In Re "Agent Orange" Product Liability Litigation

Citations: 544 F. Supp. 808; 1982 U.S. Dist. LEXIS 9621Docket: MDL 381

Court: District Court, E.D. New York; August 11, 1982; Federal District Court

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In the pretrial order issued on August 11, 1982, in the case of In re "AGENT ORANGE" PRODUCT LIABILITY LITIGATION, the court addressed several motions from the defendants. The key points include:

1. The court reviewed motions to dismiss from defendants Syntex Corporation, Syntex Laboratories, Inc., Syntex Agribusiness, Inc., and Hoffman-Taff, Inc. (Delaware), asserting that they never manufactured Agent Orange. Hoffman-Taff, Inc. (Missouri) also moved to dismiss, claiming that although it manufactured Agent Orange, its products did not reach Vietnam.

2. American International Underwriters (AIU) sought to disqualify the law firm Lester, Schwab, Katz & Dwyer from representing the five defendants, arguing a conflict of interest due to differing positions regarding the manufacturing of Agent Orange. AIU contended that Hoffman-Taff (Missouri) and the "Syntex" defendants had conflicting interests, with the former facing distinct liability.

3. The court determined that the potential dismissal of claims against the "Syntex" defendants would not impact Hoffman-Taff (Missouri)'s right to indemnification from Syntex Laboratories, which was based on a separate agreement. 

4. Consequently, AIU's motion to disqualify Lester, Schwab, Katz & Dwyer was denied. The court noted that the motions to dismiss from the "Syntex" defendants and Hoffman-Taff (Delaware) were largely unopposed, with no evidence presented to show that these defendants supplied Agent Orange or related herbicides to the government. 

Overall, the court upheld the representation of the defendants by Lester, Schwab, Katz & Dwyer and moved forward with the dismissal motions.

The motion by defendants Syntex Corporation, Syntex Laboratories, Inc., Syntex Agribusiness, Inc., and Hoffman-Taff (Delaware) is granted, contingent upon their filing within 20 days a consent agreement that allows for the renewal of claims by current or future Agent Orange plaintiffs if evidence arises indicating they manufactured or sold Agent Orange or similar herbicides for use in Southeast Asia during the Vietnam War. They also agree to waive any statute of limitations defense for claims that could arise from this litigation.

Hoffman-Taff (Missouri) seeks voluntary dismissal under F.R.C.P. 41(a)(2), arguing their minor involvement in Agent Orange production, which was never used in Vietnam, warrants exclusion from the lawsuit. They contend their manufactured product was destroyed before reaching Southeast Asia. The plaintiffs do not oppose this motion, but Dow Chemical Company contests it, asserting Hoffman-Taff (Missouri) remains a proper defendant due to its manufacturing role and potential liability.

The court finds Hoffman-Taff (Missouri)’s claims unconvincing, emphasizing that as a manufacturer of Agent Orange, it can remain a defendant without actively participating in discovery. Dismissing Hoffman-Taff (Missouri) could lead to duplicative litigation if the other defendants are found liable. Therefore, the court denies Hoffman-Taff (Missouri)’s motion for dismissal, advocating for efficient resolution of the case with all relevant defendants participating in a single trial to avoid repetitive litigation of the same issues.

Uniroyal, Inc. filed a motion to implead seven component manufacturers—Mitsui, Co. Ltd., Mitsui, Co. Canada, Ltd., Canadian Hoechst, Ltd., Hoechst A.G., Bayer Canada Ltd., Bayer A.G., and Dow Chemical of Canada, Ltd.—arguing they should participate in the Agent Orange litigation to avoid potential prejudice from their absence. In a prior ruling, the court dismissed claims against other component manufacturers contingent upon them consenting to renewal of the action and waiving statute of limitations defenses. Uniroyal sought similar stipulations for the seven manufacturers or to allow them to decide on participation. However, the court denied the motion, citing the complexity of ongoing Phase I discovery, which is scheduled for trial in June 1983, and concluded that adding these parties would complicate the litigation further. The court acknowledged Uniroyal’s concern for the manufacturers' rights but noted that none had requested to join the litigation. Additionally, the court denied other motions pertaining to disqualification and dismissals of various parties while granting one conditional renewal. The motion to implead was ultimately denied.