In Re "Agent Orange" Prod. Liability Litig.

05-1760-cv
In re "Agent Orange" Prod. Liability Litig.

Also docket nos. 05-1509, 05-1693, 05-1694, 05-1695, 05-1696, 05-1698, 05-
1700, 05-1737, 05-1771, 05-1810, 05-1813, 05-1817, 05-1820, 05-2450, 05-2451

1 UNITED STATES COURT OF APPEALS

2 FOR THE SECOND CIRCUIT

3 August Term, 2006

4 (Argued: June 18, 2007 Final Submission: August 3, 2007

5 Decided: February 22, 2008)

6
7 -----------------------------------------------

8 In re "Agent Orange" Product Liability
9 Litigation

10 -----------------------------------------------

11 J. MICHAEL TWINAM,

12 Plaintiff-Appellant,

13 - v - 05-1509-cv

14 DOW CHEMICAL COMPANY, et al.,

15 Defendants-Appellees.

16 -----------------------------------------------

17 ROBERT S. BAUER and SANDRA J. BAUER,

18 Plaintiffs-Appellants,

19 - v - 05-1693-cv

20 DOW CHEMICAL CO., et al.,

21 Defendants-Appellees.

22 -----------------------------------------------

23 SHERYL A. WALKER, ERIC C. WALKER, A Minor, By his Mother and Next Friend on
24 behalf of SHERYL A. WALKER, STEPHEN J. WALKER, WILLIAM HAMILTON and ESTHER M.
25 HAMILTON, His Wife, Individually and on Behalf of All Others Similarly
26 Situated,

27 Plaintiffs-Appellants,

28 - v - 05-1694-cv

29 DOW CHEMICAL CO., et al.,

30 Defendants-Appellees,
1 DOES 1-100,

2 Defendants.

3 -----------------------------------------------

4 SHERMAN CLINTON STEARNS and DORTHA MONYENE STEARNS,

5 Plaintiffs-Appellants,

6 - v - 05-1695-cv

7 DOW CHEMICAL COMPANY, et al.,

8 Defendants-Appellees.

9 -----------------------------------------------

10 WILMER PLOWDEN JR.,

11 Plaintiff-Appellant,

12 - v - 05-1696-cv

13 DOW CHEMICAL CO., et al.,

14 Defendants-Appellees.

15 -----------------------------------------------

16 CHARLES T. ANDERSON,

17 Plaintiff-Appellant,

18 - v - 05-1698-cv

19 DOW CHEMICAL COMPANY, et al.,
20
21 Defendants-Appellees,

22 PFIZER, INC., et. al.,

23 Defendants.

24 -----------------------------------------------

25 LINDA FAYE CLOSTIO-BREAUX, RACHEAL M. BREAUX, JOEY M. BREAUX, APRIL R. BREAUX,
26 STACY M. BREAUX, ERIC J. BREAUX, and SCOTT M. BREAUX,

27 Plaintiffs,

28 CHARLES J. BREAUX,

29 Plaintiff-Appellant,

30 - v - 05-1700-cv

31 DOW CHEMICAL COMPANY, et al.,

32 Defendants-Appellees.

33 -----------------------------------------------

-2-
1 THOMAS G. GALLAGHER,

2 Plaintiff-Appellant,

3 - v - 05-1737-cv

4 DOW CHEMICAL CO. and OCCIDENTAL CHEMICAL CORP.,

5 Defendants-Appellees.

6 ----------------------------------------------

7 DANIEL RAYMOND STEPHENSON, SUSAN STEPHENSON, DANIEL ANTHONY STEPHENSON and
8 EMILY ELIZABETH STEPHENSON,

9 Plaintiff-Appellants,

10 - v - 05-1760-cv

11 DOW CHEMICAL CO., et al.,

12 Defendants-Appellees.

13 -----------------------------------------------

14 CASEY J. SAMPEY, JR.,

15 Plaintiff-Appellant,

16 - v - 05-1771-cv

17 DOW CHEMICAL CO., et al.,

18 Defendants-Appellees.

19 -----------------------------------------------

20 CHRISTINE NELSON, Individually and on behalf of her deceased husband, FRANKLIN
21 NELSON, REGINALD WILLIAMS, KAREN HOLLAND, FRANKLIN NELSON JR. and SHALISA
22 NELSON,

23 Plaintiffs-Appellants,

24 - v - 05-1810-cv

25 DOW CHEMICAL CO., et al.,

26 Defendants-Appellees.

27 -----------------------------------------------

28 HENRY C. KIDD and SHIRLEANE J. KIDD,

29 Plaintiffs-Appellants,

30 - v - 05-1813-cv

31 DOW CHEMICAL CO., et al.,

32 Defendants-Appellees.

33 -----------------------------------------------

34 WILLIE WILLIAMS JR., and RITA WILLIAMS,

-3-
1 Plaintiffs-Appellants,

2 - v - 05-1817-cv

3 DOW CHEMICAL CO., et al.,

4 Defendants-Appellees.

5 -----------------------------------------------

6 JOE ISAACSON and PHYLLIS LISA ISAACSON,

7 Plaintiffs-Appellants,

8 - v - 05-1820-cv

9 DOW CHEMICAL CO., et al.,

10 Defendants-Appellees.

11 -----------------------------------------------

12 VICKEY S. GARNCARZ,

13 Plaintiff-Appellant,

14 - v - 05-2450-cv

15 DOW CHEMICAL CO., et al.,

16 Defendants-Appellees.

17 -----------------------------------------------

18 JACK RICHARD PATTON,

19 Plaintiff-Appellant,

20 - v - 05-2451-cv

21 DOW CHEMICAL CO., et al.,

22 Defendants-Appellees.

23 -----------------------------------------------

24
25 Before: MINER, SACK, and HALL, Circuit Judges.

26 Appeals from final judgments of the United States

27 District Court for the Eastern District of New York (Jack B.

28 Weinstein, Judge) granting summary judgment to the defendants,

29 orders denying certain requests for discovery, and the order

30 denying the Stephenson plaintiffs' motion to amend their

31 complaint.

-4-
1 Affirmed.

2 JAMES BOANERGES, Cooper, Sprague, Jackson &
3 Boanerges, P.C., Houston, TX; MARK I. BRONSON,
4 Newman, Bronson & Wallis, St. Louis, Missouri;
5 GERSON H. SMOGER, Smoger & Associates, Oakland,
6 California; MARK R. CUKER, Williams Cuker
7 Berezofsky, Philadelphia, PA, for Plaintiffs-
8 Appellants;

9 Christopher E. Buckey, Shanley, Sweeney, Reilly,
10 & Allen, P.C., Albany, NY; David E. Cherry,
11 Campbell, Cherry, Harrison, Davis & Dove, P.C.,
12 Waco, TX; John H. Pucheu, Pucheu, Pucheu &
13 Robertson, L.L.P., Eunice, LA; Bernard F. Duhon,
14 Abbeville, LA; Robert B. Evans, III, Burgos,
15 Evans & Wilson LLC, Metairie, LA; Nira T.
16 Kersmich, Rochester, NY; Jeffrey D. Guerriero,
17 Guerriero & Guerriero, Monroe, LA; Morris E.
18 Cohen, Brooklyn, NY; James Russell Tucker,
19 Dallas, TX (on the briefs), for Plaintiffs-
20 Appellants.

21 ANDREW L. FREY, CHARLES A. ROTHFELD (Lauren R.
22 Goldman, Christopher J. Houpt, of counsel),
23 Mayer, Brown, Rowe & Maw LLP, New York, NY, for
24 Defendants-Appellees.

25 John C. Sabetta, Andrew T. Hahn, Sr., Seyfarth
26 Shaw LLP, New York, NY; Seth P. Waxman, Paul R.
27 Q. Wolfson, Wilmer, Cutler, Pickering, Hale &
28 Dorr, Washington, DC; Richard P. Bress, Latham &
29 Watkins, Washington, DC; Michael M. Gordon, King
30 & Spaulding LLP, New York, NY; William A.
31 Krohley, William C. Heck, Kelley Drye & Warren
32 LLP, New York, NY; James L. Stengel, Laurie
33 Strauch Weiss, Orrick, Herrington & Sutcliffe
34 LLP, New York, NY; Steven Brock, James V. Aiosa,
35 Richard S. Feldman, Rivkin Radler LLP,
36 Uniondale, NY; Lawrence D'Aloise, Jr., Clark,
37 Gagliardi & Miller, White Plains, NY; Myron
38 Kalish, New York, NY (on the brief), for
39 Defendants-Appellees.

40 William A. Rossbach (Timothy M. Bechtel, of
41 counsel), ROSSBACH, HART, BECHTEL, P.C.,
42 Missoula, MT; P.B. Onderdonk, Jr., National
43 Judge Advocate, The American Legion,
44 Indianapolis, IN, for Amicus Curiae Veterans and
45 Military Service Organizations.

46 Ian Heath Gershengorn (Lise T. Spacapan and
47 Fazal R. Khan, on the brief), Jenner & Block
48 LLP, Washington DC, for Amicus Curiae American
49 Chemistry Council and Chlorine Chemistry
50 Council.

51 Raphael Metzger, Metzger Law Group, Long Beach,
52 CA, for Amicus Curiae Drs. Brian G. Durie, Devra
53 Davis, Peter L. deFur, Alan Lockwood, David
54 Ozonoff, Arnold J. Schecter, David Wallinga,
55 Carl F. Cranor, The Council for Education and

-5-
1 Research on Toxic, and the Lymphoma Foundation
2 of America.

3
4 SACK, Circuit Judge:

5 More than thirty-five years ago, the United States

6 military stopped using Agent Orange and related chemicals as

7 defoliants to prosecute the war in Vietnam. This appeal is but

8 the latest chapter in a thirty-year struggle by the litigants,

9 their counsel, and judges of the United States District Court for

10 the Eastern District of New York and of this Court to bring to

11 just legal closure the alleged consequences of that use.

12 We explain below why these sixteen unconsolidated

13 appeals are now before us and why, in our view, the government

14 contractor defense applies to bar these claims. In the course of

15 doing so, we consider the discovery limitations imposed by the

16 district court and that court's denial of the Stephenson

17 plaintiffs' motion to amend their complaint. By an opinion

18 written by Judge Hall also filed today, we decide that those of

19 the sixteen cases that were originally filed in state court were

20 properly removed by the defendants to federal court. A third

21 decision by the panel, written by Judge Miner, addresses the

22 separate issues related to the use of Agent Orange raised on

23 appeal in Vietnam Assoc. for Victims of Agent Orange/Dioxin v.

24 Dow Chemical Co., No. 05-1953-cv.

25 The plaintiffs pursuing this appeal are United States

26 military veterans or their relatives who allege that myriad

27 injuries, mostly forms of cancer, were caused by the veterans'

28 exposure to the chemical defoliant "Agent Orange" during service
-6-
1 in Vietnam.1 They assert that the district court erred in

2 concluding that the government contractor defense -- which

3 protects government contractors from state tort liability under

4 certain circumstances when they provide defective products to

5 the government -- applied to bar the plaintiffs' claims. The

6 plaintiffs contend further that the district court abused its

7 discretion by denying them discovery beyond what was available

8 in files from prior Agent Orange litigation. We disagree with

9 the plaintiffs on both counts.

10 We also conclude that it was error to deny the

11 Stephensons' motion to amend their complaint. In light of our

12 conclusion that the defendants are entitled to invoke the

13 government contractor defense, however, we find the error to be

14 harmless.

15 We therefore affirm the judgments of the district

16 court in all respects.

17 BACKGROUND

18 The cases concerning the United States military's

19 acquisition and use of Agent Orange during the Vietnam War, of

20 which these are but a relative few, and their massive factual

1
Plaintiff Garncarz is the only plaintiff who alleges
harmful exposure to Agent Orange outside of Vietnam. She
contends that her husband died from conditions resulting from his
exposure to Agent Orange along the Korean Demilitarized Zone.
She does not, however, raise any distinct arguments arising out
of her husband's alleged exposure in Korea. We therefore
consider her case, for present purposes, as indistinguishable
from the others before us.
-7-
1 records, have been addressed in so many different judicial

2 opinions over the years that we do not even attempt to list them

3 here. See generally In re "Agent Orange" Prod. Liab. Litig.,

4 304 F. Supp. 2d 404, 410-14 (E.D.N.Y. 2004) ("Agent Orange III

5 Gov. Contractor Def. Op."). Neither do we undertake a detailed

6 retelling of the history of or facts underlying this litigation.

7 See id. at 407-22 (describing the history of Agent Orange

8 lawsuits brought by Vietnam veterans).2 Instead, we set forth

9 below only what we think necessary for an understanding of our

10 resolution of these appeals.

11 Agent Orange was one of several chemically similar

12 herbicides3 used by the United States government during the

13 Vietnam War in connection with "Operation Ranch Hand," the code

14 name for the military's efforts to defoliate various areas in

15 Vietnam. See In re Agent Orange Prod. Liab. Litig., 373 F.

16 Supp. 2d 7, 19 (E.D.N.Y. 2005) ("Between 1961 and 1971, herbicide

17 mixtures . . . were used by the United States and Republic of

18 Vietnam . . . forces to defoliate forests and mangroves, to clear

2
The Court's opinion in Vietnam Assoc. for Victims of Agent
Orange/Dioxin v. Dow Chem. Co., — F.3d —, 2008 WL —, 2008 LEXIS
App. —, No. 05-1953-cv (2d Cir. 2008), filed today, sets forth in
some detail, based on the record in that litigation, the history
of the employment of Agent Orange and related chemicals to
prosecute the war in Vietnam.
3
The several formulations were, like Agent Orange, named
according to the color-coded band on the drums containing the
chemicals. Since Agent Orange was the most widely deployed, the
parties refer to all the herbicides collectively as "Agent
Orange" unless the particular circumstance requires that the
agents be distinguished. We adopt the same convention.
-8-
1 perimeters of military installations and to destroy 'unfriendly'

2 crops, as a tactic for decreasing enemy armed forces[']

3 protective cover and food supplies."). The government purchased

4 the defoliants from the defendants-appellees in the instant

5 appeals pursuant to various government contracts.4 As the

6 defoliation campaign intensified, many of the contracts were

7 subjected to various government directives entered pursuant to

8 the Defense Production Act of 1950, see 50 U.S.C. app. § 2061 et

9 seq., and regulations promulgated pursuant thereto. The

10 government characterized delivery of Agent Orange as part of the

11 prosecution of military action, which enabled the defendants to

12 procure otherwise scarce materials and equipment necessary to

13 produce it. Agent Orange III Gov. Contractor Def. Op., 304 F.

14 Supp. 2d at 424-25.

15 The Agent Orange delivered to the government was a

16 mixture of two different herbicides: 2,4-D (2,4-

17 Dichlorophenoxyacetic acid) and 2,4,5-T (2,4,5-

18 Trichlorophenoxyacetic acid). The contracts required that the

19 chemicals be nearly 100% pure and that they be combined in

20 roughly equal proportions.

21 The manufacture of 2,4,5-T produced, as a byproduct,

22 trace elements of the toxic chemical dioxin (2,3,7,8-

23 Tetrachlorodibenzo para dioxin (TCDD)). The plaintiffs allege

4
Most of these contracts have been produced to the
plaintiffs, but some are difficult to read in the form in which
they survive, and, as discussed below, some are missing.
-9-
1 that it is dioxin that caused the injuries of which they now

2 complain.

3 The amount of dioxin contained in a particular batch of

4 Agent Orange varied depending on the production method used by

5 its manufacturer. See In re "Agent Orange" Prod. Liab. Litig.,

6 818 F.2d 145, 150, 173 (2d Cir. 1987) ("Agent Orange I Settlement

7 Op."), cert. denied, 484 U.S. 1004 (1988); In re "Agent Orange"

8 Prod. Liab. Litig., 818 F.2d 187, 189 (2d Cir. 1987) ("Agent

9 Orange I Opt-Out Op."), cert. denied, 487 U.S. 1234 (1988). The

10 defendants knew at the time they were manufacturing Agent Orange

11 that dioxin was a byproduct and that it could cause certain kinds

12 of harm under certain conditions. Various government agencies

13 and officers assessed the toxicity of the defoliating agents,

14 including Agent Orange, being used in Vietnam. Precisely what

15 knowledge the government and the defendants possessed and when

16 they came to have it is in dispute.

17 I. Overview of Agent Orange Litigation

18 The plaintiffs now before us on appeal represent a

19 small fraction of the many Americans who have pursued legal

20 claims arising out of the government's use of Agent Orange to

21 fight the Vietnam War. See generally Agent Orange III Gov.

22 Contractor Def. Op., 304 F. Supp. 2d at 410-14 (listing more than

23 one hundred Agent-Orange-related decisions); see also, e.g., id.

24 at 407-23 (detailing the history of Agent Orange litigation

25 involving Vietnam veterans). Their claims find their roots in

26 the "Agent Orange I" litigation, the veterans' class action begun

27 in the late 1970s and settled in 1984.
-10-
1 In those cases, the Judicial Panel on Multidistrict

2 Litigation designated the United States District Court for the

3 Eastern District of New York as the Multidistrict Litigation

4 ("MDL") court for all federal Agent Orange-related cases brought

5 by military veterans of various countries. Thereafter, first

6 Judge Pratt and then Judge Weinstein presided over proceedings

7 involving approximately 600 litigants, hundreds of thousands of

8 putative class members, several years of motion practice

9 (including motions for class certification), and one appeal to

10 this Court. On the eve of trial of those cases, the defendants

11 and class representatives reached what was then thought by the

12 parties and the courts to be a final global settlement of Agent

13 Orange-related cases in the amount of $180 million. Agent Orange

14 I Settlement Op., 818 F.2d at 152-55.

15 Because of what we termed "formidable hurdles" to the

16 plaintiffs' claims, id. at 174, we affirmed the district court's

17 approval of the settlement at what -- even at a total of $180

18 million -- we termed "nuisance value," equivalent to "at best

19 only a small multiple of, at worst less than, the fees the

20 chemical companies would have had to pay to their lawyers had

21 they continued the litigation." Id. at 171. The Plaintiffs in

22 287 cases opted out of the class and thereby the settlement.

23 Thereafter, the district court granted the defendants'

24 motion for summary judgment in those opt-out actions "on the

25 alternative dispositive grounds that no opt-out plaintiff could

26 prove that a particular ailment was caused by Agent Orange, that

27 no plaintiff could prove which defendant had manufactured the
-11-
1 Agent Orange that allegedly caused his or her injury, and that

2 all the claims were barred by the military contractor defense."

3 Agent Orange I Opt-Out Op., 818 F.2d at 189 (internal citations

4 omitted).

5 From 1987 through 1997, the settlement fund, which,

6 with interest and other augmentations, eventually grew to about

7 $330 million was distributed to, inter alios, some 291,000 class

8 members who filed claims prior to the 1994 cutoff date. Agent

9 Orange III Gov. Contractor Def. Op., 304 F. Supp. 2d at 421.

10 Meanwhile, two sets of plaintiffs who had been members of the

11 original plaintiff class and who were therefore entitled to

12 receive settlement payments, but whose injuries had manifested

13 after their opportunity to opt out of the class action had

14 expired, filed class actions on behalf of themselves and other

15 similarly situated veterans. The district court decided that

16 because the plaintiffs were class members, their claims were

17 barred, and we affirmed. In re "Agent Orange" Prod. Liab.

18 Litig., 996 F.2d 1425, 1439 (2d Cir. 1993) ("Agent Orange II"),

19 overruled in part on other grounds by Syngenta Crop Protection,

20 Inc. v. Henson, 537 U.S. 28, 34 (2002).

21 Shortly after the settlement fund distributions were

22 completed, the third, and instant, series of lawsuits was

23 initiated. These were brought by two of the sixteen plaintiffs

24 now before us, the Isaacsons and Stephensons, who had not been

25 members of the original plaintiff class. These veterans and

26 their families alleged injuries that resulted from exposure to

27 Agent Orange but did not manifest until after the 1994 cutoff
-12-
1 date for filing settlement claims in the original actions. In a

2 2001 opinion, we held that the district court had erred in

3 deciding that the plaintiffs' claims were barred by the Agent

4 Orange I settlement. Stephenson v. Dow Chem. Co., 273 F.3d 249,

5 261 (2d Cir. 2001) ("Agent Orange III").5 We concluded that a

6 conflict existed between the plaintiffs and the class

7 representatives because the representatives had permitted the

8 settlement fund to terminate without a provision for post-1994

9 claimants such as these plaintiffs. Id. at 260-61 (relying on

10 Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999) and Amchem Prods.,

11 Inc. v. Windsor, 521 U.S. 591 (1997)). As a result, the

12 plaintiffs were not adequately represented by the class, and

13 Agent Orange I did not prevent them from pursuing their claims.

14 Id. at 261.6

15 II. The Instant Appeals

16 On remand, the Stephensons and Isaacsons were

17 eventually joined by fourteen other sets of plaintiffs alleging

18 Agent Orange injuries first discovered after the 1994 cutoff

5
We also held that the defendants had properly removed the
Isaacson case from state to federal court. Id. at 256-57. As
explained in the companion opinion, see Stephenson v. Dow Chem.
Co., 346 F.3d 19, 21 (2d Cir. 2003), this holding was
subsequently vacated by the Supreme Court and remanded to the
district court for a further determination as to the propriety of
removal. See Dow Chem. Co. v. Stephenson, 539 U.S. 111, 112
(2003).
6
At oral argument, we requested supplemental briefing on
the question of whether we are bound by our decision in Agent
Orange III to conclude that these plaintiffs are not bound by the
settlement agreement addressed in Agent Orange I. We received
the parties' submissions on August 3, 2007. In light of our
disposition regarding the government contractor defense, however,
we decline to reach the issue.
-13-
1 date. The cases were not consolidated, but the district court

2 conducted simultaneous proceedings and applied rulings in the

3 Stephenson and Isaacson cases to each of the others. Together,

4 the plaintiffs raised three tort claims under various state laws:

5 design defect, failure to warn, and manufacturing defect.

6 Six days after our mandate issued in Agent Orange III,

7 the defendants moved in the district court for summary judgment

8 against the Stephensons and Isaacsons.7 At about the same time,

9 the Stephensons moved to amend their complaint.

10 On February 9, 2004, several days after receiving

11 voluminous submissions from the plaintiffs and two weeks after

12 oral argument, the district court issued four decisions, two of

13 which -- one granting the defendants' motion for summary judgment

14 and the other denying the Stephensons' motion to amend -- are now

15 before us on appeal.8 Even though only the motions for summary

16 judgment in Stephenson and Isaacson were before it, the district

17 court considered all the evidence put forth by the parties in

7
Although not expressly raised by the appellants or noted
by the district court, the defendants' Rule 56.1 Statement
appears to have been in blatant violation of Local Rule 56.1,
which requires summary judgment movants to list each undisputed
material fact "followed by citation to evidence which would be
admissible . . . ." S.D.N.Y. & E.D.N.Y. Local R. 56.1(a), (d),
available at http://www1.nysd.uscourts.gov/rules/rules.pdf. The
defendants' approach to compliance with this rule has rendered
our task of determining on appeal whether there are genuine
issues of disputed material fact considerably more difficult than
it should have been.
8
The district court also denied plaintiffs' motion to
strike certain of defendants' affidavits and exhibits -- a ruling
the plaintiffs did not appeal -- and found removal of the state
court cases proper. Judge Hall's companion opinion addresses
this latter ruling.
-14-
1 Agent Orange I in ruling on defendants' summary judgment motion.

2 Having done so, it concluded that the government contractor

3 defense barred both the design defect and failure-to-warn claims.

4 Agent Orange III Gov't Contractor Def. Op., 304 F. Supp. 2d at

5 441-42. As to plaintiffs' manufacturing defect claims, the court

6 concluded that they were barred because the defendants' products

7 conformed to the government's specifications. Id. at 442.

8 In granting the motion for summary judgment, however,

9 the district court noted that the plaintiffs had complained of

10 "difficulties in obtaining evidence for their position," an

11 "understandable" problem in light of the passage of time between

12 exposure and injury. Id. "To ensure due process," id.,

13 therefore, Judge Weinstein charted a distinctly unusual course --

14 he permitted discovery, never undertaken by Agent Orange III

15 litigants in light of the timing of prior appeals and the

16 defendants' motion, to continue through August 10, 2004, and he

17 set a motion schedule for an anticipated motion for

18 reconsideration based on the results of that discovery. Id.

19 Thereafter, the district court ordered that all files

20 relating to Agent Orange sent to the National Archives pursuant

21 to court order following Agent Orange I be returned to the

22 district court and made available to the plaintiffs for their

23 review. The magistrate judge assigned to the case then denied

24 all requests for additional non-MDL discovery, although the

25 district court subsequently granted the plaintiffs access to "up

26 to six complete deposition transcripts utilized in non-MDL 381

-15-
1 cases claimed by plaintiffs to shed light on relevant knowledge

2 of defendants."

3 On November 3, 2004, the plaintiffs in Stephenson and

4 Isaacson, as anticipated, filed a motion for reconsideration of

5 the district court's order granting summary judgment. On

6 November 16, 2004, the district court, without awaiting response

7 from the defendants, denied the plaintiffs' motion. In re

8 "Agent Orange" Prod. Liab. Litig., 344 F. Supp. 2d 873, 874-75

9 (E.D.N.Y. 2004). It further ordered the defendants to "submit a

10 specific judgment in favor of each named defendant against each

11 named plaintiff whose claims arise from service in the Armed

12 Forces of the United States," thereby rendering the court's

13 judgment in Stephenson and Isaacson applicable to each of the

14 fourteen additional plaintiffs now before us on appeal. Id. at

15 875.

16 Following a motion by the Bauer plaintiffs, who argued

17 that granting the motion for summary judgment was inappropriate

18 because, inter alia, the procedural posture of their case had

19 rendered them unable to respond to the defendants' motion, all

20 plaintiffs were ultimately given until February 28, 2005, to

21 submit additional papers supporting their position that summary

22 judgment should not have been granted. Oral argument was held on

23 February 28. On March 2, 2005, the district court summarily

24 reaffirmed its November 16, 2004 Order. In re "Agent Orange"

25 Prod. Liab. Litig., No. 79 MD 381, 2005 WL 483416, at *1

-16-
1 (E.D.N.Y. Mar. 2, 2005). Separate judgments of dismissal in each

2 action were then filed.

3 More than a year before, in February 2004, the district

4 court had denied the Stephensons' motion to amend their complaint

5 to add additional defendants and several new causes of action.

6 Stephenson v. Dow Chem. Co., 220 F.R.D. 22, 25-26 (E.D.N.Y.

7 2004). Although the defendants had never answered the

8 Stephensons' original complaint, filed pro se in the Western

9 District of Louisiana, the motion to amend was denied on a

10 variety of grounds. Id.

11 The plaintiffs appeal. Before us are challenges to (1)

12 the district court's grant of the motion for summary judgment as

13 to their design claim only;9 (2) the denial of their requests for

14 additional discovery; and (3) the denial of the Stephensons'

15 motion to amend.10

16 DISCUSSION

17 I. Summary Judgment

18 A. Standard of Review

9
Because the plaintiffs' briefs make no arguments regarding
the district court's findings as to their failure-to-warn or
manufacturing defect claims, we deem these claims to have been
abandoned. See Hughes v. Bricklayers & Allied Craftworkers Local
#45, 386 F.3d 101, 104 n.1 (2d Cir. 2004).
10
Not all of the plaintiffs have raised the same arguments
on appeal. Because the defendants have grouped the plaintiffs
together as one unit in opposing this appeal, and because by
Order dated September 15, 2005, we granted the plaintiffs
permission to rely on the arguments made by one another, we here
treat each issue raised on appeal by one plaintiff, with the
exception of the Stephensons' motion to amend, as having been
raised by all.
-17-
1 We review the district court's grant of summary

2 judgment de novo, "construing the evidence in the light most

3 favorable to the non-moving party and drawing all reasonable

4 inferences in its favor." Allianz Ins. Co. v. Lerner, 416 F.3d

5 109, 113 (2d Cir. 2005). "We will affirm the judgment only if

6 there is no genuine issue as to any material fact, and if the

7 moving party is entitled to a judgment as a matter of law." Id.

8 (citing Fed. R. Civ. P. 56(c)).

9 B. The Government Contractor Defense

10 Almost twenty years ago, in Boyle v. United

11 Technologies Corp., 487 U.S. 500 (1988), the Supreme Court

12 recognized the government contractor defense,11 a federal common

13 law doctrine. The Court concluded that the "uniquely federal

14 interest[]" of "getting the Government's work done" requires

15 that, under some circumstances, independent contractors be

16 protected from tort liability associated with their performance

17 of government procurement contracts. Id. at 504-05.

18 The Court looked to the Federal Tort Claims Act, 28

19 U.S.C. § 2671 et seq. ("FTCA"), for guidance. Id. at 509-12.

20 Under the FTCA, Congress waived sovereign immunity for the

21 government insofar as Congress "authorized damages to be

22 recovered against the United States for harm caused by the

23 negligent or wrongful conduct of Government employees, to the

11
The defense is referred to in the case law as the
"government contractor defense" or the "military contractor
defense." For purposes of this opinion, we refer to it as either
the "government contractor defense" or simply the "contractor
defense."
-18-
1 extent that a private person would be liable under the law of the

2 place where the conduct occurred." Id. at 511 (citing 28 U.S.C.

3 § 1346(b)). The Act's discretionary function exception, however,

4 carves out from that authorization "'[a]ny claim . . . based upon

5 the exercise or performance or the failure to exercise or perform

6 a discretionary function or duty on the part of a federal agency

7 or an employee of the Government, whether or not the discretion

8 involved be abused.'" Id. (quoting 28 U.S.C. § 2680(a))

9 (brackets in original).

10 The Boyle Court concluded that the protection for

11 discretionary action taken by federal agencies and employees

12 implies some measure of similar protection for government

13 contractors even though they are themselves non-governmental

14 entities. The Court noted that the exercise of government

15 discretion is inherent to military contracting:

16 We think that the selection of the
17 appropriate design for military equipment to
18 be used by our Armed Forces is assuredly a
19 discretionary function within the meaning of
20 this provision. It often involves not
21 merely engineering analysis but judgment as
22 to the balancing of many technical,
23 military, and even social considerations,
24 including specifically the trade-off between
25 greater safety and greater combat
26 effectiveness.
27 Id. Accordingly, the Court said,
28 permitting "second-guessing" of these
29 judgments through state tort suits against
30 contractors would produce the same effect
31 sought to be avoided by the FTCA
32 exemption. . . . To put the point
33 differently: It makes little sense to
34 insulate the Government against financial
-19-
1 liability for the judgment that a particular
2 feature of military equipment is necessary
3 when the Government produces the equipment
4 itself, but not when it contracts for the
5 production.
6 Id. at 511-12 (citation omitted). The defense thus protects

7 government contractors from the specter of liability when the

8 operation of state tort law would significantly conflict with the

9 government's contracting interest. Id. at 507.

10 Adopting the reasoning employed in several previous

11 court of appeals decisions, the Court limited "the scope of

12 [state law] displacement" to instances in which "(1) the United

13 States approved reasonably precise specifications [for the

14 allegedly defectively designed equipment]; (2) the equipment

15 conformed to those specifications; and (3) the [contractor who

16 supplied the equipment] warned the United States about the

17 dangers in the use of the equipment that were known to the

18 supplier but not to the United States." Id. at 512. The first

19 two requirements "assure that the suit [from which protection is

20 sought] is within the area where the policy of the 'discretionary

21 function' would be frustrated -- i.e., they assure that the

22 design feature in question was considered by a Government

23 officer, and not merely by the contractor itself." Id. The

24 third requirement is imposed because "in its absence, the

25 displacement of state tort law would create some incentive for

26 the manufacturer to withhold knowledge of risks, since conveying

27 that knowledge might disrupt the contract but withholding it

28 would produce no liability." Id. The Court therefore
-20-
1 "adopt[ed] this provision lest [its] effort to protect

2 discretionary functions perversely impede them by cutting off

3 information highly relevant to the discretionary decision." Id.

4 at 512-13.

5 The plaintiffs here contend that the defendants cannot,

6 at least as a matter of law at the summary judgment stage,

7 satisfy any one of the three requirements.

8 1. Reasonably Precise Specifications.

9 The plaintiffs argue that the defendants have not

10 established the first Boyle requirement -- that "the United

11 States approve[] reasonably precise specifications," 487 U.S. at

12 512 -- because: (1) Agent Orange procurement contracts contained

13 no specifications regarding the defective feature, dioxin; (2)

14 there is at least a genuine issue of material fact regarding

15 whether Agent Orange was a commercially available product whose

16 specifications were created by the defendants rather than the

17 government, whose involvement was minimal; and (3) the alleged

18 defect was unrelated to the contractual specifications for

19 2,4,5-T because it was the defendants' chosen manufacturing

20 processes -- with which the government was not involved and which

21 were not integral to contract compliance -- that caused dioxin to

22 be present.12

12
The plaintiffs also complain that because the defendants
cannot produce every contract between them and the government for
Agent Orange, it is impossible for the defendants to prove what
contractual specifications they were subject to under the missing
contracts and, therefore, impossible for the defendants to meet
their burden of proof under the government contractor defense.
-21-
1 The first argument concerns the proper conception of

2 the complained-of defect and can readily be resolved. The second

3 and third arguments are, in distinct ways, about how the

4 government exercised its discretionary authority: The second

5 argument asks whether the government was involved in the

6 contractual process to the extent that Boyle requires; while the

7 third asks us to determine in what context the government must

8 exercise its discretion for the government contractor defense to

9 apply. To conduct this third inquiry, we must determine the

10 source of the "conflict" between the government's interests and

11 state tort law that is required for the defense to apply.

12 a. The complained-of defect

13 The plaintiffs assert that because the contracts at

14 issue contain no specifications whatsoever with regard to the

15 dioxin, the government exercised no discretionary authority over

16 that which is the subject of their state tort litigations, as a

17 successful defense based on Boyle requires. Their argument

18 misconceives the nature of what the contracts in question were

19 about and defines the alleged defective design too narrowly.

This argument is without merit for many reasons. We note
here only that although it is true that a defendant who had no
way to demonstrate what specifications were within the contract
or contracts at issue would likely have difficulty successfully
asserting the contractor defense, the plaintiffs here do not
attempt to rely on particular contracts or to distinguish one
contract from another. None of their arguments regarding the
first Boyle prong rely on the specifications of a particular
contract versus the specifications of another. The plaintiffs
therefore have not demonstrated that the inability to produce
each and every contract is relevant to the applicability of the
government contractor defense for the Agent Orange contracts as a
whole.
-22-
1 The contracts at issue provided for the defendants to

2 supply Agent Orange. The Agent Orange was allegedly defective

3 because it contained excessive trace amounts of dioxin, which

4 were present as a result of the manufacture of a specified Agent

5 Orange component, 2,4,5-T. The dioxin -- while a defect of

6 2,4,5-T -- was not itself defective, nor did it exist within

7 Agent Orange apart from the 2,4,5-T therein.13 It was therefore

8 the 2,4,5-T that was alleged to be defective, not the dioxin.

9 b. The government approved specifications for a
10 uniquely tailored product

11 The plaintiffs contend that the defendants cannot

12 demonstrate that the government exercised its discretionary

13 authority to create the Agent Orange specifications that are

14 contained in the contracts. The government contractor defense

15 protects federal contractors solely as a means of protecting the

16 government's discretionary authority over areas of significant

17 federal interest such as military procurement. Defendants

18 asserting the defense must demonstrate that the government made a

19 discretionary determination about the material it obtained that

20 relates to the defective design feature at issue. Where the

21 government "merely rubber stamps a design, . . . or where the

22 [g]overnment merely orders a product from stock without a

23 significant interest in the alleged design defect," the

24 government has not made a discretionary decision in need of

25 protection, and the defense is therefore inapplicable. Lewis v.

13
Pure lead, without defect, may be a defect of a child's
painted toy.
-23-
1 Babcock Indus., Inc., 985 F.2d 83, 87 (2d Cir.) (citing Trevino

2 v. Gen. Dynamics Corp., 865 F.2d 1474, 1480, 1486 (5th Cir.),

3 cert. denied, 493 U.S. 935 (1989), and Boyle, 487 U.S. at 509)

4 (internal quotation marks omitted), cert. denied, 509 U.S. 924

5 (1993). If the government buys a product "off-the-shelf" -- "as-

6 is" -- the seller of that product cannot be heard to assert that

7 it is protected from the tort-law consequences of the product's

8 defects. Where the government is merely an incidental purchaser,

9 the seller was not following the government's discretionary

10 procurement decisions.

11 Here, the plaintiffs contend that the government

12 rubber-stamped its approval of the defendants' suggested

13 specifications, which, in turn, were simply combinations of off-

14 the-shelf, commercially available herbicides. They say that Dow

15 Chemical owned the patents for certain aspects of the herbicides'

16 component parts and that many different defendants manufactured

17 and sold 2,4,5-T and 2,4-D in various combinations as early as

18 1948, with some of the formulations including the same 50%

19 mixture as Agent Orange. As a result, the plaintiffs assert,

20 there are at least triable issues of fact as to whether (1) Agent

21 Orange and related herbicides were "stock" products, rather than

22 products tailored to the government's needs; and (2) even if the

23 herbicides were not commercially available products, Agent

24 Orange's components were devised by the defendants without the

25 significant government input necessary to meet the first Boyle

26 requirement.

-24-
1 As to the former, the plaintiffs do not dispute the

2 defendants' assertions that 2,4,5-T and 2,4-D were not

3 commercially available at the same high concentrations as that

4 contained in Agent Orange. The Stephensons, for example, concede

5 that 2,4,5-T was not commercially available in concentrations

6 greater than 55%. See Final Reply Br. for Pl.-Appellants, 05-

7 1760-cv, at 67-68. Agent Orange, by contrast, contained 2,4,5-T

8 at greater than 90% purity levels. See, e.g., Aff. of William A.

9 Krohley, counsel for defendant Hercules Inc., Oct. 27, 2004

10 ("Krohley Aff."), Exh. 11 (July 19, 1963 military specification).

11 Moreover, as the Fifth Circuit aptly noted in unrelated

12 Agent Orange litigation, the fact that a product supplied to the

13 government comprises commercially available component parts says

14 nothing about whether the finished product resulted from the

15 exercise of governmental discretion as to its design. "[A]ll

16 products can eventually be broken down into various off-the-shelf

17 components." Miller v. Diamond Shamrock Co., 275 F.3d 414, 420

18 (5th Cir. 2001); see also In re Joint Eastern and Southern Dist.

19 New York Asbestos Litig., 897 F.2d 626, 638 (2d Cir. 1990)

20 ("Grispo") (Miner, J., concurring) ("[T]he [g]overnment

21 prescription of how [stock] items should be combined and packaged

22 [is] the key to the military contractor defense . . . .").

23 As to the latter argument -- the plaintiffs' contention

24 that there was no significant government input -- the plaintiffs

25 misperceive the nature of the government involvement necessary to

26 invoke the contractor defense. That the component chemicals were

-25-
1 not developed for military use in the first instance, that some

2 aspects of their composition were patented, and that the

3 defendants may have proposed certain specifications to the

4 government, are not determinative. Boyle explicitly contemplated

5 government reliance on manufacturers' expertise in making a fully

6 informed decision as to what to order. See Boyle, 487 U.S. at

7 513. "[I]t is necessary only that the government approve, rather

8 than create, the specifications . . . ." Carley v. Wheeled

9 Coach, 991 F.2d 1117, 1125 (3d Cir.), cert. denied, 510 U.S. 868

10 (1993); see also Boyle, 487 U.S. at 513 ("The design ultimately

11 selected may well reflect a significant policy judgment by

12 [g]overnment officials whether or not the contractor rather than

13 those officials developed the design.").

14 The extent of the defendants' involvement in suggesting

15 specifications or the defendants' reliance on previously attained

16 industry expertise in doing so is thus not conclusive. The

17 government exercises adequate discretion over the contract

18 specifications to invoke the defense if it independently and

19 meaningfully reviews the specifications such that the government

20 remains the "agent[] of decision." Grispo, 897 F.2d at 630; see

21 also Stout v. Borg-Warner Corp., 933 F.2d 331, 336 (5th Cir.)

22 (government issued reasonably precise specifications when it

23 reviewed contractor's detailed drawings several times and

24 evaluated test models), cert. denied, 502 U.S. 981 (1991);

25 Harduvel v. Gen. Dynamics Corp., 878 F.2d 1311, 1320 (11th Cir.

26 1989) (government issued reasonably precise specifications for F-

-26-
1 16 fighter aircraft having approved its design following

2 "continuous back and forth" with contractor), cert. denied, 494

3 U.S. 1030 (1990).

4 With respect to Agent Orange, the record contains, for

5 example, a memorandum dated February 22, 1963, regarding "Ester

6 Specifications for U.S. Army Biological Laboratories," written by

7 an employee of one of the defendants, that discussed a February

8 8, 1963, meeting called "to satisfy the U.S. Army about

9 specifications and typical physical properties on the next type

10 of blend they [sic] will be purchasing." Mem. from I.F. Hortman

11 to, inter alios, S.D. Daniels and W.A. Kuhn (Feb. 22, 1963), at

12 1. It indicated that an effort to permit use of a different n-

13 butyl ester from 2,4,5-T was "impossible at this time because the

14 Army had studied only the normal esters," and that, therefore,

15 the chemical company would have to present the proposed change

16 directly to "the commanding officer, U.S. Army Biological

17 Laboratories and Dr. Charles Minarick, Chief of Crops Division"

18 for approval. Id. And notes from a 1968 meeting between

19 government officials and representatives of several of the

20 defendants indicate that the government insisted on a test for

21 chemical composition despite "much resistance to this added

22 requirement on the part of the Industry [sic]" as well as on a

23 98% purity level for the 2,4,5-T ester. Memorandum of R.A.

24 Guidi, Diamond Alkali Co. (Feb. 20, 1968), at 1-2.

-27-
1 We conclude, based on the evidence in the extensive

2 record that has been brought to our attention,14 that no

3 reasonable jury could find that the government did not exercise

4 sufficient discretion for it to have been said to have "approved"

5 specifications for the herbicides. The government was plainly

6 the "agent[] of decision," Grispo, 897 F.2d at 630, with respect

7 to Agent Orange's contractually specified composition.

8 c. The government made a discretionary
9 determination regarding Agent Orange's toxicity

10 The next question, and we think it to be a more

11 difficult one, is whether the government made a discretionary

12 determination that created the conflict between the federal

13 government's interests and the defendant's state law duties that

14 is necessary to invoke the government contractor defense. The

15 plaintiffs argue that the defendants could have manufactured

16 Agent Orange that produced either dioxin-free or nearly dioxin-

17 free 2,4,5-T by employing the lower-temperature manufacturing

18 process developed and used by a German manufacturer, C.H.

19 Boehringer Sohn. This process, the plaintiffs say, would have

20 permitted the defendants to comply with their federal contractual

21 duties and deliver a less toxic defoliating agent, albeit at a

22 somewhat slower rate. As a result, the plaintiffs argue, the

23 defendants could have met both their federal duties and their

14
"Fed. R. Civ. P. 56 does not impose an obligation [on the
court considering a motion for summary judgment] to perform an
independent review of the record to find proof of a factual
dispute." Amnesty America v. Town of West Hartford, 288 F.3d
467, 470 (2d Cir. 2002).
-28-
1 state tort-law duties; the direct conflict contemplated by Boyle

2 is absent; and the first requirement for the contractor defense

3 therefore cannot be established.15

4 (i) Analysis. In determining whether the government

5 made a discretionary decision that would create the type of

6 conflict between tort law and government interests contemplated

7 by Boyle, we are not called upon to assess the merits of the

8 alleged state tort law violation.16 We are tasked only with

15
The plaintiffs at times refer to the defendants' failure
to use the Boehringer process as resulting in a "manufacturing"
defect. Not so. The plaintiffs allege a defective process, not
that the process used was somehow erroneously applied. They
therefore allege a design defect. As the Eleventh Circuit noted,
[the] distinction between "aberrational" defects and
defects occurring throughout an entire line of products
is frequently used in tort law to separate defects of
manufacture from those of design. Stated another way,
the distinction is between an unintended configuration,
[a manufacturing defect], and an intended configuration
that may produce unintended and unwanted results[,] [a
design defect].
Harduvel, 878 F.2d at 1317 (internal citation omitted).

16
Although not dispositive here, we nonetheless note that
the plaintiffs' argument regarding the defendants' purported
failure to use state-of-the-art manufacturing processes would
appear problematic in ways that do not affect our decision as to
the applicability of the government contractor defense as a
matter of law, but which might present insurmountable obstacles
were we to remand for consideration of the plaintiffs' claims on
their merits. For example, documents that are part of the record
on appeal indicate that the Dow Chemical Company purchased the
proprietary information for the Boehringer process in December
1964 and began using it in its chemical plants two years later.
See Mem. from J.D. Doedens, Chemicals Dep't, Dow Chem. Co. (Mar.
1, 1965), at 2; Mem. from K.E. Coulter, Midland Division Research
& Dev., Dow Chem. Co. (Apr. 25, 1967), at 2. The plaintiffs do
not explain how they can seek to hold Dow Chemical liable for
Agent Orange produced using the method they now contend should
have been used by all manufacturers at all relevant times, or how
they might seek to distinguish among manufacturers or between
-29-
1 determining whether the government's discretionary actions with

2 respect to the allegedly defective design and the alleged state

3 law tort duty conflict. If they do, the first Boyle requirement

4 is met; if they do not, the government contractor defense does

5 not apply, and we must return the case to the district court for

6 trial on its merits. Cf. Grispo, 897 F.2d at 627 n.1 (noting

7 that appeal of summary judgments pertaining to applicability of

8 the contractor defense did "not raise the question whether New

9 York law imposes a duty to warn under the[] facts [of the case],

10 or whether a failure to warn was the proximate cause of the

11 [plaintiffs'] alleged injuries.").

12 The first Boyle requirement is designed to ensure that

13 "a conflict with state law exists." Lewis, 985 F.2d at 86. We

14 have observed that, therefore, "answering the question whether

15 the [g]overnment approved reasonably precise specifications for

16 the design feature in question necessarily answers the question

17 whether the federal contract conflicts with state law." Id. at

18 87. If such specifications are present, the contractor's federal

19 contractual duties will inevitably conflict with alleged state

particular manufacturers' batches of herbicides in proving that
their exposure to the defoliants caused the injuries about which
they now complain. See Agent Orange I Opt-Out Op., 818 F.2d at
189 (noting the "undisputed facts that the amount of dioxin in
Agent Orange varied according to its manufacturer and that the
government often mixed the Agent Orange of different
manufacturers and always stored the herbicide in unlabeled
barrels"). Nor is it clear that under these circumstances, the
defendants' knowledge dating from the late 1950s that the
Boehringer plant was using a new manufacturing process would
necessarily translate into a state law tort duty to have adopted
it themselves.
-30-
1 tort duties to the contrary because complying with the federal

2 contract will prevent compliance with state tort law as the

3 plaintiffs have alleged that it exists. See id. Alternatively,

4 where a "contractor could comply with both its contractual

5 obligations and the state-prescribed duty of care," displacement

6 "generally" would not be warranted, and state law would apply.

7 Boyle, 487 U.S. at 509.

8 The defendants do not contest that the government's

9 contractual specifications for Agent Orange were silent regarding

10 the method of manufacture or that the government harbored no

11 preference, expressed or otherwise, regarding how the herbicides

12 were to be produced. See, e.g., Appellees' Br. at 36-37.

13 Indeed, they admit that they were under no federal contractual

14 duty to produce Agent Orange using any particular manufacturing

15 process or with any particular reference to the resulting

16 toxicity levels. See id. at 96-97, 99 (characterizing lack of

17 specifications regarding method of manufacture or toxicity levels

18 as discretionary omission and conceding that "omitted

19 specifications do not constitute contractual duties"). The

20 defendants argue instead that the government's Agent Orange

21 procurement contracts nevertheless created a conflict with their

22 alleged state tort duty to manufacture the herbicides

23 differently. The defendants reason that the documentary evidence

24 establishes as a matter of law that the manufacture of dioxin-

25 free Agent Orange was impossible and that, in any event, they

26 could not have complied with their procurement contracts with the

-31-
1 government had they used the slower, less efficient, Boehringer

2 method. They contend further that the government ordered the

3 herbicides with full knowledge of the relevant dangers, which,

4 they say, is equivalent to the government having approved a

5 reasonably precise specification about that danger. Id. at 91-

6 99, 102-04.

7 But the documents cited by the defendants as to the

8 inevitability of dioxin content in Agent Orange -- including

9 declarations by the Environmental Protection Agency that dioxin

10 in some very small amounts was "unavoidable" and that the

11 "potential risks" of harm to humans outweighed any benefits of

12 continued use of commercially available 2,4,5-T, see EPA Notice

13 of the Denial of Applications for Federal Registration of

14 Intrastate Pesticide Products Containing 2,4,5-T, 45 Fed. Reg.

15 2,898, 2,899 (Jan. 15, 1980); EPA Decision and Emergency Order

16 Suspending Registrations for the Forest, Rights-of-Way, and

17 Pasture Uses in 2,4,5-T, 44 Fed. Reg. 15,874, 15,874 n.1 (Mar.

18 15, 1979) -- do not refute what we understand to be the thrust of

19 the plaintiffs' argument: that had the defendants used the

20 Boehringer method, the Agent Orange they produced would have

21 contained no then-detectable amounts of dioxin. In that event,

22 the plaintiffs allege, the lower levels of dioxin would have

23 avoided much, if perhaps not all, of the harm allegedly suffered

24 as a result of the presence of dioxin in Agent Orange.

25 The documents submitted to the district court also do

26 not establish as a matter of law that there was an inherent

-32-
1 conflict between use of the Boehringer process and compliance

2 with defendants' contractual obligation to the government. Dow

3 Chemical adopted and used the Boehringer method, or something

4 like it, see Mem. from J.D. Doedens, Chemicals Dep't, Dow Chem.

5 Co. (Mar. 1, 1965), at 2; Mem. from Alex Widiger, Midland

6 Division Research & Dev., Dow Chem. Co. (Apr. 25, 1967), at 2, at

7 the time the government was requesting Agent Orange in increasing

8 quantities and sequestering the entire domestic market for 2,4,5-

9 T. This change in manufacturing method and its timing at least

10 raises a triable issue of fact as to whether the defendants could

11 have complied with their contractual obligations to the

12 government while using what the plaintiffs contend was a process

13 that would have resulted in a defoliating agent substantially

14 less dangerous to military personnel.

15 And so we must determine whether the government did in

16 fact, as the defendants argue, approve of the toxicity levels

17 present in Agent Orange in a manner that would create the

18 necessary conflict with the alleged state law tort duty such that

19 the latter must be displaced. We think that it did.

20 We have previously concluded that where the government

21 contracts for the purchase of a product with knowledge that the

22 product has an arguable defect, it is considered to have approved

23 "reasonably precise specifications" for that product, with the

24 known defect, for purposes of the first Boyle requirement.

25 Lewis, 985 F.2d at 89. In Lewis, the government reordered a

26 cable that connected a parachute to the crew module of an Air

-33-
1 Force fighter jet with knowledge that the coating that protected

2 the steel cable was prone to cuts, resulting in cable corrosion.

3 Id. at 85. Although the government during its initial order had

4 not made a discretionary decision about which materials should be

5 used in constructing the cable, it subsequently ordered

6 replacement cables even after an Air Force investigation into the

7 corroded cables had revealed the problem with the protective

8 coating, reasoning that changes to its maintenance manual would

9 sufficiently alleviate the risk of harm. Id. In light of this

10 considered attention by the government to the precise defect

11 alleged, we concluded that the cable could not be characterized

12 as a stock item and that the "contractor's decision regarding the

13 materials to be used for the cable" could not be "second-

14 guess[ed]." Id. at 89. We did not discuss whether or how the

15 contractor had been alerted to the government's investigation or

16 the reasons for its reordering, nor whether the contract for

17 replacement cables also omitted reference to the material used to

18 construct them, as had the original cable contract. "Based on

19 the reorder" alone, we said, "the contractor c[ould] claim: 'The

20 [g]overnment made me do it.'" Id. (quoting Grispo, 897 F.2d at

21 632).

22 Here, similarly, the record discloses that the

23 government explicitly evaluated the alleged design defect (toxic

24 2,4,5-T), and thereafter continued to order "replacement"

25 herbicides. The government examined the toxicity of what the

26 plaintiffs contend was the most toxic Agent Orange variant used

-34-
1 in Vietnam -- Agent Purple -- and determined that it posed no

2 unacceptable hazard. See Tr. of Oral Arg. at 24 (plaintiffs'

3 attorney's comments regarding Agent Purple's toxicity). On April

4 26, 1963, the Army conducted a meeting at its Edgewood (Maryland)

5 Arsenal "to evaluate the toxicity of a[n herbicide] mixture known

6 as 'Purple.'" Minutes of a Meeting Held to Discuss and Evaluate

7 the Toxicity of 2,4-D and 2,4,5-T Compounds (Apr. 26, 1963)

8 ("April 1963 Meeting Minutes"), at 3. Their analysis required

9 reaching a conclusion "about dose levels and hazards to health of

10 men and domestic animals from 2,4-D and 2,4,5-T based on the

11 medical literature and unpublished data of various research

12 laboratories." Id. Those in attendance included officials from

13 various branches of the military and various other government

14 agencies, and representatives from manufacturers Dow Chemical and

15 AmChem Products. Id. at 2. The group heard various

16 presentations on the subject. At the end of the meeting, the

17 participants adopted "acute toxicity" figures for Agent Purple.

18 They concluded
19 in summary and after careful review of
20 toxicological data related to 2,4-D and
21 2,4,5-T plus the knowledge as to the manner
22 these materials have been used for
23 defoliation in military situations in
24 Southeast Asia, . . . that no health hazard
25 is or was involved to men or domestic animals
26 from the amounts or manner these materials
27 were used . . . .

-35-
1 Id. at 5. Thereafter, the government continued to contract with

2 the defendants for purchase of the same and similar defoliating

3 agents.17

4 In other words, the Army examined the toxicology data

5 available to it and concluded that Agent Orange's components,

6 2,4,5-T and 2,4-D -- in the formulation that the government, in

7 its discretion, used when ordering it, and as it was then being

8 manufactured -- posed "no health hazard" and were, at least under

9 the circumstances of international armed conflict, suitable for

10 use in Southeast Asia. Since the government continued to order

11 Agent Orange after having evaluated its toxicity levels and

12 declared them acceptable, we "cannot second-guess" the

13 manufacturers' decision to produce the agents in the manner that

14 they did. Lewis, 985 F.2d at 89. Because "[t]he imposition of

15 liability under state law would constitute a significant conflict

16 with the [g]overnment's decision" that the defoliants used in

17 Vietnam as they were produced by the defendants posed no

17
The government also evaluated the toxic effects of 2,4,5-
T at other points during its use in Vietnam. For example, just
several weeks after the Edgewood meeting, on May 9, 1963, the
President's Scientific Advisory Committee was briefed on the
"Possible Health Hazard of Phenoxyacetates As Related to
Defoliation Operations in Vietnam." The Bionetics Study -- a
government-sponsored research project that included research into
the health effects of 2,4,5-T -- also began in 1963. It was this
research that ultimately triggered, among other curtailments of
2,4,5-T's use, cessation of the defoliation campaign. Dr. R.A.
Darrow, Fort Detrick, "Historical, Logistical, Political and
Technical Aspects of the Herbicide/Defoliant Program, 1967-1971,"
at 20-22.
-36-
1 unacceptable hazard, id., we conclude that the first Boyle

2 requirement is met.

3 (ii) The Grispo language. There is language in Grispo

4 that seems to require something more: that when the government

5 "mak[es] a discretionary, safety-related military procurement

6 decision contrary to the requirements of state law," it

7 "incorporate[] th[e] decision into a military contractor's

8 contractual obligations." Grispo, 897 F.2d at 632. But we

9 concluded in Lewis that the government's order of replacement

10 Babcock cables with knowledge of the risks to pilots associated

11 with the defect in question was itself sufficient to prevent

12 "second-guess[ing]" of the manufacturer's choice to continue

13 using the same cable coating, even though nothing in Lewis

14 suggests either (1) that the government included in the re-order

15 contract a specification instructing that the suspect material be

16 used, or (2) that the defendant manufacturer had been apprised of

17 the government's investigation of the alleged corrosion problem.

18 See Lewis, 985 F.2d at 89 ("We hold that when the [g]overnment

19 reordered the specific Babcock cable, with knowledge of its

20 alleged design defect, the [g]overnment approved reasonably

21 precise specifications for that product such that the

22 manufacturer qualifies for the military contractor defense for

23 any defects in the design of that product." (emphasis added)).

24 Insofar as there is a tension between the two cases, we

25 think it is resolved by Boyle. In framing the first Boyle

26 requirement, the Boyle Court sought to "assure that the suit [in
-37-
1 which the contractor defense is asserted] is within the area

2 where the policy of the 'discretionary function' would be

3 frustrated" absent the availability of the defense. Boyle, 487

4 U.S. at 512. Although the Court used the term "reasonably

5 precise specifications," we think that, as in Lewis, reordering

6 the same product with knowledge of its relevant defects plays the

7 identical role in the defense as listing specific ingredients,

8 processes, or the like.

9 In Boyle, the alleged state law duty of care was

10 "precisely contrary to the duty imposed by the [g]overnment

11 contract." Id. at 509. But the opinion did not hold that a

12 conflicting, express contractual duty was required for the

13 contractor defense to preempt state law. The issues as framed by

14 the Boyle Court were not narrowly about duties imposed by

15 contract; they were more broadly about federal policies and

16 interests and the exercise of federal discretion, in the face of

17 contrary state law, in furthering them. See id. at 507

18 ("Displacement will occur only where . . . a 'significant

19 conflict' exists between an identifiable 'federal policy or

20 interest and the [operation] of state law.'" (quoting Wallis v.

21 Pan Am. Petroleum Corp., 384 U.S. 63, 68 (1966) (brackets in

22 original) (emphasis added)); see also id. at 509 (stating that

23 even where federal contractual and state tort duties were

24 "precisely contrary," "it would be unreasonable to say that there

25 is always a 'significant conflict' between the state law and a

26 federal policy or interest" (emphasis added)).
-38-
1 The government's "uniquely federal interest," id. at

2 504, in fully taking advantage of its ability to determine what

3 level of risks and dangers must be tolerated in order to achieve

4 a particular military goal need not be belabored. See Agent

5 Orange I Opt-Out Op., 818 F.2d at 191 ("Civilian judges and

6 juries are not competent to weigh the cost of injuries caused by

7 a product against the cost of avoidance in lost military

8 efficiency. Such judgments involve the nation's geopolitical

9 goals and choices among particular tactics . . . ."). We pause

10 only to note that the federal interest implicated by the lawsuits

11 here is not only the ordinary need to ensure the government's

12 "work" gets "done," Boyle, 487 U.S. at 505, but the ability to

13 pursue American military objectives -- in this case, protection

14 of American troops against hostile fire.

15 The government made an express determination, based on

16 the knowledge available to it at the time, that Agent Orange as

17 then being manufactured posed no unacceptable hazard for the

18 wartime uses for which it was intended, and that the product

19 should continue to be manufactured and supplied to it. In light

20 of this exercise of discretion, we read Boyle to require

21 displacement of any alleged state law rules to the contrary.18

18
We note that the second and third Boyle requirements
remain essential to proving the government contractor defense
even where, as here, the defendants do not rely on a contractual
duty to demonstrate the required conflict between federal
interests and state law. The government's discretionary
determination about the design defect alleged was necessarily
made in the shadow of the government's expectations regarding the
product it expected to receive. Defendants therefore must
-39-
1 2. Compliance with Specifications. The plaintiffs'

2 challenge to the defendants' ability to demonstrate the second

3 requirement for Boyle protection -- compliance with the

4 contracts' specifications -- does not warrant extensive

5 discussion. Nothing about the presence of dioxin in trace

6 amounts within the 2,4,5-T component of Agent Orange rendered the

7 Agent Orange delivered to the government non-compliant with its

8 contractual obligations. The plaintiffs' own expert agrees.

9 See Aff. of Harry Ensley (Feb. 6, 2004), at ¶ 20 ("[T]he 2,4,5-T

10 the government purchased could contain varying amounts of such

11 impurities as . . . dioxin . . . , yet still be in compliance

12 with the government's specifications . . . ."). There is no

13 allegation that the government received Agent Orange with 2,4,5-T

14 present in anything other than the proportions and purity levels

15 called for by the terms of the contracts. The second requirement

16 is therefore met as a matter of law. See Miller, 275 F.3d at

17 420-21 (rejecting same argument made by civilian plaintiffs

18 seeking compensation for injuries allegedly caused by Agent

19 Orange).

20 3. Defendants' Warnings About Known Dangers. The final

21 Boyle requirement for the invocation of the government contractor

22 defense is that the defendants demonstrate that they "warned the

23 United States about the dangers in the use of the equipment that

demonstrate that the product it delivered to the government was
precisely what the government requested. The third prong is
likewise unaffected: The government's discretionary
determination must be a fully informed one.
-40-
1 were known to [them] but not to the United States." Boyle, 487

2 U.S. at 512. The plaintiffs make essentially two arguments in

3 this regard: (1) that the defendants knew more about the hazards

4 of 2,4,5-T than did the government, but failed to warn the

5 government about them; and (2) that even if some members of the

6 government had some knowledge regarding the dangers of dioxin,

7 Boyle requires that for the defense to be applicable, the actual

8 contracting officials must have such knowledge, and those

9 involved in the specification process for Agent Orange knew

10 nothing about 2,4,5-T's hazards.

11 The thrust of the defendants' response is that (1) none

12 of the plaintiffs claim an injury of the sort that was a danger

13 known by anyone at the time of Agent Orange's production; (2) as

14 to dangers about which the defendants were aware, the evidence

15 demonstrates as a matter of law that they shared that knowledge

16 with the government; and (3) irrespective of what the defendants

17 knew about Agent Orange in general, the government had far

18 greater knowledge than the defendants about Agent Orange and the

19 dangers posed by its intended use in Vietnam.

20 We doubt that the defendants can establish as a matter

21 of law on the present record either the second or third of their

22 contentions -- that they shared the knowledge of dangers of which

23 they were aware with the government and that the government had

24 far more knowledge about the dangers of Agent Orange in its

-41-
1 planned use. Each is intensely factual and hotly disputed.19 We

2 think that the record is clear, however, that the defendants did

3 not fail to inform the government of known dangers at the time of

4 Agent Orange's production of the type that would have had an

5 impact on the military's discretionary decision regarding Agent

6 Orange's toxicity. We therefore conclude that the defendants

7 have established Boyle's third requirement as a matter of law.

8 Boyle mandates that to obtain the benefit of the

9 government contractor defense, a contractor must inform the

10 government about known "dangers in the use of the equipment."

11 Boyle, 487 U.S. at 512. But the Boyle Court was silent as to

12 what types of risks rise to the level of dangers that must be

13 disclosed. Prior to Boyle, we were of the view that

14 manufacturers need disclose to the government only those hazards

15 that (1) are "based on a substantial body of scientific

16 evidence"; and (2) create dangers likely "serious enough to call

17 for a weighing of the risk against the expected military

18 benefits," that is, "substantial enough to influence the military

19
We concluded in Agent Orange I, based on much the same
record now before us, that "the critical mass of information
about dioxin possessed by the government during the period of
Agent Orange's use in Vietnam was as great as or greater than
that possessed by the chemical companies." Agent Orange I Opt-
Out Op., 818 F.2d at 193. The Fifth Circuit, relying in large
part on our Agent Orange I determination, concluded the same.
See Miller, 275 F.3d at 421. But we are required to review the
factual record anew as it is presented to us, not as it was
presented to a different panel twenty years ago. And we note, as
we did in Agent Orange I, that we were in 1987 without the
benefit of briefing by the parties on this subject. Agent Orange
I Opt-Out Op., 818 F.2d at 190.

-42-
1 decision to use the product." Agent Orange I Opt-Out Op., 818

2 F.2d at 193. Until now, neither we nor the Supreme Court has

3 been called upon to decide, post-Boyle, what constitutes

4 "knowledge" of a "danger" that would trigger a duty to inform as

5 to the "equipment" being ordered.

6 This much is plain: Boyle did not contemplate

7 requiring disclosure of any and all potential risks by the

8 contractor to the government, irrespective of their relation to

9 the governmental discretionary decision at issue. The Boyle

10 Court was concerned primarily with protecting the government's

11 ability to assume certain kinds of risks without assuming the

12 costs of liability for those risks. See Boyle, 487 U.S. at 511-

13 12. It protected this ability by ensuring that where the

14 government accepts such a risk knowingly, a state law that would

15 require finding that same risk unacceptable must be displaced.

16 We therefore do not think that the Boyle Court meant that a

17 defendant seeking the protection of the defense was required to

18 demonstrate that it had shared all known hazards with the

19 government, irrespective of whether those hazards allegedly not

20 conveyed would have had an impact on the government's exercise of

21 discretion about the design defect alleged. It would be

22 impractical to require that a manufacturer compile and present to

23 the government in advance a list of each and every risk

24 associated with a product it is producing for the government.

25 The operation of a tank or a transport plane -- more so the

26 manufacture and use of a chemical agent -- involves, at the

-43-
1 extremities, virtually limitless risks. Even if it were possible

2 to generate such complete lists, their comprehensiveness would

3 overwhelm government decision makers with largely irrelevant

4 data, extending the time and costs associated with federal

5 contracting and obscuring those risks most likely to have an

6 impact on contracting decisions. A rule that required full

7 disclosure of all possible risks to anyone would be contrary to

8 Boyle's underlying rationale of protecting the federal interest

9 in "getting the Government's work done." Id. at 505.

10 We therefore adhere to our pre-Boyle precedent. We

11 conclude, much as we did before Boyle was decided, that a

12 defendant may satisfy the third Boyle requirement if it

13 demonstrates that it fully informed the government about hazards

14 related to the government's exercise of discretion that were

15 "substantial enough to influence the military decision" made.

16 Agent Orange I Opt-Out Op., 818 F.2d at 193. The defendants can

17 demonstrate a fully informed government decision by showing

18 either that they conveyed the relevant known and "substantial

19 enough" dangers, id., or that the government did not need the

20 warnings because it already possessed that information,

21 see Lewis, 985 F.2d at 89-90 ("There is no requirement that

22 appellees inform the Air Force of dangers already known to the

23 Air Force.").

24 Here, the plaintiffs allege that the defendants knew of

25 dioxin's hazards but failed to inform the government of them.

26 The documents to which they cite for this proposition, however,

-44-
1 pertain almost universally to the risk of chloracne (a severe

2 skin disease) and liver damage to workers manufacturing Agent

3 Orange. These risks, the manufacturers thought, were created by

4 the dioxin "impurity" that resulted from producing

5 trichlorophenol, a component of 2,4,5-T. See, e.g., V.K. Rowe,

6 Test. for the 2,4,5-T Hr'g (undated), at 28 (referring to dioxin

7 build-up in trichlorophenol manufacture), PA 3501-02.; Mem. of

8 V.K. Rowe, Dow Chemical Co., at 1 (Jun. 24, 1965) ("Rowe Jun.

9 1965 Mem.") (referring to dioxin "impurities" present in

10 trichlorophenol that could be "carried through into the T acid").

11 There is, indeed, ample evidence that the defendants

12 were concerned about the health effects of dioxin, specifically

13 chloracne20 and liver damage,21 on their workers. Tests were

20
As to the dangers related to chloracne, the documents
submitted show that knowledge of the risk varied among
manufacturers. Not all manufacturers had experienced chloracne
outbreaks. Among those that did, it was not clear that dioxin
was in the final products emanating from the contaminated plant.
See V.K. Rowe, Test. for the 2,4,5-T Hr'g (undated), at 28-29
(indicating testing of Dow trichlorophenol and 2,4,5-T following
1964 chloracne outbreak in manufacturing plant revealed no
"chloracnegens," and that source of outbreak was contaminated
waste oil, "not exposure to trichlorophenol"). Dow thought that
dioxin concentrations of less than one part per million presented
no chloracne hazard to workers or consumers, Rowe Jun. 1965 Mem.,
at 1, and changed its production process such that the
concentration of dioxin in its Agent Orange would be reduced to
the point where, in its view, the hazard would be eliminated.
21
Variance among the defendants regarding their knowledge
of the risks of liver damage to humans was similar to that
related to chloracne, with some, but not all, of the defendants
aware that animal tests showed liver damage was a possible result
of direct exposure to dioxin and that there was liver damage
among workers engaged in manufacturing 2,4,5-T. There were also
isolated instances of other health concerns arising from
manufacturing processes -- for example, temporary nerve damage
(Monsanto) and unspecified "systemic injury" (Dow). See
-45-
1 conducted that involved exposing animals to pure dioxin, which

2 revealed some "severe response[s]," see Report on the Chloracne

3 Problem Meeting on March 24, 1965 (Mar. 29, 1965) ("Mar. 29

4 Report"), at 5; similar tests performed on humans some years

5 later using a one-percent dioxin solution that resulted in skin

6 lesions, see Letter of Albert M. Kligman to V.K. Rowe, Dow

7 Chemical Co. (Jan. 23, 1968) PA 3732. At least two defendants

8 considered whether the dioxin in trichlorophenol's manufacture

9 would be manifest in the trichlorophenol itself or in the end

10 products containing trichlorophenol, see, e.g., id. at 4; Mem.,

11 Dow Chem. Co. (Mar. 10, 1965) ("Mar. 10 Dow Mem."), Mem. from

12 E.L. Chandler, Diamond Shamrock Co. ("Chandler Mem.") (Jul. 9,

13 1962), but the danger with which they were concerned was limited

14 to the possibility of a chloracne outbreak among those handling

15 it, see Mar. 10 Dow Mem. (discussing possible need to take

16 precautions that would "prevent injury" akin to what had been

17 taken following past incidents of chloracne outbreaks); Chandler

18 Mem. (indicating two commercial customers had claimed chloracne

19 problems with "Diamond esters," one of which had no similar

20 problems with other manufacturers' product). There is no

21 evidence to which we have been directed or that we have otherwise

22 found that the defendants' knowledge of 2,4,5-T's risks extended

23 to dioxin as a carcinogen, as a toxin that potentially might

24 cause diseases long after exposure, or as a significant health

Deposition Excerpts of Dr. Wallace, at 2468; Rowe Jun. 1965 Mem.
at 1. None of the documents reveal knowledge of any such danger
to non-workers.
-46-
1 risk (apart from chloracne) to those exposed to herbicides

2 containing 2,4,5-T being used as such, in wartime conditions or

3 otherwise, except for workers manufacturing them or their

4 component chemicals.22

5 How much the government knew about the workplace

6 dangers associated with production of 2,4,5-T while it was

7 considering the use of and ordering Agent Orange is unclear. The

8 minutes from the 1963 meeting at Edgewood Arsenal contained

9 references to a lack of workplace incidents involving 2,4-D and

10 2,4,5-T. April 1963 Meeting Minutes at 4, Appendix A. The

11 domestic safety record of herbicides containing these two

12 chemicals, including the manufacturers' alleged reports to the

13 Department of Agriculture regarding the absence of ill effects

22
As to the specific subject of dioxin as a carcinogen, the
Dow Chemical Company testified before Congress that its numerous
tests and experiments regarding dioxin's toxicity did not examine
the chemical's carcinogenicity. Test. of Dr. Julius E. Johnson,
Vice President, Dow Chemical Co., Apr. 7 and 15, 1970, at 371.
The plaintiffs do point us to a memorandum written by Monsanto's
medical director, R. Emmet Kelly, in which he expresses the need
to "minimize the presence of this known chloracne agent" because
dioxin "[v]ery conceivably [could] be a potent carcinogen." Mem.
from R. Emmet Kelly, Monsanto Company (Mar. 30, 1965). But this
"conception" alone -- without any context as to its basis or the
relationship between the harms of dioxin in its pure form versus
the trace amounts of the chemical found within Agent Orange -- is
not enough to convince a reasonable factfinder that dioxin was a
known carcinogen at the time of Agent Orange's production or,
more importantly, that the defendants knew that the trace amounts
of dioxin in Agent Orange might prove to be a carcinogen for
those not involved in its manufacture or direct handling. See
Agent Orange I Opt-Out Op., 818 F.2d at 193 ("[T]he fact that
dioxin may injure does not prove the same of Agent
Orange . . . ."). We express no view regarding whether the
defendants might have done more to investigate dioxin's dangers,
as it is well beyond the purview of our inquiry. Cf. Kerstetter
v. Pac. Sci. Co., 210 F.3d 431, 436 (5th Cir. 2000) (discussing
relationship between contractor defense and latent defects).
-47-
1 from the herbicides on their workers, was also relayed to the

2 President's Science Advisory Committee in a May 1963 briefing

3 entitled "Possible Health Hazard of Phenoxyacetates as Related to

4 Defoliation Operations in Vietnam." At least two domestic

5 manufacturers, however, had already experienced chloracne

6 breakouts and other problems among its workers.

7 The documents make clear, however, that the military

8 was concerned about the likely effect on those exposed to the

9 herbicides in the manner in which they were, and were to be, used

10 in Vietnam. This is hardly surprising. The principal purpose of

11 Agent Orange was to attempt to protect American troops from

12 attack by limiting vegetation around American facilities and

13 emplacements that could provide cover to enemy combatants. To

14 that extent, the chemical agents were to be used on American and

15 allied positions, not those of the Viet Cong.

16 And the undisputed record with respect to dangers that

17 were posed by the use of Agent Orange is that during the entirety

18 of the production of Agent Orange, the defendants knew only that

19 it was possible that those handling herbicides containing 2,4,5-T

20 might develop the skin disease chloracne. The Edgewood

21 participants, including delegates from various branches of the

22 government, military and civil, were aware of this type of risk.

23 See April 1963 Meeting Minutes at 5 (AmChem representative

24 related experiences of "industrial firms making . . . continuous

25 field applications over very large areas" and noted "skin

26 sensitization was the maximum effect produced" in "probably one

-48-
1 out of a thousand persons"). Yet the government continued to

2 order Agent Orange in the manner specified in the procurement

3 contracts.

4 If the government had decided to manufacture Agent

5 Orange, as it considered doing for a period during the late

6 1960s, the defendants might well have been required more fully to

7 inform the government of all the possible dangers associated with

8 the manufacture of the chemical (none of them, incidentally,

9 being malignancies). The record suggests that they were prepared

10 to do so. See "Plan 'Orange' Production," Dow Chemical Co. (Apr.

11 20, 1967), at 3 (stating that "[a] serious potential health

12 hazard to production workers is involved in the production of

13 2,4,5-T" and noting that its "knowhow regarding elimination of

14 the hazard" could be made available to the government), attached

15 to Letter from A.P. Beutel, Vice Pres., Dir. of Gov't Affairs,

16 Dow Chemical Co., to H.G. Fredericks, Deputy Dir. of Procurement

17 and Production, Edgewood Arsenal (Apr. 20, 1967).

18 We conclude, however, that no reasonable factfinder

19 could find that the defendants had knowledge of a danger that

20 might have influenced the military's conclusion that "operational

21 use" of Agent Orange posed "no health hazard . . . to men or

22 domestic animals," April 1963 Meeting Minutes, at 3, 5, and its

23 presumably related decision to continue to purchase Agent Orange

24 as it was then being produced by the defendants. We find

25 nothing in the record to support an assertion that the

26 defendants "cut[] off information highly relevant
-49-
1 to . . . discretionary decision[s]" of the government, Boyle, 487

2 U.S. at 513, i.e., that they possessed knowledge of dangers

3 unknown to the government that, had they been shared, might have

4 influenced the government's decision regarding the extent of the

5 hazard posed by use of Agent Orange or its choice to continue its

6 use.

7 We acknowledge that there may well have been some

8 aspects of the dangers of Agent Orange resulting from the trace

9 presence of dioxin that personnel of one or more of the

10 defendants were aware of that members of the military may not

11 have known, at least contemporaneously. We cannot conceive of a

12 long-term relationship between the military and a civilian

13 contractor in which complete equivalence of knowledge at all

14 times in the relationship can be expected or could be

15 established. But nothing in the record of which we are aware

16 would create a triable issue of fact as to whether there was

17 never-disclosed knowledge of a sort that might have influenced

18 the government's decision-making process regarding Agent Orange

19 as it was used in Vietnam.

20 Accordingly, we conclude that the defendants have

21 established as a matter of law the third requirement of Boyle.

22 ***

23 We feel obliged to note, finally, what seems to us to

24 be obvious: The question raised by government contractor defense

25 cases arising in the context of contracts for military agents and

26 equipment is the extent to which contractors are protected when
-50-
1 they provide materials designed to assist the government in

2 obtaining what are ultimately military objectives -- in this case

3 the principal objective being to protect members of the armed

4 forces from enemy attack. Considerations of the validity of

5 those objectives and the reasons for which the military seeks

6 them are far beyond the competence of this Court. Our

7 determination as to the protection of a military contractor must

8 be made using the same principles regardless of the nature of the

9 military conflict in which they are pursued, or the extent to

10 which it is controversial or enjoys popular support.

11 II. Discovery Rulings

12 The plaintiffs also appeal from the discovery

13 limitations imposed by the district court during the months

14 following its initial February 9, 2004, decision granting the

15 defendants' motion for summary judgment. We review discovery

16 rulings for abuse of discretion. Wood v. FBI, 432 F.3d 78, 82

17 (2d Cir. 2005).

18 As we have noted, the district court's February 9,

19 2004, government contractor defense opinion granted the

20 plaintiffs a six-month discovery period and permission to seek

21 reconsideration of its summary judgment ruling. Shortly

22 thereafter, the plaintiffs requested "the documents from all of

23 the other litigation that these [defendants] have been involved

24 in, involving the same pesticides and the same type of claims."

25 Tr. of Civil Conference Before The Hon. Joan M. Azrack at 10.

26 They did so without having attempted review of the MDL record.
-51-
1 Id. at 16. The defendants objected on the grounds that documents

2 from other cases were likely to be largely irrelevant to the

3 question of the applicability of the government contractor

4 defense, duplicative of MDL materials where relevant in any

5 event, and overly burdensome to produce. Id. at 13-14.

6 On March 2, 2004, Magistrate Judge Azrack denied the

7 request, ruling that the plaintiffs first had to familiarize

8 themselves with the MDL record before requesting additional

9 documents. On March 19, 2004, Judge Weinstein granted the

10 plaintiffs access to six deposition transcripts from non-MDL

11 cases.

12 The plaintiffs now argue that the district court abused

13 its discretion by limiting the plaintiffs to the documents

14 produced in the MDL during the 1980s and six subsequent

15 depositions. They assert that in the intervening period, the

16 defendants have been sued by other end-users of their commercial

17 herbicides, citizens exposed to industrial contamination from the

18 herbicides' production, and their workers. Discovery in these

19 cases, they contend, was more extensive than the discovery

20 against the defendants that occurred during the 1980s and would

21 be germane to the defendants' knowledge of the adverse health

22 effects caused by their herbicides. They list thirteen other

23 cases involving three defendants (Dow Chemical, Monsanto, and

24 Hercules) and various government hearings from which they suspect

25 discovery and papers would be helpful. Beyond broad claims that

26 the discovery in those cases was more focused on the defendants'
-52-
1 knowledge as compared with the MDL, however, the plaintiffs do

2 not cite specific bases for a conclusion on our part that the

3 documents would differ materially from the voluminous documents

4 available to them through the MDL. The defendants do not respond

5 to the plaintiffs' discovery-related arguments.

6 The Federal Rules of Civil Procedure permit parties to

7 "obtain discovery regarding any matter, not privileged, that is

8 relevant to the claim or defense of any party," Fed. R. Civ. P.

9 26(b)(1), but a district court may limit discovery if, among

10 other things,

11 it determines that: (i) the
12 discovery sought is unreasonably
13 cumulative or duplicative, or is
14 obtainable from some other source
15 that is more convenient, less
16 burdensome, or less expensive; (ii)
17 the party seeking discovery has had
18 ample opportunity by discovery in
19 the action to obtain the
20 information sought; or (iii) the
21 burden or expense of the proposed
22 discovery outweighs its likely
23 benefit . . . .

24 Id. R. 26(b)(2)(C). A district court has wide latitude to

25 determine the scope of discovery, and "[w]e ordinarily defer to

26 the discretion of district courts regarding discovery matters."

27 Maresco v. Evans Chemetics, Div. of W.R. Grace & Co., 964 F.2d

28 106, 114 (2d Cir. 1992). A district court abuses its discretion

29 only "when the discovery is so limited as to affect a party's

30 substantial rights." Long Island Lighting Co. v. Barbash, 779

31 F.2d 793, 795 (2d Cir. 1985). A party must be afforded a

-53-
1 meaningful opportunity to establish the facts necessary to

2 support his claim. Id.

3 The plaintiffs here have failed to demonstrate that the

4 district court's rulings limiting the scope of discovery

5 constituted an abuse of discretion. We think the district court

6 reasonably concluded that the MDL files were likely the best

7 source regarding the information the plaintiffs' sought:

8 defendants' knowledge of 2,4,5-T's risks at the time of

9 production. The plaintiffs' motion to Judge Azrack was an

10 unlimited and unfocused request for many thousands of additional

11 documents, made without any attempt to review what was already

12 available to them or to tailor their request to materials

13 reasonably expected to produce relevant, non-duplicative

14 information. Accordingly, the district court's limitations were

15 well within its discretion under Rule 26.

16 III. Stephensons' Motion to Amend

17 Finally, the Stephensons challenge the district court's

18 denial of their motion to amend their complaint. Federal Rule of

19 Civil Procedure 15(a), as in effect at the time of the court's

20 order, provided that "[a] party may amend the party's pleading

21 once as a matter of course at any time before a responsive

22 pleading is served. . . . Otherwise a party may amend the

23 party's pleading only by leave of court or by written consent of

24 the adverse party; and leave shall be freely given when justice

25 so requires." Id. "We review the determination of a district

26 court to deny a party leave to amend the complaint under Fed. R.
-54-
1 Civ. P. 15(a) for abuse of discretion." McCarthy v. Dun &

2 Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007).

3 Here, at the time of the Stephensons' motion, the

4 defendants had not filed an answer to their complaint.

5 Stephenson, 220 F.R.D. at 24. Accordingly, the Stephensons were

6 entitled to amend their complaint as a matter of right without

7 leave of the district court, because "a motion is not a

8 responsive pleading," 6 Charles Alan Wright, Arthur R. Miller &

9 Mary Kay Kane, Federal Practice and Procedure § 1483, at 584 (2d

10 ed. 1990); see id. at 586 ("Nor does a summary judgment motion

11 made before responding [to plaintiff's complaint] have any effect

12 on a party's ability to amend under the first sentence of Rule

13 15(a)."); accord, e.g., Zaidi v. Ehrlich, 732 F.2d 1218, 1219-20

14 (5th Cir. 1984); Miller v. Am. Exp. Lines, Inc., 313 F.2d 218,

15 218-19 & n.1 (2d Cir. 1963). Because the defendants had not

16 filed a responsive pleading when the Stephensons sought to amend

17 their complaint, the district court erred in denying the

18 amendment.

19 We conclude, however, that in light of our finding

20 regarding the government contractor defense, the district court's

21 erroneous denial of the Stephensons' motion was harmless.

22 Repleading could not avoid the application of the government

23 contractor defense and, therefore, remand to permit the amendment

24 would be futile. See Sinicropi v. Nassau County, 601 F.2d 60, 62

25 (2d Cir. 1979) (concluding that even if district court had erred

26 in denying motion to amend, any error would be harmless because
-55-
1 the proposed amendment would have been barred by res judicata),

2 cert. denied, 444 U.S. 983 (1979); cf. Unlaub Co., Inc. v.

3 Sexton, 568 F.2d 72, 78 (8th Cir. 1977) (concluding any abuse of

4 discretion by district court in failing to permit defendant to

5 amend his answer was harmless because "[n]one of the matters set

6 forth in the proposed amended answer would affect the result").

7 CONCLUSION

8 For the foregoing reasons, we affirm the judgments of

9 the district court.

-56-