IN RE: "Agent Orange" Products Liability Litigation

TT case MDLNo.381 Document 315 Filed 05/18/15 Page 1 of 11
DOCKET HO. 331 Ay <q ns A
BEFORE TY BI TL IDTST CTE i : ) : 0
BEFORZ THE JUDICIAL PANEL On HELTIISTRRT pT ITI 55/77 SENIN RE "AGIZINT ORANGE" PRODUCTS LIABILITY LITIGATIOL 73x oo ey
" TRANSFER ORDER
The Panel having ruled from the bench at tha hearing oo : RE
on this matter that the actions in this litigation raise : Es
common questions of fact and that their transfer to the So |
Eastern District of New York will serve the convanience
of the parties and witnesses and promote the just and efficient
conduct of the litigation,
IT IS ORDERED that, pursuant to 28 U.S.C. §1407, the actions R |
listed on the attached Schedule A and pending in districts
other than the Eastern District of New York be, and the
same hereby are, transferred to the Eastern District of
New York and, with the consent of that court, assigned to |
the Honorable George C. Pratt for coordinated or consolidated
pretrial proceedings with the actions already pending there
and listed on Schedule A.=* |
EF THE PANEL: ’ So
“a4i SIT .
Chairman
“Judges Andrew A. Caffrey and Roy W. Harper did not
participate in the decision of this matter.

“eo. Case MDL No. 381 Document	315 Filed 05/18/15 Page	2 of 11
DOCKET {i0. 331
Schedule A
NORTHERN DISTRICT OF ILLINOIS Civil Action No.
Robert W. Green, et al. v. The Dow 79 Civ 651
Chemical Co., et al.
Charles Chapman, et al. v. The Dow 79 Civ 652
Chemical Co., et al.
Bernhard Tiranti, et al. v. The Dow 79 C 650
Chemical Co., et al.
EASTERN DISTRICT OF NEW YORK
Edward Balzano, et al. v. The Dow 79 C 525
: Chemical Co., et al.
Kathleen Dowd, et al. v. The Dow 79 C 467
Chemical Co., et al.
Stephen Curti, et al. v. The Dow 79 C 526
Chemical Co., et al.
C George L. Claxton, etc. v. The Dow 79 C 527Chemical Co., et al.
George Xirau, et al. v. The Dow 79 C 528
Chemical Co., et al.
SOUTHERN DISTRICT OF NEW YORK
’ Paul Reutershan, etc. v. The Dow 78 Civ 4253
Chemical Co., et al.
Thomas E. Skillings, et al. v. The Dow 79 Civ 557
Chemical Co., et al.
Stuart A. Steinberg, etc. v. The Dow | 79 Civ 826
Chemical Co., et al.
Marcelle J. Smith, et al. v. The Dow 79 Civ 824
Chemical Co., et al. :
Raymond D. Jupin, Jr., et al. v. The 79 Civ 825
Dow Chemical Co., et al.

EE Case MDL No. 381 Document	315 Filed 05/18/15 Page	3 of 11 |
| JHTLIAL-PANEL TRH
HULTEESEUICT LITiS ATION eT
FILED | oo
| £27 ~ 1980 | SRPATRICIA I" 12450 A ELDoc . 3 ACURA UL Ly RRAOCKET NO. 381 CLERK OF THE PANEL
BEFORE THE JUDICIAL PANEL ON MULTIDISTRICT LITIGATION ]
IN RE "AGENT ORANGE" PRODUCTS LIABILITY LITIGATION EES
Lowell M. Coffey v. The Dow Chemical Co., et al., Lo : oo oo
W.D. Kentucky, C.A. No. C-79-495-L(B)
TRANSFER ORDER . }
The Panel, pursuant to 28 U.S.C. §1407, previously. trans-
ferred several actions in this litigation to the Eastern District :
of New York and, with the consent of that court, assigned
them to the Honorable George C. Pratt for coordinated or consoli- Lo
dated pretrial proceedings with related actions pending in : :
that district. In re "Agent Orange" Products Liability Liti-
| gation, MDL-381 (J.P.M.L., May 8, 1979) (unpublished order).
| :
| Because the above-captioned action (Coffey I) appeared
| to involve common questions of fact with the actions in this
litigation previously transferred to the Eastern District }
of New York, the Panel, pursuant to Rule 9, R.P.J.P.M.L.,
78 F.R.D. 561, 567-68 (1978), entered an order conditionally :
transferring Coffey I to the Eastern District of New York
for inclusion in the coordinated or consolidated proceedings
occurring there.
Certain parties opposed transfer of Coffey I. On the I
basis of the papers filed and a hearing held, the Panel vacated .
the conditional transfer order in Coffey I "without prejudice ooto the right of any party to seek transfer under Section 1407 }
if a substantial change of circumstances occurs.” In re "Agent
Orange" Products Liability Litigation, MDL-381 (J.P.M.L.,
January 29, 1980) (unpublished opinion and order).
‘Nine of fifteen defendants in Coffey I have since moved
the Panel, or have joined in a motion, to transfer Coffey .
I to the Eastern District of New York for inclusion in the
coordinated or consolidated pretrial proceedings pending there.
Plaintiff in Coffey I and an unserved defendant oppose the :motion.
———— 3
* Judges Caffrey and Harper took no part in the decision of
this matter. .

EE Case MDL No. 381 Document-325 Filed 05/18/15 Page 4 of 11 .
On the basis of the papers filed and the hearing held,
the Panel finds that Coffey I involves common questions of
ll fact with the actions in this litigation previously transferred
to the Eastern District of New York, and that transfer of
Coffey I to the Eastern District of New York for inclusion
in thé coordinated or consolidated pretrial proceedings occurring
in that district will serve the convenience of the parties .
and witnesses and promote the just and efficient conduct of Co
the litigation. The Panel notes that some of the reasons ’
set forth in the Panel's January 29, 1980 opinion and order :
vacating the conditional transfer order in Coffey I are no a
longer valid.
In an order dated February 6, 1980, the Honorable Thomas
A. Ballantine, Jr., before whom Coffey I is pending in the Western
District of Kentucky, denied plaintiff's motion for remand
of Coffey I to Kentucky state court, and he also denied plaintiff's
motion to assign Coffey I a trial date. In that order, Judge
Ballantine stated as follows: : -
There is not one line of discovery testimony in
the record before the court and to assign the case for
trial given the present skeletal state of the record
and the complexity of the litigation would be manifestly
unjust not only to the defendants but to the plaintiff
as well.
(3 . The record presently before the Panel also makes it clearCo that the discovery contemplated by the parties in Coffey I
will overlap the substantial discovery contemplated in the
transferee district. Thus, we are now persuaded that inclusion
of Coffey I in the coordinated or consolidated pretrial proceedings
is necessary in order to prevent duplication of discovery,
a eliminate the possibility of conflicting pretrial rulings
: and otherwise ensure the orderly conduct of both Coffey I :
and the actions in the transferee district to the overall
benefit of the parties, the witnesses and the judiciary. :
Any discovery or other pretrial proceedings unique to Coffey
: I may be scheduled by the transferee judge to proceed concurrently
with the common pretrial proceedings, thereby permitting the
litigation to proceed expeditiously and harmoniously in its
entirety. See In re Multi-Piece Rim Products Liability Litigation,
464 F. Supp. 969, 974 (J.P.M.L. 1979).
IT IS THEREFORE ORDERED that, pursuant to 28 U.S.C. §1407,
the action entitled Lowell M. Coffey v. The Dow Chemical Co.,
et al., W.D. Kentucky, C.A. No. C-79-495-L(B),	be, and the
same hereby is, transferred to the Eastern District of New
York and, with the consent of that court, assigned to the :
Honorable George C. Pratt for inclusion in the coordinated
or consolidated pretrial proceedings occurring there.
é FOR THE of	oo ot JU,Charles	R. Weiner
"Acting Chairman

Case MDL No. 381 Document 315 Filed 65/18/15 Page 5 of 11 |: prog TEI dae , Cos	} } WET LHR CE LAR . [RENE Ln .
lin 3 LLC 4 R
/
Jhy NEE Ce
BEFORE THE JUDICIAL PANEL Hit 28 1533 RR
oo oo = ON FATom, A . i- I i
MULTIDISTRICT LITIGATION CLgqx; 5 “inns Co
i 73 a A . Cee - . . Ch
IN RE "AGENT ORANGE" PRODUCTS )
LIABILITY LITIGATION	.. )
: } .
Lowell M. Coffey v. The Dow Chemical ) 0
Co., et al., W.D. Kentucky, C.A. No. ) DOCKET NO. 381
C-79-495-L(B) : ) EE : on
| Lowell M. Coffey v. The Department of ) : :
Defense, et al., W.D. Kentucky, )
| C.A. No. C-79-488-L (A) 0) ; oo :
| OPINION AND ORDER
I :
| .
3EFORE MURRAY I. GURFEIN, CHAIRMAN, AND ANDREW A. CAFFREY,* ROY VW.
HARPER, CHARLES R. WEINER, EDWARD S. HORTHROP, AND ROBERT H. :
I SCHNACKE, JUDGES OF THE PANEL. ’ : nl ’
| PER CURIAM : :
| Prior Proceedings Before the Panel . | || Co :
The Panel, pursuant to 28 U.S.C. §1407, previously : :
| transferred several actions in this litigation to the Eastern .District of New York and, with the consent of that court,
assigned them-to the Honorable George C. Pratt for coordinated . Co
or consolidated pretrial proceedings with related actions
pending 'in that district. In re "Agent Orange” Products . So
Liability Litigation, MDL-381 (J.P.M.L., May 8, 1979) (un-
| published order).
Each action pending in the transferee district arises oo
from the alleged exposure of members of the United States
| Armed Forces serving in Vietnam to a certain herbicide
* Judge Caffrey took no part in the decision of this
natter.
FPIi—~BAR~—=3.27.79-6M.170}

Case MDL No. 381 Document 315 Filed 05/18/15 Page 6 of 11 oo
: -2- SE
1 referred to as "Agent Orange" that was allegedly contaminated oo DL
2 with a toxic chemical compound. Agent Orange was used | . E
3 extensively for defoliation purposes in Vietnam during SE
4 the years 1962-1971. It is alleged that approximately
5 4.2 million servicemen were exposed to Agent Orange during |
. these years. Co i
Plaintiffs in these actions include servicemen, their N
’ spouses, the servicemen's present and future children and :
8 the servicemen's parents. Each of the actions originally
2 before the Panel is brought as a class action on behalf
0 of all exposed servicemen, and most of these actions are i
1 also brought as class actions on behalf of various relatives k
2 of the servicemen. Plaintiffs allege that the exposure
3 to Agent Orange has caused or may cause various physical
defects in the exposed servicemen, and, in some instances,
* death; and that the exposure has also caused or may cause : | |
> various developmental defects in the children of the exposed
6 servicemen and, in some instances, death. The theories
7 on which relief is sought include, inter alia, negligence, |
8 strict liability and breach of warranty. | | So i
9 Defendants in the actions in the transferee district
0 include, inter alia, five corporations that allegedly
1 manufactured, formulated, advertised, promoted, marketed :
and sold Agent Orange.
2 The Panel found that those actions raise common questions
3 of fact and that centralization of the actions in the Eastern
4 District of New York would serve the convenience of the
| FEI-MAR—3.27.79.6H.1781

. . Case MDL No. 381 Document	315 Filed 05/18/15 Page	7 of 11
_ 3
® 1 parties and witnesses and promote the just and efficient
2 conduct of the litigation.
3 Among the factual questions shared by the actions
4 in the transferee district are questions concerning the
5 formulation, testing, manufacture and labeling of Agent Orange
6 by defendants, and questions concerning the various characteristics
of Agent Orange, the scientific knowledge about the product,
’ and the state of the art in the field encompassing this
8 product.
9 Present Proceedings Before the Panel
10 Plaintiff in the first above-captioned action (Coffey I)
11 and in the second above-captioned action (Coffey II) is
12 an individual who allegedly suffered serious injuries when
( 13 he was exposed to Agent Orange either during his tour of
service with the U. S. Army in Vietnam between October,
14 1968 and November, 1969, or while he was in active service
15 with the U. S. Army during the loading and transporting
16 of this herbicide in Richmond, Kentucky.
17 Coffey I was originally filed on September 14, 1979,
18 in Kentucky state court against 17 named defendants and
19 three classes of described "unknown defendants." Five
20 of these defendants are also defendants in all or most
of the actions presently pending in the transferee district.
24 Plaintiff seeks to recover damages based on theories of
22 negligence, breach of implied and express warranties, strict
23 liability, gross negligence, and wilful and wanton conduct..
[ 24 On September 17, 1979, defendants removed Coffey I
25 to federal court. On September 28, 1979, plaintiff filed
FPI=MAR—3.27.79.6M-1781

Case MDL No. 381 Document 315 Filed 05/18/15 Page 8 of 11 : :
- 4 —
1 a motion to remand this action to state court. Defendants
2 represent that this action has been stayed pending a ruling
3 on the motion presently before the Panel.
4 Coffey II names as defendants the Department of Defense,
5 the Department of the Army, the Secretary of Defense, the Secretary
of the Army and John Doe(s), unknown agents and representatives
© of the Secretary of Defense. Plaintiff seeks to recover damages
7 based on theories of negligence, strict liability, gross negligence,
8 and wilful and wanton conduct. Presently pending before the
9 district court in Kentucky is a motion by defendants to dismiss
10 Coffey II for lack of subject matter jurisdiction.
11 Because Coffey I and Coffey II appeared to involve common
12 questions of fact with the actions in this litigation previously
transferred to the Eastern District of New York, the Panel, :
13 Jpursuant to Rule 9, R.P.J.P.M,L,, 78 F.R.D. 561, 567-68 (1978),
14 entered orders conditionally transferring Coffey I and Coffey
15 II to the Eastern District of New York for inclusion in the
16 coordinated or consolidated proceedings occurring there. Plaintiff
17 in Coffey I and Coffey II and defendants in Coffey II oppose
18 transfer. In the alternative, defendants in Coffey ITI reduest
19 that the Panel stay its consideration of transfer of Coffey
II pending the Kentucky court's ruling on defendants' motion
2° to dismiss. The five defendants in Coffey I, which are also
21 defendants in all or most of the actions presently pending
22 in the transferee district, support transfer of both Coffey
23 I and Coffey II.
24 We find that while Coffey I and Coffey IT share questions ’
55 f fact with the previously transferred actions, transfer’
| |
: FPI~MAR=—3.27.79.6H.1781

. - Case MDL No. 381 Document	315 Filed 05/18/15 Page	9 of 11
- 5 =
1 of these two actions to the Eastern District of New York
® 2 under Section 1407 would not necessarily serve the convenience
3 of the parties and witnesses or promote the just and efficient
conduct of the litigation.
* = The parties favoring transfer assert that Coffey I
> and Coffey II share many complex factual questions with
6 the actions pending in the Eastern District of New York,
7 including those relating to the manufacture of Agent Orange,
8 the various characteristics of the product (including its
9 allegedly toxic nature and the persistence of the alleged
10 toxicity), the extent of scientific knowledge about the
product, the state of the art in the field encompassing
tH the product, and the type and extent of testing of the
® 12 product. Proponents note that while factual issues relating13 only to Coffey I and Coffey II, respectively, exist, discovery
14 on those issues can be scheduled by Judge Pratt to proceed
15 concurrently with common discovery.
16 Proponents note that while voluntary cooperation among
17 parties is salutary, transfer of these two actions will
18 help prevent duplicative discovery and conflicting pretrial
rulings. And, centralization of all actions in the Eastern
19 District of New York, proponents suggest, will promote
20 the efficient conduct of the entire litigation.
21 Regarding the transfer of Coffey I, proponents contend
22 that the pending motion to remand Coffey I to Kentucky
23 state court is not a bar to transfer pursuant to Section
[ 24 1407. Proponents state that they will vigorously oppose |
os remand, and that the transferee court would have the power
to resolve the remand issue.
|
FPI-MAR——3-27.78.6M.1781

Case MDL No. 381 Document	315 Filed 05/18/15 Page 10 of 11 : -
- 6 -
1 Similarly, regarding the transfer of Coffey II, proponents ®
2 maintain that the dismissal motion in that action should
3 be resolved by the transferee court. Proponents represent
4 that they intend to implead the United States in the actions
pending in the Eastern District of New York, and therefore
> even if the Panel stays its proceedings pending a ruling
6 by the district court in Kentucky on the dismissal motion
7 in Coffey II, the jurisdictional issue underlying that |
8 motion would be raised again before Judge Pratt.
9 While we agree that Coffey I and Coffey II involve
10 significant common questions of fact regarding Agent Orange
11 with the actions in the transferee district, and that the
presence of these issues commends Section 1407 transfer,
+2 on balance we are persuaded that this factor is outweighed
13 by other factors, including	the following: (1) Coffey
14 I and Coffey II involve unique questions of fact relating
15 to plaintiff's alleged involvement in loading and transporting
16 Agent Orange at the Blud Grass Army Depot in Kentucky; |
17 (2) no party in Coffey II favors transfer; (3) plaintiff
18 represents that he can meet ‘a trial date of April 8, 1980,
19 which was the trial date set. in Coffey I while it was pending
in state court; (4) plaintiff stated in his brief before
20 the Panel that he is willing	to stipulate that discovery
21 in the actions in the transferee district and discovery
22 in Coffey I and Coffey II may be used interchangeably;
23 and (5) the disposition of the dismissal motion in Coffey }
24 II and the remand motion in Coffey I could eliminate the h
05 actions from federal cdurt. Under these circumétances,
| FPl~MAR——3-27.798.6M.

. ~ Case MDL No. 381 Document	315 Filed 05/18/15 Page 11 of 11
- 7 -
2 1 we conclude that the most desirable course to follow
® 2 is to deny transfer of Coffey I and Coffey II without prejudice
3 to the right of any party to seek transfer under Section
4 1407 if a substantial change of circumstances occurs.
IT IS THEREFORE ORDERED that the orders conditionally
° transferring the actions captioned Lowell M. Coffey v.
6 The Dow Chemical Co., et al., W.D. Kentucky, C.A. No.
7 C-79-495-L(B); and Lowell M. Coffey v. The Department of
8 Defense, et al., W.D. Kentucky, C.A. No. C-79-488-L(B),
9 be, and the same hereby are, VACATED, without prejudice
10 to the right of any party to seek transfer under Section
11 1407 if a substantial change of circumstances occurs.
12
@ 13
14 |
15
16
17
18
19
20
21
22
23
C 24
25
FPI-MAR—3:27.79-6M.1781