The U.S. District Court for the Eastern District of New York granted summary judgment in multiple Agent Orange cases based on the government contractor defense. The Second Circuit U.S. Court of Appeals affirmed that and other judgments by the district court. Toxic tort litigator and author Margie Searcy Alford reviews and comments on the court’s decision in In re "Agent Orange" Prod. Liab. Litig. (517 F.3d 76 [2d Cir. N.Y. 2008]).
The Second Circuit issued its first version of this decision on Feb. 21, 2008, and an errata on March 25, 2008. The errata was issued for 16 separate cases that first had been filed in various state courts by veterans or their family members for injuries due to exposure to Agent Orange during the Vietnam War.
The cases were mostly for cancers allegedly caused by Agent Orange. The cancers had not manifested themselves until after the deadline for making claims had passed in the first Agent Orange class action in the 1980s.
The state cases were removed to federal courts in their respective states and then moved to the U.S. District Court for the Eastern District of New York. The court granted the defendants' motion for summary judgment, explaining that the defendants were protected by the government contractor defense.
The plaintiffs appealed the judgment and the errata decision, addressing three main issues on appeal. The first was whether the district court was wrong in ruling that the government contractor defense applied. The second issue was whether the court properly limited discovery to prior Agent Orange case discovery plus six additional depositions. The third issue was whether the court had properly held that a plaintiff could not amend his complaint.
In this Emerging Issues Commentary, toxic tort attorney Margie Searcy Alford outlines practice tips regarding analysis of a winnable case and review of past decisions by the judge handling the action.
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