 1988, CDC released its Agent Orange Exposure Study "findings" yet again in the press, and again argued that no one was exposed in spite of the fact that the study was never actually conducted. The National Cancer Institute replicated its study of Kansas farmers in Nebraska, providing further evidence of a link between Agent Orange and non-Hodgkin's lymphoma. Dr. Hardell in Sweden replicated his earlier study of pesticide workers and soft-tissue sarcoma. A Massachusetts mortality study showed a five fold increase in Vietnam veterans with soft-tissue sarcoma. Elmo Zumwalt, son of the former Chief of Naval Operations in Vietnam, who participated in some of the decisions about spraying, lost a several-year battle to non-Hodgkin's lymphoma and Hodgkin's disease. His father will carry on the battle against Government indifference to Agent Orange victims. Agent Orange compensation opponents, whose strategy seems to hinge on endless waiting, began to argue that we should wait for the "next" study. Congress should not act until the CDC Selected Cancers Study is concluded. They argued and continue to argue that the study will be the "definitive word" on Agent Orange. Here you have five specific scientific occurrences in less than 1 year, in less than 1 year, and we are told that we should not act until we get the "definitive word" by the CDC I was Just told that again a couple of days ago: "Let us not act until the Centers for Disease Control provides the 'definitive word.'" Yet. Agent Orange victims say there are other veterans afflicted with 54 presumptive disabilities who never had to wait for the "definitive word." There are vie- �November 21 1989 CONGRESSIONAL RECORD — SENATE tims of radiation exposure who are eligible for compensation for 13 different diseases who did not have to wait for the "definitive word." Let me point out that the "atomic veterans" did have to wait—for far too long—until Congress finally decided that the "definitive word" might never come. Let us not make that mistake again. The Selected Cancer's Study, even if it were the definitive word, which it will not be, is not an Agent Orange study. It does not even attempt to determine exposure. How can it be the definitive word on Agent Orange if it does not even focus specifically on veterans affected by Agent Orange? The CDC protocol acknowleges that the study does not have sufficient statistical power to detect substantial increases in rare cancers such as softtissue sarcoma and non-Hodgkin's lymphoma and that the problem of misclassification inherent in the study will further hinder the study's ability to detect increases. Furthermore, CDC's general handling of the Agent Orange Exposure Study and the Vietnam Experience Study calls into question the integrity of the selected Cancers Study. You cannot blame those of us who have watched CDC in its work for the last 5 or 6 years for being skeptical about whether this definitive study is going to provide any new evidence that we have not had before, much less anything definitive; And so while we ask these veterans once more to wait, to let us get the final word next spring, they shake their heads and say, "Well, it is funny, the double standard between those other veterans and us, between the criteria that you have set out for virtually every other group and us." Last year the Senate was once again called upon to do what it has done on several different occasions, to pass Agent Orange compensation legislation both independently as well as an amendment to the compensation bill. The House sent it back in the last couple of days of the 100th Congress, indicating, once again, this year there would be no legislation on Agent Orange. This year has also produced evidence and new developments with regard to the case of Agent Orange compensation. It began when a Federal judge ruled in a lawsuit brought by the Vietnam Veterans of America that VA's Agent Orange rules under Public Law 98-542, the very act we passed in 1984, are top strict and do not give veterans the statutorily required benefit of the doubt. It has to be a little embarrassing, I suppose, for the VA, the socalled advocate for veterans, to be told by a judge somewhere in California that you are not doing what the law says you are supposed to do, that you are not giving the veterans the benefit of the doubt. This is where a new Secretary stepped in, Secretary Derwinski. He had a lot of options. Secretary Der- winski could have said, well, we are going to appeal that decision because, for whatever a reason, have decided that the judge is wrong. But for the first time someone in the VA did what he was supposed to do. For the first time someone in the VA put all politics aside and did what the law required. He gave the benefit of the doubt to the veteran. He said—and I might add he got in a lot of hot water for saying this—we are going to ; give the veteran the benefit of the doubt. We are not going to appeal the judge's decision. The House Government Operations ^Subcommittee on Human Resources held a hearing not long ago. They concluded as a result of all the testimony they had received during that hearing that the Centers for Disease Control had badly bungled the study—either by design or by incompetence—and showed clear evidence of White House involvement in the study. Recently, the VA Advisory Committee on Environmental Hazards, the same committee that said that Veterans who were exposed to atomic radiation were not harmed by atomic radiation, were not harmed by exposure to Agent Orange either. During their review of studies related to non-Hodgkin's lymphoma, inapplicable and asked who selected them. A VA lawyer responded, "I did the best I could." The studies were chosen not by a distinguished panel -of independent scientists but by a VA lawyer. Remember, this VA advisory committee is the committee charged with the responsibility of providing a recommendation to the Secretary with regard to the position that this administration will take. This committee that said that exposure to atomic radiation did not'harm veterans, this committee which met for 2 days looking at all of this scientific data, 10 years' worth of information, said they could not reach a consensus. Their "decision" was scrawled on the blackboard, and then submitted to the observers in handwritten form on a blank sheet of paper, the one I am holding up. This is a copy of what was written in hand by this "prestigious" committee on Agent Orange: No typed report, nothing in writing for official documentation, though a typed sheet of paper was issued to the Veterans' Committee later. It says, "The Committee does not find the evidence sufficient at the present time to assert"—"assert" is crossed out and written in instead is "conclude"—"that there is a significant statistical association between exposure to p.oxy.h. and NHL," nonHodgkins lymphoma. "However, the committee cannot rule out such an association." This is all we have from the committee after 2 days of work. I ask unanimous consent it be printed in the RECORD. S16545 There being no objection, the material was ordered to be printed in the RECORD, as follows:. The Committee does not find the evidence sufficient at the present time to conclude that there is a significant statistical association between exposure to p.oxy.h. and NHL. However, the Committee cannot rule out such an association. (Mr. LAUTENBERG assumed the chair.) Mr. DASCHLE. The advisory committee categorized studies and included in the "valid negative" category the VA's own mortality study, which is a positive study by virtually everyone's assessment. When asked for an explanation, the committee replied that any study without an exposure index would be considered negative. I should note at this point that this means the CDC's Selected Cancers Study—the "definitive word"—is dead: on arrival at the VA's advisory committee. It doesn't have an exposure index, so it apparently will not matter to the VA what it says. Well, my legislation, as I discussed, has been around this Chamber for a long time. As recently as August 3, on a vote of 92 to 8, we passed the agent orange compensation bill and sent it again over to the House. We also passed it as an amendment to the compensation bill, S. 13, by unanimous consent on October 3. That brings us to where we are tonight. The House has chosen again not to consider legislation dealing with Agent Orange. In spite of the wealth of evidence from scientists all over this country—in Washington, in Washington State, in Massachusetts, in the very State represented so well by the distinguished Presiding Officer, New Jersey, in the Air Force, in the Veterans' Administration—scientists from virtually every persuasion have come to the same conclusion: That there is a relationship between agent orange and both soft-tissue sarcoma and nonHodgkin's lymphoma; that we ought to give the benefit of the doubt to the veterans, as they so richly deserve. Yet tonight, as we end this session, we are.put in the difficult position of telling these veterans once more that they have to wait. I do not know how much longer they have to wait. But I do know this: We are not going to quit. We are going to continue to press this issue. It is not going to go away. Sooner or later, we are going to find a way to pass this legislation—whether independently or as an amendment to another bill, I do not know. I want to work with those in the House who have a different point of view. I intend to work in good faith to find some way to resolve this issue before the end of this Congress. We were not able to do it this session. But I have every hope "and certainly every "determination that we will resolve this matter, and that the scientists who have come forth in good �S16546 CONGRESSIONAL RECORD — SENATE faith with the evidence that we have laid out tonight will do so with confidence that the Congress can respond to scientific evidence and to veterans who simply ask that we give them what we have given every other veteran who has come before the Congress asking for the benefit of the doubt. We owe it to them, Mr. President. Let us renew our determination to respond. (The remarks of Mr. DASCHLE pertaining to the introduction of S. 1917 are located in today's RECORD under "Statements on Introduced Bills and Joint Resolutions.") APPOINTMENT OP CONFEREES— H.R. 1465 The PRESIDING OFFICER. Pursuant to the order of November 19,1989, the Chair appoints the following Senators to serve as conferees on H.R. 1465: From the Committee on the Environment and Public Works, Mr. BUHDICK, Mr. MOYNIHAN, Mr. MITCHELL, Mr. BAUCUS, Mr. LAOTENBERG, Mr. BREATJX, Mr. CHAFEE, Mr. DURENBERGER, Mr. WARNER, Mr. JEFFORDS, and Mr. HUMPHREY; from the Committee on Commerce, Science, and Transportation, Mr. ROLLINGS, Mr. INOTIYE, Mr. KERRY, Mr. BREATTX, Mr. DANFORTH, Mr. PACKWOOD, and Mr. STEVENS. STATUS OF UNITED STATESJAPAN TRADE NEGOTIATIONS Mr. BRYAN. Mr. President, I wish to bring to the attention of the Senate, the administration, and the Japanese Government that we in Congress are watching with great interest the progress of trade negotiations between the United States and Japan. We are watching, and we are deeply concerned. The other, day the American-negotiators expressed disappointment in the course of discussions with their Japanese counterparts. Our negotiators presented a joint United StatesJapan study which demonstrated that many consumer products sold in Japan cost far more than similar products sold in America and Western Europe. This is a damning report. For years, Americans have been told in countless magazine articles, news reports, and television documentaries that if we could only compete with the Japanese we would be able to export to that country. We were told our products were too expensive. This report should put an end to that canard once and for all. American products consistently sold for less in the United States than what the Japanese system forced them to sell for in Japan. The lesson should be clear to everyone: if Americans, and for that matter West Europeans, make competitively priced products, the Japanese system will put an expensive hidden tariff on our products, pricing our goods out of the Japanese market. Look at the facts: An American-manufactured pair of blue jeans sells for $32 in the United States; in Japan the same pair of jeans costs $55.63. The next time a Japanese trade minister, or for that matter an administration official, talks about free trade have him discuss blue jeans with a textile worker in South Carolina. Breakfast cereal costs $1.89 in America and sells for $3.38 in Japan. The next time a pundit on trade tells us America is at fault, have him speak to the citizens of Battle Creek, or a farmer in Iowa. A set of American-made golf clubs that costs $420 in the United States cost $659.15 in Japan. Mr. President, when these issues are brought up by concerned citizens they are branded as not having sufficient understanding of the cultural differences between America and Japan. Might I respectfully suggest that we do understand the meaning of cultural differences. If we discuss differing tastes in artists that is culture. If we discuss the relative merits of the movies of Akira Kurosawa and Stephen Spielberg that is culture. If we discuss the taste of sushi versus prime rib that is culture. But, when we talk about our goods being systematically priced out of the Japanese market that is Japanese protectionism, not culture. As the American negotiators were meeting the other day with their Japanese counterparts, it was revealed in the American press that a Japanese computer firm in competition with an American manufacturer won a substantial computer design contract by submitting a 1-yen bid. That is right. Fujitsu Ltd. underbid the American firm, by submitting a single yen bid, which amounts to a bid of less than one American penny. And as one examines the pattern of such bids, it is revealed that Japanese firms often take turns dramatically underbidding foreign competitors. The idea apparently in submitting these obviously unrealistic proposals is to break the back of potential American competitors. These kind of tactics can only be viewed as part of a strategy to freeze out American bidders. Can one blame an American firm if their people get discouraged and pull out of the Japanese market? Can you imagine what would happen if an American business had submitted such blatantly rigged bids? This great Chamber would boom with voices decrying protectionism. Editorial pages would justly demand a trust-busting investigation. The pundits would decry but another step toward SmootHawley. I applaud the administration's efforts to try a new approach in dealing with Japanese tactics on trade. Ambassador Carla Hills has embarked ona creative approach in dealing with Japanese tactics. This approach has not been without its share of critics. As these negotiations proceed, the Japanese mandarins November 21, 1989 from the Ministry of Industry and Trade should understand that should Ambassador Hills fail to make major progress that failure will not be in either country's interest. Ambassador Hills has bought time, and it is frankly up to the Japanese to use that time wisely. Mr. President, I yield the floor and suggest the absence of a quorum. The PRESIDING OFFICER. The clerk will call the roll. The legislative clerk proceeded to call the roll. Mr. ROCKEFELLER. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded. The PRESIDING OFFICER (Mr. BRYAN). Without objection, it is so ordered. HEALTH BENEFITS FOR RETIRED COAL MINERS Mr. ROCKEFELLER. Mr. President, in September, I introduced S. 1708 to address the serious financial difficulties in the health benefit funds for retired coal miners. The legislation has gained widespread bipartisan support in both the House and the Senate. It was approved by the Senate Finance Committee in October as part of budget reconciliation legislation. Nevertheless, floor action never occurred because, along with scores of other provisions in the budget legislation, the health benefits bill was put on hold. I did not want adjournment to occur, Mr. President, without commenting on this situation. In a short period of time, we have made significant progress on this bill. We have obtained labor and management cooperation in addressing the problems of the funds. Members of Congress have been educated on the need to take action. Just recently the distinguished majority leader, Senator MITCHELL, and the distinguished Senator from Texas, Senator BENTSEN, the chairman of the Senate Finance Committee have written a letter to me, and I ask unanimous consent that it be printed in the RECORD. There being no objection, the letter was ordered to be printed in the RECORD, as follows: U.S. SENATE, Washington, DC, November 20, 1989. Hon. JOHN D. ROCKEFELLER IV, U.S. Senate, Washington, DC. DEAR JAY: With the conclusion of the first session of the 101st Congress, we want to comment on some important unfinished legislative business on which you have played a leading role in the Senate. We refer to S. 1708, your bill to restore the financial stability of the health benefit trust funds for retired coal miners. We support your efforts on this legislation. f We understand that the funds face serious financial difficulties. This is a matter of national importance and concern. Pensioners and their families across the country rely on the funds for health care and the funds are � Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource Alvin L. Young Collection on Agent Orange Description An account of the resource <p style="margin-top: -1em; line-height: 1.2em;">The Alvin L. Young Collection on Agent Orange comprises 120 linear feet and spans the late 1800s to 2005; however, the bulk of the coverage is from the 1960s to the 1980s and there are many undated items. The collection was donated to Special Collections of the National Agricultural Library in 1985 by Dr. Alvin L. Young (1942- ). Dr. Young developed the collection as he conducted extensive research on the military defoliant Agent Orange. The collection is in good condition and includes letters, memoranda, books, reports, press releases, journal and newspaper clippings, field logs and notebooks, newsletters, maps, booklets and pamphlets, photographs, memorabilia, and audiotapes of an interview with Dr. Young.</p> <p>For more about this collection, <a href="/exhibits/speccoll/exhibits/show/alvin-l--young-collection-on-a">view the Agent Orange Exhibit.</a></p> Text A resource consisting primarily of words for reading. Examples include books, letters, dissertations, poems, newspapers, articles, archives of mailing lists. Note that facsimiles or images of texts are still of the genre Text. Box The box containing the original item. 197 Folder The folder containing the original item. 5537 Series The series number of the original item. Series VIII Subseries I Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Source A related resource from which the described resource is derived Congressional Record - Senate Date A point or period of time associated with an event in the lifecycle of the resource November 21 1989 Title A name given to the resource Agent Orange: Ten Years of Struggle ao_seriesVIII