The Nuremberg Defense

The Nuremberg Defense

Rather than respond to the massive indictment of their sale of the dioxin contaminated phenoxy herbicides to the government for use in Southeast Asia, the chemical company war contractors issued a midnight press release claiming, “They were only following orders” from the US government. This was quickly dubbed, “The Nuremberg defense” after the defense raised during the war crime trials following the end of World War II when those responsible for managing the Nazi and Japanese death camps sought to evade responsibility for their atrocities.
The chemical company war contractors tried, unsuccessfully, to convince the media to refer to their defense as “government contractor immunity.”
Shortly after the defense was raised, a well-known New York attorney who was a leader of the asbestos litigation plaintiff bar published a front-page op-ed in the widely read New York Law Journal denouncing the way Yannacone and US District Court Judge George Pratt were managing the Agent Orange litigation now that all of the cases throughout the country had been consolidated by the federal Multidistrict Litigation Panel (MDL) for management by Judge Pratt.
The op-ed elicited two responses, one from Yannacone and Dr. W. Keith Kavenagh, the historian turned lawyer who at that time was analyzing the history of herbicide use by the military and the Department of Defense, and another from Leonard L. Rivkin, attorney for the defendant Dow Chemical Company. Those letters clearly indicate some of the complex procedural issues involved in the Agent Orange litigation, which at that time was both the first and the largest mass toxic tort case ever filed in a United States court.

April 8, 1982 to the Editor-in-Chief, New York Law Journal

In “Agent Orange and Nuremburg Defense,” ((N.Y.L.J., March 24, 1982), Stanley J. Levy attempts to place all parties in the “Agent Orange” product liability litigation, (MDL 381), especially the Court, in untenable positions.
Three main threads are woven into the polemical fabric of his editorializing.
First, he accuses Judge Pratt of base and vile motive in intending to dispose of the case quickly in derogation of the rights of the litigants.
Second, he would have us believe that by merely raising the affirmative defense of derivative sovereign immunity as government war contractors, the chemical company defendants have gained the sympathy of the Court and will be allowed to evade their moral and legal responsibility for the injuries they caused . Finally, having had sleepless nights over seeing millions of dollars in contingent fees on each individual veteran’s claims being swallowed up by a single quantuum meruit fee in the class action, Levy laments that the Rule 23 class certification will subvert the goal of our legal system, which is to “ensure that all litigants in all cases receive a just and fair opportunity to resolve their cases.”
Interwoven with the first thread is the Brobdingnagian denunciation of Judge Pratt for standing ”usual and accepted” court procedure on its head . Mr . Levy’s “normal” high-button shoes procedure would have the litigation commence with the causation issue, involving as it does exhaustive review, coding, and indexing endless amounts of government documents (12 thousand cubic feet — 10,000,000 pages) , scientific and medical literature (47,000 articles) , and chemical company files (more than 40,000 documents) and the individual medical records of all those claiming to have been exposed to dioxin contaminated phenoxy herbicides (approximately 2.46 million Viet Nam veterans) .
After causation has been considered, it would then proceed to the product liability phase of the litigation with all that it entails and, finally, to consideration of the government contractor immunity defense.
This scenario, with all of its time and expense spread over many years, would , in traditional and unimaginative legal lockstep, eventually arrive at the fundamental question: Can the defendant war contractors be sued at all?
“Levy’s” Federal Rules of Civil Procedure are reminiscent of the attempt by the Swedish Navy in the 17th century to build the world’s largest man-of-war.
After expending countless manhours, endless board feet of valuable timber, and extravagant sums of money, it was launched. Top heavy, it sank immediately . The admirals had neglected to ask the fundamental question: Will it float?
As for the affirmative defense of government contractor immunity, any accusation that Judge Pratt oversimplified its elements and thereby absolved the defendants of the many duties the law normally imposes on manufacturers of products is patent nonsense . Judge Pratt concisely explained and qualified the three elements of the defense in accordance with well-known, established and accepted case law. Inextricably intertwined among the elements of the defense are the conduct of the manufacturers, the quality of their products, their knowledge of the toxicity of the product, and the duty of the corporate defendant war contractors to warn the United States Department of of Defense during the war and the veterans after the war.
The Court succinctly stated that a duty to warn in fact existed. Nevertheless, we suggest that Littlehale v E. I. duPont deNemours & Co., 268 F.Supp. 791 (S.D.N.Y. 1966), aff’d 380 F.2d 274 (2nd Cir. 1966); Person v Cauldwell Wingate Co., 176 F. 2d 237 (2nd Cir. ), cert. den. 338 U.S. 886 (1949); Saner v Ford Motor Co ., 144 N.J. Super. 1, 64 A.2d 43, aff’d 154 N.J.Super. 407, 381 A.2d 805 (1977); Dolphin Gardens v U.S., 243 F.Supp. 824 (D.Conn. 1965) be reread in light of Mr. Levy’s assertion that Judge Pratt has cavalierly ignored fundamental principles of common law.
The writer of a lead article in the New York Law Journal also has a duty; a duty to write accurately.
Misleading contentious allegations that, “the duty to learn of health hazards associated with one’s product and to warn foreseeable users is cast aside,” not only displays a lack of knowledge and failure to appreciate the issues, but performs a disservice to the Court, the litigants, and the Bar.
Whether cloaked in concern for protecting the individual rights of injured victims or nothing more than a device for hiding one’s fear of losing 2.46 million individual contingent fees is not important. But to argue that Judge Pratt intends to disregard the rights of the individual plaintiff veterans and make the government contractor defense and class certification a “death knell” that will dispose of the “Agent Orange” case in one short burst of “judicial calendar clearing” is a gratuitous insult to the Court and evidences a lack of understanding of the need for, and the purpose of, Rule 23.
Mr. Levy would insist that 2.4 million Viet Nam veterans come into court and present their individual claims that exposure to certain dioxin contaminated phenoxy herbicides manufactured by a few multinational conglomerate chemical companies caused irreparable physiological damage to themselves and genetic damage to their unborn progeny.
2.4 million judges would hear motions; 2 .4 million attorneys would try to accumulate, index, sort, and read all the relevant scientific and medical literature; witnesses would be deposed 2.4 million times. 2.4 million judges would then preside over 2.4 million trials on the merits. Surely, Mr. Levy cannot be serious.
Rule 23 was expressly promulgated to avoid interminable clogging of court calendars with repetitious actions brought on by many plaintiffs against the same defendant(s) based on identical or closely parallel questions of fact or law.
It modernizes a policy that began when the English Court of Chancery first recognized the efficacy of such “class action” treatment of real property actions in the 17th century.
Had Mr. Levy been counsel to Ramses II, only one Jew would have been allowed to leave Egypt each year and we would still be witnessing the Exodus. Fortunately, Moses found a better way. So too has Judge Pratt.
Victor John Yannacone, jr.
W. Keith Kavenagh

March 30, 1982 to the Editor-in-Chief, New York Law Journal

I read with interest Stanley J. Levy’s article on Judge Pratt’s recent Agent Orange decision (Law Journal, March 24, 1982). Mr. Levy criticized Judge Pratt’s definition of the government contract defense and the Court’s decision to resolve the issues raised by that defense in a preliminary “Phase I” trial .
As national counsel for The Dow Chemical Company in the Agent Orange litigation, my views regarding Judge Pratt’s decision may be somewhat less than objective.
However , Mr. Levy is hardly a detached, neutral obser ver . My understanding is that he represents hundreds of plaintiffs in asbestos litigation throughout the country . Perhaps Mr. Levy’s criticism of the Agent Orange decision was motivated by a fear that the government contract defense will ultimately be applied in those cases . At any rate, the article reflects Mr. Levy’s obvious pro-plaintiff bias, and I feel the need to present the defendant’s viewpoint.
Mr. Levy writes as if Judge Pratt thrust the concept of phased trials upon unwilling, objecting plaintiffs . This is not the case. The idea of phased trials in Agent Orange was first suggested by the plaintiffs, and it was the defendants who vehemently objected.
Although the plaintiffs did not specifically propose that the first phase of the proceedings should involve a trial of the government contract defense, plaintiffs applauded when Judge Pratt announced that he intended to try that defense first.
According to an article in the January 19, 1981 issue of the National Law Journal, Victor Yannacone, lead counsel for the Agent Orange plaintiffs, said that he “welcomes the opportunity for an early challenge to the defendants’ theory.” Mr. Yannacone is further quoted as saying: “If we win, we’re on our way, and if we lose, it’s all over without an enormous expenditure.”
Mr. Levy also writes as if Judge Pratt’s substantive rulings regarding the elements of the government contract defense were fashioned in total disregard of applicable legal precedent.
To the contrary, there is a long line of cases upon which Judge Pratt relied in reaching his decision . The cases are discussed at length in briefs currently on file in the Eastern District of New York and in Judge Pratt’s first Agent Orange decision, reported at 506 F. Supp. 762. Briefly, the cases recognize, among other things, that, as a matter of public policy, ordinary principles of tort liability which apply to manufacturers who place consumer goods in the stream of commerce should have no application to manufacturers who produce weapons for the military in time of war in compliance with design specifications furnished by the Government.
To impose tort liability upon manufacturers under those circumstances would seriously hinder the Government’s efforts to protect national security.
Accordingly, although Judge Pratt’s use of a Phase I trial on the government contract defense may be a departure from ordinary procedure, the substance of his rulings is well established in law.
From the very beginning of the Agent Orange litigation, Judge Pratt has been concerned with devising an effective case management plan. There are those who believe that a Phase I trial of the government contract defense would go a long way toward achieving that goal . The defense is valid as a matter of law, it is potentially dispositive of all of plaintiffs’ claims, the issues raised by the defense as defined by Judge Pratt can easily be separated out for a preliminary resolution, and a finding in favor of the defendants will eliminate the need for extensive and costly discovery and lengthy and duplicative trials . Under those circumstances, it certainly can be argued that the decision to try the government contract defense first was a good one.
Rather than criticize Judge Pratt, asbestos attorneys such as Mr. Levy should take a lesson from the manner in which the Agent Orange litigation has been handled. While thousands of asbestos cases clog the dockets of state and federal courts throughout the country, every single Agent Orange claim is pending before Judge Pratt in the Eastern District of New York.
Even without a Phase I trial, Judge Pratt’s handling of the Agent Orange litigation has done much to ease the burden, financial and otherwise, which complex litigation has imposed upon the parties and upon our judicial system.
Notwithstanding Mr. Levy’s contention to the contrary, none of plaintiffs ‘ rights in the Agent Orange cases have been sacrificed by the implementation of the Phase I proceedings. Judge Pratt’s order merely requires the parties to litigate a potentially dispositive affirmative defense first, rather than proceed from the outset with proof relating to plaintiff’s prima facie case.
Plaintiffs will have a full and fair opportunity to defeat the government contract defense and, if they succeed, they will then have the opportunity to establish the liability of the defendants under applicable legal principles.
Finally, we note that Mr. Levy seems to assume in his article that, absent the government contract defense, the liability of the Agent Orange defendants is a foregone conclusion. This view is simply not supported by the evidence.
One example of a glaring gap in plaintiffs’ case is the issue of causation. We have seen no proof that Agent Orange caused the injuries complained of. Rather, there appears to be a consensus in the scientific and medical community that Agent Orange was not the cause of plaintiffs alleged damages. We would hope that, as an attorney, Mr. Levy would not prejudge the Agent Orange controversy, but would keep an open mind until both sides have presented their case to the appropriate trier of fact.
Leonard L. Rivkin