In Re "Agent Orange" Product Liability Litigation

noting that regulatory “risk assessments may lead to control of a toxic substance even though the probability of harm to any individual is small” while, in civil litigation “a far higher probability (greater than 50%)” is required | noting that it does not make sense to require "that the manufacturers of all potential causal agents be joined” if "it is not within plaintiffs power” and that if the manufacturers claim other parties are joint tortfeasors, the manufacturers are entitled to implead the joint tortfeasors | preparing to conduct a jury trial of ten plaintiffs with “typical injuries . . . characteristic of those of the class” | noting Agent Orange litigation proceeds on diversity jurisdiction since federal question jurisdiction has been rejected | discussing limited Veterans Administration benefits currently payable to spouses and children of veterans | requiring each defendant to establish that "its product could not have caused the plaintiffs' injury or, alternatively, that it should only be responsible for a proportion of the damage " (emphasis added) | discussing limited Veterans Administration benefits currently payable to spouses and children of veterans | “as one expert put it, ‘all of us have probably been exposed to dioxin at some time’ ” | court must focus on absence of collusion in settlement negotiations, in addition to whether interests of all class members were adequately considered | defendants' Agent Orange contracts "called for no warning on the drums about precautions and dangers" | difficulty in establishing plaintiffs’ case and the uncertainties associated with a trial indicated that settlement was in the interest of the plaintiffs and the public | “[A]t least a two-fold increase in incidence of the disease attributable to ... exposure is required to permit recovery if epidemiological studies alone are relied upon.” | Agent Orange shipped in 55-gallon drums to Vietnam where it was mixed in large tanks, “making identification of the individ ual manufacturer’s Agent Orange impossible” | defendants’ Agent Orange contracts “called for no warning on the drums about precautions and dangers” | even with seemingly non-probabilistic evidence, “issues of credibility and varying inferences drawn by the trier based upon varying assessment of probative force may cause reasonable people to assess these percentages in a range” | “for borrowing statute purposes ... a cause of action based on injuries due to exposure to a deleterious substance accrues when the substance is last inhaled, ingested or injected” | "The Class specifically includes persons who have not yet manifested injury." | chart showing cumulative expected number of deaths broken down by cause | “In the absence of state case law directly on point, the Second Circuit, estimating what New York’s highest court would rule, has embraced the traditional doctrine that the place of injury determines where a cause of action accrues.” | explaining why Agent Orange District Court approved the settlement | explaining why Agent Orange District Court approved the settlement | “The Class specifically includes persons who have not yet manifested injury.” | discussing the approaches various jurisdictions have taken toward these theories | discussing the approaches various jurisdictions have taken toward these theories | dioxin one of most powerful poisons known | upholding alternative liability theory in agent orange case | conflict of laws and statutes of limitations | letter from government counsel to court | indeterminacy of plaintiffs and defendants | summarizing problems in proving causation | listing all previously published opinions | letter of government to court | listing all previously published opinions | servicepersons injured by Agent Orange