Government Contractor Defense Barred Agent Orange Claims

A district court's grant of summary judgment denying product liability claims against contractors that supplied the government with the defoliating agent, Agent Orange, was affirmed by the Second Circuit Court of Appeals because the claims were barred by the government contractor defense. The plaintiffs sustained injuries from exposure to Agent Orange during the Vietnam war. The district court denied their liability claims based on the government contractor defense, which protects government contractors from state tort liability when they provide defective products to the government (304 F Supp 2d 404, 410-14 (ED NY 2004)). In Boyle v. United Technologies Corp., 34 CCF ¶75,489, the Supreme Court outlined three requirements for establishing the defense: the government approved reasonably precise specifications for the alleged defective equipment; the equipment conformed to those specifications; and the contractor who supplied the equipment warned the government about dangers in the use of the equipment that were known to the supplier but not to the government. The plaintiffs argued the contractors were unable to establish any of the elements.

The component of the Agent Orange alleged to be defective was "2, 4, 5-T," which contained a high concentration of the toxic chemical dioxin. The plaintiffs argued 2, 4, 5-T and the other herbicides used to create Agent Orange were commercially available "stock" products or devised without government input, and therefore the government did not approve "reasonably precise specifications." However, the record showed 2, 4, 5-T was never commercially available in the high concentration used in Agent Orange, and the government exercised significant discretion over the precise composition of chemicals used in Agent Orange. The specifications displayed the requisite conflict between the duty of care required by state tort law and the government's requirements, even though 2, 4, 5-T could have been produced using a method that did not produce dioxin, because the government analyzed the available toxicology data on 2, 4, 5-T and determined it did not pose an unacceptable health hazard. Given the government's approval, the method the contractors used to produce 2, 4, 5-T was appropriate.

Moreover, at the time of production, the contractors sufficiently informed the government about the known danger of Agent Orange, which was the risk of the skin disease chloracne. Although the Boyle decision "was silent as to what types of risks rise to the level of dangers that must be disclosed," "[i]t would be impractical to require that a manufacturer compile and present to the government in advance a list of each and every risk associated with a product ...." There was no evidence the contractors knew the risks associated with 2, 4, 5-T included carcinogenic and long-term effects of dioxin. (In re "Agent Orange" Product Liability Litigation, CA-2, 52 CCF ¶78,899)

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