In Re Agent Orange Product Liability

LITIGATION (LILLEY)

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. See In re "Agent Orange" Product Liability Litigation, 611 F. Supp. 1223 (E.D.N.Y. 1985).

I. 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.

Under these circumstances, there is no need to consider whether the risks to those on the ground from spraying would have been greater than the risks from ambushes or other enemy action had Agent Orange never been used. Speculation about what the President and other high government officials would have done if they had known of the possible dangers, or what the manufacturers would or should have done if the government ordered the spraying of Agent Orange with full knowledge, becomes legally irrelevant.

Although lack of proof of causation requires that the complaint be dismissed, attorneys for plaintiffs in this and related MDL cases did not bring a frivolous suit requiring them to pay defendants' attorney fees under Rule 11 of the Federal Rules of Civil Procedure. See Eastway v. City of New York, 762 F.2d 242 (2d Cir. 1985). The plaintiffs' attorneys in this multidistrict litigation have made a valuable contribution by discovering and revealing evidence supporting the first leg of their claim--defendants' and the government's knowledge of the dangers in using Agent Orange and their failure to take reasonable precautions. That the scientific studies completed after they brought suit failed to support their theories of causation is hardly a reason for punishing the lawyers.

As a result of this litigation, future members of the armed forces may be protected by "sunshine" legislation, Defense Department regulations, and manufacturers' practice requiring disclosure of new and dangerous chemical processes. The importance of this and related Agent Orange litigation to veterans and to the public argues strongly against denominating the complaint in this case frivolous and burdening counsel with Rule 11 sanctions.

A long latency period may ultimately reveal some causal relationship between exposure to Agent Orange and adverse health effects in those exposed and in their children. If and when such a connection is shown the issue of compensation should be addressed by the government. This court must decide the case on the evidence presently available.

II. PROCEDURAL BACKGROUND

Plaintiff opted out of the class previously certified by this court in a suit against the defendant chemical companies. In re "Agent Orange" Product Liability Litigation, 506 F. Supp. 762, 787-792 (E.D.N.Y. 1980), modified, 100 F.R.D. 718 (E.D.N.Y. 1983), mandamus denied, 725 F.2d 858 (2d Cir.), cert. denied, 465 U.S. 1067, 104 S. Ct. 1417 (1984). After settling with members of the class on May 7, 1984, defendants moved on July 24, 1984 for summary judgment in the opt-out cases and a number of cases brought by civilians.

The court granted the opt-out plaintiffs repeated adjournments and opportunities for discovery to obtain evidence in opposition to the motion. On December 10, 1984, the court heard oral argument on defendants' motions. Defendants offered overwhelming proof that no causal connection exists between exposure to Agent Orange and development of miscarriages or birth defects. In response, the veterans' wives and children produced no evidence sufficient to create an issue of material fact on causation. See also In re "Agent Orange" Product Liability Litigation, 603 F. Supp. 239 (E.D.N.Y. 1985) (dismissing claims of wives and children against government). The court adjourned consideration of the majority of the opt-out veterans' claims to enable counsel to produce additional evidence of causation.

Counsel for the opt-out plaintiffs submitted materials by Doctors Samuel S. Epstein and Barry M. Singer. Oral argument was heard on April 15, 1985. The court issued an opinion granting defendants' motion for summary judgment on May 8, 1985. In re "Agent Orange" Product Liability Litigation, 611 F. Supp. 1223 (E.D.N.Y. 1985).

In the Lilley case, plaintiff produced the affidavit of Dr. Bertram Warren Carnow on October 18, 1984. On December 10, 1984, the court denied summary judgment. Defendants' motion to reargue was granted on February 6, 1985. Expedited discovery occurred and oral argument was heard on April 15, 1985.

On May 14, 1985, the court issued an order granting plaintiff an added thirty days to submit additional proof of exposure and additional medical evidence. Plaintiffs' counsel submitted the affidavit of Mrs. Lilley's brother-in-law John Comeaux on June 12, 1985. Defendants' counsel submitted John Comeaux's supplemental affidavit and an accompanying memorandum of law on June 13, 1985.

III. 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.

A. 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...."

Dr. Carnow relies on information from Mrs. Lilley to conclude that Mr. Lilley never contracted hepatitis or infectious mononucleosis and did not take any medications regularly. She gave Dr. Carnow an abbreviated family history: Mr. Lilley's father died of a stroke in his 50s or 60s. His mother had cancer of the uterus or cervix. He has five sisters, all of whom are alive and well. There is no history of any leukemias or other cancers in the family.

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." Cf. Tr. at 183 (Hearings March 5, 1985) ("medical evidence would suggest that if somebody had occluded arteries, that person did not die from Agent Orange exposure") (remarks of Plaintiff's Management Committee member David Dean).

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.

B. REVIEW OF SCIENTIFIC LITERATURE

To reach his conclusion that Agent Orange caused Mr. Lilley's lymphosarcoma and myocardial infarctions, Dr. Carnow relies primarily on a number of studies conducted on animals and workers exposed to dioxin.

1. Studies Relied upon by Dr. Carnow

These studies, previously submitted by plaintiffs, have been discussed in the court's prior opt-out opinion. In re "Agent Orange" Product Liability Litigation, 611 F. Supp. 1223 (E.D.N.Y. 1985). Many of the studies involved laboratory animals subjected to extreme exposures with unknown human significance; some, such as the Swedish studies by Hardell and his colleagues, have never been replicated, and involved chemicals in addition to the constituents of Agent Orange. See, e.g., L. Hardell, et al., "Malignant Lymphoma and Exposure to Chemicals, Especially Organic Solvents, Chlorophenols and Phenoxy Acids: A Case-Control Study," Br. J. Cancer (1981). Others involved chronic or acute industrial exposures different from the exposures in Vietnam.

The studies cited by Dr. Carnow do not establish any cause and effect relationship. For example, Dr. Carnow relies heavily on three animal studies--Van Miller, Lalich, et al., 1977, Kociba, et al., 1978, and Toth et al., 1979--that he states "have demonstrated the carcinogenicity of TCDD in rats and mice." The Van Miller study, however, concludes that more research is necessary into the mechanisms of TCDD's action before any conclusions can be drawn as to the carcinogenicity of TCDD even in laboratory animals. See Van Miller, et al., "Increased Incidence of Neoplasms in Rats Exposed to Low Levels of 2,3,7,8-Tetrachlorodibenzo-p-Dioxin," 9 Chemosphere 537, 543 (1979).

As the Toth study concludes, the results of animal studies cannot be extrapolated to humans:

Until more is known about the people who have been exposed to them, the carcinogenicity of 2,4,5-T and structurally related chemicals in humans cannot be evaluated.

Toth, et al., "Carcinogenicity testing of herbicide 2,4,5-trichlorophenoxyethanol containing dioxin and of pure dioxin in Swiss mice" 549 (1979).

In the Kociba study, neoplasms were found only in those animals fed sufficient quantities of the chemical to cause severe, acute toxic effects. The study concluded:

In summary, data collected in the study reported herein indicate that doses sufficient to induce severe toxicity increased the incidence of some types of neoplasms in rats, while reducing the incidence of other types. No increase in neoplasms occurred in rats receiving sufficient TCDD during the 2-year study to induce slight or no manifestations of toxicity.

Kociba, et al., "Results of a Two-Year Chronic Toxicity and Oncogenicity Study of 2-3-7-8-Tetrachlorodibenzino-p-Dioxin in Rats," 46 Toxicology and Applied Pharmacology 279, 302 (1978).

Dr. Carnow's discussion of human studies avoids any mention of the epidemiologic studies conducted on Vietnam veterans actually exposed to Agent Orange and their offspring. Instead, he relies on studies involving industrial exposure, small cohorts and different chemical compounds. He does mention Sarma and Jacobs, who reported in 1981 three cases of soft-tissue sarcomas in veterans presumed to have been exposed to Agent Orange. Sarma and Jacobs concluded that more studies are needed:

Soft-tissue sarcomas are rare neoplasms. If there is a true risk of these neoplasms in veterans who served in Vietnam, follow-up studies should be able to define it. If there is an increased risk of malignant disease in these veterans, then a more critical question that has to be addressed is: Are the defoliants causative, or is some other unidentified environmental factor responsible, acting alone or in concert with the defoliants?

Sarma and Jacobs, "Thoracic Soft-Tissue Sarcoma in Vietnam Veterans Exposed to Agent Orange" 1109 (letter to the editor)....

In sum, the various studies discussed by Dr. Carnow do not support his firm conclusion that exposure to Agent Orange caused John Lilley's lymphosarcoma. The authors of these studies acknowledge that more research is necessary and that no more than a suggestion or vague association may be hypothesized at present. Dr. Carnow does not discuss the directly relevant epidemiologic studies conducted on exposed Vietnam veterans.

2. Studies of Relevant Population Group

The epidemiologic studies conducted on veterans exposed to Agent Orange in Vietnam have been extensively discussed in prior opinions. See, e.g., In re "Agent Orange" Product Liability Litigation, 597 F. Supp. 740 (E.D.N.Y. 1984) (fairness of settlement); In re "Agent Orange" Product Liability Litigation, 611 F. Supp. 1223 (E.D.N.Y. 1985) (granting summary judgment against plaintiffs who opted out of the class action). This research was designed to determine the direct effects of exposure on servicepersons and the indirect effects of exposure on spouses and children of servicepersons. No acceptable study to date of Vietnam veterans and their families concludes that there is a causal connection between exposure to Agent Orange and the serious adverse health effects claimed by plaintiff.

Chloracne and porphyria cutanea tarda are the only two diseases that have been recognized by Congress as having some possible connection to Agent Orange exposure. Arguably there has been some proof that this plaintiff suffered from chloracne on his return from Vietnam.... This is, however, a death action and chloracne has not been claimed to be a precursor of the cancer and heart disease from which plaintiff allegedly died. At most it is evidence of exposure to Agent Orange, a fact that may be assumed for purposes of this motion.

The studies have been negative with respect to effects on veterans' health. The Air Force study is one of the most extensive examinations to date of the effect of Agent Orange on exposed veterans. See Air Force Health Study, An Epidemiologic Investigation of Health Effects in Air Force Personnel Following Exposure to Herbicides (February 24, 1984) (Ranch Hand II Study--1984 Report). This study utilized 1,024 matched pairs of men for analysis. Essentially all those who had participated in the fixed wing spraying and who could be located were studied. The conclusion was negative. In summary,

This baseline report concludes that there is insufficient evidence to support a cause and effect relationship between herbicide exposure and adverse health in the Ranch Hand group at this time.

Significantly, "no cases of chloracne were diagnosed clinically or by biopsy."

The small Ranch Hand sample and other factors, particularly the length of time it takes for some cancers to develop, support the conclusion that more work is needed before any firm conclusion can be reached respecting morbidity. The authors suggest a 20-year mortality follow-up study.

The Ranch Hand Study authors state that "[i]n full context, the baseline study results should be viewed as reassuring to the Ranch Handers and their families at this time." Even if we assume that plaintiff was part of the Ranch Hand operation, this study offers no help to him in establishing causation. It is at best inconclusive....

C. EXPERT AFFIDAVITS SUBMITTED BY DEFENDANTS

In support of their motion for summary judgment, defendants submitted affidavits from Dr. Edmund H. Sonnenblick and Dr. Edward A. Smuckler. Dr. Sonnenblick, who is Chief of the Cardiology Department at Albert Einstein Medical School, addresses the question of whether John Lilley's myocardial infarctions resulted from exposure to Agent Orange.

A review of Mr. Lilley's medical records, Dr. Carnow's testimony and sources, and the scientific literature convinces him that the infarction was unrelated to Agent Orange. John Lilley was a member of an age, race and sex group that was at risk for myocardial infarction. In addition, John Lilley's medical history includes several known risk factors for myocardial infarction: a 30-year history of cigarette smoking, hyperchloresterolemia, and parental stroke. Even Dr. Carnow acknowledges that these factors may enhance the risk of heart disease.

Dr. Sonnenblick notes that no scientific study has found an association between coronary artery disease and exposure to Agent Orange, 2,3,7,8-tetrachlorodibenzo-p-dioxin or any other form of dioxin. According to Dr. Sonnenblick, the "list of scientific materials which support the opinions of plaintiffs' experts" does not include any reference to literature that addresses this purported association. The Ranch Hand Mortality and Morbidity Studies did not find any increased incidence of coronary artery disease or myocardial infarction among persons exposed to Agent Orange in Vietnam.

Dr. Sonnenblick states that:

[w]ithout studies demonstrating an excess incidence of myocardial infarction among persons of John Lilley's age group who were exposed to Agent Orange, there is no basis for the opinion that John Lilley's myocardial infarction was more probably than not caused by his exposure to Agent Orange, since there would be no basis for distinguishing his condition from the "background" incidence of such disease.

Given the lack of an increased incidence of heart disease in veterans exposed to Agent Orange and the existence of risk factors in John Lilley's own background, Dr. Sonnenblick concludes that Dr. Carnow's opinion lacks any "scientific, factual or logical basis."

Dr. Smuckler addresses the claim that Agent Orange exposure caused John Lilley's lymphoma. Dr. Smuckler is Chairman of the Department of Forensic Pathology at the University of California at San Francisco Medical School. His areas of research and publication include chemically-induced cancer and the effects of exposure to chlorinated dioxins and related compounds.

Dr. Smuckler has also reviewed the records, documents and testimony submitted by plaintiffs. He notes that according to the Third National Cancer Survey: Incidence Data, National Cancer Institute Monograph 41, March 1975, attached as Exhibit B to his affidavit, for every 100,000 white males aged 40-44, 4.1 new cases of lymphocytic lymphoma occur each year. The prevalence of the disease is higher. Although the etiology of lymphomas is "largely unknown," "[t]here are certain recognized associations that have been established between some agents and the dea and leukemia. Exhibit C contains articles on the increased incidence of lymphoma among those exposed to benzene and "An Occupation Health Survey of Selected Airports" conducted by the Centers for Disease Control. This survey warns that airplane maintenance employees risk exposure to a number of toxic substances: carbon monoxide, aluminum oxide, stoddard solvent, kerosene, nonflammable halogenated solvents, alkaline solutions, cleaners, vapor degreasers containing chlorinated hydrocarbons, metal oxide fumes and phosgene (from welding), x-radiation (from electron beam welding), metal and nitrogen oxides (from metal spraying), benzene (from paint stripping), and a variety of other potentially hazardous substances....

Dr. Smuckler concludes that

[c]onsidering the following uncontroverted facts:

a. there is no established association between exposure to Agent Orange and increased incidence of lymphoma;

b. there is no evidence of an excess incidence of lymphoma in Vietnam veterans;

c. lymphoma is a neoplastic disease that occurs in the general United States population;

d. the etiology of lymphomas is largely unknown; and

e. John Lilley's medical and occupational history demonstrates other risk factors for cancer generally and lymphoma/leukemia specifically;

there is no scientific, factual or logical basis to permit or support the conclusion that it is more probable than not that John Lilley's malignancy was caused by his alleged exposure to Agent Orange in Vietnam.

IV. LAW

Defendants assert a number of legal grounds for dismissal. All defendants claim that plaintiff has not created an issue of material fact regarding causation, that plaintiff has failed to show who caused the harm alleged, and that the government contract defense bars recovery. In addition, defendant Monsanto moves to dismiss claiming that the applicable statute of limitations bars recovery.

A. 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. In re "Agent Orange" Product Liability Litigation, 611 F. Supp. 1223 (E.D.N.Y. 1985). Plaintiff must rebut with competent, nonconclusory evidence. Fed. R. Civ. Proc. 56(e).

1. 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." In re "Agent Orange" Product Liability Litigation, supra, at 1241.

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.

2. 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 403, 702 and 703....

(a)Rule 702

Rule 702 of the Federal Rules of Evidence provides for opinion testimony by experts "if scientific, technical or other specialized knowledge will assist the trier of fact to determine a fact in issue" and the witness is "qualified as an expert by knowledge, experience, training or education...." The court must first determine whether the expert is sufficiently qualified in his or her field to be allowed to testify. Frazier v. Continental Oil Co., 568 F.2d 378, 383 (5th Cir. 1978). Doubts about whether the proffered evidence is helpful to the trier should be resolved in favor of admissibility. In re Japanese Electronic Products Antitrust Litigation, 723 F.2d 238, 279 (3d Cir. 1983), cert. granted, 471 U.S. 1002 (1985). Finally, courts must assess the admissibility of testimony based on a novel scientific technique by balancing the relevance, reliability, and helpfulness of the evidence against the likelihood of waste of time, confusion, and prejudice.

In their motion for reargument and other papers, defendants urge that Dr. Carnow is unqualified to testify because he has allegedly given contradictory testimony in various cases involving the effects of exposure to dioxin on humans and because of his general lack of credibility. There has been no dispositive proof that Dr. Carnow has committed perjury in the course of the present case. Defendants also cite Dr. Carnow's opening remark at his deposition--"I have just one statement. I'd like to know who is going to take care of my fees in this case"--as rendering him unqualified under the Federal Rules.

Defendants' arguments address the weight of Dr. Carnow's testimony and not its admissibility. The Federal Rules of Evidence assume that rigorous cross-examination will alleviate concern about expert testimony that is contradictory or overly influenced by the prospect of monetary gain. The jury, not the judge, decides whether these considerations have so tainted an expert's opinion as to make it unworthy of belief.

Under Rule 702, the court must merely determine whether Dr. Carnow is sufficiently qualified to testify. He received his degree in medicine from the Chicago Medical School, is board certified in occupational medicine and has extensive professional experience in occupational and environmental medicine. Dr. Carnow belongs to a number of professional organizations and writes for professional journals. Defendants' contention that Dr. Carnow has on several occasions failed the internal medicine board examination does not preclude him from testifying. He will be considered an expert.

The other elements of Rule 702 analysis--helpfulness and appropriate methodology--are equally satisfied by Dr. Carnow's testimony. His opinion is directed toward one of the most important issues in this protracted litigation--causation--and would therefore assist the trier of fact. Dr. Carnow's general scientific technique of inference from animal and other studies is acceptable.

Compliance with Rule 702 does not suffice. Rule 703 also must be considered.

(b)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 cases interpreting this requirement have already been discussed in detail. In re "Agent Orange" Product Liability Litigation, 611 F. Supp. 1223, 1243-1244 (E.D.N.Y. 1985).

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. In re Swine Flu Immunization Products Liability Litigation, 508 F. Supp. 897, 904 (D. Colo. 1981), aff'd sub nom. Lima v. United States, 708 F.2d 502 (10th Cir. 1983).

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. See Slaughter v. Abilene State School, 561 S.W.2d 789, 791 (Tex. 1977) (doctor's testimony predicated upon both hearsay and personal knowledge admissible); Smith v. Tennessee Life Insurance Co., 618 S.W.2d 829, 832 (Tex. Civ. App. 1981) ("report of private investigators is not ... the type of hearsay data that a doctor can rely upon in forming his expert opinion"). We do not have the kind of reliable statements about direct observation of actions, contemporaneous statements and symptoms usually related by a spouse. Cf. Fed. R. Ev., Rules 803(1), (2), (3), (4), 805. 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.

While perhaps less self-serving than the plaintiff checklists rejected in the previous opt-out opinion, see In re "Agent Orange" Product Liability Litigation, 611 F. Supp. 1223 (E.D.N.Y. 1985), 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.

These records nowhere mention "Agent Orange" or chloracne. One record indicates that John Lilley admitted to smoking a pack of cigarettes daily for thirty years, which suggests the unreliability of Dr. Carnow's information that Mr. Lilley was a nonsmoker. Moreover, plaintiffs' expert in the related opt-out cases has stressed that quitting smoking is the "most effective single action you can take" to avoid developing cancer. S. Epstein, The Politics of Cancer 473 (Anchor Press ed. 1979).... The fact that a family history of lymphosarcoma is not recorded in the medical records does not show the nonexistence of such a family history. Mr. Lilley's mother had cervical or uterine cancer.

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. See In re "Agent Orange" Product Liability Litigation, 611 F. Supp. 1223, 1248 (E.D.N.Y. 1985) (cases interpreting this aspect of Federal Rule of Evidence 703).

Courts excluding expert opinion for lack of adequate basis often note that it is speculative or without any factual foundation. Merit Motors, Inc. v. Chrysler Corp., 569 F.2d 666, 671-73 (D.C. Cir. 1977) ("To hold that Rule 703 prevents a court from granting summary judgment against a party who relies solely on an expert's opinion that has no more basis in or out of the record than [this expert's] ... would seriously undermine the policies of Rule 56.")....

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....

Dr. Carnow states that the incidence rate for deaths from lymphosarcomatous leukemia in the population at large "in white males age 40 years in the period 1959-1969 was 2 to 3 per 100,000" which he concludes is "relatively rare." Aff. at 4. He further notes that certain factors[sp[cp4] [rp;nm[sp[cp4] [rpgeographic location, familial history, exposure to radiation, and immuno-suppression--increase the risk of developing lymphosarcoma.

Dr. Carnow's data is generally borne out by the literature. See M.M. Wintrobe, G.R. Lee, D.R. Boggs, T.C. Bithell, J. Foerster, J.W. Athens, J.N. Lukens, Clinical Hematology, 1449-83 (1981) (cause of lymphoma or leukemia unknown, but time-space clustering, environmental factors, familial disease and ethnic differences important). A more recent survey finds a higher incidence than does Dr. Carnow of the disease for Mr. Lilley's age group--4.1 per 100,000. See "Third National Cancer Survey: Incidence Data," National Cancer Institute Monograph 41, March 1975. In contrast to the association Dr. Carnow finds between exposure to Agent Orange and lymphosarcoma, "with the exception of gamma irradiation and benzene and related hydrocarbons, no firm relationship of such factors to disease has been established." Wintrobe, et al., supra, at 1477; J. Aleksandrowicz & A. Skotnicki, Leukemia Ecology: Ecological Prophylaxis of Leukemia 47-69 (1982) (ionizing radiation and benzene are leukemogenic agents).

Commentators stress what Dr. Carnow ignores--that the etiology of leukemia and lymphosarcoma is unknown. See, e.g., Wintrobe, supra, at 1471....

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....

(c)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.

3. Defendants' Affidavits

The affidavits of Doctors Smuckler and Sonnenblick confirm the unreliability of plaintiff's expert testimony. As discussed supra IIIC, defendants' experts support the conclusion that the scientific literature to date offers no basis for concluding that exposure to Agent Orange caused John Lilley's lymphosarcoma and coronary artery disease. The doctors further suggest that John Lilley's smoking, high cholesterol, family history and occupational exposure to benzene and radiation are more likely causes of Mr. Lilley's illness and death.

The opinions of Doctors Smuckler and Sonnenblick would be admissible at trial. They are reputable physicians with a high degree of expertise in their respective areas. Fed. R. Ev. 702. In contrast to Dr. Carnow, they take into account the entire body of relevant scientific literature, including the Ranch Hand and other studies of exposed veterans. While obviously not plaintiff's treating physicians (who, if they are available, have not been relied upon by plaintiff or defendants), defendants' experts have considered the relevant medical records, which are submitted as exhibits to their affidavits.

B. 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. See S.L. Moschella & H.J. Hurley, 2 Dermatology 1714-15 (2d ed. 1985).... 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). In re "Agent Orange" Product Liability Litigation, 597 F. Supp. 740, 794-95 (E.D.N.Y. 1984).

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)....

Summary judgment is even more appropriate here than in the other opt-out cases because extensive discovery has been conducted in the Lilley case and it is highly unlikely that any new evidence of substance can be obtained. The court granted plaintiff every reasonable opportunity to present a case by granting adjournments and requesting additional information. It has taken into consideration all the evidence from all related M.D.L. cases that could possibly support plaintiff's causal hypothesis.

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.

C. OTHER GROUNDS FOR GRANTING THE MOTION

Even if plaintiff could show a causal link between Agent Orange and John Lilley's illness, several other legal difficulties preclude recovery. These include the Maryland statute of limitations, see In re "Agent Orange" Product Liability Litigation, 597 F. Supp. 740, 800-816 & Appendix E (E.D.N.Y. 1984), the inability to demonstrate which defendant caused harm, id. at 819-833, and the government contract defense. In view of the court's finding on causation, there is no need to further explore these issues. See the discussion in In re "Agent Orange" Product Liability Litigation, 611 F. Supp. 1223 (E.D.N.Y. 1985).

V. CONCLUSION

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

So ordered.