In Re "Agent Orange" Prod. Liability Litig.

Opinion

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 21, 2008 6 Errata Filed: March 25, 2008) 7 8 -----------------------------------------------

9 In re "Agent Orange" Product Liability 10 Litigation

11 ----------------------------------------------- 12 J. MICHAEL TWINAM, 13 Plaintiff-Appellant, 14 - v - 05-1509-cv 15 DOW CHEMICAL COMPANY, et al., 16 Defendants-Appellees. 17 ----------------------------------------------- 18 ROBERT S. BAUER and SANDRA J. BAUER, 19 Plaintiffs-Appellants, 20 - v - 05-1693-cv

21 DOW CHEMICAL CO., et al., 22 Defendants-Appellees. 23 -----------------------------------------------

24 SHERYL A. WALKER, ERIC C. WALKER, A Minor, By his Mother and Next Friend on 25 behalf of SHERYL A. WALKER, STEPHEN J. WALKER, WILLIAM HAMILTON and ESTHER M. 26 HAMILTON, His Wife, Individually and on Behalf of All Others Similarly 27 Situated,

28 Plaintiffs-Appellants, 29 - v - 05-1694-cv

30 DOW CHEMICAL CO., et al.,

2

1 Defendants-Appellees, 2 DOES 1-100, 3 Defendants.

4 ----------------------------------------------- 5 SHERMAN CLINTON STEARNS and DORTHA MONYENE STEARNS, 6 Plaintiffs-Appellants, 7 - v - 05-1695-cv 8 DOW CHEMICAL COMPANY, et al., 9 Defendants-Appellees. 10 ----------------------------------------------- 11 WILMER PLOWDEN JR., 12 Plaintiff-Appellant, 13 - v - 05-1696-cv 14 DOW CHEMICAL CO., et al., 15 Defendants-Appellees. 16 ----------------------------------------------- 17 CHARLES T. ANDERSON, 18 Plaintiff-Appellant, 19 - v - 05-1698-cv

20 DOW CHEMICAL COMPANY, et al., 21 22 Defendants-Appellees,

23 PFIZER, INC., et. al., 24 Defendants. 25 -----------------------------------------------

26 LINDA FAYE CLOSTIO-BREAUX, RACHEAL M. BREAUX, JOEY M. BREAUX, APRIL R. BREAUX, 27 STACY M. BREAUX, ERIC J. BREAUX, and SCOTT M. BREAUX,

28 Plaintiffs, 29 CHARLES J. BREAUX, 30 Plaintiff-Appellant, 31 - v - 05-1700-cv 32 DOW CHEMICAL COMPANY, et al.,

3

1 Defendants-Appellees. 2 ----------------------------------------------- 3 THOMAS G. GALLAGHER, 4 Plaintiff-Appellant, 5 - v - 05-1737-cv 6 DOW CHEMICAL CO. and OCCIDENTAL CHEMICAL CORP., 7 Defendants-Appellees. 8 ----------------------------------------------

9 DANIEL RAYMOND STEPHENSON, SUSAN STEPHENSON, DANIEL ANTHONY STEPHENSON and 10 EMILY ELIZABETH STEPHENSON,

11 Plaintiffs-Appellants, 12 - v - 05-1760-cv 13 DOW CHEMICAL CO., et al., 14 Defendants-Appellees. 15 ----------------------------------------------- 16 CASEY J. SAMPEY, JR., 17 Plaintiff-Appellant, 18 - v - 05-1771-cv 19 DOW CHEMICAL CO., et al., 20 Defendants-Appellees. 21 -----------------------------------------------

22 CHRISTINE NELSON, Individually and on behalf of her deceased husband, FRANKLIN 23 NELSON, REGINALD WILLIAMS, KAREN HOLLAND, FRANKLIN NELSON JR. and SHALISA 24 NELSON,

25 Plaintiffs-Appellants, 26 - v - 05-1810-cv 27 DOW CHEMICAL CO., et al., 28 Defendants-Appellees. 29 ----------------------------------------------- 30 HENRY C. KIDD and SHIRLEANE J. KIDD, 31 Plaintiffs-Appellants, 32 - v - 05-1813-cv 33 DOW CHEMICAL CO., et al.,

4

1 Defendants-Appellees. 2 ----------------------------------------------- 3 WILLIE WILLIAMS JR., and RITA WILLIAMS, 4 Plaintiffs-Appellants, 5 - v - 05-1817-cv 6 DOW CHEMICAL CO., et al., 7 Defendants-Appellees. 8 ----------------------------------------------- 9 JOE ISAACSON and PHYLLIS LISA ISAACSON, 10 Plaintiffs-Appellants, 11 - v - 05-1820-cv 12 DOW CHEMICAL CO., et al., 13 Defendants-Appellees. 14 ----------------------------------------------- 15 VICKEY S. GARNCARZ, 16 Plaintiff-Appellant, 17 - v - 05-2450-cv 18 DOW CHEMICAL CO., et al., 19 Defendants-Appellees. 20 ----------------------------------------------- 21 JACK RICHARD PATTON, 22 Plaintiff-Appellant, 23 - v - 05-2451-cv 24 DOW CHEMICAL CO., et al., 25 Defendants-Appellees. 26 -----------------------------------------------

27 28 Before: MINER, SACK, and HALL, Circuit Judges.

29 Appeals from final judgments of the United States 30 District Court for the Eastern District of New York (Jack B. 31 Weinstein, Judge) granting summary judgment to the defendants,

5

1 orders denying certain requests for discovery, and the order 2 denying the Stephenson plaintiffs' motion to amend their 3 complaint.

4 Affirmed. 5 JAMES BOANERGES, Cooper, Sprague, Jackson & 6 Boanerges, P.C., Houston, TX; MARK I. BRONSON, 7 Newman, Bronson & Wallis, St. Louis, Missouri; 8 GERSON H. SMOGER, Smoger & Associates, Oakland, 9 California; MARK R. CUKER, Williams Cuker 10 Berezofsky, Philadelphia, PA, for Plaintiffs- 11 Appellants;

12 Christopher E. Buckey, Shanley, Sweeney, Reilly, 13 & Allen, P.C., Albany, NY; David E. Cherry, 14 Campbell, Cherry, Harrison, Davis & Dove, P.C., 15 Waco, TX; John H. Pucheu, Pucheu, Pucheu & 16 Robertson, L.L.P., Eunice, LA; Bernard F. Duhon, 17 Abbeville, LA; Robert B. Evans, III, Burgos, 18 Evans & Wilson LLC, Metairie, LA; Nira T. 19 Kersmich, Rochester, NY; Jeffrey D. Guerriero, 20 Guerriero & Guerriero, Monroe, LA; Morris E. 21 Cohen, Brooklyn, NY; James Russell Tucker, 22 Dallas, TX (on the briefs), for Plaintiffs- 23 Appellants.

24 ANDREW L. FREY, CHARLES A. ROTHFELD (Lauren R. 25 Goldman, Christopher J. Houpt, of counsel), 26 Mayer, Brown, Rowe & Maw LLP, New York, NY, for 27 Defendants-Appellees.

28 John C. Sabetta, Andrew T. Hahn, Sr., Seyfarth 29 Shaw LLP, New York, NY; Seth P. Waxman, Paul R. 30 Q. Wolfson, Wilmer, Cutler, Pickering, Hale & 31 Dorr, Washington, DC; Richard P. Bress, Latham & 32 Watkins, Washington, DC; Michael M. Gordon, King 33 & Spaulding LLP, New York, NY; William A. 34 Krohley, William C. Heck, Kelley Drye & Warren 35 LLP, New York, NY; James L. Stengel, Laurie 36 Strauch Weiss, Orrick, Herrington & Sutcliffe 37 LLP, New York, NY; Steven Brock, James V. Aiosa, 38 Richard S. Feldman, Rivkin Radler LLP, 39 Uniondale, NY; Lawrence D'Aloise, Jr., Clark, 40 Gagliardi & Miller, White Plains, NY; Myron 41 Kalish, New York, NY (on the brief), for 42 Defendants-Appellees.

43 William A. Rossbach (Timothy M. Bechtel, of 44 counsel), ROSSBACH, HART, BECHTEL, P.C., 45 Missoula, MT; P.B. Onderdonk, Jr., National 46 Judge Advocate, The American Legion, 47 Indianapolis, IN, for Amicus Curiae Veterans and 48 Military Service Organizations.

49 Ian Heath Gershengorn (Lise T. Spacapan and 50 Fazal R. Khan, on the brief), Jenner & Block

6

1 LLP, Washington DC, for Amicus Curiae American 2 Chemistry Council and Chlorine Chemistry 3 Council.

4 Raphael Metzger, Metzger Law Group, Long Beach, 5 CA, for Amicus Curiae Drs. Brian G. Durie, Devra 6 Davis, Peter L. deFur, Alan Lockwood, David 7 Ozonoff, Arnold J. Schecter, David Wallinga, 8 Carl F. Cranor, The Council for Education and 9 Research on Toxic, and the Lymphoma Foundation 10 of America.

11 12 SACK, Circuit Judge:

13 More than thirty-five years ago, the United States 14 military stopped using Agent Orange and related chemicals as 15 defoliants to prosecute the war in Vietnam. This appeal is but 16 the latest chapter in a thirty-year struggle by the litigants, 17 their counsel, and judges of the United States District Court for 18 the Eastern District of New York and of this Court to bring to 19 just legal closure to the alleged consequences of that use. 20 We explain below why these sixteen unconsolidated 21 appeals are now before us and why, in our view, the government 22 contractor defense applies to bar these claims. In the course of 23 doing so, we consider the discovery limitations imposed by the 24 district court and that court's denial of the Stephenson 25 plaintiffs' motion to amend their complaint. By an opinion 26 written by Judge Hall also filed today, we decide that those of 27 the sixteen cases that were originally filed in state court were 28 properly removed by the defendants to federal court. A third 29 decision by the panel, written by Judge Miner, addresses the 30 separate issues related to the use of Agent Orange raised on

7

1 appeal in Vietnam Assoc. for Victims of Agent Orange/Dioxin v. 2 Dow Chemical Co., No. 05-1953-cv. 3 The plaintiffs pursuing this appeal are United States 4 military veterans or their relatives who allege that myriad 5 injuries, mostly forms of cancer, were caused by the veterans' 6 exposure to the chemical defoliant "Agent Orange" during service 7 in Vietnam.1 They assert that the district court erred in 8 concluding that the government contractor defense -- which 9 protects government contractors from state tort liability under 10 certain circumstances when they provide defective products to the 11 government -- applied to bar the plaintiffs' claims. The 12 plaintiffs contend further that the district court abused its 13 discretion by denying them discovery beyond what was available in 14 files from prior Agent Orange litigation. We disagree with the 15 plaintiffs on both counts. 16 We also conclude that it was error to deny the 17 Stephensons' motion to amend their complaint. In light of our 18 conclusion that the defendants are entitled to invoke the 19 government contractor defense, however, we find the error to be 20 harmless.

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.

8

1 We therefore affirm the judgments of the district court 2 in all respects. 3 BACKGROUND 4 The cases concerning the United States military's 5 acquisition and use of Agent Orange during the Vietnam War, of 6 which these are but a relative few, and their massive factual 7 records, have been addressed in so many different judicial 8 opinions over the years that we do not attempt even to list them 9 here. See generally In re "Agent Orange" Prod. Liab. Litig., 304 10 F. Supp. 2d 404, 410-14 (E.D.N.Y. 2004) ("Agent Orange III Gov. 11 Contractor Def. Op."). Neither do we undertake a detailed 12 retelling of the history of or facts underlying this litigation. 13 See id. at 407-22 (describing the history of Agent Orange 14 lawsuits brought by Vietnam veterans).2 Instead, we set forth 15 below only what we think necessary for an understanding of our 16 resolution of these appeals. 17 Agent Orange was one of several chemically similar 18 herbicides3 used by the United States government during the 19 Vietnam War in connection with "Operation Ranch Hand," the code

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.

9

1 name for the military's efforts to defoliate various areas in 2 Vietnam. See In re Agent Orange Prod. Liab. Litig., 373 F. Supp. 3 2d 7, 19 (E.D.N.Y. 2005) ("Between 1961 and 1971, herbicide 4 mixtures . . . were used by the United States and Republic of 5 Vietnam . . . forces to defoliate forests and mangroves, to clear 6 perimeters of military installations and to destroy 'unfriendly' 7 crops, as a tactic for decreasing enemy armed forces['] 8 protective cover and food supplies."). The government purchased 9 the defoliants from the defendants-appellees in the instant 10 appeals pursuant to various government contracts.4 As the 11 defoliation campaign intensified, many of the contracts were 12 subjected to various government directives entered pursuant to 13 the Defense Production Act of 1950, see 50 U.S.C. app. § 2061 et 14 seq., and regulations promulgated pursuant thereto. The 15 government characterized delivery of Agent Orange as part of the 16 prosecution of military action, which enabled the defendants to 17 procure otherwise scarce materials and equipment necessary to 18 produce it. Agent Orange III Gov. Contractor Def. Op., 304 F. 19 Supp. 2d at 424-25. 20 The Agent Orange delivered to the government was a 21 mixture of two different herbicides: 2,4-D (2,4- 22 Dichlorophenoxyacetic acid) and 2,4,5-T (2,4,5- 23 Trichlorophenoxyacetic acid). The contracts required that the

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.

10

1 chemicals be nearly 100% pure and that they be combined in 2 roughly equal proportions. 3 The manufacture of 2,4,5-T produced, as a byproduct, 4 trace elements of the toxic chemical dioxin (2,3,7,8- 5 Tetrachlorodibenzo para dioxin (TCDD)). The plaintiffs allege 6 that it is dioxin that caused the injuries of which they now 7 complain. 8 The amount of dioxin contained in a particular batch of 9 Agent Orange varied depending on the production method used by 10 its manufacturer. See In re "Agent Orange" Prod. Liab. Litig., 11 818 F.2d 145, 150, 173 (2d Cir. 1987) ("Agent Orange I Settlement 12 Op."), cert. denied, 484 U.S. 1004 (1988); In re "Agent Orange" 13 Prod. Liab. Litig., 818 F.2d 187, 189 (2d Cir. 1987) ("Agent 14 Orange I Opt-Out Op."), cert. denied, 487 U.S. 1234 (1988). The 15 defendants knew at the time they were manufacturing Agent Orange 16 that dioxin was a byproduct and that it could cause certain kinds 17 of harm under certain conditions. Various government agencies 18 and officers assessed the toxicity of the defoliating agents, 19 including Agent Orange, being used in Vietnam. Precisely what 20 knowledge the government and the defendants possessed and when 21 they came to have it is in dispute. 22 I. Overview of Agent Orange Litigation 23 The plaintiffs now before us on appeal represent a 24 small fraction of the many Americans who have pursued legal 25 claims arising out of the government's use of Agent Orange to 26 fight the Vietnam War. See generally Agent Orange III Gov.

11

1 Contractor Def. Op., 304 F. Supp. 2d at 410-14 (listing more than 2 one hundred Agent-Orange-related decisions); see also, e.g., id. 3 at 407-23 (detailing the history of Agent Orange litigation 4 involving Vietnam veterans). Their claims find their roots in 5 the "Agent Orange I" litigation, the veterans' class action begun 6 in the late 1970s and settled in 1984. 7 In those cases, the Judicial Panel on Multidistrict 8 Litigation designated the United States District Court for the 9 Eastern District of New York as the Multidistrict Litigation 10 ("MDL") court for all federal Agent Orange-related cases brought 11 by military veterans of various countries. Thereafter, first 12 Judge Pratt and then Judge Weinstein presided over proceedings 13 involving approximately 600 litigants, hundreds of thousands of 14 putative class members, several years of motion practice 15 (including motions for class certification), and one appeal to 16 this Court. On the eve of trial of those cases, the defendants 17 and class representatives reached what was then thought by the 18 parties and the courts to be a final global settlement of Agent 19 Orange-related cases in the amount of $180 million. Agent Orange 20 I Settlement Op., 818 F.2d at 152-55. 21 Because of what we termed "formidable hurdles" to the 22 plaintiffs' claims, id. at 174, we affirmed the district court's 23 approval of the settlement at what -- even at a total of $180 24 million -- we termed "nuisance value," equivalent to "at best 25 only a small multiple of, at worst less than, the fees the 26 chemical companies would have had to pay to their lawyers had

12

1 they continued the litigation." Id. at 171. The Plaintiffs in 2 287 cases opted out of the class and thereby the settlement. 3 Thereafter, the district court granted the defendants' 4 motion for summary judgment in those opt-out actions "on the 5 alternative dispositive grounds that no opt-out plaintiff could 6 prove that a particular ailment was caused by Agent Orange, that 7 no plaintiff could prove which defendant had manufactured the 8 Agent Orange that allegedly caused his or her injury, and that 9 all the claims were barred by the military contractor defense." 10 Agent Orange I Opt-Out Op., 818 F.2d at 189 (internal citations 11 omitted). 12 From 1987 through 1997, the settlement fund, which, 13 with interest and other augmentations, eventually grew to about 14 $330 million was distributed to, inter alios, some 291,000 class 15 members who filed claims prior to the 1994 cutoff date. Agent 16 Orange III Gov. Contractor Def. Op., 304 F. Supp. 2d at 421. 17 Meanwhile, two sets of plaintiffs who had been members of the 18 original plaintiff class and who were therefore entitled to 19 receive settlement payments, but whose injuries had manifested 20 after their opportunity to opt out of the class action had 21 expired, filed class actions on behalf of themselves and other 22 similarly situated veterans. The district court decided that 23 because the plaintiffs were class members, their claims were 24 barred, and we affirmed. In re "Agent Orange" Prod. Liab. 25 Litig., 996 F.2d 1425, 1439 (2d Cir. 1993) ("Agent Orange II"),

13

1 overruled in part on other grounds by Syngenta Crop Protection, 2 Inc. v. Henson, 537 U.S. 28, 34 (2002). 3 Shortly after the settlement fund distributions were 4 completed, the third, and instant, series of lawsuits was 5 initiated. These were brought by two of the sixteen plaintiffs 6 now before us, the Isaacsons and Stephensons, who had not been 7 members of the original plaintiff class. These veterans and 8 their families alleged injuries that resulted from exposure to 9 Agent Orange but did not manifest until after the 1994 cutoff 10 date for filing settlement claims in the original actions. In a 11 2001 opinion, we held that the district court had erred in 12 deciding that the plaintiffs' claims were barred by the Agent 13 Orange I settlement. Stephenson v. Dow Chem. Co., 273 F.3d 249, 14 261 (2d Cir. 2001) ("Agent Orange III").5 We concluded that a 15 conflict existed between the plaintiffs and the class 16 representatives because the representatives had permitted the 17 settlement fund to terminate without a provision for post-1994 18 claimants such as these plaintiffs. Id. at 260-61 (relying on 19 Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999) and Amchem Prods., 20 Inc. v. Windsor, 521 U.S. 591 (1997)). As a result, the 21 plaintiffs were not adequately represented by the class, and

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).

14

1 Agent Orange I did not prevent them from pursuing their claims. 2 Id. at 261.6 3 II. The Instant Appeals 4 On remand, the Stephensons and Isaacsons were 5 eventually joined by fourteen other sets of plaintiffs alleging 6 Agent Orange injuries first discovered after the 1994 cutoff 7 date. The cases were not consolidated, but the district court 8 conducted simultaneous proceedings and applied rulings in the 9 Stephenson and Isaacson cases to each of the others. Together, 10 the plaintiffs raised three tort claims under various state laws: 11 design defect, failure to warn, and manufacturing defect. 12 Six days after our mandate issued in Agent Orange III, 13 the defendants moved in the district court for summary judgment 14 against the Stephensons and Isaacsons.7 At about the same time, 15 the Stephensons moved to amend their complaint.

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.

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.

15

1 On February 9, 2004, several days after receiving 2 voluminous submissions from the plaintiffs and two weeks after 3 oral argument, the district court issued four decisions, two of 4 which -- one granting the defendants' motion for summary judgment 5 and the other denying the Stephensons' motion to amend -- are now 6 before us on appeal.8 Even though only the motions for summary 7 judgment in Stephenson and Isaacson were before it, the district 8 court considered all the evidence put forth by the parties in 9 Agent Orange I in ruling on defendants' summary judgment motion. 10 Having done so, it concluded that the government contractor 11 defense barred both the design defect and failure-to-warn claims. 12 Agent Orange III Gov't Contractor Def. Op., 304 F. Supp. 2d at 13 441-42. As to plaintiffs' manufacturing defect claims, the court 14 concluded that they were barred because the defendants' products 15 conformed to the government's specifications. Id. at 442. 16 In granting the motion for summary judgment, however, 17 the district court noted that the plaintiffs had complained of 18 "difficulties in obtaining evidence for their position," an 19 "understandable" problem in light of the passage of time between 20 exposure and injury. Id. "To ensure due process," id., 21 therefore, Judge Weinstein charted a distinctly unusual course -- 22 he permitted discovery, never undertaken by Agent Orange III 23 litigants in light of the timing of prior appeals and the

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.

16

1 defendants' motion, to continue through August 10, 2004, and he 2 set a motion schedule for an anticipated motion for 3 reconsideration based on the results of that discovery. Id. 4 Thereafter, the district court ordered that all files 5 relating to Agent Orange sent to the National Archives pursuant 6 to court order following Agent Orange I be returned to the 7 district court and made available to the plaintiffs for their 8 review. The magistrate judge assigned to the case then denied 9 all requests for additional non-MDL discovery, although the 10 district court subsequently granted the plaintiffs access to "up 11 to six complete deposition transcripts utilized in non-MDL 381 12 cases claimed by plaintiffs to shed light on relevant knowledge 13 of defendants." 14 On November 3, 2004, the plaintiffs in Stephenson and 15 Isaacson, as anticipated, filed a motion for reconsideration of 16 the district court's order granting summary judgment. On 17 November 16, 2004, the district court, without awaiting response 18 from the defendants, denied the plaintiffs' motion. In re "Agent 19 Orange" Prod. Liab. Litig., 344 F. Supp. 2d 873, 874-75 (E.D.N.Y. 20 2004). It further ordered the defendants to "submit a specific 21 judgment in favor of each named defendant against each named 22 plaintiff whose claims arise from service in the Armed Forces of 23 the United States," thereby rendering the court's judgment in 24 Stephenson and Isaacson applicable to each of the fourteen 25 additional plaintiffs now before us on appeal. Id. at 875.

17

1 Following a motion by the Bauer plaintiffs, who argued 2 that granting the motion for summary judgment was inappropriate 3 because, inter alia, the procedural posture of their case had 4 rendered them unable to respond to the defendants' motion, all 5 plaintiffs were ultimately given until February 28, 2005, to 6 submit additional papers supporting their position that summary 7 judgment should not have been granted. Oral argument was held on 8 February 28. On March 2, 2005, the district court summarily 9 reaffirmed its November 16, 2004 Order. In re "Agent Orange" 10 Prod. Liab. Litig., No. 79 MD 381, 2005 WL 483416, at *1 11 (E.D.N.Y. Mar. 2, 2005). Separate judgments of dismissal in each 12 action were then filed. 13 More than a year before, in February 2004, the district 14 court had denied the Stephensons' motion to amend their complaint 15 to add additional defendants and several new causes of action. 16 Stephenson v. Dow Chem. Co., 220 F.R.D. 22, 25-26 (E.D.N.Y. 17 2004). Although the defendants had never answered the 18 Stephensons' original complaint, filed pro se in the Western 19 District of Louisiana, the motion to amend was denied on a 20 variety of grounds. Id. 21 The plaintiffs appeal. Before us are challenges to (1) 22 the district court's grant of the motion for summary judgment as 23 to their design claim only;9 (2) the denial of their requests for

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).

18

1 additional discovery; and (3) the denial of the Stephensons' 2 motion to amend.10 3 DISCUSSION 4 I. Summary Judgment 5 A. Standard of Review 6 We review the district court's grant of summary 7 judgment de novo, "construing the evidence in the light most 8 favorable to the non-moving party and drawing all reasonable 9 inferences in its favor." Allianz Ins. Co. v. Lerner, 416 F.3d 10 109, 113 (2d Cir. 2005). "We will affirm the judgment only if 11 there is no genuine issue as to any material fact, and if the 12 moving party is entitled to a judgment as a matter of law." Id. 13 (citing Fed. R. Civ. P. 56(c)). 14 B. The Government Contractor Defense 15 Almost twenty years ago, in Boyle v. United 16 Technologies Corp., 487 U.S. 500 (1988), the Supreme Court 17 recognized the government contractor defense,11 a federal common 18 law doctrine. The Court concluded that the "uniquely federal

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.

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."

19

1 interest[]" of "getting the Government's work done" requires 2 that, under some circumstances, independent contractors be 3 protected from tort liability associated with their performance 4 of government procurement contracts. Id. at 504-05. 5 The Court looked to the Federal Tort Claims Act, 28 6 U.S.C. § 2671 et seq. ("FTCA"), for guidance. Id. at 509-12. 7 Under the FTCA, Congress waived sovereign immunity for the 8 government insofar as Congress "authorized damages to be 9 recovered against the United States for harm caused by the 10 negligent or wrongful conduct of Government employees, to the 11 extent that a private person would be liable under the law of the 12 place where the conduct occurred." Id. at 511 (citing 28 U.S.C. 13 § 1346(b)). The Act's discretionary function exception, however, 14 carves out from that authorization "'[a]ny claim . . . based upon 15 the exercise or performance or the failure to exercise or perform 16 a discretionary function or duty on the part of a federal agency 17 or an employee of the Government, whether or not the discretion 18 involved be abused.'" Id. (quoting 28 U.S.C. § 2680(a)) 19 (brackets in original). 20 The Boyle Court concluded that the protection for 21 discretionary action taken by federal agencies and employees 22 implies some measure of similar protection for government 23 contractors even though they are themselves non-governmental 24 entities. The Court noted that the exercise of government 25 discretion is inherent to military contracting:

26 We think that the selection of the 27 appropriate design for military equipment to

20

1 be used by our Armed Forces is assuredly a 2 discretionary function within the meaning of 3 this provision. It often involves not merely 4 engineering analysis but judgment as to the 5 balancing of many technical, military, and 6 even social considerations, including 7 specifically the trade-off between greater 8 safety and greater combat effectiveness. 9 Id. Accordingly, the Court said, 10 permitting "second-guessing" of these 11 judgments through state tort suits against 12 contractors would produce the same effect 13 sought to be avoided by the FTCA 14 exemption. . . . To put the point 15 differently: It makes little sense to 16 insulate the Government against financial 17 liability for the judgment that a particular 18 feature of military equipment is necessary 19 when the Government produces the equipment 20 itself, but not when it contracts for the 21 production. 22 Id. at 511-12 (citation omitted). The defense thus protects

23 government contractors from the specter of liability when the 24 operation of state tort law would significantly conflict with the 25 government's contracting interest. Id. at 507. 26 Adopting the reasoning employed in several previous 27 court of appeals decisions, the Court limited "the scope of 28 [state law] displacement" to instances in which "(1) the United 29 States approved reasonably precise specifications [for the 30 allegedly defectively designed equipment]; (2) the equipment 31 conformed to those specifications; and (3) the [contractor who 32 supplied the equipment] warned the United States about the 33 dangers in the use of the equipment that were known to the 34 supplier but not to the United States." Id. at 512. The first 35 two requirements "assure that the suit [from which protection is 36 sought] is within the area where the policy of the 'discretionary

21

1 function' would be frustrated -- i.e., they assure that the 2 design feature in question was considered by a Government 3 officer, and not merely by the contractor itself." Id. The 4 third requirement is imposed because "in its absence, the 5 displacement of state tort law would create some incentive for 6 the manufacturer to withhold knowledge of risks, since conveying 7 that knowledge might disrupt the contract but withholding it 8 would produce no liability." Id. The Court therefore "adopt[ed] 9 this provision lest [its] effort to protect discretionary 10 functions perversely impede them by cutting off information 11 highly relevant to the discretionary decision." Id. at 512-13. 12 The plaintiffs here contend that the defendants cannot, 13 at least as a matter of law at the summary judgment stage, 14 satisfy any one of the three requirements. 15 1. Reasonably Precise Specifications. 16 The plaintiffs argue that the defendants have not 17 established the first Boyle requirement -- that "the United 18 States approve[] reasonably precise specifications," 487 U.S. at 19 512 -- because: (1) Agent Orange procurement contracts contained 20 no specifications regarding the defective feature, dioxin; (2) 21 there is at least a genuine issue of material fact regarding 22 whether Agent Orange was a commercially available product whose 23 specifications were created by the defendants rather than the 24 government, whose involvement was minimal; and (3) the alleged 25 defect was unrelated to the contractual specifications for 26 2,4,5-T because it was the defendants' chosen manufacturing

22

1 processes -- with which the government was not involved and which 2 were not integral to contract compliance -- that caused dioxin to 3 be present.12 4 The first argument concerns the proper conception of 5 the complained-of defect and can readily be resolved. The second 6 and third arguments are, in distinct ways, about how the 7 government exercised its discretionary authority: The second 8 argument asks whether the government was involved in the 9 contractual process to the extent that Boyle requires; while the 10 third asks us to determine in what context the government must 11 exercise its discretion for the government contractor defense to 12 apply. To conduct this third inquiry, we must determine the 13 source of the "conflict" between the government's interests and 14 state tort law that is required for the defense to apply. 15 a. The complained-of defect

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.

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.

23

1 The plaintiffs assert that because the contracts at 2 issue contain no specifications whatsoever with regard to the 3 dioxin, the government exercised no discretionary authority over 4 that which is the subject of their state tort litigations, as a 5 successful defense based on Boyle requires. Their argument 6 misconceives the nature of what the contracts in question were 7 about and defines the alleged defective design too narrowly. 8 The contracts at issue provided for the defendants to 9 supply Agent Orange. The Agent Orange was allegedly defective 10 because it contained excessive trace amounts of dioxin, which 11 were present as a result of the manufacture of a specified Agent 12 Orange component, 2,4,5-T. The dioxin -- while a defect of 13 2,4,5-T -- was not itself defective, nor did it exist within 14 Agent Orange apart from the 2,4,5-T therein.13 It was therefore 15 the 2,4,5-T that was alleged to be defective, not the dioxin.

16 b. The government approved specifications for a 17 uniquely tailored product

18 The plaintiffs contend that the defendants cannot 19 demonstrate that the government exercised its discretionary 20 authority to create the Agent Orange specifications that are 21 contained in the contracts. The government contractor defense 22 protects federal contractors solely as a means of protecting the 23 government's discretionary authority over areas of significant 24 federal interest such as military procurement. Defendants 25 asserting the defense must demonstrate that the government made a

13

Pure lead, without defect, may be a defect of a child's painted toy.

24

1 discretionary determination about the material it obtained that 2 relates to the defective design feature at issue. Where the 3 government "merely rubber stamps a design, . . . or where the 4 [g]overnment merely orders a product from stock without a 5 significant interest in the alleged design defect," the 6 government has not made a discretionary decision in need of 7 protection, and the defense is therefore inapplicable. Lewis v. 8 Babcock Indus., Inc., 985 F.2d 83, 87 (2d Cir.) (citing Trevino 9 v. Gen. Dynamics Corp., 865 F.2d 1474, 1480, 1486 (5th Cir.), 10 cert. denied, 493 U.S. 935 (1989), and Boyle, 487 U.S. at 509) 11 (internal quotation marks omitted), cert. denied, 509 U.S. 924 12 (1993). If the government buys a product "off-the-shelf" -- "as- 13 is" -- the seller of that product cannot be heard to assert that 14 it is protected from the tort-law consequences of the product's 15 defects. Where the government is merely an incidental purchaser, 16 the seller was not following the government's discretionary 17 procurement decisions. 18 Here, the plaintiffs contend that the government 19 rubber-stamped its approval of the defendants' suggested 20 specifications, which, in turn, were simply combinations of off- 21 the-shelf, commercially available herbicides. They say that Dow 22 Chemical owned the patents for certain aspects of the herbicides' 23 component parts and that many different defendants manufactured 24 and sold 2,4,5-T and 2,4-D in various combinations as early as 25 1948, with some of the formulations including the same 50% 26 mixture as Agent Orange. As a result, the plaintiffs assert,

25

1 there are at least triable issues of fact as to whether (1) Agent 2 Orange and related herbicides were "stock" products, rather than 3 products tailored to the government's needs; and (2) even if the 4 herbicides were not commercially available products, Agent 5 Orange's components were devised by the defendants without the 6 significant government input necessary to meet the first Boyle 7 requirement. 8 As to the former, the plaintiffs do not dispute the 9 defendants' assertions that 2,4,5-T and 2,4-D were not 10 commercially available at the same high concentrations as that 11 contained in Agent Orange. The Stephensons, for example, concede 12 that 2,4,5-T was not commercially available in concentrations 13 greater than 55%. See Final Reply Br. for Pl.-Appellants, 05- 14 1760-cv, at 67-68. Agent Orange, by contrast, contained 2,4,5-T 15 at greater than 90% purity levels. See, e.g., Aff. of William A. 16 Krohley, counsel for defendant Hercules Inc., Oct. 27, 2004 17 ("Krohley Aff."), Exh. 11 (July 19, 1963 military specification). 18 Moreover, as the Fifth Circuit aptly noted in unrelated 19 Agent Orange litigation, the fact that a product supplied to the 20 government comprises commercially available component parts says 21 nothing about whether the finished product resulted from the 22 exercise of governmental discretion as to its design. "[A]ll 23 products can eventually be broken down into various off-the-shelf 24 components." Miller v. Diamond Shamrock Co., 275 F.3d 414, 420 25 (5th Cir. 2001); see also In re Joint Eastern and Southern Dist. 26 New York Asbestos Litig., 897 F.2d 626, 638 (2d Cir. 1990)

26

1 ("Grispo") (Miner, J., concurring) ("[T]he [g]overnment 2 prescription of how [stock] items should be combined and packaged 3 [is] the key to the military contractor defense . . . ."). 4 As to the latter argument -- the plaintiffs' contention 5 that there was no significant government input -- the plaintiffs 6 misperceive the nature of the government involvement necessary to 7 invoke the contractor defense. That the component chemicals were 8 not developed for military use in the first instance, that some 9 aspects of their composition were patented, and that the 10 defendants may have proposed certain specifications to the 11 government, are not determinative. Boyle explicitly contemplated 12 government reliance on manufacturers' expertise in making a fully 13 informed decision as to what to order. See Boyle, 487 U.S. at 14 513. "[I]t is necessary only that the government approve, rather 15 than create, the specifications . . . ." Carley v. Wheeled 16 Coach, 991 F.2d 1117, 1125 (3d Cir.), cert. denied, 510 U.S. 868 17 (1993); see also Boyle, 487 U.S. at 513 ("The design ultimately 18 selected may well reflect a significant policy judgment by 19 [g]overnment officials whether or not the contractor rather than 20 those officials developed the design."). 21 The extent of the defendants' involvement in suggesting 22 specifications or the defendants' reliance on previously attained 23 industry expertise in doing so is thus not conclusive. The 24 government exercises adequate discretion over the contract 25 specifications to invoke the defense if it independently and 26 meaningfully reviews the specifications such that the government

27

1 remains the "agent[] of decision." Grispo, 897 F.2d at 630; see 2 also Stout v. Borg-Warner Corp., 933 F.2d 331, 336 (5th Cir.) 3 (government issued reasonably precise specifications when it 4 reviewed contractor's detailed drawings several times and 5 evaluated test models), cert. denied, 502 U.S. 981 (1991); 6 Harduvel v. Gen. Dynamics Corp., 878 F.2d 1311, 1320 (11th Cir. 7 1989) (government issued reasonably precise specifications for F- 8 16 fighter aircraft having approved its design following 9 "continuous back and forth" with contractor), cert. denied, 494 10 U.S. 1030 (1990). 11 With respect to Agent Orange, the record contains, for 12 example, a memorandum dated February 22, 1963, regarding "Ester 13 Specifications for U.S. Army Biological Laboratories," written by 14 an employee of one of the defendants, that discussed a February 15 8, 1963, meeting called "to satisfy the U.S. Army about 16 specifications and typical physical properties on the next type 17 of blend they [sic] will be purchasing." Mem. from I.F. Hortman 18 to, inter alios, S.D. Daniels and W.A. Kuhn (Feb. 22, 1963), at 19 1. It indicated that an effort to permit use of a different n- 20 butyl ester from 2,4,5-T was "impossible at this time because the 21 Army had studied only the normal esters," and that, therefore, 22 the chemical company would have to present the proposed change 23 directly to "the commanding officer, U.S. Army Biological 24 Laboratories and Dr. Charles Minarick, Chief of Crops Division" 25 for approval. Id. And notes from a 1968 meeting between 26 government officials and representatives of several of the

28

1 defendants indicate that the government insisted on a test for 2 chemical composition despite "much resistance to this added 3 requirement on the part of the Industry [sic]" as well as on a 4 98% purity level for the 2,4,5-T ester. Memorandum of R.A. 5 Guidi, Diamond Alkali Co. (Feb. 20, 1968), at 1-2. 6 We conclude, based on the evidence in the extensive 7 record that has been brought to our attention,14 that no 8 reasonable jury could find that the government did not exercise 9 sufficient discretion for it to have been said to have "approved" 10 specifications for the herbicides. The government was plainly 11 the "agent[] of decision," Grispo, 897 F.2d at 630, with respect 12 to Agent Orange's contractually specified composition.

13 c. The government made a discretionary 14 determination regarding Agent Orange's toxicity

15 The next question, and we think it to be a more 16 difficult one, is whether the government made a discretionary 17 determination that created the conflict between the federal 18 government's interests and the defendant's state law duties that 19 is necessary to invoke the government contractor defense. The 20 plaintiffs argue that the defendants could have manufactured 21 Agent Orange that produced either dioxin-free or nearly dioxin- 22 free 2,4,5-T by employing the lower-temperature manufacturing 23 process developed and used by a German manufacturer, C.H.

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).

29

1 Boehringer Sohn. This process, the plaintiffs say, would have 2 permitted the defendants to comply with their federal contractual 3 duties and deliver a less toxic defoliating agent, albeit at a 4 somewhat slower rate. As a result, the plaintiffs argue, the 5 defendants could have met both their federal duties and their 6 state tort-law duties; the direct conflict contemplated by Boyle 7 is absent; and the first requirement for the contractor defense 8 therefore cannot be established.15 9 (i) Analysis. In determining whether the government 10 made a discretionary decision that would create the type of 11 conflict between tort law and government interests contemplated 12 by Boyle, we are not called upon to assess the merits of the 13 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

30

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

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 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.

31

1 the [g]overnment approved reasonably precise specifications for 2 the design feature in question necessarily answers the question 3 whether the federal contract conflicts with state law." Id. at 4 87. If such specifications are present, the contractor's federal 5 contractual duties will inevitably conflict with alleged state 6 tort duties to the contrary because complying with the federal 7 contract will prevent compliance with state tort law as the 8 plaintiffs have alleged that it exists. See id. Alternatively, 9 where a "contractor could comply with both its contractual 10 obligations and the state-prescribed duty of care," displacement 11 "generally" would not be warranted, and state law would apply. 12 Boyle, 487 U.S. at 509. 13 The defendants do not contest that the government's 14 contractual specifications for Agent Orange were silent regarding 15 the method of manufacture or that the government harbored no 16 preference, expressed or otherwise, regarding how the herbicides 17 were to be produced. See, e.g., Appellees' Br. at 36-37. 18 Indeed, they admit that they were under no federal contractual 19 duty to produce Agent Orange using any particular manufacturing 20 process or with any particular reference to the resulting 21 toxicity levels. See id. at 96-97, 99 (characterizing lack of 22 specifications regarding method of manufacture or toxicity levels 23 as discretionary omission and conceding that "omitted 24 specifications do not constitute contractual duties"). The 25 defendants argue instead that the government's Agent Orange 26 procurement contracts nevertheless created a conflict with their

32

1 alleged state tort duty to manufacture the herbicides 2 differently. The defendants reason that the documentary evidence 3 establishes as a matter of law that the manufacture of dioxin- 4 free Agent Orange was impossible and that, in any event, they 5 could not have complied with their procurement contracts with the 6 government had they used the slower, less efficient, Boehringer 7 method. They contend further that the government ordered the 8 herbicides with full knowledge of the relevant dangers, which, 9 they say, is equivalent to the government having approved a 10 reasonably precise specification about that danger. Id. at 91- 11 99, 102-04. 12 But the documents cited by the defendants as to the 13 inevitability of dioxin content in Agent Orange -- including 14 declarations by the Environmental Protection Agency that dioxin 15 in some very small amounts was "unavoidable" and that the 16 "potential risks" of harm to humans outweighed any benefits of 17 continued use of commercially available 2,4,5-T, see EPA Notice 18 of the Denial of Applications for Federal Registration of 19 Intrastate Pesticide Products Containing 2,4,5-T, 45 Fed. Reg. 20 2,898, 2,899 (Jan. 15, 1980); EPA Decision and Emergency Order 21 Suspending Registrations for the Forest, Rights-of-Way, and 22 Pasture Uses in 2,4,5-T, 44 Fed. Reg. 15,874, 15,874 n.1 (Mar. 23 15, 1979) -- do not refute what we understand to be the thrust of 24 the plaintiffs' argument: that had the defendants used the 25 Boehringer method, the Agent Orange they produced would have 26 contained no then-detectable amounts of dioxin. In that event,

33

1 the plaintiffs allege, the lower levels of dioxin would have 2 avoided much, if perhaps not all, of the harm allegedly suffered 3 as a result of the presence of dioxin in Agent Orange. 4 The documents submitted to the district court also do 5 not establish as a matter of law that there was an inherent 6 conflict between use of the Boehringer process and compliance 7 with defendants' contractual obligation to the government. Dow 8 Chemical adopted and used the Boehringer method, or something 9 like it, see Mem. from J.D. Doedens, Chemicals Dep't, Dow Chem. 10 Co. (Mar. 1, 1965), at 2; Mem. from Alex Widiger, Midland 11 Division Research & Dev., Dow Chem. Co. (Apr. 25, 1967), at 2, at 12 the time the government was requesting Agent Orange in increasing 13 quantities and sequestering the entire domestic market for 2,4,5- 14 T. This change in manufacturing method and its timing at least 15 raises a triable issue of fact as to whether the defendants could 16 have complied with their contractual obligations to the 17 government while using what the plaintiffs contend was a process 18 that would have resulted in a defoliating agent substantially 19 less dangerous to military personnel. 20 And so we must determine whether the government did in 21 fact, as the defendants argue, approve of the toxicity levels 22 present in Agent Orange in a manner that would create the 23 necessary conflict with the alleged state law tort duty such that 24 the latter must be displaced. We think that it did. 25 We have previously concluded that where the government 26 contracts for the purchase of a product with knowledge that the

34

1 product has an arguable defect, it is considered to have approved 2 "reasonably precise specifications" for that product, with the 3 known defect, for purposes of the first Boyle requirement. 4 Lewis, 985 F.2d at 89. In Lewis, the government reordered a 5 cable that connected a parachute to the crew module of an Air 6 Force fighter jet with knowledge that the coating that protected 7 the steel cable was prone to cuts, resulting in cable corrosion. 8 Id. at 85. Although the government during its initial order had 9 not made a discretionary decision about which materials should be 10 used in constructing the cable, it subsequently ordered 11 replacement cables even after an Air Force investigation into the 12 corroded cables had revealed the problem with the protective 13 coating, reasoning that changes to its maintenance manual would 14 sufficiently alleviate the risk of harm. Id. In light of this 15 considered attention by the government to the precise defect 16 alleged, we concluded that the cable could not be characterized 17 as a stock item and that the "contractor's decision regarding the 18 materials to be used for the cable" could not be "second- 19 guess[ed]." Id. at 89. We did not discuss whether or how the 20 contractor had been alerted to the government's investigation or 21 the reasons for its reordering, nor whether the contract for 22 replacement cables also omitted reference to the material used to 23 construct them, as had the original cable contract. "Based on 24 the reorder" alone, we said, "the contractor c[ould] claim: 'The 25 [g]overnment made me do it.'" Id. (quoting Grispo, 897 F.2d at 26 632).

35

1 Here, similarly, the record discloses that the 2 government explicitly evaluated the alleged design defect (toxic 3 2,4,5-T), and thereafter continued to order "replacement" 4 herbicides. The government examined the toxicity of what the 5 plaintiffs contend was the most toxic Agent Orange variant used 6 in Vietnam -- Agent Purple -- and determined that it posed no 7 unacceptable hazard. See Tr. of Oral Arg. at 24 (plaintiffs' 8 attorney's comments regarding Agent Purple's toxicity). On April 9 26, 1963, the Army conducted a meeting at its Edgewood (Maryland) 10 Arsenal "to evaluate the toxicity of a[n herbicide] mixture known 11 as 'Purple.'" Minutes of a Meeting Held to Discuss and Evaluate 12 the Toxicity of 2,4-D and 2,4,5-T Compounds (Apr. 26, 1963) 13 ("April 1963 Meeting Minutes"), at 3. Their analysis required 14 reaching a conclusion "about dose levels and hazards to health of 15 men and domestic animals from 2,4-D and 2,4,5-T based on the 16 medical literature and unpublished data of various research 17 laboratories." Id. Those in attendance included officials from 18 various branches of the military and various other government 19 agencies, and representatives from manufacturers Dow Chemical and 20 AmChem Products. Id. at 2. The group heard various 21 presentations on the subject. At the end of the meeting, the 22 participants adopted "acute toxicity" figures for Agent Purple.

23 They concluded 24 in summary and after careful review of 25 toxicological data related to 2,4-D and 26 2,4,5-T plus the knowledge as to the manner 27 these materials have been used for 28 defoliation in military situations in 29 Southeast Asia, . . . that no health hazard

36

1 is or was involved to men or domestic animals 2 from the amounts or manner these materials 3 were used . . . . 4 Id. at 5. Thereafter, the government continued to contract with

5 the defendants for purchase of the same and similar defoliating 6 agents.17 7 In other words, the Army examined the toxicology data 8 available to it and concluded that Agent Orange's components, 9 2,4,5-T and 2,4-D -- in the formulation that the government, in 10 its discretion, used when ordering it, and as it was then being 11 manufactured -- posed "no health hazard" and were, at least under 12 the circumstances of international armed conflict, suitable for 13 use in Southeast Asia. Since the government continued to order 14 Agent Orange after having evaluated its toxicity levels and 15 declared them acceptable, we "cannot second-guess" the 16 manufacturers' decision to produce the agents in the manner that 17 they did. Lewis, 985 F.2d at 89. Because "[t]he imposition of 18 liability under state law would constitute a significant conflict 19 with the [g]overnment's decision" that the defoliants used in 20 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.

37

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

38

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)).

39

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 demonstrate that the product it delivered to the government was

40

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 24 were known to [them] but not to the United States." Boyle, 487

precisely what the government requested. The third prong is likewise unaffected: The government's discretionary determination must be a fully informed one.

41

1 U.S. at 512. The plaintiffs make essentially two arguments in 2 this regard: (1) that the defendants knew more about the hazards 3 of 2,4,5-T than did the government, but failed to warn the 4 government about them; and (2) that even if some members of the 5 government had some knowledge regarding the dangers of dioxin, 6 Boyle requires that for the defense to be applicable, the actual 7 contracting officials must have such knowledge, and those 8 involved in the specification process for Agent Orange knew 9 nothing about 2,4,5-T's hazards. 10 The thrust of the defendants' response is that (1) none 11 of the plaintiffs claim an injury of the sort that was a danger 12 known by anyone at the time of Agent Orange's production; (2) as 13 to dangers about which the defendants were aware, the evidence 14 demonstrates as a matter of law that they shared that knowledge 15 with the government; and (3) irrespective of what the defendants 16 knew about Agent Orange in general, the government had far 17 greater knowledge than the defendants about Agent Orange and the 18 dangers posed by its intended use in Vietnam. 19 We doubt that the defendants can establish as a matter 20 of law on the present record either the second or third of their 21 contentions -- that they shared the knowledge of dangers of which 22 they were aware with the government and that the government had 23 far more knowledge about the dangers of Agent Orange in its 24 planned use. Each is intensely factual and hotly disputed.19 We

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

42

1 think that the record is clear, however, that the defendants did 2 not fail to inform the government of known dangers at the time of 3 Agent Orange's production of the type that would have had an 4 impact on the military's discretionary decision regarding Agent 5 Orange's toxicity. We therefore conclude that the defendants 6 have established Boyle's third requirement as a matter of law. 7 Boyle mandates that to obtain the benefit of the 8 government contractor defense, a contractor must inform the 9 government about known "dangers in the use of the equipment." 10 Boyle, 487 U.S. at 512. But the Boyle Court was silent as to 11 what types of risks rise to the level of dangers that must be 12 disclosed. Prior to Boyle, we were of the view that 13 manufacturers need disclose to the government only those hazards 14 that (1) are "based on a substantial body of scientific 15 evidence"; and (2) create dangers likely "serious enough to call 16 for a weighing of the risk against the expected military 17 benefits," that is, "substantial enough to influence the military 18 decision to use the product." Agent Orange I Opt-Out Op., 818 19 F.2d at 193. Until now, neither we nor the Supreme Court has 20 been called upon to decide, post-Boyle, what constitutes

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.

43

1 "knowledge" of a "danger" that would trigger a duty to inform as 2 to the "equipment" being ordered. 3 This much is plain: Boyle did not contemplate 4 requiring disclosure of any and all potential risks by the 5 contractor to the government, irrespective of their relation to 6 the governmental discretionary decision at issue. The Boyle 7 Court was concerned primarily with protecting the government's 8 ability to assume certain kinds of risks without assuming the 9 costs of liability for those risks. See Boyle, 487 U.S. at 511- 10 12. It protected this ability by ensuring that where the 11 government accepts such a risk knowingly, a state law that would 12 require finding that same risk unacceptable must be displaced. 13 We therefore do not think that the Boyle Court meant that a 14 defendant seeking the protection of the defense was required to 15 demonstrate that it had shared all known hazards with the 16 government, irrespective of whether those hazards allegedly not 17 conveyed would have had an impact on the government's exercise of 18 discretion about the design defect alleged. It would be 19 impractical to require that a manufacturer compile and present to 20 the government in advance a list of each and every risk 21 associated with a product it is producing for the government. 22 The operation of a tank or a transport plane -- more so the 23 manufacture and use of a chemical agent -- involves, at the 24 extremities, virtually limitless risks. Even if it were possible 25 to generate such complete lists, their comprehensiveness would 26 overwhelm government decision makers with largely irrelevant

44

1 data, extending the time and costs associated with federal 2 contracting and obscuring those risks most likely to have an 3 impact on contracting decisions. A rule that required full 4 disclosure of all possible risks to anyone would be contrary to 5 Boyle's underlying rationale of protecting the federal interest 6 in "getting the Government's work done." Id. at 505. 7 We therefore adhere to our pre-Boyle precedent. We 8 conclude, much as we did before Boyle was decided, that a 9 defendant may satisfy the third Boyle requirement if it 10 demonstrates that it fully informed the government about hazards 11 related to the government's exercise of discretion that were 12 "substantial enough to influence the military decision" made. 13 Agent Orange I Opt-Out Op., 818 F.2d at 193. The defendants can 14 demonstrate a fully informed government decision by showing 15 either that they conveyed the relevant known and "substantial 16 enough" dangers, id., or that the government did not need the 17 warnings because it already possessed that information, 18 see Lewis, 985 F.2d at 89-90 ("There is no requirement that 19 appellees inform the Air Force of dangers already known to the 20 Air Force."). 21 Here, the plaintiffs allege that the defendants knew of 22 dioxin's hazards but failed to inform the government of them. 23 The documents to which they cite for this proposition, however, 24 pertain almost universally to the risk of chloracne (a severe 25 skin disease) and liver damage to workers manufacturing Agent 26 Orange. These risks, the manufacturers thought, were created by

45

1 the dioxin "impurity" that resulted from producing 2 trichlorophenol, a component of 2,4,5-T. See, e.g., V.K. Rowe, 3 Test. for the 2,4,5-T Hr'g (undated), at 28 (referring to dioxin 4 build-up in trichlorophenol manufacture), PA 3501-02.; Mem. of 5 V.K. Rowe, Dow Chemical Co., at 1 (Jun. 24, 1965) ("Rowe Jun. 6 1965 Mem.") (referring to dioxin "impurities" present in 7 trichlorophenol that could be "carried through into the T acid"). 8 There is, indeed, ample evidence that the defendants 9 were concerned about the health effects of dioxin, specifically 10 chloracne20 and liver damage,21 on their workers. Tests were 11 conducted that involved exposing animals to pure dioxin, which

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 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.

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1 revealed some "severe response[s]," see Report on the Chloracne 2 Problem Meeting on March 24, 1965 (Mar. 29, 1965) ("Mar. 29 3 Report"), at 5; similar tests performed on humans some years 4 later using a one-percent dioxin solution that resulted in skin 5 lesions, see Letter of Albert M. Kligman to V.K. Rowe, Dow 6 Chemical Co. (Jan. 23, 1968) PA 3732. At least two defendants 7 considered whether the dioxin in trichlorophenol's manufacture 8 would be manifest in the trichlorophenol itself or in the end 9 products containing trichlorophenol, see, e.g., id. at 4; Mem., 10 Dow Chem. Co. (Mar. 10, 1965) ("Mar. 10 Dow Mem."), Mem. from 11 E.L. Chandler, Diamond Shamrock Co. ("Chandler Mem.") (Jul. 9, 12 1962), but the danger with which they were concerned was limited 13 to the possibility of a chloracne outbreak among those handling 14 it, see Mar. 10 Dow Mem. (discussing possible need to take 15 precautions that would "prevent injury" akin to what had been 16 taken following past incidents of chloracne outbreaks); Chandler 17 Mem. (indicating two commercial customers had claimed chloracne 18 problems with "Diamond esters," one of which had no similar 19 problems with other manufacturers' product). There is no 20 evidence to which we have been directed or that we have otherwise 21 found that the defendants' knowledge of 2,4,5-T's risks extended 22 to dioxin as a carcinogen, as a toxin that potentially might 23 cause diseases long after exposure, or as a significant health 24 risk (apart from chloracne) to those exposed to herbicides 25 containing 2,4,5-T being used as such, in wartime conditions or

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1 otherwise, except for workers manufacturing them or their 2 component chemicals.22 3 How much the government knew about the workplace 4 dangers associated with production of 2,4,5-T while it was 5 considering the use of and ordering Agent Orange is unclear. The 6 minutes from the 1963 meeting at Edgewood Arsenal contained 7 references to a lack of workplace incidents involving 2,4-D and 8 2,4,5-T. April 1963 Meeting Minutes at 4, Appendix A. The 9 domestic safety record of herbicides containing these two 10 chemicals, including the manufacturers' alleged reports to the 11 Department of Agriculture regarding the absence of ill effects 12 from the herbicides on their workers, was also relayed to the 13 President's Science Advisory Committee in a May 1963 briefing

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).

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1 entitled "Possible Health Hazard of Phenoxyacetates as Related to 2 Defoliation Operations in Vietnam." At least two domestic 3 manufacturers, however, had already experienced chloracne 4 breakouts and other problems among its workers. 5 The documents make clear, however, that the military 6 was concerned about the likely effect on those exposed to the 7 herbicides in the manner in which they were, and were to be, used 8 in Vietnam. This is hardly surprising. The principal purpose of 9 Agent Orange was to attempt to protect American troops from 10 attack by limiting vegetation around American facilities and 11 emplacements that could provide cover to enemy combatants. To 12 that extent, the chemical agents were to be used on American and 13 allied positions, not those of the Viet Cong. 14 And the undisputed record with respect to dangers that 15 were posed by the use of Agent Orange is that during the entirety 16 of the production of Agent Orange, the defendants knew only that 17 it was possible that those handling herbicides containing 2,4,5-T 18 might develop the skin disease chloracne. The Edgewood 19 participants, including delegates from various branches of the 20 government, military and civil, were aware of this type of risk. 21 See April 1963 Meeting Minutes at 5 (AmChem representative 22 related experiences of "industrial firms making . . . continuous 23 field applications over very large areas" and noted "skin 24 sensitization was the maximum effect produced" in "probably one 25 out of a thousand persons"). Yet the government continued to

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1 order Agent Orange in the manner specified in the procurement 2 contracts. 3 If the government had decided to manufacture Agent 4 Orange, as it considered doing for a period during the late 5 1960s, the defendants might well have been required more fully to 6 inform the government of all the possible dangers associated with 7 the manufacture of the chemical (none of them, incidentally, 8 being malignancies). The record suggests that they were prepared 9 to do so. See "Plan 'Orange' Production," Dow Chemical Co. (Apr. 10 20, 1967), at 3 (stating that "[a] serious potential health 11 hazard to production workers is involved in the production of 12 2,4,5-T" and noting that its "knowhow regarding elimination of 13 the hazard" could be made available to the government), attached 14 to Letter from A.P. Beutel, Vice Pres., Dir. of Gov't Affairs, 15 Dow Chemical Co., to H.G. Fredericks, Deputy Dir. of Procurement 16 and Production, Edgewood Arsenal (Apr. 20, 1967). 17 We conclude, however, that no reasonable factfinder 18 could find that the defendants had knowledge of a danger that 19 might have influenced the military's conclusion that "operational 20 use" of Agent Orange posed "no health hazard . . . to men or 21 domestic animals," April 1963 Meeting Minutes, at 3, 5, and its 22 presumably related decision to continue to purchase Agent Orange 23 as it was then being produced by the defendants. We find nothing 24 in the record to support an assertion that the defendants "cut[] 25 off information highly relevant to . . . discretionary 26 decision[s]" of the government, Boyle, 487 U.S. at 513, i.e.,

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1 that they possessed knowledge of dangers unknown to the 2 government that, had they been shared, might have influenced the 3 government's decision regarding the extent of the hazard posed by 4 use of Agent Orange or its choice to continue its use. 5 We acknowledge that there may well have been some 6 aspects of the dangers of Agent Orange resulting from the trace 7 presence of dioxin that personnel of one or more of the 8 defendants were aware of that members of the military may not 9 have known, at least contemporaneously. We cannot conceive of a 10 long-term relationship between the military and a civilian 11 contractor in which complete equivalence of knowledge at all 12 times in the relationship can be expected or could be 13 established. But nothing in the record of which we are aware 14 would create a triable issue of fact as to whether there was 15 never-disclosed knowledge of a sort that might have influenced 16 the government's decision-making process regarding Agent Orange 17 as it was used in Vietnam. 18 Accordingly, we conclude that the defendants have 19 established as a matter of law the third requirement of Boyle. 20 *** 21 We feel obliged to note, finally, what seems to us to 22 be obvious: The question raised by government contractor defense 23 cases arising in the context of contracts for military agents and 24 equipment is the extent to which contractors are protected when 25 they provide materials designed to assist the government in 26 obtaining what are ultimately military objectives -- in this case

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1 the principal objective being to protect members of the armed 2 forces from enemy attack. Considerations of the validity of 3 those objectives and the reasons for which the military seeks 4 them are far beyond the competence of this Court. Our 5 determination as to the protection of a military contractor must 6 be made using the same principles regardless of the nature of the 7 military conflict in which they are pursued, or the extent to 8 which it is controversial or enjoys popular support. 9 II. Discovery Rulings 10 The plaintiffs also appeal from the discovery 11 limitations imposed by the district court during the months 12 following its initial February 9, 2004, decision granting the 13 defendants' motion for summary judgment. We review discovery 14 rulings for abuse of discretion. Wood v. FBI, 432 F.3d 78, 82 15 (2d Cir. 2005). 16 As we have noted, the district court's February 9, 17 2004, government contractor defense opinion granted the 18 plaintiffs a six-month discovery period and permission to seek 19 reconsideration of its summary judgment ruling. Shortly 20 thereafter, the plaintiffs requested "the documents from all of 21 the other litigation that these [defendants] have been involved 22 in, involving the same pesticides and the same type of claims." 23 Tr. of Civil Conference Before The Hon. Joan M. Azrack at 10. 24 They did so without having attempted review of the MDL record. 25 Id. at 16. The defendants objected on the grounds that documents 26 from other cases were likely to be largely irrelevant to the

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1 question of the applicability of the government contractor 2 defense, duplicative of MDL materials where relevant in any 3 event, and overly burdensome to produce. Id. at 13-14. 4 On March 2, 2004, Magistrate Judge Azrack denied the 5 request, ruling that the plaintiffs first had to familiarize 6 themselves with the MDL record before requesting additional 7 documents. On March 19, 2004, Judge Weinstein granted the 8 plaintiffs access to six deposition transcripts from non-MDL 9 cases. 10 The plaintiffs now argue that the district court abused 11 its discretion by limiting the plaintiffs to the documents 12 produced in the MDL during the 1980s and six subsequent 13 depositions. They assert that in the intervening period, the 14 defendants have been sued by other end-users of their commercial 15 herbicides, citizens exposed to industrial contamination from the 16 herbicides' production, and their workers. Discovery in these 17 cases, they contend, was more extensive than the discovery 18 against the defendants that occurred during the 1980s and would 19 be germane to the defendants' knowledge of the adverse health 20 effects caused by their herbicides. They list thirteen other 21 cases involving three defendants (Dow Chemical, Monsanto, and 22 Hercules) and various government hearings from which they suspect 23 discovery and papers would be helpful. Beyond broad claims that 24 the discovery in those cases was more focused on the defendants' 25 knowledge as compared with the MDL, however, the plaintiffs do 26 not cite specific bases for a conclusion on our part that the

53

1 documents would differ materially from the voluminous documents 2 available to them through the MDL. The defendants do not respond 3 to the plaintiffs' discovery-related arguments. 4 The Federal Rules of Civil Procedure permit parties to 5 "obtain discovery regarding any matter, not privileged, that is 6 relevant to the claim or defense of any party," Fed. R. Civ. P. 7 26(b)(1), but a district court may limit discovery if, among 8 other things,

9 it determines that: (i) the 10 discovery sought is unreasonably 11 cumulative or duplicative, or is 12 obtainable from some other source 13 that is more convenient, less 14 burdensome, or less expensive; (ii) 15 the party seeking discovery has had 16 ample opportunity by discovery in 17 the action to obtain the 18 information sought; or (iii) the 19 burden or expense of the proposed 20 discovery outweighs its likely 21 benefit . . . .

22 Id. R. 26(b)(2)(C). A district court has wide latitude to 23 determine the scope of discovery, and "[w]e ordinarily defer to 24 the discretion of district courts regarding discovery matters." 25 Maresco v. Evans Chemetics, Div. of W.R. Grace & Co., 964 F.2d 26 106, 114 (2d Cir. 1992). A district court abuses its discretion 27 only "when the discovery is so limited as to affect a party's 28 substantial rights." Long Island Lighting Co. v. Barbash, 779 29 F.2d 793, 795 (2d Cir. 1985). A party must be afforded a 30 meaningful opportunity to establish the facts necessary to 31 support his claim. Id.

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1 The plaintiffs here have failed to demonstrate that the 2 district court's rulings limiting the scope of discovery 3 constituted an abuse of discretion. We think the district court 4 reasonably concluded that the MDL files were likely the best 5 source regarding the information the plaintiffs' sought: 6 defendants' knowledge of 2,4,5-T's risks at the time of 7 production. The plaintiffs' motion to Judge Azrack was an 8 unlimited and unfocused request for many thousands of additional 9 documents, made without any attempt to review what was already 10 available to them or to tailor their request to materials 11 reasonably expected to produce relevant, non-duplicative 12 information. Accordingly, the district court's limitations were 13 well within its discretion under Rule 26. 14 III. Stephensons' Motion to Amend 15 Finally, the Stephensons challenge the district court's 16 denial of their motion to amend their complaint. Federal Rule of 17 Civil Procedure 15(a), as in effect at the time of the court's 18 order, provided that "[a] party may amend the party's pleading 19 once as a matter of course at any time before a responsive 20 pleading is served. . . . Otherwise a party may amend the 21 party's pleading only by leave of court or by written consent of 22 the adverse party; and leave shall be freely given when justice 23 so requires." Id. "We review the determination of a district 24 court to deny a party leave to amend the complaint under Fed. R. 25 Civ. P. 15(a) for abuse of discretion." McCarthy v. Dun & 26 Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007).

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1 Here, at the time of the Stephensons' motion, the 2 defendants had not filed an answer to their complaint. 3 Stephenson, 220 F.R.D. at 24. Accordingly, the Stephensons were 4 entitled to amend their complaint as a matter of right without 5 leave of the district court, because "a motion is not a 6 responsive pleading," 6 Charles Alan Wright, Arthur R. Miller & 7 Mary Kay Kane, Federal Practice and Procedure § 1483, at 584 (2d 8 ed. 1990); see id. at 586 ("Nor does a summary judgment motion 9 made before responding [to plaintiff's complaint] have any effect 10 on a party's ability to amend under the first sentence of Rule 11 15(a)."); accord, e.g., Zaidi v. Ehrlich, 732 F.2d 1218, 1219-20 12 (5th Cir. 1984); Miller v. Am. Exp. Lines, Inc., 313 F.2d 218, 13 218-19 & n.1 (2d Cir. 1963). Because the defendants had not 14 filed a responsive pleading when the Stephensons sought to amend 15 their complaint, the district court erred in denying the 16 amendment. 17 We conclude, however, that in light of our finding 18 regarding the government contractor defense, the district court's 19 erroneous denial of the Stephensons' motion was harmless. 20 Repleading could not avoid the application of the government 21 contractor defense and, therefore, remand to permit the amendment 22 would be futile. See Sinicropi v. Nassau County, 601 F.2d 60, 62 23 (2d Cir. 1979) (concluding that even if district court had erred 24 in denying motion to amend, any error would be harmless because 25 the proposed amendment would have been barred by res judicata), 26 cert. denied, 444 U.S. 983 (1979); cf. Unlaub Co., Inc. v.

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1 Sexton, 568 F.2d 72, 78 (8th Cir. 1977) (concluding any abuse of 2 discretion by district court in failing to permit defendant to 3 amend his answer was harmless because "[n]one of the matters set 4 forth in the proposed amended answer would affect the result"). 5 CONCLUSION 6 For the foregoing reasons, we affirm the judgments of 7 the district court.