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Application of the Government Contractor Defense Affirmed in Agent Orange Cases

By James Aiosa and Paul Majkowski

As reported in the June 2008 issue of this newsletter, the Second U.S. Circuit Court of Appeals recently issued a trio of opinions that dismissed the latest series of claims based on the alleged injurious exposure to chemical herbicides, including 'Agent Orange,' during the Vietnam War. This article addresses the Second Circuit's decision affirming the application of the 'government contractor defense' to preclude the plaintiffs' claims asserted against the companies that had manufactured the herbicides. In re Agent Orange Prod. Liab. Litig., 517 F.3d 76 (2d Cir. 2008), reh'g en banc denied (2d Cir. May 7, 2008). Under the government contractor defense, a private manufacturer is immunized from liability where it has made a product in accordance with specifications formulated by the government.

At the outset, it should be recognized that, with respect to the alleged Agent-Orange-related injuries, the government itself could not be held liable because, among other grounds, claims arising out of 'combatant activities' are specifically exempted under the Federal Tort Claims Act, and the government's 'discretionary function' immunity bars such claims. See 28 U.S.C. '2680(j) (FTCA does not provide for claims 'arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war'); In re Agent Orange Litig., 818 F.2d 204 (2d Cir. 1987) (affirming dismissal of manufacturers' third-party claims against the government in original Agent Orange litigation on Feres doctrine/discretionary function grounds). With the government so potentially immunized in an instance where a plaintiff is injured by a product ordered and utilized by the government, the plaintiff might be able to proceed solely against the manufacturer.

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