In re "Agent Orange" Prod. Liability Litig., No. 05-1760 (2d Cir. 2008)

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The court issued a subsequent related opinion or order on March 26, 2008.

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05-1760-cv In re "Agent Orange" Prod. Liability Litig. Also docket nos. 05-1509, 05-1693, 05-1694, 05-1695, 05-1696, 05-1698, 051700, 05-1737, 05-1771, 05-1810, 05-1813, 05-1817, 05-1820, 05-2450, 05-2451 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2006 4 (Argued: June 18, 2007 5 Final Submission: August 3, 2007 Decided: February 22, 2008) 6 7 ----------------------------------------------- 8 9 In re "Agent Orange" Product Liability Litigation 10 ----------------------------------------------- 11 J. MICHAEL TWINAM, 12 Plaintiff-Appellant, 13 - v - 14 DOW CHEMICAL COMPANY, et al., 15 Defendants-Appellees. 16 ----------------------------------------------- 17 ROBERT S. BAUER and SANDRA J. BAUER, 18 Plaintiffs-Appellants, 19 - v - 20 DOW CHEMICAL CO., et al., 21 Defendants-Appellees. 22 ----------------------------------------------- 23 24 25 26 SHERYL A. WALKER, ERIC C. WALKER, A Minor, By his Mother and Next Friend on behalf of SHERYL A. WALKER, STEPHEN J. WALKER, WILLIAM HAMILTON and ESTHER M. HAMILTON, His Wife, Individually and on Behalf of All Others Similarly Situated, 27 Plaintiffs-Appellants, 28 - v - 29 DOW CHEMICAL CO., et al., 30 Defendants-Appellees, 05-1509-cv 05-1693-cv 05-1694-cv 1 DOES 1-100, 2 Defendants. 3 ----------------------------------------------- 4 SHERMAN CLINTON STEARNS and DORTHA MONYENE STEARNS, 5 Plaintiffs-Appellants, 6 - v - 7 DOW CHEMICAL COMPANY, et al., 8 Defendants-Appellees. 9 ----------------------------------------------- 05-1695-cv 10 WILMER PLOWDEN JR., 11 Plaintiff-Appellant, 12 - v - 13 DOW CHEMICAL CO., et al., 14 Defendants-Appellees. 15 ----------------------------------------------- 16 CHARLES T. ANDERSON, 17 Plaintiff-Appellant, 18 - v - 19 20 21 DOW CHEMICAL COMPANY, et al., 22 PFIZER, INC., et. al., 23 Defendants. 24 ----------------------------------------------- 25 26 LINDA FAYE CLOSTIO-BREAUX, RACHEAL M. BREAUX, JOEY M. BREAUX, APRIL R. BREAUX, STACY M. BREAUX, ERIC J. BREAUX, and SCOTT M. BREAUX, 27 Plaintiffs, 28 CHARLES J. BREAUX, 29 Plaintiff-Appellant, 30 - v - 31 DOW CHEMICAL COMPANY, et al., 32 Defendants-Appellees. 33 ----------------------------------------------- 05-1696-cv 05-1698-cv Defendants-Appellees, 05-1700-cv -2- 1 THOMAS G. GALLAGHER, 2 Plaintiff-Appellant, 3 - v - 4 DOW CHEMICAL CO. and OCCIDENTAL CHEMICAL CORP., 5 Defendants-Appellees. 6 ---------------------------------------------- 7 8 DANIEL RAYMOND STEPHENSON, SUSAN STEPHENSON, DANIEL ANTHONY STEPHENSON and EMILY ELIZABETH STEPHENSON, 9 Plaintiff-Appellants, 05-1737-cv 10 - v - 11 DOW CHEMICAL CO., et al., 12 Defendants-Appellees. 13 ----------------------------------------------- 14 CASEY J. SAMPEY, JR., 15 Plaintiff-Appellant, 16 - v - 17 DOW CHEMICAL CO., et al., 18 Defendants-Appellees. 19 ----------------------------------------------- 20 21 22 CHRISTINE NELSON, Individually and on behalf of her deceased husband, FRANKLIN NELSON, REGINALD WILLIAMS, KAREN HOLLAND, FRANKLIN NELSON JR. and SHALISA NELSON, 23 Plaintiffs-Appellants, 24 - v - 25 DOW CHEMICAL CO., et al., 26 Defendants-Appellees. 27 ----------------------------------------------- 28 HENRY C. KIDD and SHIRLEANE J. KIDD, 29 Plaintiffs-Appellants, 30 - v - 31 DOW CHEMICAL CO., et al., 32 Defendants-Appellees. 33 ----------------------------------------------- 34 WILLIE WILLIAMS JR., and RITA WILLIAMS, 05-1760-cv 05-1771-cv 05-1810-cv 05-1813-cv -3- 1 Plaintiffs-Appellants, 2 - v - 3 DOW CHEMICAL CO., et al., 4 Defendants-Appellees. 5 ----------------------------------------------- 6 JOE ISAACSON and PHYLLIS LISA ISAACSON, 7 Plaintiffs-Appellants, 8 - v - 9 DOW CHEMICAL CO., et al., 05-1817-cv 05-1820-cv 10 Defendants-Appellees. 11 ----------------------------------------------- 12 VICKEY S. GARNCARZ, 13 Plaintiff-Appellant, 14 - v - 15 DOW CHEMICAL CO., et al., 16 Defendants-Appellees. 17 ----------------------------------------------- 18 JACK RICHARD PATTON, 19 Plaintiff-Appellant, 20 - v - 21 DOW CHEMICAL CO., et al., 22 Defendants-Appellees. 23 ----------------------------------------------- 24 25 Before: 05-2450-cv 05-2451-cv 26 MINER, SACK, and HALL, Circuit Judges. Appeals from final judgments of the United States 27 District Court for the Eastern District of New York (Jack B. 28 Weinstein, Judge) granting summary judgment to the defendants, 29 orders denying certain requests for discovery, and the order 30 denying the Stephenson plaintiffs' motion to amend their 31 complaint. -4- 1 2 3 4 5 6 7 8 Affirmed. JAMES BOANERGES, Cooper, Sprague, Jackson & Boanerges, P.C., Houston, TX; MARK I. BRONSON, Newman, Bronson & Wallis, St. Louis, Missouri; GERSON H. SMOGER, Smoger & Associates, Oakland, California; MARK R. CUKER, Williams Cuker Berezofsky, Philadelphia, PA, for PlaintiffsAppellants; 9 10 11 12 13 14 15 16 17 18 19 20 Christopher E. Buckey, Shanley, Sweeney, Reilly, & Allen, P.C., Albany, NY; David E. Cherry, Campbell, Cherry, Harrison, Davis & Dove, P.C., Waco, TX; John H. Pucheu, Pucheu, Pucheu & Robertson, L.L.P., Eunice, LA; Bernard F. Duhon, Abbeville, LA; Robert B. Evans, III, Burgos, Evans & Wilson LLC, Metairie, LA; Nira T. Kersmich, Rochester, NY; Jeffrey D. Guerriero, Guerriero & Guerriero, Monroe, LA; Morris E. Cohen, Brooklyn, NY; James Russell Tucker, Dallas, TX (on the briefs), for PlaintiffsAppellants. 21 22 23 24 ANDREW L. FREY, CHARLES A. ROTHFELD (Lauren R. Goldman, Christopher J. Houpt, of counsel), Mayer, Brown, Rowe & Maw LLP, New York, NY, for Defendants-Appellees. 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 John C. Sabetta, Andrew T. Hahn, Sr., Seyfarth Shaw LLP, New York, NY; Seth P. Waxman, Paul R. Q. Wolfson, Wilmer, Cutler, Pickering, Hale & Dorr, Washington, DC; Richard P. Bress, Latham & Watkins, Washington, DC; Michael M. Gordon, King & Spaulding LLP, New York, NY; William A. Krohley, William C. Heck, Kelley Drye & Warren LLP, New York, NY; James L. Stengel, Laurie Strauch Weiss, Orrick, Herrington & Sutcliffe LLP, New York, NY; Steven Brock, James V. Aiosa, Richard S. Feldman, Rivkin Radler LLP, Uniondale, NY; Lawrence D'Aloise, Jr., Clark, Gagliardi & Miller, White Plains, NY; Myron Kalish, New York, NY (on the brief), for Defendants-Appellees. 40 41 42 43 44 45 William A. Rossbach (Timothy M. Bechtel, of counsel), ROSSBACH, HART, BECHTEL, P.C., Missoula, MT; P.B. Onderdonk, Jr., National Judge Advocate, The American Legion, Indianapolis, IN, for Amicus Curiae Veterans and Military Service Organizations. 46 47 48 49 50 Ian Heath Gershengorn (Lise T. Spacapan and Fazal R. Khan, on the brief), Jenner & Block LLP, Washington DC, for Amicus Curiae American Chemistry Council and Chlorine Chemistry Council. 51 52 53 54 55 Raphael Metzger, Metzger Law Group, Long Beach, CA, for Amicus Curiae Drs. Brian G. Durie, Devra Davis, Peter L. deFur, Alan Lockwood, David Ozonoff, Arnold J. Schecter, David Wallinga, Carl F. Cranor, The Council for Education and -5- 1 2 Research on Toxic, and the Lymphoma Foundation of America. 3 4 SACK, Circuit Judge: 5 More than thirty-five years ago, the United States 6 military stopped using Agent Orange and related chemicals as 7 defoliants to prosecute the war in Vietnam. 8 the latest chapter in a thirty-year struggle by the litigants, 9 their counsel, and judges of the United States District Court for This appeal is but 10 the Eastern District of New York and of this Court to bring to 11 just legal closure the alleged consequences of that use. 12 We explain below why these sixteen unconsolidated 13 appeals are now before us and why, in our view, the government 14 contractor defense applies to bar these claims. 15 doing so, we consider the discovery limitations imposed by the 16 district court and that court's denial of the Stephenson 17 plaintiffs' motion to amend their complaint. 18 written by Judge Hall also filed today, we decide that those of 19 the sixteen cases that were originally filed in state court were 20 properly removed by the defendants to federal court. 21 decision by the panel, written by Judge Miner, addresses the 22 separate issues related to the use of Agent Orange raised on 23 appeal in Vietnam Assoc. for Victims of Agent Orange/Dioxin v. 24 Dow Chemical Co., No. 05-1953-cv. 25 In the course of By an opinion A third The plaintiffs pursuing this appeal are United States 26 military veterans or their relatives who allege that myriad 27 injuries, mostly forms of cancer, were caused by the veterans' 28 exposure to the chemical defoliant "Agent Orange" during service -6- 1 in Vietnam.1 2 concluding that the government contractor defense -- which 3 protects government contractors from state tort liability under 4 certain circumstances when they provide defective products to 5 the government -- applied to bar the plaintiffs' claims. 6 plaintiffs contend further that the district court abused its 7 discretion by denying them discovery beyond what was available 8 in files from prior Agent Orange litigation. 9 the plaintiffs on both counts. 10 They assert that the district court erred in The We disagree with We also conclude that it was error to deny the 11 Stephensons' motion to amend their complaint. 12 conclusion that the defendants are entitled to invoke the 13 government contractor defense, however, we find the error to be 14 harmless. 15 16 In light of our We therefore affirm the judgments of the district court in all respects. BACKGROUND 17 18 The cases concerning the United States military's 19 acquisition and use of Agent Orange during the Vietnam War, of 20 which these are but a relative few, and their massive factual 1 Plaintiff Garncarz is the only plaintiff who alleges harmful exposure to Agent Orange outside of Vietnam. She contends that her husband died from conditions resulting from his exposure to Agent Orange along the Korean Demilitarized Zone. She does not, however, raise any distinct arguments arising out of her husband's alleged exposure in Korea. We therefore consider her case, for present purposes, as indistinguishable from the others before us. -7- 1 records, have been addressed in so many different judicial 2 opinions over the years that we do not even attempt to list them 3 here. 4 304 F. Supp. 2d 404, 410-14 (E.D.N.Y. 2004) ("Agent Orange III 5 Gov. Contractor Def. Op."). 6 retelling of the history of or facts underlying this litigation. 7 See id. at 407-22 (describing the history of Agent Orange 8 lawsuits brought by Vietnam veterans).2 9 below only what we think necessary for an understanding of our 10 See generally In re "Agent Orange" Prod. Liab. Litig., Neither do we undertake a detailed Instead, we set forth resolution of these appeals. 11 Agent Orange was one of several chemically similar 12 herbicides3 used by the United States government during the 13 Vietnam War in connection with "Operation Ranch Hand," the code 14 name for the military's efforts to defoliate various areas in 15 Vietnam. 16 Supp. 2d 7, 19 (E.D.N.Y. 2005) ("Between 1961 and 1971, herbicide 17 mixtures . . . were used by the United States and Republic of 18 Vietnam . . . forces to defoliate forests and mangroves, to clear See In re Agent Orange Prod. Liab. Litig., 373 F. 2 The Court's opinion in Vietnam Assoc. for Victims of Agent Orange/Dioxin v. Dow Chem. Co., F.3d , 2008 WL , 2008 LEXIS App. , No. 05-1953-cv (2d Cir. 2008), filed today, sets forth in some detail, based on the record in that litigation, the history of the employment of Agent Orange and related chemicals to prosecute the war in Vietnam. 3 The several formulations were, like Agent Orange, named according to the color-coded band on the drums containing the chemicals. Since Agent Orange was the most widely deployed, the parties refer to all the herbicides collectively as "Agent Orange" unless the particular circumstance requires that the agents be distinguished. We adopt the same convention. -8- 1 perimeters of military installations and to destroy 'unfriendly' 2 crops, as a tactic for decreasing enemy armed forces['] 3 protective cover and food supplies."). 4 the defoliants from the defendants-appellees in the instant 5 appeals pursuant to various government contracts.4 6 defoliation campaign intensified, many of the contracts were 7 subjected to various government directives entered pursuant to 8 the Defense Production Act of 1950, see 50 U.S.C. app. § 2061 et 9 seq., and regulations promulgated pursuant thereto. The government purchased As the The 10 government characterized delivery of Agent Orange as part of the 11 prosecution of military action, which enabled the defendants to 12 procure otherwise scarce materials and equipment necessary to 13 produce it. 14 Supp. 2d at 424-25. 15 Agent Orange III Gov. Contractor Def. Op., 304 F. The Agent Orange delivered to the government was a 16 mixture of two different herbicides: 2,4-D (2,4- 17 Dichlorophenoxyacetic acid) and 2,4,5-T (2,4,5- 18 Trichlorophenoxyacetic acid). 19 chemicals be nearly 100% pure and that they be combined in 20 roughly equal proportions. 21 The contracts required that the The manufacture of 2,4,5-T produced, as a byproduct, 22 trace elements of the toxic chemical dioxin (2,3,7,8- 23 Tetrachlorodibenzo para dioxin (TCDD)). 4 The plaintiffs allege Most of these contracts have been produced to the plaintiffs, but some are difficult to read in the form in which they survive, and, as discussed below, some are missing. -9- 1 that it is dioxin that caused the injuries of which they now 2 complain. 3 The amount of dioxin contained in a particular batch of 4 Agent Orange varied depending on the production method used by 5 its manufacturer. 6 818 F.2d 145, 150, 173 (2d Cir. 1987) ("Agent Orange I Settlement 7 Op."), cert. denied, 484 U.S. 1004 (1988); In re "Agent Orange" 8 Prod. Liab. Litig., 818 F.2d 187, 189 (2d Cir. 1987) ("Agent 9 Orange I Opt-Out Op."), cert. denied, 487 U.S. 1234 (1988). See In re "Agent Orange" Prod. Liab. Litig., The 10 defendants knew at the time they were manufacturing Agent Orange 11 that dioxin was a byproduct and that it could cause certain kinds 12 of harm under certain conditions. 13 and officers assessed the toxicity of the defoliating agents, 14 including Agent Orange, being used in Vietnam. 15 knowledge the government and the defendants possessed and when 16 they came to have it is in dispute. Various government agencies Precisely what 17 I. Overview of Agent Orange Litigation 18 The plaintiffs now before us on appeal represent a 19 small fraction of the many Americans who have pursued legal 20 claims arising out of the government's use of Agent Orange to 21 fight the Vietnam War. 22 Contractor Def. Op., 304 F. Supp. 2d at 410-14 (listing more than 23 one hundred Agent-Orange-related decisions); see also, e.g., id. 24 at 407-23 (detailing the history of Agent Orange litigation 25 involving Vietnam veterans). 26 the "Agent Orange I" litigation, the veterans' class action begun 27 in the late 1970s and settled in 1984. See generally Agent Orange III Gov. Their claims find their roots in -10- 1 In those cases, the Judicial Panel on Multidistrict 2 Litigation designated the United States District Court for the 3 Eastern District of New York as the Multidistrict Litigation 4 ("MDL") court for all federal Agent Orange-related cases brought 5 by military veterans of various countries. 6 Judge Pratt and then Judge Weinstein presided over proceedings 7 involving approximately 600 litigants, hundreds of thousands of 8 putative class members, several years of motion practice 9 (including motions for class certification), and one appeal to Thereafter, first 10 this Court. 11 and class representatives reached what was then thought by the 12 parties and the courts to be a final global settlement of Agent 13 Orange-related cases in the amount of $180 million. 14 I Settlement Op., 818 F.2d at 152-55. 15 On the eve of trial of those cases, the defendants Agent Orange Because of what we termed "formidable hurdles" to the 16 plaintiffs' claims, id. at 174, we affirmed the district court's 17 approval of the settlement at what -- even at a total of $180 18 million -- we termed "nuisance value," equivalent to "at best 19 only a small multiple of, at worst less than, the fees the 20 chemical companies would have had to pay to their lawyers had 21 they continued the litigation." 22 287 cases opted out of the class and thereby the settlement. 23 Id. at 171. The Plaintiffs in Thereafter, the district court granted the defendants' 24 motion for summary judgment in those opt-out actions "on the 25 alternative dispositive grounds that no opt-out plaintiff could 26 prove that a particular ailment was caused by Agent Orange, that 27 no plaintiff could prove which defendant had manufactured the -11- 1 Agent Orange that allegedly caused his or her injury, and that 2 all the claims were barred by the military contractor defense." 3 Agent Orange I Opt-Out Op., 818 F.2d at 189 (internal citations 4 omitted). 5 From 1987 through 1997, the settlement fund, which, 6 with interest and other augmentations, eventually grew to about 7 $330 million was distributed to, inter alios, some 291,000 class 8 members who filed claims prior to the 1994 cutoff date. 9 Orange III Gov. Contractor Def. Op., 304 F. Supp. 2d at 421. 10 Meanwhile, two sets of plaintiffs who had been members of the 11 original plaintiff class and who were therefore entitled to 12 receive settlement payments, but whose injuries had manifested 13 after their opportunity to opt out of the class action had 14 expired, filed class actions on behalf of themselves and other 15 similarly situated veterans. 16 because the plaintiffs were class members, their claims were 17 barred, and we affirmed. 18 Litig., 996 F.2d 1425, 1439 (2d Cir. 1993) ("Agent Orange II"), 19 overruled in part on other grounds by Syngenta Crop Protection, 20 Inc. v. Henson, 537 U.S. 28, 34 (2002). 21 Agent The district court decided that In re "Agent Orange" Prod. Liab. Shortly after the settlement fund distributions were 22 completed, the third, and instant, series of lawsuits was 23 initiated. 24 now before us, the Isaacsons and Stephensons, who had not been 25 members of the original plaintiff class. 26 their families alleged injuries that resulted from exposure to 27 Agent Orange but did not manifest until after the 1994 cutoff These were brought by two of the sixteen plaintiffs -12- These veterans and 1 date for filing settlement claims in the original actions. In a 2 2001 opinion, we held that the district court had erred in 3 deciding that the plaintiffs' claims were barred by the Agent 4 Orange I settlement. 5 261 (2d Cir. 2001) ("Agent Orange III").5 6 conflict existed between the plaintiffs and the class 7 representatives because the representatives had permitted the 8 settlement fund to terminate without a provision for post-1994 9 claimants such as these plaintiffs. Stephenson v. Dow Chem. Co., 273 F.3d 249, We concluded that a Id. at 260-61 (relying on 10 Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999) and Amchem Prods., 11 Inc. v. Windsor, 521 U.S. 591 (1997)). 12 plaintiffs were not adequately represented by the class, and 13 Agent Orange I did not prevent them from pursuing their claims. 14 Id. at 261.6 As a result, the 15 II. The Instant Appeals 16 On remand, the Stephensons and Isaacsons were 17 eventually joined by fourteen other sets of plaintiffs alleging 18 Agent Orange injuries first discovered after the 1994 cutoff 5 We also held that the defendants had properly removed the Isaacson case from state to federal court. Id. at 256-57. As explained in the companion opinion, see Stephenson v. Dow Chem. Co., 346 F.3d 19, 21 (2d Cir. 2003), this holding was subsequently vacated by the Supreme Court and remanded to the district court for a further determination as to the propriety of removal. See Dow Chem. Co. v. Stephenson, 539 U.S. 111, 112 (2003). 6 At oral argument, we requested supplemental briefing on the question of whether we are bound by our decision in Agent Orange III to conclude that these plaintiffs are not bound by the settlement agreement addressed in Agent Orange I. We received the parties' submissions on August 3, 2007. In light of our disposition regarding the government contractor defense, however, we decline to reach the issue. -13- 1 date. The cases were not consolidated, but the district court 2 conducted simultaneous proceedings and applied rulings in the 3 Stephenson and Isaacson cases to each of the others. 4 the plaintiffs raised three tort claims under various state laws: 5 design defect, failure to warn, and manufacturing defect. 6 Together, Six days after our mandate issued in Agent Orange III, 7 the defendants moved in the district court for summary judgment 8 against the Stephensons and Isaacsons.7 9 the Stephensons moved to amend their complaint. 10 At about the same time, On February 9, 2004, several days after receiving 11 voluminous submissions from the plaintiffs and two weeks after 12 oral argument, the district court issued four decisions, two of 13 which -- one granting the defendants' motion for summary judgment 14 and the other denying the Stephensons' motion to amend -- are now 15 before us on appeal.8 16 judgment in Stephenson and Isaacson were before it, the district 17 court considered all the evidence put forth by the parties in Even though only the motions for summary 7 Although not expressly raised by the appellants or noted by the district court, the defendants' Rule 56.1 Statement appears to have been in blatant violation of Local Rule 56.1, which requires summary judgment movants to list each undisputed material fact "followed by citation to evidence which would be admissible . . . ." S.D.N.Y. & E.D.N.Y. Local R. 56.1(a), (d), available at http://www1.nysd.uscourts.gov/rules/rules.pdf. The defendants' approach to compliance with this rule has rendered our task of determining on appeal whether there are genuine issues of disputed material fact considerably more difficult than it should have been. 8 The district court also denied plaintiffs' motion to strike certain of defendants' affidavits and exhibits -- a ruling the plaintiffs did not appeal -- and found removal of the state court cases proper. Judge Hall's companion opinion addresses this latter ruling. -14- 1 Agent Orange I in ruling on defendants' summary judgment motion. 2 Having done so, it concluded that the government contractor 3 defense barred both the design defect and failure-to-warn claims. 4 Agent Orange III Gov't Contractor Def. Op., 304 F. Supp. 2d at 5 441-42. 6 concluded that they were barred because the defendants' products 7 conformed to the government's specifications. 8 9 As to plaintiffs' manufacturing defect claims, the court Id. at 442. In granting the motion for summary judgment, however, the district court noted that the plaintiffs had complained of 10 "difficulties in obtaining evidence for their position," an 11 "understandable" problem in light of the passage of time between 12 exposure and injury. 13 therefore, Judge Weinstein charted a distinctly unusual course -- 14 he permitted discovery, never undertaken by Agent Orange III 15 litigants in light of the timing of prior appeals and the 16 defendants' motion, to continue through August 10, 2004, and he 17 set a motion schedule for an anticipated motion for 18 reconsideration based on the results of that discovery. Id. "To ensure due process," id., Id. 19 Thereafter, the district court ordered that all files 20 relating to Agent Orange sent to the National Archives pursuant 21 to court order following Agent Orange I be returned to the 22 district court and made available to the plaintiffs for their 23 review. 24 all requests for additional non-MDL discovery, although the 25 district court subsequently granted the plaintiffs access to "up 26 to six complete deposition transcripts utilized in non-MDL 381 The magistrate judge assigned to the case then denied -15- 1 cases claimed by plaintiffs to shed light on relevant knowledge 2 of defendants." 3 On November 3, 2004, the plaintiffs in Stephenson and 4 Isaacson, as anticipated, filed a motion for reconsideration of 5 the district court's order granting summary judgment. 6 November 16, 2004, the district court, without awaiting response 7 from the defendants, denied the plaintiffs' motion. 8 "Agent Orange" Prod. Liab. Litig., 344 F. Supp. 2d 873, 874-75 9 (E.D.N.Y. 2004). On In re It further ordered the defendants to "submit a 10 specific judgment in favor of each named defendant against each 11 named plaintiff whose claims arise from service in the Armed 12 Forces of the United States," thereby rendering the court's 13 judgment in Stephenson and Isaacson applicable to each of the 14 fourteen additional plaintiffs now before us on appeal. 15 875. 16 Id. at Following a motion by the Bauer plaintiffs, who argued 17 that granting the motion for summary judgment was inappropriate 18 because, inter alia, the procedural posture of their case had 19 rendered them unable to respond to the defendants' motion, all 20 plaintiffs were ultimately given until February 28, 2005, to 21 submit additional papers supporting their position that summary 22 judgment should not have been granted. 23 February 28. 24 reaffirmed its November 16, 2004 Order. 25 Prod. Liab. Litig., No. 79 MD 381, 2005 WL 483416, at *1 Oral argument was held on On March 2, 2005, the district court summarily -16- In re "Agent Orange" 1 (E.D.N.Y. Mar. 2, 2005). 2 Separate judgments of dismissal in each action were then filed. 3 More than a year before, in February 2004, the district 4 court had denied the Stephensons' motion to amend their complaint 5 to add additional defendants and several new causes of action. 6 Stephenson v. Dow Chem. Co., 220 F.R.D. 22, 25-26 (E.D.N.Y. 7 2004). 8 Stephensons' original complaint, filed pro se in the Western 9 District of Louisiana, the motion to amend was denied on a 10 Although the defendants had never answered the variety of grounds. 11 Id. The plaintiffs appeal. Before us are challenges to (1) 12 the district court's grant of the motion for summary judgment as 13 to their design claim only;9 (2) the denial of their requests for 14 additional discovery; and (3) the denial of the Stephensons' 15 motion to amend.10 DISCUSSION 16 17 18 I. A. Summary Judgment Standard of Review 9 Because the plaintiffs' briefs make no arguments regarding the district court's findings as to their failure-to-warn or manufacturing defect claims, we deem these claims to have been abandoned. See Hughes v. Bricklayers & Allied Craftworkers Local #45, 386 F.3d 101, 104 n.1 (2d Cir. 2004). 10 Not all of the plaintiffs have raised the same arguments on appeal. Because the defendants have grouped the plaintiffs together as one unit in opposing this appeal, and because by Order dated September 15, 2005, we granted the plaintiffs permission to rely on the arguments made by one another, we here treat each issue raised on appeal by one plaintiff, with the exception of the Stephensons' motion to amend, as having been raised by all. -17- 1 We review the district court's grant of summary 2 judgment de novo, "construing the evidence in the light most 3 favorable to the non-moving party and drawing all reasonable 4 inferences in its favor." 5 109, 113 (2d Cir. 2005). 6 there is no genuine issue as to any material fact, and if the 7 moving party is entitled to a judgment as a matter of law." 8 (citing Fed. R. Civ. P. 56(c)). 9 B. Allianz Ins. Co. v. Lerner, 416 F.3d "We will affirm the judgment only if Id. The Government Contractor Defense 10 Almost twenty years ago, in Boyle v. United 11 Technologies Corp., 487 U.S. 500 (1988), the Supreme Court 12 recognized the government contractor defense,11 a federal common 13 law doctrine. 14 interest[]" of "getting the Government's work done" requires 15 that, under some circumstances, independent contractors be 16 protected from tort liability associated with their performance 17 of government procurement contracts. 18 The Court concluded that the "uniquely federal Id. at 504-05. The Court looked to the Federal Tort Claims Act, 28 19 U.S.C. § 2671 et seq. ("FTCA"), for guidance. 20 Under the FTCA, Congress waived sovereign immunity for the 21 government insofar as Congress "authorized damages to be 22 recovered against the United States for harm caused by the 23 negligent or wrongful conduct of Government employees, to the 11 Id. at 509-12. The defense is referred to in the case law as the "government contractor defense" or the "military contractor defense." For purposes of this opinion, we refer to it as either the "government contractor defense" or simply the "contractor defense." -18- 1 extent that a private person would be liable under the law of the 2 place where the conduct occurred." 3 § 1346(b)). 4 carves out from that authorization "'[a]ny claim . . . based upon 5 the exercise or performance or the failure to exercise or perform 6 a discretionary function or duty on the part of a federal agency 7 or an employee of the Government, whether or not the discretion 8 involved be abused.'" 9 (brackets in original). 10 Id. at 511 (citing 28 U.S.C. The Act's discretionary function exception, however, Id. (quoting 28 U.S.C. § 2680(a)) The Boyle Court concluded that the protection for 11 discretionary action taken by federal agencies and employees 12 implies some measure of similar protection for government 13 contractors even though they are themselves non-governmental 14 entities. 15 discretion is inherent to military contracting: 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 The Court noted that the exercise of government We think that the selection of the appropriate design for military equipment to be used by our Armed Forces is assuredly a discretionary function within the meaning of this provision. It often involves not merely engineering analysis but judgment as to the balancing of many technical, military, and even social considerations, including specifically the trade-off between greater safety and greater combat effectiveness. Id. Accordingly, the Court said, permitting "second-guessing" of these judgments through state tort suits against contractors would produce the same effect sought to be avoided by the FTCA exemption. . . . To put the point differently: It makes little sense to insulate the Government against financial -19- 1 2 3 4 5 liability for the judgment that a particular feature of military equipment is necessary when the Government produces the equipment itself, but not when it contracts for the production. 6 Id. at 511-12 (citation omitted). 7 government contractors from the specter of liability when the 8 operation of state tort law would significantly conflict with the 9 government's contracting interest. 10 The defense thus protects Id. at 507. Adopting the reasoning employed in several previous 11 court of appeals decisions, the Court limited "the scope of 12 [state law] displacement" to instances in which "(1) the United 13 States approved reasonably precise specifications [for the 14 allegedly defectively designed equipment]; (2) the equipment 15 conformed to those specifications; and (3) the [contractor who 16 supplied the equipment] warned the United States about the 17 dangers in the use of the equipment that were known to the 18 supplier but not to the United States." 19 two requirements "assure that the suit [from which protection is 20 sought] is within the area where the policy of the 'discretionary 21 function' would be frustrated -- i.e., they assure that the 22 design feature in question was considered by a Government 23 officer, and not merely by the contractor itself." 24 third requirement is imposed because "in its absence, the 25 displacement of state tort law would create some incentive for 26 the manufacturer to withhold knowledge of risks, since conveying 27 that knowledge might disrupt the contract but withholding it 28 would produce no liability." Id. -20- Id. at 512. The first Id. The Court therefore The 1 "adopt[ed] this provision lest [its] effort to protect 2 discretionary functions perversely impede them by cutting off 3 information highly relevant to the discretionary decision." 4 at 512-13. 5 Id. The plaintiffs here contend that the defendants cannot, 6 at least as a matter of law at the summary judgment stage, 7 satisfy any one of the three requirements. 8 1. 9 The plaintiffs argue that the defendants have not 10 established the first Boyle requirement -- that "the United 11 States approve[] reasonably precise specifications," 487 U.S. at 12 512 -- because: (1) Agent Orange procurement contracts contained 13 no specifications regarding the defective feature, dioxin; (2) 14 there is at least a genuine issue of material fact regarding 15 whether Agent Orange was a commercially available product whose 16 specifications were created by the defendants rather than the 17 government, whose involvement was minimal; and (3) the alleged 18 defect was unrelated to the contractual specifications for 19 2,4,5-T because it was the defendants' chosen manufacturing 20 processes -- with which the government was not involved and which 21 were not integral to contract compliance -- that caused dioxin to 22 be present.12 12 Reasonably Precise Specifications. The plaintiffs also complain that because the defendants cannot produce every contract between them and the government for Agent Orange, it is impossible for the defendants to prove what contractual specifications they were subject to under the missing contracts and, therefore, impossible for the defendants to meet their burden of proof under the government contractor defense. -21- 1 The first argument concerns the proper conception of 2 the complained-of defect and can readily be resolved. The second 3 and third arguments are, in distinct ways, about how the 4 government exercised its discretionary authority: 5 argument asks whether the government was involved in the 6 contractual process to the extent that Boyle requires; while the 7 third asks us to determine in what context the government must 8 exercise its discretion for the government contractor defense to 9 apply. The second To conduct this third inquiry, we must determine the 10 source of the "conflict" between the government's interests and 11 state tort law that is required for the defense to apply. 12 a. The complained-of defect 13 The plaintiffs assert that because the contracts at 14 issue contain no specifications whatsoever with regard to the 15 dioxin, the government exercised no discretionary authority over 16 that which is the subject of their state tort litigations, as a 17 successful defense based on Boyle requires. 18 misconceives the nature of what the contracts in question were 19 about and defines the alleged defective design too narrowly. Their argument This argument is without merit for many reasons. We note here only that although it is true that a defendant who had no way to demonstrate what specifications were within the contract or contracts at issue would likely have difficulty successfully asserting the contractor defense, the plaintiffs here do not attempt to rely on particular contracts or to distinguish one contract from another. None of their arguments regarding the first Boyle prong rely on the specifications of a particular contract versus the specifications of another. The plaintiffs therefore have not demonstrated that the inability to produce each and every contract is relevant to the applicability of the government contractor defense for the Agent Orange contracts as a whole. -22- 1 The contracts at issue provided for the defendants to 2 supply Agent Orange. The Agent Orange was allegedly defective 3 because it contained excessive trace amounts of dioxin, which 4 were present as a result of the manufacture of a specified Agent 5 Orange component, 2,4,5-T. 6 2,4,5-T -- was not itself defective, nor did it exist within 7 Agent Orange apart from the 2,4,5-T therein.13 8 the 2,4,5-T that was alleged to be defective, not the dioxin. The dioxin -- while a defect of It was therefore 9 10 b. 11 The plaintiffs contend that the defendants cannot 12 demonstrate that the government exercised its discretionary 13 authority to create the Agent Orange specifications that are 14 contained in the contracts. 15 protects federal contractors solely as a means of protecting the 16 government's discretionary authority over areas of significant 17 federal interest such as military procurement. 18 asserting the defense must demonstrate that the government made a 19 discretionary determination about the material it obtained that 20 relates to the defective design feature at issue. 21 government "merely rubber stamps a design, . . . or where the 22 [g]overnment merely orders a product from stock without a 23 significant interest in the alleged design defect," the 24 government has not made a discretionary decision in need of 25 protection, and the defense is therefore inapplicable. 13 The government approved specifications for a uniquely tailored product The government contractor defense Defendants Where the Lewis v. Pure lead, without defect, may be a defect of a child's painted toy. -23- 1 Babcock Indus., Inc., 985 F.2d 83, 87 (2d Cir.) (citing Trevino 2 v. Gen. Dynamics Corp., 865 F.2d 1474, 1480, 1486 (5th Cir.), 3 cert. denied, 493 U.S. 935 (1989), and Boyle, 487 U.S. at 509) 4 (internal quotation marks omitted), cert. denied, 509 U.S. 924 5 (1993). 6 is" -- the seller of that product cannot be heard to assert that 7 it is protected from the tort-law consequences of the product's 8 defects. 9 the seller was not following the government's discretionary 10 11 If the government buys a product "off-the-shelf" -- "as- Where the government is merely an incidental purchaser, procurement decisions. Here, the plaintiffs contend that the government 12 rubber-stamped its approval of the defendants' suggested 13 specifications, which, in turn, were simply combinations of off- 14 the-shelf, commercially available herbicides. 15 Chemical owned the patents for certain aspects of the herbicides' 16 component parts and that many different defendants manufactured 17 and sold 2,4,5-T and 2,4-D in various combinations as early as 18 1948, with some of the formulations including the same 50% 19 mixture as Agent Orange. 20 there are at least triable issues of fact as to whether (1) Agent 21 Orange and related herbicides were "stock" products, rather than 22 products tailored to the government's needs; and (2) even if the 23 herbicides were not commercially available products, Agent 24 Orange's components were devised by the defendants without the 25 significant government input necessary to meet the first Boyle 26 requirement. They say that Dow As a result, the plaintiffs assert, -24- 1 As to the former, the plaintiffs do not dispute the 2 defendants' assertions that 2,4,5-T and 2,4-D were not 3 commercially available at the same high concentrations as that 4 contained in Agent Orange. 5 that 2,4,5-T was not commercially available in concentrations 6 greater than 55%. 7 1760-cv, at 67-68. 8 at greater than 90% purity levels. 9 Krohley, counsel for defendant Hercules Inc., Oct. 27, 2004 The Stephensons, for example, concede See Final Reply Br. for Pl.-Appellants, 05Agent Orange, by contrast, contained 2,4,5-T See, e.g., Aff. of William A. 10 ("Krohley Aff."), Exh. 11 (July 19, 1963 military specification). 11 Moreover, as the Fifth Circuit aptly noted in unrelated 12 Agent Orange litigation, the fact that a product supplied to the 13 government comprises commercially available component parts says 14 nothing about whether the finished product resulted from the 15 exercise of governmental discretion as to its design. 16 products can eventually be broken down into various off-the-shelf 17 components." 18 (5th Cir. 2001); see also In re Joint Eastern and Southern Dist. 19 New York Asbestos Litig., 897 F.2d 626, 638 (2d Cir. 1990) 20 ("Grispo") (Miner, J., concurring) ("[T]he [g]overnment 21 prescription of how [stock] items should be combined and packaged 22 [is] the key to the military contractor defense . . . ."). 23 "[A]ll Miller v. Diamond Shamrock Co., 275 F.3d 414, 420 As to the latter argument -- the plaintiffs' contention 24 that there was no significant government input -- the plaintiffs 25 misperceive the nature of the government involvement necessary to 26 invoke the contractor defense. That the component chemicals were -25- 1 not developed for military use in the first instance, that some 2 aspects of their composition were patented, and that the 3 defendants may have proposed certain specifications to the 4 government, are not determinative. 5 government reliance on manufacturers' expertise in making a fully 6 informed decision as to what to order. 7 513. 8 than create, the specifications . . . ." 9 Coach, 991 F.2d 1117, 1125 (3d Cir.), cert. denied, 510 U.S. 868 10 (1993); see also Boyle, 487 U.S. at 513 ("The design ultimately 11 selected may well reflect a significant policy judgment by 12 [g]overnment officials whether or not the contractor rather than 13 those officials developed the design."). Boyle explicitly contemplated See Boyle, 487 U.S. at "[I]t is necessary only that the government approve, rather Carley v. Wheeled 14 The extent of the defendants' involvement in suggesting 15 specifications or the defendants' reliance on previously attained 16 industry expertise in doing so is thus not conclusive. 17 government exercises adequate discretion over the contract 18 specifications to invoke the defense if it independently and 19 meaningfully reviews the specifications such that the government 20 remains the "agent[] of decision." 21 also Stout v. Borg-Warner Corp., 933 F.2d 331, 336 (5th Cir.) 22 (government issued reasonably precise specifications when it 23 reviewed contractor's detailed drawings several times and 24 evaluated test models), cert. denied, 502 U.S. 981 (1991); 25 Harduvel v. Gen. Dynamics Corp., 878 F.2d 1311, 1320 (11th Cir. 26 1989) (government issued reasonably precise specifications for F-26- The Grispo, 897 F.2d at 630; see 1 16 fighter aircraft having approved its design following 2 "continuous back and forth" with contractor), cert. denied, 494 3 U.S. 1030 (1990). 4 With respect to Agent Orange, the record contains, for 5 example, a memorandum dated February 22, 1963, regarding "Ester 6 Specifications for U.S. Army Biological Laboratories," written by 7 an employee of one of the defendants, that discussed a February 8 8, 1963, meeting called "to satisfy the U.S. Army about 9 specifications and typical physical properties on the next type 10 of blend they [sic] will be purchasing." Mem. from I.F. Hortman 11 to, inter alios, S.D. Daniels and W.A. Kuhn (Feb. 22, 1963), at 12 1. 13 butyl ester from 2,4,5-T was "impossible at this time because the 14 Army had studied only the normal esters," and that, therefore, 15 the chemical company would have to present the proposed change 16 directly to "the commanding officer, U.S. Army Biological 17 Laboratories and Dr. Charles Minarick, Chief of Crops Division" 18 for approval. 19 government officials and representatives of several of the 20 defendants indicate that the government insisted on a test for 21 chemical composition despite "much resistance to this added 22 requirement on the part of the Industry [sic]" as well as on a 23 98% purity level for the 2,4,5-T ester. 24 Guidi, Diamond Alkali Co. (Feb. 20, 1968), at 1-2. It indicated that an effort to permit use of a different n- Id. And notes from a 1968 meeting between -27- Memorandum of R.A. 1 We conclude, based on the evidence in the extensive 2 record that has been brought to our attention,14 that no 3 reasonable jury could find that the government did not exercise 4 sufficient discretion for it to have been said to have "approved" 5 specifications for the herbicides. 6 the "agent[] of decision," Grispo, 897 F.2d at 630, with respect 7 to Agent Orange's contractually specified composition. c. 8 9 10 The government was plainly The government made a discretionary determination regarding Agent Orange's toxicity The next question, and we think it to be a more 11 difficult one, is whether the government made a discretionary 12 determination that created the conflict between the federal 13 government's interests and the defendant's state law duties that 14 is necessary to invoke the government contractor defense. 15 plaintiffs argue that the defendants could have manufactured 16 Agent Orange that produced either dioxin-free or nearly dioxin- 17 free 2,4,5-T by employing the lower-temperature manufacturing 18 process developed and used by a German manufacturer, C.H. 19 Boehringer Sohn. 20 permitted the defendants to comply with their federal contractual 21 duties and deliver a less toxic defoliating agent, albeit at a 22 somewhat slower rate. 23 defendants could have met both their federal duties and their 14 The This process, the plaintiffs say, would have As a result, the plaintiffs argue, the "Fed. R. Civ. P. 56 does not impose an obligation [on the court considering a motion for summary judgment] to perform an independent review of the record to find proof of a factual dispute." Amnesty America v. Town of West Hartford, 288 F.3d 467, 470 (2d Cir. 2002). -28- 1 state tort-law duties; the direct conflict contemplated by Boyle 2 is absent; and the first requirement for the contractor defense 3 therefore cannot be established.15 4 (i) Analysis. In determining whether the government 5 made a discretionary decision that would create the type of 6 conflict between tort law and government interests contemplated 7 by Boyle, we are not called upon to assess the merits of the 8 alleged state tort law violation.16 We are tasked only with 15 The plaintiffs at times refer to the defendants' failure to use the Boehringer process as resulting in a "manufacturing" defect. Not so. The plaintiffs allege a defective process, not that the process used was somehow erroneously applied. They therefore allege a design defect. As the Eleventh Circuit noted, [the] distinction between "aberrational" defects and defects occurring throughout an entire line of products is frequently used in tort law to separate defects of manufacture from those of design. Stated another way, the distinction is between an unintended configuration, [a manufacturing defect], and an intended configuration that may produce unintended and unwanted results[,] [a design defect]. Harduvel, 878 F.2d at 1317 (internal citation omitted). 16 Although not dispositive here, we nonetheless note that the plaintiffs' argument regarding the defendants' purported failure to use state-of-the-art manufacturing processes would appear problematic in ways that do not affect our decision as to the applicability of the government contractor defense as a matter of law, but which might present insurmountable obstacles were we to remand for consideration of the plaintiffs' claims on their merits. For example, documents that are part of the record on appeal indicate that the Dow Chemical Company purchased the proprietary information for the Boehringer process in December 1964 and began using it in its chemical plants two years later. See Mem. from J.D. Doedens, Chemicals Dep't, Dow Chem. Co. (Mar. 1, 1965), at 2; Mem. from K.E. Coulter, Midland Division Research & Dev., Dow Chem. Co. (Apr. 25, 1967), at 2. The plaintiffs do not explain how they can seek to hold Dow Chemical liable for Agent Orange produced using the method they now contend should have been used by all manufacturers at all relevant times, or how they might seek to distinguish among manufacturers or between -29- 1 determining whether the government's discretionary actions with 2 respect to the allegedly defective design and the alleged state 3 law tort duty conflict. 4 is met; if they do not, the government contractor defense does 5 not apply, and we must return the case to the district court for 6 trial on its merits. 7 that appeal of summary judgments pertaining to applicability of 8 the contractor defense did "not raise the question whether New 9 York law imposes a duty to warn under the[] facts [of the case], If they do, the first Boyle requirement Cf. Grispo, 897 F.2d at 627 n.1 (noting 10 or whether a failure to warn was the proximate cause of the 11 [plaintiffs'] alleged injuries."). 12 The first Boyle requirement is designed to ensure that 13 "a conflict with state law exists." Lewis, 985 F.2d at 86. We 14 have observed that, therefore, "answering the question whether 15 the [g]overnment approved reasonably precise specifications for 16 the design feature in question necessarily answers the question 17 whether the federal contract conflicts with state law." 18 87. 19 contractual duties will inevitably conflict with alleged state Id. at If such specifications are present, the contractor's federal particular manufacturers' batches of herbicides in proving that their exposure to the defoliants caused the injuries about which they now complain. See Agent Orange I Opt-Out Op., 818 F.2d at 189 (noting the "undisputed facts that the amount of dioxin in Agent Orange varied according to its manufacturer and that the government often mixed the Agent Orange of different manufacturers and always stored the herbicide in unlabeled barrels"). Nor is it clear that under these circumstances, the defendants' knowledge dating from the late 1950s that the Boehringer plant was using a new manufacturing process would necessarily translate into a state law tort duty to have adopted it themselves. -30- 1 tort duties to the contrary because complying with the federal 2 contract will prevent compliance with state tort law as the 3 plaintiffs have alleged that it exists. 4 where a "contractor could comply with both its contractual 5 obligations and the state-prescribed duty of care," displacement 6 "generally" would not be warranted, and state law would apply. 7 Boyle, 487 U.S. at 509. 8 9 See id. Alternatively, The defendants do not contest that the government's contractual specifications for Agent Orange were silent regarding 10 the method of manufacture or that the government harbored no 11 preference, expressed or otherwise, regarding how the herbicides 12 were to be produced. 13 Indeed, they admit that they were under no federal contractual 14 duty to produce Agent Orange using any particular manufacturing 15 process or with any particular reference to the resulting 16 toxicity levels. 17 specifications regarding method of manufacture or toxicity levels 18 as discretionary omission and conceding that "omitted 19 specifications do not constitute contractual duties"). 20 defendants argue instead that the government's Agent Orange 21 procurement contracts nevertheless created a conflict with their 22 alleged state tort duty to manufacture the herbicides 23 differently. 24 establishes as a matter of law that the manufacture of dioxin- 25 free Agent Orange was impossible and that, in any event, they 26 could not have complied with their procurement contracts with the See, e.g., Appellees' Br. at 36-37. See id. at 96-97, 99 (characterizing lack of The The defendants reason that the documentary evidence -31- 1 government had they used the slower, less efficient, Boehringer 2 method. 3 herbicides with full knowledge of the relevant dangers, which, 4 they say, is equivalent to the government having approved a 5 reasonably precise specification about that danger. 6 99, 102-04. 7 They contend further that the government ordered the Id. at 91- But the documents cited by the defendants as to the 8 inevitability of dioxin content in Agent Orange -- including 9 declarations by the Environmental Protection Agency that dioxin 10 in some very small amounts was "unavoidable" and that the 11 "potential risks" of harm to humans outweighed any benefits of 12 continued use of commercially available 2,4,5-T, see EPA Notice 13 of the Denial of Applications for Federal Registration of 14 Intrastate Pesticide Products Containing 2,4,5-T, 45 Fed. Reg. 15 2,898, 2,899 (Jan. 15, 1980); EPA Decision and Emergency Order 16 Suspending Registrations for the Forest, Rights-of-Way, and 17 Pasture Uses in 2,4,5-T, 44 Fed. Reg. 15,874, 15,874 n.1 (Mar. 18 15, 1979) -- do not refute what we understand to be the thrust of 19 the plaintiffs' argument: that had the defendants used the 20 Boehringer method, the Agent Orange they produced would have 21 contained no then-detectable amounts of dioxin. 22 the plaintiffs allege, the lower levels of dioxin would have 23 avoided much, if perhaps not all, of the harm allegedly suffered 24 as a result of the presence of dioxin in Agent Orange. 25 26 In that event, The documents submitted to the district court also do not establish as a matter of law that there was an inherent -32- 1 conflict between use of the Boehringer process and compliance 2 with defendants' contractual obligation to the government. 3 Chemical adopted and used the Boehringer method, or something 4 like it, see Mem. from J.D. Doedens, Chemicals Dep't, Dow Chem. 5 Co. (Mar. 1, 1965), at 2; Mem. from Alex Widiger, Midland 6 Division Research & Dev., Dow Chem. Co. (Apr. 25, 1967), at 2, at 7 the time the government was requesting Agent Orange in increasing 8 quantities and sequestering the entire domestic market for 2,4,5- 9 T. Dow This change in manufacturing method and its timing at least 10 raises a triable issue of fact as to whether the defendants could 11 have complied with their contractual obligations to the 12 government while using what the plaintiffs contend was a process 13 that would have resulted in a defoliating agent substantially 14 less dangerous to military personnel. 15 And so we must determine whether the government did in 16 fact, as the defendants argue, approve of the toxicity levels 17 present in Agent Orange in a manner that would create the 18 necessary conflict with the alleged state law tort duty such that 19 the latter must be displaced. 20 We think that it did. We have previously concluded that where the government 21 contracts for the purchase of a product with knowledge that the 22 product has an arguable defect, it is considered to have approved 23 "reasonably precise specifications" for that product, with the 24 known defect, for purposes of the first Boyle requirement. 25 Lewis, 985 F.2d at 89. 26 cable that connected a parachute to the crew module of an Air In Lewis, the government reordered a -33- 1 Force fighter jet with knowledge that the coating that protected 2 the steel cable was prone to cuts, resulting in cable corrosion. 3 Id. at 85. 4 not made a discretionary decision about which materials should be 5 used in constructing the cable, it subsequently ordered 6 replacement cables even after an Air Force investigation into the 7 corroded cables had revealed the problem with the protective 8 coating, reasoning that changes to its maintenance manual would 9 sufficiently alleviate the risk of harm. Although the government during its initial order had Id. In light of this 10 considered attention by the government to the precise defect 11 alleged, we concluded that the cable could not be characterized 12 as a stock item and that the "contractor's decision regarding the 13 materials to be used for the cable" could not be "second- 14 guess[ed]." 15 contractor had been alerted to the government's investigation or 16 the reasons for its reordering, nor whether the contract for 17 replacement cables also omitted reference to the material used to 18 construct them, as had the original cable contract. 19 the reorder" alone, we said, "the contractor c[ould] claim: 20 [g]overnment made me do it.'" 21 632). 22 Id. at 89. We did not discuss whether or how the "Based on 'The Id. (quoting Grispo, 897 F.2d at Here, similarly, the record discloses that the 23 government explicitly evaluated the alleged design defect (toxic 24 2,4,5-T), and thereafter continued to order "replacement" 25 herbicides. 26 plaintiffs contend was the most toxic Agent Orange variant used The government examined the toxicity of what the -34- 1 in Vietnam -- Agent Purple -- and determined that it posed no 2 unacceptable hazard. 3 attorney's comments regarding Agent Purple's toxicity). 4 26, 1963, the Army conducted a meeting at its Edgewood (Maryland) 5 Arsenal "to evaluate the toxicity of a[n herbicide] mixture known 6 as 'Purple.'" 7 the Toxicity of 2,4-D and 2,4,5-T Compounds (Apr. 26, 1963) 8 ("April 1963 Meeting Minutes"), at 3. 9 reaching a conclusion "about dose levels and hazards to health of See Tr. of Oral Arg. at 24 (plaintiffs' On April Minutes of a Meeting Held to Discuss and Evaluate Their analysis required 10 men and domestic animals from 2,4-D and 2,4,5-T based on the 11 medical literature and unpublished data of various research 12 laboratories." 13 various branches of the military and various other government 14 agencies, and representatives from manufacturers Dow Chemical and 15 AmChem Products. 16 presentations on the subject. 17 participants adopted "acute toxicity" figures for Agent Purple. 18 19 20 21 22 23 24 25 26 27 They concluded in summary and after careful review of toxicological data related to 2,4-D and 2,4,5-T plus the knowledge as to the manner these materials have been used for defoliation in military situations in Southeast Asia, . . . that no health hazard is or was involved to men or domestic animals from the amounts or manner these materials were used . . . . Id. Those in attendance included officials from Id. at 2. The group heard various At the end of the meeting, the -35- 1 Id. at 5. 2 the defendants for purchase of the same and similar defoliating 3 agents.17 4 Thereafter, the government continued to contract with In other words, the Army examined the toxicology data 5 available to it and concluded that Agent Orange's components, 6 2,4,5-T and 2,4-D -- in the formulation that the government, in 7 its discretion, used when ordering it, and as it was then being 8 manufactured -- posed "no health hazard" and were, at least under 9 the circumstances of international armed conflict, suitable for 10 use in Southeast Asia. 11 Agent Orange after having evaluated its toxicity levels and 12 declared them acceptable, we "cannot second-guess" the 13 manufacturers' decision to produce the agents in the manner that 14 they did. 15 liability under state law would constitute a significant conflict 16 with the [g]overnment's decision" that the defoliants used in 17 Vietnam as they were produced by the defendants posed no 17 Since the government continued to order Lewis, 985 F.2d at 89. Because "[t]he imposition of The government also evaluated the toxic effects of 2,4,5T at other points during its use in Vietnam. For example, just several weeks after the Edgewood meeting, on May 9, 1963, the President's Scientific Advisory Committee was briefed on the "Possible Health Hazard of Phenoxyacetates As Related to Defoliation Operations in Vietnam." The Bionetics Study -- a government-sponsored research project that included research into the health effects of 2,4,5-T -- also began in 1963. It was this research that ultimately triggered, among other curtailments of 2,4,5-T's use, cessation of the defoliation campaign. Dr. R.A. Darrow, Fort Detrick, "Historical, Logistical, Political and Technical Aspects of the Herbicide/Defoliant Program, 1967-1971," at 20-22. -36- 1 unacceptable hazard, id., we conclude that the first Boyle 2 requirement is met. 3 (ii) The Grispo language. There is language in Grispo 4 that seems to require something more: that when the government 5 "mak[es] a discretionary, safety-related military procurement 6 decision contrary to the requirements of state law," it 7 "incorporate[] th[e] decision into a military contractor's 8 contractual obligations." 9 concluded in Lewis that the government's order of replacement Grispo, 897 F.2d at 632. But we 10 Babcock cables with knowledge of the risks to pilots associated 11 with the defect in question was itself sufficient to prevent 12 "second-guess[ing]" of the manufacturer's choice to continue 13 using the same cable coating, even though nothing in Lewis 14 suggests either (1) that the government included in the re-order 15 contract a specification instructing that the suspect material be 16 used, or (2) that the defendant manufacturer had been apprised of 17 the government's investigation of the alleged corrosion problem. 18 See Lewis, 985 F.2d at 89 ("We hold that when the [g]overnment 19 reordered the specific Babcock cable, with knowledge of its 20 alleged design defect, the [g]overnment approved reasonably 21 precise specifications for that product such that the 22 manufacturer qualifies for the military contractor defense for 23 any defects in the design of that product." (emphasis added)). 24 Insofar as there is a tension between the two cases, we 25 think it is resolved by Boyle. In framing the first Boyle 26 requirement, the Boyle Court sought to "assure that the suit [in -37- 1 which the contractor defense is asserted] is within the area 2 where the policy of the 'discretionary function' would be 3 frustrated" absent the availability of the defense. 4 U.S. at 512. 5 precise specifications," we think that, as in Lewis, reordering 6 the same product with knowledge of its relevant defects plays the 7 identical role in the defense as listing specific ingredients, 8 processes, or the like. 9 Boyle, 487 Although the Court used the term "reasonably In Boyle, the alleged state law duty of care was 10 "precisely contrary to the duty imposed by the [g]overnment 11 contract." 12 conflicting, express contractual duty was required for the 13 contractor defense to preempt state law. 14 the Boyle Court were not narrowly about duties imposed by 15 contract; they were more broadly about federal policies and 16 interests and the exercise of federal discretion, in the face of 17 contrary state law, in furthering them. 18 ("Displacement will occur only where . . . a 'significant 19 conflict' exists between an identifiable 'federal policy or 20 interest and the [operation] of state law.'" (quoting Wallis v. 21 Pan Am. Petroleum Corp., 384 U.S. 63, 68 (1966) (brackets in 22 original) (emphasis added)); see also id. at 509 (stating that 23 even where federal contractual and state tort duties were 24 "precisely contrary," "it would be unreasonable to say that there 25 is always a 'significant conflict' between the state law and a 26 federal policy or interest" (emphasis added)). Id. at 509. But the opinion did not hold that a -38- The issues as framed by See id. at 507 1 The government's "uniquely federal interest," id. at 2 504, in fully taking advantage of its ability to determine what 3 level of risks and dangers must be tolerated in order to achieve 4 a particular military goal need not be belabored. 5 Orange I Opt-Out Op., 818 F.2d at 191 ("Civilian judges and 6 juries are not competent to weigh the cost of injuries caused by 7 a product against the cost of avoidance in lost military 8 efficiency. 9 goals and choices among particular tactics . . . ."). See Agent Such judgments involve the nation's geopolitical We pause 10 only to note that the federal interest implicated by the lawsuits 11 here is not only the ordinary need to ensure the government's 12 "work" gets "done," Boyle, 487 U.S. at 505, but the ability to 13 pursue American military objectives -- in this case, protection 14 of American troops against hostile fire. 15 The government made an express determination, based on 16 the knowledge available to it at the time, that Agent Orange as 17 then being manufactured posed no unacceptable hazard for the 18 wartime uses for which it was intended, and that the product 19 should continue to be manufactured and supplied to it. 20 of this exercise of discretion, we read Boyle to require 21 displacement of any alleged state law rules to the contrary.18 18 In light We note that the second and third Boyle requirements remain essential to proving the government contractor defense even where, as here, the defendants do not rely on a contractual duty to demonstrate the required conflict between federal interests and state law. The government's discretionary determination about the design defect alleged was necessarily made in the shadow of the government's expectations regarding the product it expected to receive. Defendants therefore must -39- 1 2. Compliance with Specifications. The plaintiffs' 2 challenge to the defendants' ability to demonstrate the second 3 requirement for Boyle protection -- compliance with the 4 contracts' specifications -- does not warrant extensive 5 discussion. 6 amounts within the 2,4,5-T component of Agent Orange rendered the 7 Agent Orange delivered to the government non-compliant with its 8 contractual obligations. 9 See Aff. of Harry Ensley (Feb. 6, 2004), at ¶ 20 ("[T]he 2,4,5-T Nothing about the presence of dioxin in trace The plaintiffs' own expert agrees. 10 the government purchased could contain varying amounts of such 11 impurities as . . . dioxin . . . , yet still be in compliance 12 with the government's specifications . . . ."). 13 allegation that the government received Agent Orange with 2,4,5-T 14 present in anything other than the proportions and purity levels 15 called for by the terms of the contracts. 16 is therefore met as a matter of law. 17 420-21 (rejecting same argument made by civilian plaintiffs 18 seeking compensation for injuries allegedly caused by Agent 19 Orange). 20 3. There is no The second requirement See Miller, 275 F.3d at Defendants' Warnings About Known Dangers. The final 21 Boyle requirement for the invocation of the government contractor 22 defense is that the defendants demonstrate that they "warned the 23 United States about the dangers in the use of the equipment that demonstrate that the product it delivered to the government was precisely what the government requested. The third prong is likewise unaffected: The government's discretionary determination must be a fully informed one. -40- 1 were known to [them] but not to the United States." 2 U.S. at 512. 3 this regard: (1) that the defendants knew more about the hazards 4 of 2,4,5-T than did the government, but failed to warn the 5 government about them; and (2) that even if some members of the 6 government had some knowledge regarding the dangers of dioxin, 7 Boyle requires that for the defense to be applicable, the actual 8 contracting officials must have such knowledge, and those 9 involved in the specification process for Agent Orange knew 10 11 Boyle, 487 The plaintiffs make essentially two arguments in nothing about 2,4,5-T's hazards. The thrust of the defendants' response is that (1) none 12 of the plaintiffs claim an injury of the sort that was a danger 13 known by anyone at the time of Agent Orange's production; (2) as 14 to dangers about which the defendants were aware, the evidence 15 demonstrates as a matter of law that they shared that knowledge 16 with the government; and (3) irrespective of what the defendants 17 knew about Agent Orange in general, the government had far 18 greater knowledge than the defendants about Agent Orange and the 19 dangers posed by its intended use in Vietnam. 20 We doubt that the defendants can establish as a matter 21 of law on the present record either the second or third of their 22 contentions -- that they shared the knowledge of dangers of which 23 they were aware with the government and that the government had 24 far more knowledge about the dangers of Agent Orange in its -41- Each is intensely factual and hotly disputed.19 1 planned use. 2 think that the record is clear, however, that the defendants did 3 not fail to inform the government of known dangers at the time of 4 Agent Orange's production of the type that would have had an 5 impact on the military's discretionary decision regarding Agent 6 Orange's toxicity. 7 have established Boyle's third requirement as a matter of law. 8 9 We We therefore conclude that the defendants Boyle mandates that to obtain the benefit of the government contractor defense, a contractor must inform the 10 government about known "dangers in the use of the equipment." 11 Boyle, 487 U.S. at 512. 12 what types of risks rise to the level of dangers that must be 13 disclosed. 14 manufacturers need disclose to the government only those hazards 15 that (1) are "based on a substantial body of scientific 16 evidence"; and (2) create dangers likely "serious enough to call 17 for a weighing of the risk against the expected military 18 benefits," that is, "substantial enough to influence the military But the Boyle Court was silent as to Prior to Boyle, we were of the view that 19 We concluded in Agent Orange I, based on much the same record now before us, that "the critical mass of information about dioxin possessed by the government during the period of Agent Orange's use in Vietnam was as great as or greater than that possessed by the chemical companies." Agent Orange I OptOut Op., 818 F.2d at 193. The Fifth Circuit, relying in large part on our Agent Orange I determination, concluded the same. See Miller, 275 F.3d at 421. But we are required to review the factual record anew as it is presented to us, not as it was presented to a different panel twenty years ago. And we note, as we did in Agent Orange I, that we were in 1987 without the benefit of briefing by the parties on this subject. Agent Orange I Opt-Out Op., 818 F.2d at 190. -42- 1 decision to use the product." 2 F.2d at 193. 3 been called upon to decide, post-Boyle, what constitutes 4 "knowledge" of a "danger" that would trigger a duty to inform as 5 to the "equipment" being ordered. 6 Agent Orange I Opt-Out Op., 818 Until now, neither we nor the Supreme Court has This much is plain: Boyle did not contemplate 7 requiring disclosure of any and all potential risks by the 8 contractor to the government, irrespective of their relation to 9 the governmental discretionary decision at issue. The Boyle 10 Court was concerned primarily with protecting the government's 11 ability to assume certain kinds of risks without assuming the 12 costs of liability for those risks. 13 12. 14 government accepts such a risk knowingly, a state law that would 15 require finding that same risk unacceptable must be displaced. 16 We therefore do not think that the Boyle Court meant that a 17 defendant seeking the protection of the defense was required to 18 demonstrate that it had shared all known hazards with the 19 government, irrespective of whether those hazards allegedly not 20 conveyed would have had an impact on the government's exercise of 21 discretion about the design defect alleged. 22 impractical to require that a manufacturer compile and present to 23 the government in advance a list of each and every risk 24 associated with a product it is producing for the government. 25 The operation of a tank or a transport plane -- more so the 26 manufacture and use of a chemical agent -- involves, at the See Boyle, 487 U.S. at 511- It protected this ability by ensuring that where the -43- It would be 1 extremities, virtually limitless risks. Even if it were possible 2 to generate such complete lists, their comprehensiveness would 3 overwhelm government decision makers with largely irrelevant 4 data, extending the time and costs associated with federal 5 contracting and obscuring those risks most likely to have an 6 impact on contracting decisions. 7 disclosure of all possible risks to anyone would be contrary to 8 Boyle's underlying rationale of protecting the federal interest 9 in "getting the Government's work done." A rule that required full Id. at 505. 10 We therefore adhere to our pre-Boyle precedent. 11 conclude, much as we did before Boyle was decided, that a 12 defendant may satisfy the third Boyle requirement if it 13 demonstrates that it fully informed the government about hazards 14 related to the government's exercise of discretion that were 15 "substantial enough to influence the military decision" made. 16 Agent Orange I Opt-Out Op., 818 F.2d at 193. 17 demonstrate a fully informed government decision by showing 18 either that they conveyed the relevant known and "substantial 19 enough" dangers, id., or that the government did not need the 20 warnings because it already possessed that information, 21 see Lewis, 985 F.2d at 89-90 ("There is no requirement that 22 appellees inform the Air Force of dangers already known to the 23 Air Force."). 24 We The defendants can Here, the plaintiffs allege that the defendants knew of 25 dioxin's hazards but failed to inform the government of them. 26 The documents to which they cite for this proposition, however, -44- 1 pertain almost universally to the risk of chloracne (a severe 2 skin disease) and liver damage to workers manufacturing Agent 3 Orange. 4 the dioxin "impurity" that resulted from producing 5 trichlorophenol, a component of 2,4,5-T. 6 Test. for the 2,4,5-T Hr'g (undated), at 28 (referring to dioxin 7 build-up in trichlorophenol manufacture), PA 3501-02.; Mem. of 8 V.K. Rowe, Dow Chemical Co., at 1 (Jun. 24, 1965) ("Rowe Jun. 9 1965 Mem.") (referring to dioxin "impurities" present in 10 These risks, the manufacturers thought, were created by See, e.g., V.K. Rowe, trichlorophenol that could be "carried through into the T acid"). 11 There is, indeed, ample evidence that the defendants 12 were concerned about the health effects of dioxin, specifically 13 chloracne20 and liver damage,21 on their workers. Tests were 20 As to the dangers related to chloracne, the documents submitted show that knowledge of the risk varied among manufacturers. Not all manufacturers had experienced chloracne outbreaks. Among those that did, it was not clear that dioxin was in the final products emanating from the contaminated plant. See V.K. Rowe, Test. for the 2,4,5-T Hr'g (undated), at 28-29 (indicating testing of Dow trichlorophenol and 2,4,5-T following 1964 chloracne outbreak in manufacturing plant revealed no "chloracnegens," and that source of outbreak was contaminated waste oil, "not exposure to trichlorophenol"). Dow thought that dioxin concentrations of less than one part per million presented no chloracne hazard to workers or consumers, Rowe Jun. 1965 Mem., at 1, and changed its production process such that the concentration of dioxin in its Agent Orange would be reduced to the point where, in its view, the hazard would be eliminated. 21 Variance among the defendants regarding their knowledge of the risks of liver damage to humans was similar to that related to chloracne, with some, but not all, of the defendants aware that animal tests showed liver damage was a possible result of direct exposure to dioxin and that there was liver damage among workers engaged in manufacturing 2,4,5-T. There were also isolated instances of other health concerns arising from manufacturing processes -- for example, temporary nerve damage (Monsanto) and unspecified "systemic injury" (Dow). See -45- 1 conducted that involved exposing animals to pure dioxin, which 2 revealed some "severe response[s]," see Report on the Chloracne 3 Problem Meeting on March 24, 1965 (Mar. 29, 1965) ("Mar. 29 4 Report"), at 5; similar tests performed on humans some years 5 later using a one-percent dioxin solution that resulted in skin 6 lesions, see Letter of Albert M. Kligman to V.K. Rowe, Dow 7 Chemical Co. (Jan. 23, 1968) PA 3732. 8 considered whether the dioxin in trichlorophenol's manufacture 9 would be manifest in the trichlorophenol itself or in the end At least two defendants 10 products containing trichlorophenol, see, e.g., id. at 4; Mem., 11 Dow Chem. Co. (Mar. 10, 1965) ("Mar. 10 Dow Mem."), Mem. from 12 E.L. Chandler, Diamond Shamrock Co. ("Chandler Mem.") (Jul. 9, 13 1962), but the danger with which they were concerned was limited 14 to the possibility of a chloracne outbreak among those handling 15 it, see Mar. 10 Dow Mem. (discussing possible need to take 16 precautions that would "prevent injury" akin to what had been 17 taken following past incidents of chloracne outbreaks); Chandler 18 Mem. (indicating two commercial customers had claimed chloracne 19 problems with "Diamond esters," one of which had no similar 20 problems with other manufacturers' product). 21 evidence to which we have been directed or that we have otherwise 22 found that the defendants' knowledge of 2,4,5-T's risks extended 23 to dioxin as a carcinogen, as a toxin that potentially might 24 cause diseases long after exposure, or as a significant health There is no Deposition Excerpts of Dr. Wallace, at 2468; Rowe Jun. 1965 Mem. at 1. None of the documents reveal knowledge of any such danger to non-workers. -46- 1 risk (apart from chloracne) to those exposed to herbicides 2 containing 2,4,5-T being used as such, in wartime conditions or 3 otherwise, except for workers manufacturing them or their 4 component chemicals.22 5 How much the government knew about the workplace 6 dangers associated with production of 2,4,5-T while it was 7 considering the use of and ordering Agent Orange is unclear. 8 minutes from the 1963 meeting at Edgewood Arsenal contained 9 references to a lack of workplace incidents involving 2,4-D and 10 2,4,5-T. 11 domestic safety record of herbicides containing these two 12 chemicals, including the manufacturers' alleged reports to the 13 Department of Agriculture regarding the absence of ill effects 22 April 1963 Meeting Minutes at 4, Appendix A. The The As to the specific subject of dioxin as a carcinogen, the Dow Chemical Company testified before Congress that its numerous tests and experiments regarding dioxin's toxicity did not examine the chemical's carcinogenicity. Test. of Dr. Julius E. Johnson, Vice President, Dow Chemical Co., Apr. 7 and 15, 1970, at 371. The plaintiffs do point us to a memorandum written by Monsanto's medical director, R. Emmet Kelly, in which he expresses the need to "minimize the presence of this known chloracne agent" because dioxin "[v]ery conceivably [could] be a potent carcinogen." Mem. from R. Emmet Kelly, Monsanto Company (Mar. 30, 1965). But this "conception" alone -- without any context as to its basis or the relationship between the harms of dioxin in its pure form versus the trace amounts of the chemical found within Agent Orange -- is not enough to convince a reasonable factfinder that dioxin was a known carcinogen at the time of Agent Orange's production or, more importantly, that the defendants knew that the trace amounts of dioxin in Agent Orange might prove to be a carcinogen for those not involved in its manufacture or direct handling. See Agent Orange I Opt-Out Op., 818 F.2d at 193 ("[T]he fact that dioxin may injure does not prove the same of Agent Orange . . . ."). We express no view regarding whether the defendants might have done more to investigate dioxin's dangers, as it is well beyond the purview of our inquiry. Cf. Kerstetter v. Pac. Sci. Co., 210 F.3d 431, 436 (5th Cir. 2000) (discussing relationship between contractor defense and latent defects). -47- 1 from the herbicides on their workers, was also relayed to the 2 President's Science Advisory Committee in a May 1963 briefing 3 entitled "Possible Health Hazard of Phenoxyacetates as Related to 4 Defoliation Operations in Vietnam." 5 manufacturers, however, had already experienced chloracne 6 breakouts and other problems among its workers. 7 At least two domestic The documents make clear, however, that the military 8 was concerned about the likely effect on those exposed to the 9 herbicides in the manner in which they were, and were to be, used 10 in Vietnam. 11 Agent Orange was to attempt to protect American troops from 12 attack by limiting vegetation around American facilities and 13 emplacements that could provide cover to enemy combatants. 14 that extent, the chemical agents were to be used on American and 15 allied positions, not those of the Viet Cong. 16 This is hardly surprising. The principal purpose of To And the undisputed record with respect to dangers that 17 were posed by the use of Agent Orange is that during the entirety 18 of the production of Agent Orange, the defendants knew only that 19 it was possible that those handling herbicides containing 2,4,5-T 20 might develop the skin disease chloracne. 21 participants, including delegates from various branches of the 22 government, military and civil, were aware of this type of risk. 23 See April 1963 Meeting Minutes at 5 (AmChem representative 24 related experiences of "industrial firms making . . . continuous 25 field applications over very large areas" and noted "skin 26 sensitization was the maximum effect produced" in "probably one -48- The Edgewood 1 out of a thousand persons"). 2 order Agent Orange in the manner specified in the procurement 3 contracts. 4 Yet the government continued to If the government had decided to manufacture Agent 5 Orange, as it considered doing for a period during the late 6 1960s, the defendants might well have been required more fully to 7 inform the government of all the possible dangers associated with 8 the manufacture of the chemical (none of them, incidentally, 9 being malignancies). The record suggests that they were prepared 10 to do so. See "Plan 'Orange' Production," Dow Chemical Co. (Apr. 11 20, 1967), at 3 (stating that "[a] serious potential health 12 hazard to production workers is involved in the production of 13 2,4,5-T" and noting that its "knowhow regarding elimination of 14 the hazard" could be made available to the government), attached 15 to Letter from A.P. Beutel, Vice Pres., Dir. of Gov't Affairs, 16 Dow Chemical Co., to H.G. Fredericks, Deputy Dir. of Procurement 17 and Production, Edgewood Arsenal (Apr. 20, 1967). 18 We conclude, however, that no reasonable factfinder 19 could find that the defendants had knowledge of a danger that 20 might have influenced the military's conclusion that "operational 21 use" of Agent Orange posed "no health hazard . . . to men or 22 domestic animals," April 1963 Meeting Minutes, at 3, 5, and its 23 presumably related decision to continue to purchase Agent Orange 24 as it was then being produced by the defendants. 25 nothing in the record to support an assertion that the 26 defendants "cut[] off information highly relevant -49- We find 1 to . . . discretionary decision[s]" of the government, Boyle, 487 2 U.S. at 513, i.e., that they possessed knowledge of dangers 3 unknown to the government that, had they been shared, might have 4 influenced the government's decision regarding the extent of the 5 hazard posed by use of Agent Orange or its choice to continue its 6 use. 7 We acknowledge that there may well have been some 8 aspects of the dangers of Agent Orange resulting from the trace 9 presence of dioxin that personnel of one or more of the 10 defendants were aware of that members of the military may not 11 have known, at least contemporaneously. 12 long-term relationship between the military and a civilian 13 contractor in which complete equivalence of knowledge at all 14 times in the relationship can be expected or could be 15 established. 16 would create a triable issue of fact as to whether there was 17 never-disclosed knowledge of a sort that might have influenced 18 the government's decision-making process regarding Agent Orange 19 as it was used in Vietnam. 20 21 We cannot conceive of a But nothing in the record of which we are aware Accordingly, we conclude that the defendants have established as a matter of law the third requirement of Boyle. 22 *** 23 We feel obliged to note, finally, what seems to us to 24 be obvious: The question raised by government contractor defense 25 cases arising in the context of contracts for military agents and 26 equipment is the extent to which contractors are protected when -50- 1 they provide materials designed to assist the government in 2 obtaining what are ultimately military objectives -- in this case 3 the principal objective being to protect members of the armed 4 forces from enemy attack. 5 those objectives and the reasons for which the military seeks 6 them are far beyond the competence of this Court. 7 determination as to the protection of a military contractor must 8 be made using the same principles regardless of the nature of the 9 military conflict in which they are pursued, or the extent to 10 Considerations of the validity of Our which it is controversial or enjoys popular support. 11 II. Discovery Rulings 12 The plaintiffs also appeal from the discovery 13 limitations imposed by the district court during the months 14 following its initial February 9, 2004, decision granting the 15 defendants' motion for summary judgment. 16 rulings for abuse of discretion. 17 (2d Cir. 2005). 18 We review discovery Wood v. FBI, 432 F.3d 78, 82 As we have noted, the district court's February 9, 19 2004, government contractor defense opinion granted the 20 plaintiffs a six-month discovery period and permission to seek 21 reconsideration of its summary judgment ruling. 22 thereafter, the plaintiffs requested "the documents from all of 23 the other litigation that these [defendants] have been involved 24 in, involving the same pesticides and the same type of claims." 25 Tr. of Civil Conference Before The Hon. Joan M. Azrack at 10. 26 They did so without having attempted review of the MDL record. -51- Shortly 1 Id. at 16. 2 from other cases were likely to be largely irrelevant to the 3 question of the applicability of the government contractor 4 defense, duplicative of MDL materials where relevant in any 5 event, and overly burdensome to produce. 6 The defendants objected on the grounds that documents Id. at 13-14. On March 2, 2004, Magistrate Judge Azrack denied the 7 request, ruling that the plaintiffs first had to familiarize 8 themselves with the MDL record before requesting additional 9 documents. On March 19, 2004, Judge Weinstein granted the 10 plaintiffs access to six deposition transcripts from non-MDL 11 cases. 12 The plaintiffs now argue that the district court abused 13 its discretion by limiting the plaintiffs to the documents 14 produced in the MDL during the 1980s and six subsequent 15 depositions. 16 defendants have been sued by other end-users of their commercial 17 herbicides, citizens exposed to industrial contamination from the 18 herbicides' production, and their workers. 19 cases, they contend, was more extensive than the discovery 20 against the defendants that occurred during the 1980s and would 21 be germane to the defendants' knowledge of the adverse health 22 effects caused by their herbicides. 23 cases involving three defendants (Dow Chemical, Monsanto, and 24 Hercules) and various government hearings from which they suspect 25 discovery and papers would be helpful. 26 the discovery in those cases was more focused on the defendants' They assert that in the intervening period, the -52- Discovery in these They list thirteen other Beyond broad claims that 1 knowledge as compared with the MDL, however, the plaintiffs do 2 not cite specific bases for a conclusion on our part that the 3 documents would differ materially from the voluminous documents 4 available to them through the MDL. 5 to the plaintiffs' discovery-related arguments. 6 The defendants do not respond The Federal Rules of Civil Procedure permit parties to 7 "obtain discovery regarding any matter, not privileged, that is 8 relevant to the claim or defense of any party," Fed. R. Civ. P. 9 26(b)(1), but a district court may limit discovery if, among 10 11 12 13 14 15 16 17 18 19 20 21 22 23 other things, it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit . . . . 24 Id. R. 26(b)(2)(C). A district court has wide latitude to 25 determine the scope of discovery, and "[w]e ordinarily defer to 26 the discretion of district courts regarding discovery matters." 27 Maresco v. Evans Chemetics, Div. of W.R. Grace & Co., 964 F.2d 28 106, 114 (2d Cir. 1992). 29 only "when the discovery is so limited as to affect a party's 30 substantial rights." 31 F.2d 793, 795 (2d Cir. 1985). A district court abuses its discretion Long Island Lighting Co. v. Barbash, 779 A party must be afforded a -53- 1 meaningful opportunity to establish the facts necessary to 2 support his claim. 3 Id. The plaintiffs here have failed to demonstrate that the 4 district court's rulings limiting the scope of discovery 5 constituted an abuse of discretion. 6 reasonably concluded that the MDL files were likely the best 7 source regarding the information the plaintiffs' sought: 8 defendants' knowledge of 2,4,5-T's risks at the time of 9 production. We think the district court The plaintiffs' motion to Judge Azrack was an 10 unlimited and unfocused request for many thousands of additional 11 documents, made without any attempt to review what was already 12 available to them or to tailor their request to materials 13 reasonably expected to produce relevant, non-duplicative 14 information. 15 well within its discretion under Rule 26. Accordingly, the district court's limitations were 16 III. Stephensons' Motion to Amend 17 Finally, the Stephensons challenge the district court's 18 denial of their motion to amend their complaint. 19 Civil Procedure 15(a), as in effect at the time of the court's 20 order, provided that "[a] party may amend the party's pleading 21 once as a matter of course at any time before a responsive 22 pleading is served. . . . 23 party's pleading only by leave of court or by written consent of 24 the adverse party; and leave shall be freely given when justice 25 so requires." 26 court to deny a party leave to amend the complaint under Fed. R. Id. Federal Rule of Otherwise a party may amend the "We review the determination of a district -54- 1 Civ. P. 15(a) for abuse of discretion." 2 Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007). 3 McCarthy v. Dun & Here, at the time of the Stephensons' motion, the 4 defendants had not filed an answer to their complaint. 5 Stephenson, 220 F.R.D. at 24. 6 entitled to amend their complaint as a matter of right without 7 leave of the district court, because "a motion is not a 8 responsive pleading," 6 Charles Alan Wright, Arthur R. Miller & 9 Mary Kay Kane, Federal Practice and Procedure § 1483, at 584 (2d Accordingly, the Stephensons were 10 ed. 1990); see id. at 586 ("Nor does a summary judgment motion 11 made before responding [to plaintiff's complaint] have any effect 12 on a party's ability to amend under the first sentence of Rule 13 15(a)."); accord, e.g., Zaidi v. Ehrlich, 732 F.2d 1218, 1219-20 14 (5th Cir. 1984); Miller v. Am. Exp. Lines, Inc., 313 F.2d 218, 15 218-19 & n.1 (2d Cir. 1963). 16 filed a responsive pleading when the Stephensons sought to amend 17 their complaint, the district court erred in denying the 18 amendment. 19 Because the defendants had not We conclude, however, that in light of our finding 20 regarding the government contractor defense, the district court's 21 erroneous denial of the Stephensons' motion was harmless. 22 Repleading could not avoid the application of the government 23 contractor defense and, therefore, remand to permit the amendment 24 would be futile. 25 (2d Cir. 1979) (concluding that even if district court had erred 26 in denying motion to amend, any error would be harmless because See Sinicropi v. Nassau County, 601 F.2d 60, 62 -55- 1 the proposed amendment would have been barred by res judicata), 2 cert. denied, 444 U.S. 983 (1979); cf. Unlaub Co., Inc. v. 3 Sexton, 568 F.2d 72, 78 (8th Cir. 1977) (concluding any abuse of 4 discretion by district court in failing to permit defendant to 5 amend his answer was harmless because "[n]one of the matters set 6 forth in the proposed amended answer would affect the result"). CONCLUSION 7 8 9 For the foregoing reasons, we affirm the judgments of the district court. -56-

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