Agent Orange

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In Re Agent Orange Product Liability – John Lilley 611 F. Supp. 1267 (e.d.n.y. 1985), Aff'd, 818 F.2d 187 (2d Cir.),

WEINSTEIN, C.J.

Anna Lilley sues on behalf of her deceased husband John Lilley, a Vietnam veteran. (The Lilleys are sometimes individually and jointly referred to as "plaintiff.") Defendants are seven chemical companies that manufactured the herbicide Agent Orange for use in Vietnam. They have moved to dismiss and for summary judgment. As in the cases of the other veterans who opted out of the class, summary judgment of dismissal must be granted.

INTRODUCTION

Based on all the information available in this case and in the related MDL litigation, we can assume the plaintiff might establish that the government as well as the defendant chemical companies knew that Agent Orange contained dioxin. The government and defendants undoubtedly knew before the spraying began that dioxin was a highly toxic chemical that might pose dangers to those exposed. Plaintiff can probably show that defendants knew that Agent Orange was to be sprayed in higher concentrations than recommended by the manufacturers for safe commercial use of similar herbicides, creating additional dangers to those on the ground. Plaintiff could also convince a trier that defendants were aware that packaging Agent Orange in drums without warnings was likely to lead to handling in ways contrary to safe usage, such as spillage on personnel and failure to wash and change clothing promptly after exposure.

There is also reason to believe that plaintiff could adduce evidence lending support to a contention that neither the government nor the chemical companies met a responsibility to conduct proper experiments and tests before production and use, to reveal promptly the dangers and to take adequate precautions by warnings and the like. In this respect the case arguably resembles the asbestos litigation where substantial contentions of cover-up and carelessness have been made. See P. Brodeur, "Annals of Law--Asbestos," The New Yorker (June 10, 17, 24, July 1, 1985).

Finally, on the basis of the record, there is evidence of plaintiff's exposure to Agent Orange. It occurred while he was in Vietnam.

Thus plaintiff could establish enough to withstand a motion for summary judgment directed to the first leg of any tort claim--defendant's wrongful act violating a right of plaintiff. Whether the rule is couched in terms of traditional negligence or strict liability we may assume for the purposes of this motion that defendants violated an obligation they owed to plaintiff.

Plaintiff's difficulty is with establishing the second leg of a tort claim--damage to plaintiff caused by defendants' wrongful conduct. Causation cannot be established on the basis of information presently available. It cannot be shown that John Lilley's illness and death were caused by exposure to Agent Orange. On the evidence available no trier could be permitted to find for the plaintiff. At this point any analogy to many of the asbestos or other toxic tort cases--where there is a clear linkage between the product and a disease--ends.


FACTS

More discovery has occurred in the Lilley case than in any other opt-out case. Still, as the deposition of plaintiff Anna Lilley demonstrates, little is known about John Lilley's medical background and exposure history. Plaintiff's expert, Dr. Bertram Carnow, relies on information supplied by Mrs. Lilley, some of Mr. Lilley's medical records, and studies of animal and industrial exposure to dioxin. He concludes that Agent Orange caused John Lilley's illness and death. Defendants contest causation, relying primarily on epidemiologic studies, the depositions of Mrs. Lilley, the affidavits of John Comeaux and the affidavits of two experts.

INFORMATION ON JOHN LILLEY

John Lilley grew up in western Pennsylvania. He entered what subsequently became the Air Force in 1947 at the age of seventeen. According to Mrs. Lilley, her husband received specialized training in the use of chemicals and gas and instruction on how to be an airplane mechanic. During his years in the service, John Lilley worked primarily as an airplane mechanic. He "tore engines apart." Mr. Lilley's main workplace was Andrews Air Force Base, and he commuted home on weekends.

He had several tours of duty abroad, including service in Germany, England, Japan, Korea, and Vietnam. He worked as a cargo inspector in Vietnam from April 1966 through April 1967. There he inventoried cargo and assisted in loading and unloading it onto airplanes.

Dr. Carnow states that Mr. Lilley "was not exposed to any spraying nor did he handle any chemicals" other than in Vietnam. Mrs. Lilley's deposition makes clear that she would not have been aware of her husband's exposure to chemicals. According to Mrs. Lilley, whatever John Lilley's assignment, "he would be ... on top secret ... [and] never knew where he was going until he boarded the plane and opened the envelope."

Dr. Carnow also states that Mr. Lilley told Mrs. Lilley "that he did handle drums of Agent Orange extensively and that he did get some of the chemical on him from ruptured or defective containers." Mrs. Lilley, on the other hand, repeatedly stated that "he could never tell me what was in the containers."

Mrs. Lilley testified at her deposition that she first learned that Agent Orange may have been in the containers her husband handled sometime after his death. She was told this by her brother-in-law, who had worked with John Lilley in Vietnam. There are indications in Mrs. Lilley's deposition that the chemicals handled by her husband and her brother-in-law included chemicals other than Agent Orange ("[t]he boys never knew what they were handling, all they knew it was chemicals ... supposed to kill the mosquitos or something over there"); (describing "red, green, blue" seals on barrels); ("chemicals my husband [used] ... to spray for the bugs").

The affidavit of Mrs. Lilley's brother-in-law, John C. Comeaux, is more explicit about the material John Lilley handled in Vietnam. Mr. Comeaux served as a flight engineer and cargo inspector in Vietnam, frequently working with John Lilley.

Mr. Comeaux "cannot clearly recall the color of the various bands used" on the barrels he and Mr. Lilley handled. They emptied the 55-gallon drums into larger aircraft tanks for use on C-123 aircraft as part of Operation Ranch Hand. The material in the drums, which Mr. Comeaux "understood ... to be for defoliating the jungle, killing the tall grasses and occasionally for destroying enemy crops," "was constantly spilling" on Mr. Comeaux and Mr. Lilley. A film of what Mr. Comeaux believes to have been Agent Orange developed on the water when it rained. Rainwater flooded the barracks and Mr. Lilley and Mr. Comeaux were forced to wade in it. Mr. Comeaux concludes that "John Lilley was exposed to Agent Orange and possibly other herbicides" (emphasis supplied). John Comeaux's supplemental affidavit filed at the request of defendant Monsanto states that he has "no personal knowledge of the contents of the barrels we handled" and that he does "not know ... whether the barrels in fact contained the herbicide known as Agent Orange."

Dr. Carnow notes that after returning from Vietnam, Mr. Lilley had blister-like lesions on both lower legs which were then diagnosed as shingles. He also complained of a red rash which would later result in brownish patches on his skin. He had difficulty holding a hammer because of numbness in his hands. Finally, he had a cough and sore throat, which were apparently cured by a tonsillectomy.

Mr. Lilley retired from the Air Force after twenty years of service in August 1967. Upon returning to civilian life he worked for Aircraft Armaments Company, a manufacturer of grenades, machine guns and shells. Dr. Carnow states that during his subsequent occupation, Mr. Lilley "never handled any toxic chemicals including solvents or pesticides." This conclusion is presumably based on Mrs. Lilley's statement that "[t]hey didn't have chemicals down there." While employed at Aircraft Armaments, Mr. Lilley replaced light bulbs and fixed air conditioners.

With respect to Mr. Lilley's personal habits, Dr. Carnow states that, according to Mrs. Lilley, Mr. Lilley did not smoke or drink. Mrs. Lilley's deposition reads:

Q: At any time since you have known your husband, did he ever smoke?

A: Well, I don't know what he did. He started one time and went back off of it and broke himself of it.

Q: Was he ever advised by a doctor in the military to stop smoking?

A: I don't know. He never told me.

Mr. Lilley, however, "admitted to smoking 1 pack per day for the last 30 years...."

Mrs. Lilley notes that she had a stillbirth after five months' gestation in 1969. She became pregnant again several months later and after a full-term pregnancy gave birth to an eight pound, five ounce baby. The boy has developed rashes on about 13 occasions, diagnosed as Scarlet Fever, German Measles, and other infectious diseases. The child also suffers from a lung disorder.

After Mr. Lilley's return from Vietnam, he received medical attention twice; once in April 1966 for a boil on his scrotum, and once for a sore throat in May 1967. His retirement examination in August 1967 showed a normal electrocardiogram, no significant findings on the physical examination, and no complaints. He was 6 feet tall and weighed 180 pounds. His blood pressure was 120/84 and he was thought to be in excellent health.

In September 1970 at the age of 40, Mr. Lilley was diagnosed as having poorly differentiated lymphocytic lymphoma, nodular type. He was treated with various medications and told that he had only six months to live--although fortunately he lived longer. He had a spleenectomy in 1970 after the diagnosis of lymphosarcoma was made.

Dr. Carnow notes that the progression of Mr. Lilley's disease was from poorly differentiated lymphocytic lymphoma, nodular type, to mixed histiocytic-lymphocytic, nodular type, to lymphosarcomatous leukemia. Mr. Lilley died on January 28, 1976. According to Dr. Carnow, the autopsy report shows a lymphosarcomatous leukemia with various other findings, all related to the cancer diagnosis.

A hospital discharge summary dated February 17, 1975 shows that Mr. Lilley had just suffered a myocardial infarction. He had had a previous myocardial infarction in 1973. Dr. Carnow concludes that Mr. Lilley's lymphosarcoma was caused by exposure to Agent Orange during his tour of duty in Vietnam. He further states that John Lilley's myocardial infarction "was also the result of absorption of these chemicals into his body and the development of chronic chemical intoxication as a result."

Assuming, based on the Comeaux affidavits, that Mr. Lilley was in fact exposed to Agent Orange, there is insufficient evidence to support Dr. Carnow's opinion that such exposure caused Mr. Lilley's lymphosarcoma and myocardial infarctions. Dr. Carnow relies on insufficient information about Mr. Lilley's background and personal habits. What little information is available makes clear that Mr. Lilley was exposed to a wide variety of carcinogens during his lifetime. The only medical records submitted make no mention of Agent Orange. The inapposite scientific studies described by Dr. Carnow do not support the claim of causation.

EVIDENCE OF LACK OF CAUSATION

To prevail defendants must show that there can be no genuine issue of material fact regarding exposure to Agent Orange as a cause of John Lilley's disease. Plaintiff must rebut with competent, nonconclusory evidence. Fed. R. Civ. Proc. 56(e).

Epidemiologic Studies

The epidemiological studies conducted by the federal, state and Australian governments are admissible under Federal Rule of Evidence 803(8)(C), the public records and reports exception to the hearsay rule. As previously pointed out, the Ranch Hand, Australian and other studies "alone demonstrate that on the basis of present knowledge there is no question of fact: Agent Orange cannot now be shown to have caused plaintiff's numerous illnesses."

The Ranch Hand study is particularly relevant to the instant case. John Lilley allegedly worked in Vietnam as part of Operation Ranch Hand. He was associated with the very group considered in the Ranch Hand study. No increase was found in lymphosarcoma, lymphoma or myocardial infarction among former Ranch Handers.

Dr. Carnow's Affidavit

Plaintiff attempts to overcome the unavailability of any general evidence of causation with "particularistic" proof in the form of Dr. Carnow's affidavit. Dr. Carnow concludes that "Agent Orange is the likely cause of [John Lilley's] malignancy and death at well above the '50 percent certainty level.' " This opinion must be considered in light of Federal Rules of Evidence.

Rule 703

Rule 703 of the Federal Rules of Evidence limits the "facts" and "data" upon which an expert may rely to those "reasonably relied" upon "by experts in the field." It provides:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

Dr. Carnow does not base his conclusion about the cause of John Lilley's death on observation. Instead, the doctor relies on anecdotal information from Mrs. Lilley and on some medical records. Under Rule 703, the court must determine whether such reliance is "reasonable." The reasonable reliance requirement means that an expert may not base his or her testimony on hearsay that would not be used by other experts in the field.

Dr. Carnow has never examined John Lilley. Instead, he relies almost exclusively on hearsay information about Mr. Lilley's symptoms, personal habits and medical background. The confused recollection of Mrs. Lilley about the few things she believes Mr. Lilley told her before his death is not the kind of information physicians customarily rely upon in diagnosing illness. Mrs. Lilley had little or no contact with her husband for long periods of time and made no direct observations about his work or its effects upon him.

Mrs. Lilley's recollections about John Lilley's past statements are insufficiently trustworthy to form the basis of an expert opinion. Plaintiff has not submitted evidence that Dr. Carnow or any other physician would rely on similar information in rendering a diagnosis.

Dr. Carnow asserts that he also relied in forming his opinion on John Lilley's medical records during Air Force Service, hospital discharge summaries and the autopsy report. Use of medical records to corroborate the "patient's" statements could alleviate the problem of unreliable hearsay. O'Gee v. Dobbs Houses, Inc., 570 F.2d 1084, 1089 (2d. Cir. 1978).... The only medical records available to the court were submitted by the defendants. They fail to enhance the basis of Dr. Carnow's opinion.

Thus, Dr. Carnow's reference to medical records does not serve to make his reliance on Mrs. Lilley's statements about her husband reasonable. Given the difficulty of establishing which of the myriad potentially hazardous substances that John Lilley probably was exposed to during his life that may have caused his cancer, precise information about his exposure history, personal habits and medical history is crucial in forming an accurate opinion. Since there is no record supporting his theory, Dr. Carnow's proposed testimony lacks any basis in fact.

Most important, Dr. Carnow fails to consider the relevant epidemiologic studies conducted on Vietnam veterans. This omission is particularly incomprehensible in Mr. Lilley's case, since he was allegedly associated with the very group considered in the Ranch Hand Study. As already noted, the Air Force Study found no increased incidence of lymphosarcoma among Ranch Handers. Dr. Carnow's claim that Agent Orange exposure caused Mr. Lilley's myocardial infarction is similarly without support....

Commentators stress what Dr. Carnow ignores--that the etiology of leukemia and lymphosarcoma is unknown. The uncertainty surrounding the etiology of lymphosarcoma underscores the central problem with Dr. Carnow's testimony: he applies a causal hypothesis without any scientific support and excludes other potential causes without any factual basis for doing so. John Lilley's long career "tearing engines apart" makes it far more likely that exposure to benzene or radiation from contaminated aircraft caused his lymphosarcoma. See J.L. Kulp & J.L. Dick, "The Radiation Hazard from Contaminated Aircraft," 4 Health Physics 133-56 (1960). It is impossible to pinpoint which of the many personal, familial and environmental factors[sp[cp4] [rp;nm[sp[cp4] [rpalone or in combination--is responsible. See Aleksandrowicz & Skotnicki, supra, at 72-85 (arguing that naturally occurring carcinogens such as mycotoxins may play a role in leukemia).

In conclusion, there are no facts that rationally support Dr. Carnow's opinion. The only information available on John Lilley is sketchy and unreliable. Dr. Carnow's assumption that Mr. Lilley was exposed to no toxic substances other than Agent Orange during his lifetime is baseless. Dr. Carnow's information about Mr. Lilley's family history and personal habits is suspect. The only relevant epidemiologic studies, which were conducted on the very group with whom John Lilley apparently served, are entirely negative.... Dr. Carnow's resort to inappropriate studies of animals and workers exposed during industrial accidents, see supra III.B.1, cannot redeem his unfounded opinion. The conclusions set forth in the Carnow affidavit would be excluded at trial under Rule 703 of the Federal Rules of Evidence....

Rule 403

Federal Rule of Evidence 403 requires the court to exclude relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury...." A determination to exclude such evidence lies within the trial court's discretion.

The unfounded assumptions and speculations underlying Dr. Carnow's testimony reduce its probative value to a point approaching zero. Establishing the testimony's low probative value would embroil the jury in a protracted and fruitless inquiry into complex issues. The false aura of scientific infallibility surrounding Dr. Carnow's opinion makes the court particularly reluctant to admit it. The likelihood that admitting Dr. Carnow's opinion would waste the trier's time is particularly disturbing in a litigation that has already dragged on for many years. On balance, then, Dr. Carnow's testimony would be excluded under Rule 403 even if it were competent under Rule 703.


APPROPRIATENESS OF GRANTING SUMMARY JUDGMENT

The court has scrutinized all of the evidence relevant to John Lilley's claim with great care. See In re "Agent Orange" Product Liability Litigation, 611 F. Supp. 1223, 1260 (E.D.N.Y. 1985).... Defendants have met their burden of showing that no genuine issue of fact exists.

For purposes of deciding this motion, the court has assumed, based on John Comeaux's affidavit, that Mr. Lilley was exposed to Agent Orange in Vietnam. The rash and subsequent discoloration that John Lilley developed on his legs upon returning from Vietnam may have been chloracne. Chloracne is a fairly reliable indicator of exposure since it appears shortly after contact with the suspected chemical (even though it tends to disappear thereafter).

Plaintiff's lawsuit, however, does not rest on damage from chloracne.... It rests on the far more serious diseases of lymphosarcoma and myocardial infarction. The epidemiologic studies and affidavits relied upon by defendants make clear that no rational jury could conclude that exposure to Agent Orange caused John Lilley's illness and death.

Plaintiff's attempt to create a material issue of fact with conclusory allegations and inadmissible expert testimony must fail. Fed. R. Civ. Proc. 56(e). It is well-settled that a litigant opposing summary judgment " 'may not rest upon mere conclusory allegations or denials' as a vehicle for obtaining a trial." Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir. 1980)....

Considering all of the evidence and potential evidence, there is no question that a directed verdict will be entered at the close of plaintiff's case. It is uncontroverted that John Lilley was a member of the general population at risk of contracting the diseases that he did, that no study of veterans exposed to Agent Orange in Vietnam shows an increased incidence of these diseases, and that no treating physician linked John Lilley's illness to Agent Orange exposure. Under the circumstances, defendants are entitled to judgment as a matter of established tort law.

Granting summary judgment in this case does not involve issues of credibility or demeanor. The documents and studies submitted to the court establish that there can be no question of fact as to whether Agent Orange caused plaintiff's illness and death.

CONCLUSION

Summary judgment is granted. The complaint is dismissed without costs, disbursements or attorneys' fees. This memorandum constitutes a final judgment.

So ordered.