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, 05-
     1700, 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                Final Submission:   August 3, 2007

5                                                     Decided: February 21, 2008
6                                                  Errata Filed: March 25, 2008)
7
8    -----------------------------------------------

 9   In re "Agent Orange" Product Liability
10   Litigation

11   -----------------------------------------------

12   J. MICHAEL TWINAM,

13   Plaintiff-Appellant,

14   - v -                                                               05-1509-cv

15   DOW CHEMICAL COMPANY, et al.,

16   Defendants-Appellees.

17   -----------------------------------------------

18   ROBERT S. BAUER and SANDRA J. BAUER,

19   Plaintiffs-Appellants,

20   - v -                                                               05-1693-cv


21   DOW CHEMICAL CO., et al.,

22   Defendants-Appellees.

23   -----------------------------------------------

24   SHERYL A. WALKER, ERIC C. WALKER, A Minor, By his Mother and Next Friend on
25   behalf of SHERYL A. WALKER, STEPHEN J. WALKER, WILLIAM HAMILTON and ESTHER M.
26   HAMILTON, His Wife, Individually and on Behalf of All Others Similarly
27   Situated,

28   Plaintiffs-Appellants,

29   - v -                                                               05-1694-cv


30   DOW CHEMICAL CO., et al.,
1    Defendants-Appellees,

2    DOES 1-100,

3    Defendants.


4    -----------------------------------------------

5    SHERMAN CLINTON STEARNS and DORTHA MONYENE STEARNS,

6    Plaintiffs-Appellants,

7    - v -                                                               05-1695-cv

8    DOW CHEMICAL COMPANY, et al.,

9    Defendants-Appellees.

10   -----------------------------------------------

11   WILMER PLOWDEN JR.,

12   Plaintiff-Appellant,

13   - v -                                                               05-1696-cv

14   DOW CHEMICAL CO., et al.,

15   Defendants-Appellees.

16   -----------------------------------------------

17   CHARLES T. ANDERSON,

18   Plaintiff-Appellant,

19   - v -                                                               05-1698-cv

20   DOW CHEMICAL COMPANY, et al.,
21
22   Defendants-Appellees,

23   PFIZER, INC., et. al.,

24   Defendants.

25   -----------------------------------------------

26   LINDA FAYE CLOSTIO-BREAUX, RACHEAL M. BREAUX, JOEY M. BREAUX, APRIL R. BREAUX,
27   STACY M. BREAUX, ERIC J. BREAUX, and SCOTT M. BREAUX,

28   Plaintiffs,

29   CHARLES J. BREAUX,

30   Plaintiff-Appellant,

31   - v -                                                               05-1700-cv

32   DOW CHEMICAL COMPANY, et al.,


                                          -2-
1    Defendants-Appellees.

2    -----------------------------------------------

3    THOMAS G. GALLAGHER,

4    Plaintiff-Appellant,

5    - v -                                                               05-1737-cv

6    DOW CHEMICAL CO. and OCCIDENTAL CHEMICAL CORP.,

7    Defendants-Appellees.

8    ----------------------------------------------

 9   DANIEL RAYMOND STEPHENSON, SUSAN STEPHENSON, DANIEL ANTHONY STEPHENSON and
10   EMILY ELIZABETH STEPHENSON,

11   Plaintiffs-Appellants,

12   - v -                                                               05-1760-cv

13   DOW CHEMICAL CO., et al.,

14   Defendants-Appellees.

15   -----------------------------------------------

16   CASEY J. SAMPEY, JR.,

17   Plaintiff-Appellant,

18   - v -                                                               05-1771-cv

19   DOW CHEMICAL CO., et al.,

20   Defendants-Appellees.

21   -----------------------------------------------

22   CHRISTINE NELSON, Individually and on behalf of her deceased husband, FRANKLIN
23   NELSON, REGINALD WILLIAMS, KAREN HOLLAND, FRANKLIN NELSON JR. and SHALISA
24   NELSON,

25   Plaintiffs-Appellants,

26   - v -                                                               05-1810-cv

27   DOW CHEMICAL CO., et al.,

28   Defendants-Appellees.

29   -----------------------------------------------

30   HENRY C. KIDD and SHIRLEANE J. KIDD,

31   Plaintiffs-Appellants,

32   - v -                                                               05-1813-cv

33   DOW CHEMICAL CO., et al.,


                                            -3-
1    Defendants-Appellees.

2    -----------------------------------------------

3    WILLIE WILLIAMS JR., and RITA WILLIAMS,

4    Plaintiffs-Appellants,

5    - v -                                                     05-1817-cv

6    DOW CHEMICAL CO., et al.,

7    Defendants-Appellees.

8    -----------------------------------------------

9    JOE ISAACSON and PHYLLIS LISA ISAACSON,

10   Plaintiffs-Appellants,

11   - v -                                                     05-1820-cv

12   DOW CHEMICAL CO., et al.,

13   Defendants-Appellees.

14   -----------------------------------------------

15   VICKEY S. GARNCARZ,

16   Plaintiff-Appellant,

17   - v -                                                     05-2450-cv

18   DOW CHEMICAL CO., et al.,

19   Defendants-Appellees.

20   -----------------------------------------------

21   JACK RICHARD PATTON,

22   Plaintiff-Appellant,

23   - v -                                                     05-2451-cv

24   DOW CHEMICAL CO., et al.,

25   Defendants-Appellees.

26   -----------------------------------------------

27
28   Before:     MINER, SACK, and HALL, Circuit Judges.

29               Appeals from final judgments of the United States

30   District Court for the Eastern District of New York (Jack B.

31   Weinstein, Judge) granting summary judgment to the defendants,

                                          -4-
1    orders denying certain requests for discovery, and the order

2    denying the Stephenson plaintiffs' motion to amend their

3    complaint.

4              Affirmed.
 5                            JAMES BOANERGES, Cooper, Sprague, Jackson &
 6                            Boanerges, P.C., Houston, TX; MARK I. BRONSON,
 7                            Newman, Bronson & Wallis, St. Louis, Missouri;
 8                            GERSON H. SMOGER, Smoger & Associates, Oakland,
 9                            California; MARK R. CUKER, Williams Cuker
10                            Berezofsky, Philadelphia, PA, for Plaintiffs-
11                            Appellants;

12                            Christopher E. Buckey, Shanley, Sweeney, Reilly,
13                            & Allen, P.C., Albany, NY; David E. Cherry,
14                            Campbell, Cherry, Harrison, Davis & Dove, P.C.,
15                            Waco, TX; John H. Pucheu, Pucheu, Pucheu &
16                            Robertson, L.L.P., Eunice, LA; Bernard F. Duhon,
17                            Abbeville, LA; Robert B. Evans, III, Burgos,
18                            Evans & Wilson LLC, Metairie, LA; Nira T.
19                            Kersmich, Rochester, NY; Jeffrey D. Guerriero,
20                            Guerriero & Guerriero, Monroe, LA; Morris E.
21                            Cohen, Brooklyn, NY; James Russell Tucker,
22                            Dallas, TX (on the briefs), for Plaintiffs-
23                            Appellants.

24                            ANDREW L. FREY, CHARLES A. ROTHFELD (Lauren R.
25                            Goldman, Christopher J. Houpt, of counsel),
26                            Mayer, Brown, Rowe & Maw LLP, New York, NY, for
27                            Defendants-Appellees.

28                            John C. Sabetta, Andrew T. Hahn, Sr., Seyfarth
29                            Shaw LLP, New York, NY; Seth P. Waxman, Paul R.
30                            Q. Wolfson, Wilmer, Cutler, Pickering, Hale &
31                            Dorr, Washington, DC; Richard P. Bress, Latham &
32                            Watkins, Washington, DC; Michael M. Gordon, King
33                            & Spaulding LLP, New York, NY; William A.
34                            Krohley, William C. Heck, Kelley Drye & Warren
35                            LLP, New York, NY; James L. Stengel, Laurie
36                            Strauch Weiss, Orrick, Herrington & Sutcliffe
37                            LLP, New York, NY; Steven Brock, James V. Aiosa,
38                            Richard S. Feldman, Rivkin Radler LLP,
39                            Uniondale, NY; Lawrence D'Aloise, Jr., Clark,
40                            Gagliardi & Miller, White Plains, NY; Myron
41                            Kalish, New York, NY (on the brief), for
42                            Defendants-Appellees.


43                            William A. Rossbach (Timothy M. Bechtel, of
44                            counsel), ROSSBACH, HART, BECHTEL, P.C.,
45                            Missoula, MT; P.B. Onderdonk, Jr., National
46                            Judge Advocate, The American Legion,
47                            Indianapolis, IN, for Amicus Curiae Veterans and
48                            Military Service Organizations.

49                            Ian Heath Gershengorn (Lise T. Spacapan and
50                            Fazal R. Khan, on the brief), Jenner & Block


                                     -5-
1                             LLP, Washington DC, for Amicus Curiae American
2                             Chemistry Council and Chlorine Chemistry
3                             Council.

 4                            Raphael Metzger, Metzger Law Group, Long Beach,
 5                            CA, for Amicus Curiae Drs. Brian G. Durie, Devra
 6                            Davis, Peter L. deFur, Alan Lockwood, David
 7                            Ozonoff, Arnold J. Schecter, David Wallinga,
 8                            Carl F. Cranor, The Council for Education and
 9                            Research on Toxic, and the Lymphoma Foundation
10                            of America.

11
12   SACK, Circuit Judge:

13             More than thirty-five years ago, the United States

14   military stopped using Agent Orange and related chemicals as

15   defoliants to prosecute the war in Vietnam.      This appeal is but

16   the latest chapter in a thirty-year struggle by the litigants,

17   their counsel, and judges of the United States District Court for

18   the Eastern District of New York and of this Court to bring to

19   just legal closure to the alleged consequences of that use.

20             We explain below why these sixteen unconsolidated

21   appeals are now before us and why, in our view, the government

22   contractor defense applies to bar these claims.      In the course of

23   doing so, we consider the discovery limitations imposed by the

24   district court and that court's denial of the Stephenson

25   plaintiffs' motion to amend their complaint.      By an opinion

26   written by Judge Hall also filed today, we decide that those of

27   the sixteen cases that were originally filed in state court were

28   properly removed by the defendants to federal court.       A third

29   decision by the panel, written by Judge Miner, addresses the

30   separate issues related to the use of Agent Orange raised on



                                     -6-
1    appeal in Vietnam Assoc. for Victims of Agent Orange/Dioxin v.

2    Dow Chemical Co., No. 05-1953-cv.

3                The plaintiffs pursuing this appeal are United States

4    military veterans or their relatives who allege that myriad

5    injuries, mostly forms of cancer, were caused by the veterans'

6    exposure to the chemical defoliant "Agent Orange" during service

7    in Vietnam.1   They assert that the district court erred in

8    concluding that the government contractor defense -- which

9    protects government contractors from state tort liability under

10   certain circumstances when they provide defective products to the

11   government -- applied to bar the plaintiffs' claims.    The

12   plaintiffs contend further that the district court abused its

13   discretion by denying them discovery beyond what was available in

14   files from prior Agent Orange litigation.    We disagree with the

15   plaintiffs on both counts.

16               We also conclude that it was error to deny the

17   Stephensons' motion to amend their complaint.    In light of our

18   conclusion that the defendants are entitled to invoke the

19   government contractor defense, however, we find the error to be

20   harmless.




          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                   We therefore affirm the judgments of the district court

2    in all respects.

3                                    BACKGROUND

4                   The cases concerning the United States military's

5    acquisition and use of Agent Orange during the Vietnam War, of

6    which these are but a relative few, and their massive factual

7    records, have been addressed in so many different judicial

8    opinions over the years that we do not attempt even to list them

9    here.       See generally In re "Agent Orange" Prod. Liab. Litig., 304

, 410-14 (E.D.N.Y. 2004) ("Agent Orange III Gov.

11   Contractor Def. Op.").       Neither do we undertake a detailed

12   retelling of the history of or facts underlying this litigation.

13   See 

(describing the history of Agent Orange

14   lawsuits brought by Vietnam veterans).2      Instead, we set forth

15   below only what we think necessary for an understanding of our

16   resolution of these appeals.

17                  Agent Orange was one of several chemically similar

18   herbicides3 used by the United States government during the

19   Vietnam War in connection with "Operation Ranch Hand," the code


             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    name for the military's efforts to defoliate various areas in

2    Vietnam.   See In re Agent Orange Prod. Liab. Litig., 

   2d 7, 19 (E.D.N.Y. 2005) ("Between 1961 and 1971, herbicide

4    mixtures . . . were used by the United States and Republic of

5    Vietnam . . . forces to defoliate forests and mangroves, to clear

6    perimeters of military installations and to destroy 'unfriendly'

7    crops, as a tactic for decreasing enemy armed forces[']

8    protective cover and food supplies.").   The government purchased

9    the defoliants from the defendants-appellees in the instant

10   appeals pursuant to various government contracts.4    As the

11   defoliation campaign intensified, many of the contracts were

12   subjected to various government directives entered pursuant to

13   the Defense Production Act of 1950, see 50 U.S.C. app. § 2061 et

14   seq., and regulations promulgated pursuant thereto.    The

15   government characterized delivery of Agent Orange as part of the

16   prosecution of military action, which enabled the defendants to

17   procure otherwise scarce materials and equipment necessary to

18   produce it.   Agent Orange III Gov. Contractor Def. Op., 

  Supp. 2d at 424-25.

20              The Agent Orange delivered to the government was a

21   mixture of two different herbicides: 2,4-D (2,4-

22   Dichlorophenoxyacetic acid) and 2,4,5-T (2,4,5-

23   Trichlorophenoxyacetic acid).   The contracts required that the




          4
            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    chemicals be nearly 100% pure and that they be combined in

2    roughly equal proportions.

3                The manufacture of 2,4,5-T produced, as a byproduct,

4    trace elements of the toxic chemical dioxin (2,3,7,8-

5    Tetrachlorodibenzo para dioxin (TCDD)).       The plaintiffs allege

6    that it is dioxin that caused the injuries of which they now

7    complain.

8                The amount of dioxin contained in a particular batch of

9    Agent Orange varied depending on the production method used by

10   its manufacturer.     See In re "Agent Orange" Prod. Liab. Litig.,

11   

, 150, 173 (2d Cir. 1987) ("Agent Orange I Settlement

12   Op."), cert. denied, 

(1988); In re "Agent Orange"

13   Prod. Liab. Litig., 

, 189 (2d Cir. 1987) ("Agent

14   Orange I Opt-Out Op."), cert. denied, 

(1988).       The

15   defendants knew at the time they were manufacturing Agent Orange

16   that dioxin was a byproduct and that it could cause certain kinds

17   of harm under certain conditions.       Various government agencies

18   and officers assessed the toxicity of the defoliating agents,

19   including Agent Orange, being used in Vietnam.       Precisely what

20   knowledge the government and the defendants possessed and when

21   they came to have it is in dispute.

22               I.   Overview of Agent Orange Litigation

23               The plaintiffs now before us on appeal represent a

24   small fraction of the many Americans who have pursued legal

25   claims arising out of the government's use of Agent Orange to

26   fight the Vietnam War.     See generally Agent Orange III Gov.

                                      -10-
1    Contractor Def. 

(listing more than

2    one hundred Agent-Orange-related decisions); see also, e.g., 

407-23 (detailing the history of Agent Orange litigation

4    involving Vietnam veterans).   Their claims find their roots in

5    the "Agent Orange I" litigation, the veterans' class action begun

6    in the late 1970s and settled in 1984.

7              In those cases, the Judicial Panel on Multidistrict

8    Litigation designated the United States District Court for the

9    Eastern District of New York as the Multidistrict Litigation

10   ("MDL") court for all federal Agent Orange-related cases brought

11   by military veterans of various countries.   Thereafter, first

12   Judge Pratt and then Judge Weinstein presided over proceedings

13   involving approximately 600 litigants, hundreds of thousands of

14   putative class members, several years of motion practice

15   (including motions for class certification), and one appeal to

16   this Court.   On the eve of trial of those cases, the defendants

17   and class representatives reached what was then thought by the

18   parties and the courts to be a final global settlement of Agent

19   Orange-related cases in the amount of $180 million.   Agent Orange

20   I Settlement 

.

21             Because of what we termed "formidable hurdles" to the

22   plaintiffs' claims, 

we affirmed the district court's

23   approval of the settlement at what -- even at a total of $180

24   million -- we termed "nuisance value," equivalent to "at best

25   only a small multiple of, at worst less than, the fees the

26   chemical companies would have had to pay to their lawyers had

                                    -11-
1    they continued the litigation."    

  The Plaintiffs in

2    287 cases opted out of the class and thereby the settlement.

3                Thereafter, the district court granted the defendants'

4    motion for summary judgment in those opt-out actions "on the

5    alternative dispositive grounds that no opt-out plaintiff could

6    prove that a particular ailment was caused by Agent Orange, that

7    no plaintiff could prove which defendant had manufactured the

8    Agent Orange that allegedly caused his or her injury, and that

9    all the claims were barred by the military contractor defense."

10   Agent Orange I Opt-Out 

(internal citations

11   omitted).

12               From 1987 through 1997, the settlement fund, which,

13   with interest and other augmentations, eventually grew to about

14   $330 million was distributed to, inter alios, some 291,000 class

15   members who filed claims prior to the 1994 cutoff date.    Agent

16   Orange III Gov. Contractor Def. 

.

17   Meanwhile, two sets of plaintiffs who had been members of the

18   original plaintiff class and who were therefore entitled to

19   receive settlement payments, but whose injuries had manifested

20   after their opportunity to opt out of the class action had

21   expired, filed class actions on behalf of themselves and other

22   similarly situated veterans.    The district court decided that

23   because the plaintiffs were class members, their claims were

24   barred, and we affirmed.    In re "Agent Orange" Prod. Liab.

25   Litig., 

, 1439 (2d Cir. 1993) ("Agent Orange II"),



                                     -12-
1    overruled in part on other grounds by Syngenta Crop Protection,

2    Inc. v. Henson, 

, 34 (2002).

3              Shortly after the settlement fund distributions were

4    completed, the third, and instant, series of lawsuits was

5    initiated.   These were brought by two of the sixteen plaintiffs

6    now before us, the Isaacsons and Stephensons, who had not been

7    members of the original plaintiff class.    These veterans and

8    their families alleged injuries that resulted from exposure to

9    Agent Orange but did not manifest until after the 1994 cutoff

10   date for filing settlement claims in the original actions.    In a

11   2001 opinion, we held that the district court had erred in

12   deciding that the plaintiffs' claims were barred by the Agent

13   Orange I settlement.   Stephenson v. Dow Chem. Co., 

,

14   261 (2d Cir. 2001) ("Agent Orange III").5   We concluded that a

15   conflict existed between the plaintiffs and the class

16   representatives because the representatives had permitted the

17   settlement fund to terminate without a provision for post-1994

18   claimants such as these plaintiffs.   

(relying on

19   Ortiz v. Fibreboard Corp., 

(1999) and Amchem Prods.,

20   Inc. v. Windsor, 

(1997)).    As a result, the

21   plaintiffs were not adequately represented by the class, and



          5
            We also held that the defendants had properly removed the
     Isaacson case from state to federal court. 

As
     explained in the companion opinion, see Stephenson v. Dow Chem.
     Co., 

, 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, 

, 112
     (2003).
                                    -13-
1    Agent Orange I did not prevent them from pursuing their claims.

2    

3                   II.   The Instant Appeals

4                   On remand, the Stephensons and Isaacsons were

5    eventually joined by fourteen other sets of plaintiffs alleging

6    Agent Orange injuries first discovered after the 1994 cutoff

7    date.       The cases were not consolidated, but the district court

8    conducted simultaneous proceedings and applied rulings in the

9    Stephenson and Isaacson cases to each of the others.       Together,

10   the plaintiffs raised three tort claims under various state laws:

11   design defect, failure to warn, and manufacturing defect.

12                  Six days after our mandate issued in Agent Orange III,

13   the defendants moved in the district court for summary judgment

14   against the Stephensons and Isaacsons.7      At about the same time,

15   the Stephensons moved to amend their complaint.




             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.
             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.
                                    -14-
1              On February 9, 2004, several days after receiving

2    voluminous submissions from the plaintiffs and two weeks after

3    oral argument, the district court issued four decisions, two of

4    which -- one granting the defendants' motion for summary judgment

5    and the other denying the Stephensons' motion to amend -- are now

6    before us on appeal.8   Even though only the motions for summary

7    judgment in Stephenson and Isaacson were before it, the district

8    court considered all the evidence put forth by the parties in

9    Agent Orange I in ruling on defendants' summary judgment motion.

10   Having done so, it concluded that the government contractor

11   defense barred both the design defect and failure-to-warn claims.

12   Agent Orange III Gov't Contractor Def. 

  441-42.   As to plaintiffs' manufacturing defect claims, the court

14   concluded that they were barred because the defendants' products

15   conformed to the government's specifications.     

16             In granting the motion for summary judgment, however,

17   the district court noted that the plaintiffs had complained of

18   "difficulties in obtaining evidence for their position," an

19   "understandable" problem in light of the passage of time between

20   exposure and injury.    

due process," 

Judge Weinstein charted a distinctly unusual course --

22   he permitted discovery, never undertaken by Agent Orange III

23   litigants in light of the timing of prior appeals and the


          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.
                                    -15-
1    defendants' motion, to continue through August 10, 2004, and he

2    set a motion schedule for an anticipated motion for

3    reconsideration based on the results of that discovery.    

the district court ordered that all files

5    relating to Agent Orange sent to the National Archives pursuant

6    to court order following Agent Orange I be returned to the

7    district court and made available to the plaintiffs for their

8    review.    The magistrate judge assigned to the case then denied

9    all requests for additional non-MDL discovery, although the

10   district court subsequently granted the plaintiffs access to "up

11   to six complete deposition transcripts utilized in non-MDL 381

12   cases claimed by plaintiffs to shed light on relevant knowledge

13   of defendants."

14               On November 3, 2004, the plaintiffs in Stephenson and

15   Isaacson, as anticipated, filed a motion for reconsideration of

16   the district court's order granting summary judgment.    On

17   November 16, 2004, the district court, without awaiting response

18   from the defendants, denied the plaintiffs' motion.    In re "Agent

19   Orange" Prod. Liab. Litig., 

, 874-75 (E.D.N.Y.

20   2004).    It further ordered the defendants to "submit a specific

21   judgment in favor of each named defendant against each named

22   plaintiff whose claims arise from service in the Armed Forces of

23   the United States," thereby rendering the court's judgment in

24   Stephenson and Isaacson applicable to each of the fourteen

25   additional plaintiffs now before us on appeal.    

                                     -16-
1               Following a motion by the Bauer plaintiffs, who argued

2    that granting the motion for summary judgment was inappropriate

3    because, inter alia, the procedural posture of their case had

4    rendered them unable to respond to the defendants' motion, all

5    plaintiffs were ultimately given until February 28, 2005, to

6    submit additional papers supporting their position that summary

7    judgment should not have been granted.    Oral argument was held on

8    February 28.   On March 2, 2005, the district court summarily

9    reaffirmed its November 16, 2004 Order.   In re "Agent Orange"

10   Prod. Liab. Litig., No. 79 MD 381, 

, at *1

11   (E.D.N.Y. Mar. 2, 2005).    Separate judgments of dismissal in each

12   action were then filed.

13              More than a year before, in February 2004, the district

14   court had denied the Stephensons' motion to amend their complaint

15   to add additional defendants and several new causes of action.

16   Stephenson v. Dow Chem. Co., 

, 25-26 (E.D.N.Y.

17   2004).   Although the defendants had never answered the

18   Stephensons' original complaint, filed pro se in the Western

19   District of Louisiana, the motion to amend was denied on a

20   variety of grounds.   

plaintiffs appeal.   Before us are challenges to (1)

22   the district court's grant of the motion for summary judgment as

23   to their design claim only;9 (2) the denial of their requests for


          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, 

, 104 n.1 (2d Cir. 2004).
                                    -17-
1    additional discovery; and (3) the denial of the Stephensons'

2    motion to amend.10

3                                 DISCUSSION

4               I.   Summary Judgment

5    A.   Standard of Review

6               We review the district court's grant of summary

7    judgment de novo, "construing the evidence in the light most

8    favorable to the non-moving party and drawing all reasonable

9    inferences in its favor."    Allianz Ins. Co. v. Lerner, 

  109, 113 (2d Cir. 2005).    "We will affirm the judgment only if

11   there is no genuine issue as to any material fact, and if the

12   moving party is entitled to a judgment as a matter of law."    

Fed. R. Civ. P. 56(c)).

14   B.   The Government Contractor Defense

15              Almost twenty years ago, in Boyle v. United

16   Technologies Corp., 

(1988), the Supreme Court

17   recognized the government contractor defense,11 a federal common

18   law doctrine.    The Court concluded that the "uniquely federal



           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.
           11
             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    interest[]" of "getting the Government's work done" requires

2    that, under some circumstances, independent contractors be

3    protected from tort liability associated with their performance

4    of government procurement contracts.    

5                The Court looked to the Federal Tort Claims Act, 28

6    U.S.C. § 2671 et seq. ("FTCA"), for guidance.    

7    Under the FTCA, Congress waived sovereign immunity for the

8    government insofar as Congress "authorized damages to be

9    recovered against the United States for harm caused by the

10   negligent or wrongful conduct of Government employees, to the

11   extent that a private person would be liable under the law of the

12   place where the conduct occurred."    

(citing 28 U.S.C.

13   § 1346(b)).    The Act's discretionary function exception, however,

14   carves out from that authorization "'[a]ny claim . . . based upon

15   the exercise or performance or the failure to exercise or perform

16   a discretionary function or duty on the part of a federal agency

17   or an employee of the Government, whether or not the discretion

18   involved be abused.'"    

U.S.C. § 2680(a))

19   (brackets in original).

20               The Boyle Court concluded that the protection for

21   discretionary action taken by federal agencies and employees

22   implies some measure of similar protection for government

23   contractors even though they are themselves non-governmental

24   entities.    The Court noted that the exercise of government

25   discretion is inherent to military contracting:

26               We think that the selection of the
27               appropriate design for military equipment to
                                      -19-
1              be used by our Armed Forces is assuredly a
2              discretionary function within the meaning of
3              this provision. It often involves not merely
4              engineering analysis but judgment as to the
5              balancing of many technical, military, and
6              even social considerations, including
7              specifically the trade-off between greater
8              safety and greater combat effectiveness.
 9   

Court said,
10             permitting "second-guessing" of these
11             judgments through state tort suits against
12             contractors would produce the same effect
13             sought to be avoided by the FTCA
14             exemption. . . . To put the point
15             differently: It makes little sense to
16             insulate the Government against financial
17             liability for the judgment that a particular
18             feature of military equipment is necessary
19             when the Government produces the equipment
20             itself, but not when it contracts for the
21             production.
22   

-12 (citation omitted). The defense thus protects

23   government contractors from the specter of liability when the

24   operation of state tort law would significantly conflict with the

25   government's contracting interest.   

26             Adopting the reasoning employed in several previous

27   court of appeals decisions, the Court limited "the scope of

28   [state law] displacement" to instances in which "(1) the United

29   States approved reasonably precise specifications [for the

30   allegedly defectively designed equipment]; (2) the equipment

31   conformed to those specifications; and (3) the [contractor who

32   supplied the equipment] warned the United States about the

33   dangers in the use of the equipment that were known to the

34   supplier but not to the United States."   

  The first

35   two requirements "assure that the suit [from which protection is

36   sought] is within the area where the policy of the 'discretionary

                                   -20-
1    function' would be frustrated -- i.e., they assure that the

2    design feature in question was considered by a Government

3    officer, and not merely by the contractor itself."    

   third requirement is imposed because "in its absence, the

5    displacement of state tort law would create some incentive for

6    the manufacturer to withhold knowledge of risks, since conveying

7    that knowledge might disrupt the contract but withholding it

8    would produce no liability."   

therefore "adopt[ed]

9    this provision lest [its] effort to protect discretionary

10   functions perversely impede them by cutting off information

11   highly relevant to the discretionary decision."     

12             The plaintiffs here contend that the defendants cannot,

13   at least as a matter of law at the summary judgment stage,

14   satisfy any one of the three requirements.

15             1.   Reasonably Precise Specifications.

16             The plaintiffs argue that the defendants have not

17   established the first Boyle requirement -- that "the United

18   States approve[] reasonably precise 

  512 -- because: (1) Agent Orange procurement contracts contained

20   no specifications regarding the defective feature, dioxin; (2)

21   there is at least a genuine issue of material fact regarding

22   whether Agent Orange was a commercially available product whose

23   specifications were created by the defendants rather than the

24   government, whose involvement was minimal; and (3) the alleged

25   defect was unrelated to the contractual specifications for

26   2,4,5-T because it was the defendants' chosen manufacturing

                                    -21-
1    processes -- with which the government was not involved and which

2    were not integral to contract compliance -- that caused dioxin to

3    be present.12

4                The first argument concerns the proper conception of

5    the complained-of defect and can readily be resolved.    The second

6    and third arguments are, in distinct ways, about how the

7    government exercised its discretionary authority:    The second

8    argument asks whether the government was involved in the

9    contractual process to the extent that Boyle requires; while the

10   third asks us to determine in what context the government must

11   exercise its discretion for the government contractor defense to

12   apply.    To conduct this third inquiry, we must determine the

13   source of the "conflict" between the government's interests and

14   state tort law that is required for the defense to apply.

15               a.   The complained-of defect



          12
            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.
          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 plaintiffs assert that because the contracts at

2    issue contain no specifications whatsoever with regard to the

3    dioxin, the government exercised no discretionary authority over

4    that which is the subject of their state tort litigations, as a

5    successful defense based on Boyle requires.    Their argument

6    misconceives the nature of what the contracts in question were

7    about and defines the alleged defective design too narrowly.

8              The contracts at issue provided for the defendants to

9    supply Agent Orange.   The Agent Orange was allegedly defective

10   because it contained excessive trace amounts of dioxin, which

11   were present as a result of the manufacture of a specified Agent

12   Orange component, 2,4,5-T.    The dioxin -- while a defect of

13   2,4,5-T -- was not itself defective, nor did it exist within

14   Agent Orange apart from the 2,4,5-T therein.13   It was therefore

15   the 2,4,5-T that was alleged to be defective, not the dioxin.

16             b.   The government approved specifications for a
17                  uniquely tailored product

18             The plaintiffs contend that the defendants cannot

19   demonstrate that the government exercised its discretionary

20   authority to create the Agent Orange specifications that are

21   contained in the contracts.    The government contractor defense

22   protects federal contractors solely as a means of protecting the

23   government's discretionary authority over areas of significant

24   federal interest such as military procurement.    Defendants

25   asserting the defense must demonstrate that the government made a


          13
             Pure lead, without defect, may be a defect of a child's
     painted toy.
                                   -23-
1    discretionary determination about the material it obtained that

2    relates to the defective design feature at issue.   Where the

3    government "merely rubber stamps a design, . . . or where the

4    [g]overnment merely orders a product from stock without a

5    significant interest in the alleged design defect," the

6    government has not made a discretionary decision in need of

7    protection, and the defense is therefore inapplicable.    Lewis v.

8    Babcock Indus., Inc., 

, 87 (2d Cir.) (citing Trevino

9    v. Gen. Dynamics Corp., 

, 1480, 1486 (5th Cir.),

10   cert. denied, 

(1989), and 

)

11   (internal quotation marks omitted), cert. denied, 

12   (1993).    If the government buys a product "off-the-shelf" -- "as-

13   is" -- the seller of that product cannot be heard to assert that

14   it is protected from the tort-law consequences of the product's

15   defects.   Where the government is merely an incidental purchaser,

16   the seller was not following the government's discretionary

17   procurement decisions.

18              Here, the plaintiffs contend that the government

19   rubber-stamped its approval of the defendants' suggested

20   specifications, which, in turn, were simply combinations of off-

21   the-shelf, commercially available herbicides.   They say that Dow

22   Chemical owned the patents for certain aspects of the herbicides'

23   component parts and that many different defendants manufactured

24   and sold 2,4,5-T and 2,4-D in various combinations as early as

25   1948, with some of the formulations including the same 50%

26   mixture as Agent Orange.   As a result, the plaintiffs assert,

                                     -24-
1    there are at least triable issues of fact as to whether (1) Agent

2    Orange and related herbicides were "stock" products, rather than

3    products tailored to the government's needs; and (2) even if the

4    herbicides were not commercially available products, Agent

5    Orange's components were devised by the defendants without the

6    significant government input necessary to meet the first Boyle

7    requirement.

8              As to the former, the plaintiffs do not dispute the

9    defendants' assertions that 2,4,5-T and 2,4-D were not

10   commercially available at the same high concentrations as that

11   contained in Agent Orange.    The Stephensons, for example, concede

12   that 2,4,5-T was not commercially available in concentrations

13   greater than 55%.    See Final Reply Br. for Pl.-Appellants, 05-

14   1760-cv, at 67-68.    Agent Orange, by contrast, contained 2,4,5-T

15   at greater than 90% purity levels.     See, e.g., Aff. of William A.

16   Krohley, counsel for defendant Hercules Inc., Oct. 27, 2004

17   ("Krohley Aff."), Exh. 11 (July 19, 1963 military specification).

18             Moreover, as the Fifth Circuit aptly noted in unrelated

19   Agent Orange litigation, the fact that a product supplied to the

20   government comprises commercially available component parts says

21   nothing about whether the finished product resulted from the

22   exercise of governmental discretion as to its design.    "[A]ll

23   products can eventually be broken down into various off-the-shelf

24   components."   Miller v. Diamond Shamrock Co., 

, 420

25   (5th Cir. 2001); see also In re Joint Eastern and Southern Dist.

26   New York Asbestos Litig., 

, 638 (2d Cir. 1990)

                                     -25-
1    ("Grispo") (Miner, J., concurring) ("[T]he [g]overnment

2    prescription of how [stock] items should be combined and packaged

3    [is] the key to the military contractor defense . . . .").

4               As to the latter argument -- the plaintiffs' contention

5    that there was no significant government input -- the plaintiffs

6    misperceive the nature of the government involvement necessary to

7    invoke the contractor defense.    That the component chemicals were

8    not developed for military use in the first instance, that some

9    aspects of their composition were patented, and that the

10   defendants may have proposed certain specifications to the

11   government, are not determinative.      Boyle explicitly contemplated

12   government reliance on manufacturers' expertise in making a fully

13   informed decision as to what to order.     See 

  513.   "[I]t is necessary only that the government approve, rather

15   than create, the specifications . . . ."     Carley v. Wheeled

16   Coach, 

, 1125 (3d Cir.), cert. denied, 

17   (1993); see also 

("The design ultimately

18   selected may well reflect a significant policy judgment by

19   [g]overnment officials whether or not the contractor rather than

20   those officials developed the design.").

21              The extent of the defendants' involvement in suggesting

22   specifications or the defendants' reliance on previously attained

23   industry expertise in doing so is thus not conclusive.     The

24   government exercises adequate discretion over the contract

25   specifications to invoke the defense if it independently and

26   meaningfully reviews the specifications such that the government

                                      -26-
1    remains the "agent[] of decision."     

; see

2    also Stout v. Borg-Warner Corp., 

, 336 (5th Cir.)

3    (government issued reasonably precise specifications when it

4    reviewed contractor's detailed drawings several times and

5    evaluated test models), cert. denied, 

(1991);

6    Harduvel v. Gen. Dynamics Corp., 

, 1320 (11th Cir.

7    1989) (government issued reasonably precise specifications for F-

8    16 fighter aircraft having approved its design following

9    "continuous back and forth" with contractor), cert. denied, 494

(1990).

11              With respect to Agent Orange, the record contains, for

12   example, a memorandum dated February 22, 1963, regarding "Ester

13   Specifications for U.S. Army Biological Laboratories," written by

14   an employee of one of the defendants, that discussed a February

15   8, 1963, meeting called "to satisfy the U.S. Army about

16   specifications and typical physical properties on the next type

17   of blend they [sic] will be purchasing." Mem. from I.F. Hortman

18   to, inter alios, S.D. Daniels and W.A. Kuhn (Feb. 22, 1963), at

19   1.   It indicated that an effort to permit use of a different n-

20   butyl ester from 2,4,5-T was "impossible at this time because the

21   Army had studied only the normal esters," and that, therefore,

22   the chemical company would have to present the proposed change

23   directly to "the commanding officer, U.S. Army Biological

24   Laboratories and Dr. Charles Minarick, Chief of Crops Division"

25   for approval.   

from a 1968 meeting between

26   government officials and representatives of several of the

                                     -27-
1    defendants indicate that the government insisted on a test for

2    chemical composition despite "much resistance to this added

3    requirement on the part of the Industry [sic]" as well as on a

4    98% purity level for the 2,4,5-T ester.   Memorandum of R.A.

5    Guidi, Diamond Alkali Co. (Feb. 20, 1968), at 1-2.

6              We conclude, based on the evidence in the extensive

7    record that has been brought to our attention,14 that no

8    reasonable jury could find that the government did not exercise

9    sufficient discretion for it to have been said to have "approved"

10   specifications for the herbicides.   The government was plainly

11   the "agent[] of decision," 

, with respect

12   to Agent Orange's contractually specified composition.

13             c.   The government made a discretionary
14                  determination regarding Agent Orange's toxicity

15             The next question, and we think it to be a more

16   difficult one, is whether the government made a discretionary

17   determination that created the conflict between the federal

18   government's interests and the defendant's state law duties that

19   is necessary to invoke the government contractor defense.   The

20   plaintiffs argue that the defendants could have manufactured

21   Agent Orange that produced either dioxin-free or nearly dioxin-

22   free 2,4,5-T by employing the lower-temperature manufacturing

23   process developed and used by a German manufacturer, C.H.


          14
            "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, 

, 470 (2d Cir. 2002).
                                    -28-
1    Boehringer Sohn.   This process, the plaintiffs say, would have

2    permitted the defendants to comply with their federal contractual

3    duties and deliver a less toxic defoliating agent, albeit at a

4    somewhat slower rate.   As a result, the plaintiffs argue, the

5    defendants could have met both their federal duties and their

6    state tort-law duties; the direct conflict contemplated by Boyle

7    is absent; and the first requirement for the contractor defense

8    therefore cannot be established.15

9              (i)   Analysis.   In determining whether the government

10   made a discretionary decision that would create the type of

11   conflict between tort law and government interests contemplated

12   by Boyle, we are not called upon to assess the merits of the

13   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].
     

(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
                                    -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.   If they do, the first Boyle requirement

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.   Cf. 

n.1 (noting

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],

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."   

.   We

14   have observed that, therefore, "answering the question whether


     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
     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 

(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    the [g]overnment approved reasonably precise specifications for

2    the design feature in question necessarily answers the question

3    whether the federal contract conflicts with state law."    

   87.   If such specifications are present, the contractor's federal

5    contractual duties will inevitably conflict with alleged state

6    tort duties to the contrary because complying with the federal

7    contract will prevent compliance with state tort law as the

8    plaintiffs have alleged that it exists.   See 

   where a "contractor could comply with both its contractual

10   obligations and the state-prescribed duty of care," displacement

11   "generally" would not be warranted, and state law would apply.

12   

.

13              The defendants do not contest that the government's

14   contractual specifications for Agent Orange were silent regarding

15   the method of manufacture or that the government harbored no

16   preference, expressed or otherwise, regarding how the herbicides

17   were to be produced.   See, e.g., Appellees' Br. at 36-37.

18   Indeed, they admit that they were under no federal contractual

19   duty to produce Agent Orange using any particular manufacturing

20   process or with any particular reference to the resulting

21   toxicity levels.   See 

99 (characterizing lack of

22   specifications regarding method of manufacture or toxicity levels

23   as discretionary omission and conceding that "omitted

24   specifications do not constitute contractual duties").    The

25   defendants argue instead that the government's Agent Orange

26   procurement contracts nevertheless created a conflict with their

                                    -31-
1    alleged state tort duty to manufacture the herbicides

2    differently.   The defendants reason that the documentary evidence

3    establishes as a matter of law that the manufacture of dioxin-

4    free Agent Orange was impossible and that, in any event, they

5    could not have complied with their procurement contracts with the

6    government had they used the slower, less efficient, Boehringer

7    method.   They contend further that the government ordered the

8    herbicides with full knowledge of the relevant dangers, which,

9    they say, is equivalent to the government having approved a

10   reasonably precise specification about that danger.   

11   99, 102-04.

12              But the documents cited by the defendants as to the

13   inevitability of dioxin content in Agent Orange -- including

14   declarations by the Environmental Protection Agency that dioxin

15   in some very small amounts was "unavoidable" and that the

16   "potential risks" of harm to humans outweighed any benefits of

17   continued use of commercially available 2,4,5-T, see EPA Notice

18   of the Denial of Applications for Federal Registration of

19   Intrastate Pesticide Products Containing 2,4,5-T, 45 Fed. Reg.

20   2,898, 2,899 (Jan. 15, 1980); EPA Decision and Emergency Order

21   Suspending Registrations for the Forest, Rights-of-Way, and

22   Pasture Uses in 2,4,5-T, 44 Fed. Reg. 15,874, 15,874 n.1 (Mar.

23   15, 1979) -- do not refute what we understand to be the thrust of

24   the plaintiffs' argument: that had the defendants used the

25   Boehringer method, the Agent Orange they produced would have

26   contained no then-detectable amounts of dioxin.   In that event,

                                    -32-
1    the plaintiffs allege, the lower levels of dioxin would have

2    avoided much, if perhaps not all, of the harm allegedly suffered

3    as a result of the presence of dioxin in Agent Orange.

4               The documents submitted to the district court also do

5    not establish as a matter of law that there was an inherent

6    conflict between use of the Boehringer process and compliance

7    with defendants' contractual obligation to the government.    Dow

8    Chemical adopted and used the Boehringer method, or something

9    like it, see Mem. from J.D. Doedens, Chemicals Dep't, Dow Chem.

10   Co. (Mar. 1, 1965), at 2; Mem. from Alex Widiger, Midland

11   Division Research & Dev., Dow Chem. Co. (Apr. 25, 1967), at 2, at

12   the time the government was requesting Agent Orange in increasing

13   quantities and sequestering the entire domestic market for 2,4,5-

14   T.   This change in manufacturing method and its timing at least

15   raises a triable issue of fact as to whether the defendants could

16   have complied with their contractual obligations to the

17   government while using what the plaintiffs contend was a process

18   that would have resulted in a defoliating agent substantially

19   less dangerous to military personnel.

20              And so we must determine whether the government did in

21   fact, as the defendants argue, approve of the toxicity levels

22   present in Agent Orange in a manner that would create the

23   necessary conflict with the alleged state law tort duty such that

24   the latter must be displaced.   We think that it did.

25              We have previously concluded that where the government

26   contracts for the purchase of a product with knowledge that the

                                     -33-
1    product has an arguable defect, it is considered to have approved

2    "reasonably precise specifications" for that product, with the

3    known defect, for purposes of the first Boyle requirement.

4    

.     In Lewis, the government reordered a

5    cable that connected a parachute to the crew module of an Air

6    Force fighter jet with knowledge that the coating that protected

7    the steel cable was prone to cuts, resulting in cable corrosion.

8    

   Although the government during its initial order had

9    not made a discretionary decision about which materials should be

10   used in constructing the cable, it subsequently ordered

11   replacement cables even after an Air Force investigation into the

12   corroded cables had revealed the problem with the protective

13   coating, reasoning that changes to its maintenance manual would

14   sufficiently alleviate the risk of harm.     

of this

15   considered attention by the government to the precise defect

16   alleged, we concluded that the cable could not be characterized

17   as a stock item and that the "contractor's decision regarding the

18   materials to be used for the cable" could not be "second-

19   guess[ed]."   

   We did not discuss whether or how the

20   contractor had been alerted to the government's investigation or

21   the reasons for its reordering, nor whether the contract for

22   replacement cables also omitted reference to the material used to

23   construct them, as had the original cable contract.     "Based on

24   the reorder" alone, we said, "the contractor c[ould] claim:       'The

25   [g]overnment made me do it.'"     

897 F.2d at

26   632).

                                      -34-
1              Here, similarly, the record discloses that the

2    government explicitly evaluated the alleged design defect (toxic

3    2,4,5-T), and thereafter continued to order "replacement"

4    herbicides.   The government examined the toxicity of what the

5    plaintiffs contend was the most toxic Agent Orange variant used

6    in Vietnam -- Agent Purple -- and determined that it posed no

7    unacceptable hazard.   See Tr. of Oral Arg. at 24 (plaintiffs'

8    attorney's comments regarding Agent Purple's toxicity).    On April

9    26, 1963, the Army conducted a meeting at its Edgewood (Maryland)

10   Arsenal "to evaluate the toxicity of a[n herbicide] mixture known

11   as 'Purple.'"    Minutes of a Meeting Held to Discuss and Evaluate

12   the Toxicity of 2,4-D and 2,4,5-T Compounds (Apr. 26, 1963)

13   ("April 1963 Meeting Minutes"), at 3.    Their analysis required

14   reaching a conclusion "about dose levels and hazards to health of

15   men and domestic animals from 2,4-D and 2,4,5-T based on the

16   medical literature and unpublished data of various research

17   laboratories."   

attendance included officials from

18   various branches of the military and various other government

19   agencies, and representatives from manufacturers Dow Chemical and

20   AmChem Products.   

  The group heard various

21   presentations on the subject.    At the end of the meeting, the

22   participants adopted "acute toxicity" figures for Agent Purple.

23   They concluded
24             in summary and after careful review of
25             toxicological data related to 2,4-D and
26             2,4,5-T plus the knowledge as to the manner
27             these materials have been used for
28             defoliation in military situations in
29             Southeast Asia, . . . that no health hazard

                                     -35-
1              is or was involved to men or domestic animals
2              from the amounts or manner these materials
3              were used . . . .
4    

Thereafter, the government continued to contract with

5    the defendants for purchase of the same and similar defoliating

6    agents.17

7                In other words, the Army examined the toxicology data

8    available to it and concluded that Agent Orange's components,

9    2,4,5-T and 2,4-D -- in the formulation that the government, in

10   its discretion, used when ordering it, and as it was then being

11   manufactured -- posed "no health hazard" and were, at least under

12   the circumstances of international armed conflict, suitable for

13   use in Southeast Asia.   Since the government continued to order

14   Agent Orange after having evaluated its toxicity levels and

15   declared them acceptable, we "cannot second-guess" the

16   manufacturers' decision to produce the agents in the manner that

17   they did.   

.   Because "[t]he imposition of

18   liability under state law would constitute a significant conflict

19   with the [g]overnment's decision" that the defoliants used in

20   Vietnam as they were produced by the defendants posed no


          17
            The government also evaluated the toxic effects of 2,4,5-
     T 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, 

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."   

.   But we

9    concluded in Lewis that the government's order of replacement

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 

("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.    Boyle, 

.   Although the Court used the term "reasonably

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              In Boyle, the alleged state law duty of care was

10   "precisely contrary to the duty imposed by the [g]overnment

11   contract."   

  But the opinion did not hold that a

12   conflicting, express contractual duty was required for the

13   contractor defense to preempt state law.    The issues as framed by

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.    See 

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., 

, 68 (1966) (brackets in

22   original) (emphasis added)); see also 

(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)).

                                     -38-
1              The government's "uniquely federal interest," 

   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.   See Agent

5    Orange I Opt-Out 

("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.   Such judgments involve the nation's geopolitical

9    goals and choices among particular tactics . . . .").    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," 

, 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.   In light

20   of this exercise of discretion, we read Boyle to require

21   displacement of any alleged state law rules to the contrary.18

          18
             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
     demonstrate that the product it delivered to the government was
                                    -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.     Nothing about the presence of dioxin in trace

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.     The plaintiffs' own expert agrees.

9    See Aff. of Harry Ensley (Feb. 6, 2004), at ¶ 20 ("[T]he 2,4,5-T

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 . . . .").      There is no

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.     The second requirement

16   is therefore met as a matter of law.     See 

  420-21 (rejecting same argument made by civilian plaintiffs

18   seeking compensation for injuries allegedly caused by Agent

19   Orange).

20              3.    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

24   were known to [them] but not to the United States."      Boyle, 487


     precisely what the government requested. The third prong is
     likewise unaffected: The government's discretionary
     determination must be a fully informed one.
                                    

.   The plaintiffs make essentially two arguments in

2    this regard: (1) that the defendants knew more about the hazards

3    of 2,4,5-T than did the government, but failed to warn the

4    government about them; and (2) that even if some members of the

5    government had some knowledge regarding the dangers of dioxin,

6    Boyle requires that for the defense to be applicable, the actual

7    contracting officials must have such knowledge, and those

8    involved in the specification process for Agent Orange knew

9    nothing about 2,4,5-T's hazards.

10             The thrust of the defendants' response is that (1) none

11   of the plaintiffs claim an injury of the sort that was a danger

12   known by anyone at the time of Agent Orange's production; (2) as

13   to dangers about which the defendants were aware, the evidence

14   demonstrates as a matter of law that they shared that knowledge

15   with the government; and (3) irrespective of what the defendants

16   knew about Agent Orange in general, the government had far

17   greater knowledge than the defendants about Agent Orange and the

18   dangers posed by its intended use in Vietnam.

19             We doubt that the defendants can establish as a matter

20   of law on the present record either the second or third of their

21   contentions -- that they shared the knowledge of dangers of which

22   they were aware with the government and that the government had

23   far more knowledge about the dangers of Agent Orange in its

24   planned use.   Each is intensely factual and hotly disputed.19    We


          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
                                    -41-
1    think that the record is clear, however, that the defendants did

2    not fail to inform the government of known dangers at the time of

3    Agent Orange's production of the type that would have had an

4    impact on the military's discretionary decision regarding Agent

5    Orange's toxicity.   We therefore conclude that the defendants

6    have established Boyle's third requirement as a matter of law.

7              Boyle mandates that to obtain the benefit of the

8    government contractor defense, a contractor must inform the

9    government about known "dangers in the use of the equipment."

10   

.   But the Boyle Court was silent as to

11   what types of risks rise to the level of dangers that must be

12   disclosed.   Prior to Boyle, we were of the view that

13   manufacturers need disclose to the government only those hazards

14   that (1) are "based on a substantial body of scientific

15   evidence"; and (2) create dangers likely "serious enough to call

16   for a weighing of the risk against the expected military

17   benefits," that is, "substantial enough to influence the military

18   decision to use the product."   Agent Orange I Opt-Out Op., 

.   Until now, neither we nor the Supreme Court has

20   been called upon to decide, post-Boyle, what constitutes


     Agent Orange's use in Vietnam was as great as or greater than
     that possessed by the chemical companies." Agent Orange I Opt-
     Out 

. The Fifth Circuit, relying in large
     part on our Agent Orange I determination, concluded the same.
     See 

. 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 

.

                                     -42-
1    "knowledge" of a "danger" that would trigger a duty to inform as

2    to the "equipment" being ordered.

3               This much is plain:   Boyle did not contemplate

4    requiring disclosure of any and all potential risks by the

5    contractor to the government, irrespective of their relation to

6    the governmental discretionary decision at issue.    The Boyle

7    Court was concerned primarily with protecting the government's

8    ability to assume certain kinds of risks without assuming the

9    costs of liability for those risks.     See 

-

10   12.   It protected this ability by ensuring that where the

11   government accepts such a risk knowingly, a state law that would

12   require finding that same risk unacceptable must be displaced.

13   We therefore do not think that the Boyle Court meant that a

14   defendant seeking the protection of the defense was required to

15   demonstrate that it had shared all known hazards with the

16   government, irrespective of whether those hazards allegedly not

17   conveyed would have had an impact on the government's exercise of

18   discretion about the design defect alleged.    It would be

19   impractical to require that a manufacturer compile and present to

20   the government in advance a list of each and every risk

21   associated with a product it is producing for the government.

22   The operation of a tank or a transport plane -- more so the

23   manufacture and use of a chemical agent -- involves, at the

24   extremities, virtually limitless risks.    Even if it were possible

25   to generate such complete lists, their comprehensiveness would

26   overwhelm government decision makers with largely irrelevant

                                      -43-
1    data, extending the time and costs associated with federal

2    contracting and obscuring those risks most likely to have an

3    impact on contracting decisions.   A rule that required full

4    disclosure of all possible risks to anyone would be contrary to

5    Boyle's underlying rationale of protecting the federal interest

6    in "getting the Government's work done."   

7              We therefore adhere to our pre-Boyle precedent.    We

8    conclude, much as we did before Boyle was decided, that a

9    defendant may satisfy the third Boyle requirement if it

10   demonstrates that it fully informed the government about hazards

11   related to the government's exercise of discretion that were

12   "substantial enough to influence the military decision" made.

13   Agent Orange I Opt-Out 

.   The defendants can

14   demonstrate a fully informed government decision by showing

15   either that they conveyed the relevant known and "substantial

16   enough" dangers, 

the government did not need the

17   warnings because it already possessed that information,

18   see 

-90 ("There is no requirement that

19   appellees inform the Air Force of dangers already known to the

20   Air Force.").

21             Here, the plaintiffs allege that the defendants knew of

22   dioxin's hazards but failed to inform the government of them.

23   The documents to which they cite for this proposition, however,

24   pertain almost universally to the risk of chloracne (a severe

25   skin disease) and liver damage to workers manufacturing Agent

26   Orange.   These risks, the manufacturers thought, were created by

                                    -44-
1    the dioxin "impurity" that resulted from producing

2    trichlorophenol, a component of 2,4,5-T.   See, e.g., V.K. Rowe,

3    Test. for the 2,4,5-T Hr'g (undated), at 28 (referring to dioxin

4    build-up in trichlorophenol manufacture), PA 3501-02.; Mem. of

5    V.K. Rowe, Dow Chemical Co., at 1 (Jun. 24, 1965) ("Rowe Jun.

6    1965 Mem.") (referring to dioxin "impurities" present in

7    trichlorophenol that could be "carried through into the T acid").

8              There is, indeed, ample evidence that the defendants

9    were concerned about the health effects of dioxin, specifically

10   chloracne20 and liver damage,21 on their workers.   Tests were

11   conducted that involved exposing animals to pure dioxin, which



          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
     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.
                                    -45-
1    revealed some "severe response[s]," see Report on the Chloracne

2    Problem Meeting on March 24, 1965 (Mar. 29, 1965) ("Mar. 29

3    Report"), at 5; similar tests performed on humans some years

4    later using a one-percent dioxin solution that resulted in skin

5    lesions, see Letter of Albert M. Kligman to V.K. Rowe, Dow

6    Chemical Co. (Jan. 23, 1968) PA 3732.   At least two defendants

7    considered whether the dioxin in trichlorophenol's manufacture

8    would be manifest in the trichlorophenol itself or in the end

9    products containing trichlorophenol, see, e.g., 

Mem.,

10   Dow Chem. Co. (Mar. 10, 1965) ("Mar. 10 Dow Mem."), Mem. from

11   E.L. Chandler, Diamond Shamrock Co. ("Chandler Mem.") (Jul. 9,

12   1962), but the danger with which they were concerned was limited

13   to the possibility of a chloracne outbreak among those handling

14   it, see Mar. 10 Dow Mem. (discussing possible need to take

15   precautions that would "prevent injury" akin to what had been

16   taken following past incidents of chloracne outbreaks); Chandler

17   Mem. (indicating two commercial customers had claimed chloracne

18   problems with "Diamond esters," one of which had no similar

19   problems with other manufacturers' product).   There is no

20   evidence to which we have been directed or that we have otherwise

21   found that the defendants' knowledge of 2,4,5-T's risks extended

22   to dioxin as a carcinogen, as a toxin that potentially might

23   cause diseases long after exposure, or as a significant health

24   risk (apart from chloracne) to those exposed to herbicides

25   containing 2,4,5-T being used as such, in wartime conditions or



                                   -46-
1    otherwise, except for workers manufacturing them or their

2    component chemicals.22

3               How much the government knew about the workplace

4    dangers associated with production of 2,4,5-T while it was

5    considering the use of and ordering Agent Orange is unclear.    The

6    minutes from the 1963 meeting at Edgewood Arsenal contained

7    references to a lack of workplace incidents involving 2,4-D and

8    2,4,5-T.   April 1963 Meeting Minutes at 4, Appendix A.   The

9    domestic safety record of herbicides containing these two

10   chemicals, including the manufacturers' alleged reports to the

11   Department of Agriculture regarding the absence of ill effects

12   from the herbicides on their workers, was also relayed to the

13   President's Science Advisory Committee in a May 1963 briefing


          22
            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 

("[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., 

, 436 (5th Cir. 2000) (discussing
     relationship between contractor defense and latent defects).
                                    -47-
1    entitled "Possible Health Hazard of Phenoxyacetates as Related to

2    Defoliation Operations in Vietnam."   At least two domestic

3    manufacturers, however, had already experienced chloracne

4    breakouts and other problems among its workers.

5              The documents make clear, however, that the military

6    was concerned about the likely effect on those exposed to the

7    herbicides in the manner in which they were, and were to be, used

8    in Vietnam.   This is hardly surprising.   The principal purpose of

9    Agent Orange was to attempt to protect American troops from

10   attack by limiting vegetation around American facilities and

11   emplacements that could provide cover to enemy combatants.    To

12   that extent, the chemical agents were to be used on American and

13   allied positions, not those of the Viet Cong.

14             And the undisputed record with respect to dangers that

15   were posed by the use of Agent Orange is that during the entirety

16   of the production of Agent Orange, the defendants knew only that

17   it was possible that those handling herbicides containing 2,4,5-T

18   might develop the skin disease chloracne.   The Edgewood

19   participants, including delegates from various branches of the

20   government, military and civil, were aware of this type of risk.

21   See April 1963 Meeting Minutes at 5 (AmChem representative

22   related experiences of "industrial firms making . . . continuous

23   field applications over very large areas" and noted "skin

24   sensitization was the maximum effect produced" in "probably one

25   out of a thousand persons").   Yet the government continued to



                                    -48-
1    order Agent Orange in the manner specified in the procurement

2    contracts.

3                If the government had decided to manufacture Agent

4    Orange, as it considered doing for a period during the late

5    1960s, the defendants might well have been required more fully to

6    inform the government of all the possible dangers associated with

7    the manufacture of the chemical (none of them, incidentally,

8    being malignancies).    The record suggests that they were prepared

9    to do so.    See "Plan 'Orange' Production," Dow Chemical Co. (Apr.

10   20, 1967), at 3 (stating that "[a] serious potential health

11   hazard to production workers is involved in the production of

12   2,4,5-T" and noting that its "knowhow regarding elimination of

13   the hazard" could be made available to the government), attached

14   to Letter from A.P. Beutel, Vice Pres., Dir. of Gov't Affairs,

15   Dow Chemical Co., to H.G. Fredericks, Deputy Dir. of Procurement

16   and Production, Edgewood Arsenal (Apr. 20, 1967).

17               We conclude, however, that no reasonable factfinder

18   could find that the defendants had knowledge of a danger that

19   might have influenced the military's conclusion that "operational

20   use" of Agent Orange posed "no health hazard . . . to men or

21   domestic animals," April 1963 Meeting Minutes, at 3, 5, and its

22   presumably related decision to continue to purchase Agent Orange

23   as it was then being produced by the defendants.    We find nothing

24   in the record to support an assertion that the defendants "cut[]

25   off information highly relevant to . . . discretionary

26   decision[s]" of the government, 

, i.e.,

                                     -49-
1    that they possessed knowledge of dangers unknown to the

2    government that, had they been shared, might have influenced the

3    government's decision regarding the extent of the hazard posed by

4    use of Agent Orange or its choice to continue its use.

5              We acknowledge that there may well have been some

6    aspects of the dangers of Agent Orange resulting from the trace

7    presence of dioxin that personnel of one or more of the

8    defendants were aware of that members of the military may not

9    have known, at least contemporaneously.    We cannot conceive of a

10   long-term relationship between the military and a civilian

11   contractor in which complete equivalence of knowledge at all

12   times in the relationship can be expected or could be

13   established.    But nothing in the record of which we are aware

14   would create a triable issue of fact as to whether there was

15   never-disclosed knowledge of a sort that might have influenced

16   the government's decision-making process regarding Agent Orange

17   as it was used in Vietnam.

18                 Accordingly, we conclude that the defendants have

19   established as a matter of law the third requirement of Boyle.

20             ***

21             We feel obliged to note, finally, what seems to us to

22   be obvious:    The question raised by government contractor defense

23   cases arising in the context of contracts for military agents and

24   equipment is the extent to which contractors are protected when

25   they provide materials designed to assist the government in

26   obtaining what are ultimately military objectives -- in this case

                                     -50-
1    the principal objective being to protect members of the armed

2    forces from enemy attack.   Considerations of the validity of

3    those objectives and the reasons for which the military seeks

4    them are far beyond the competence of this Court.    Our

5    determination as to the protection of a military contractor must

6    be made using the same principles regardless of the nature of the

7    military conflict in which they are pursued, or the extent to

8    which it is controversial or enjoys popular support.

9              II.   Discovery Rulings

10             The plaintiffs also appeal from the discovery

11   limitations imposed by the district court during the months

12   following its initial February 9, 2004, decision granting the

13   defendants' motion for summary judgment.    We review discovery

14   rulings for abuse of discretion.    Wood v. FBI, 

, 82

15   (2d Cir. 2005).

16             As we have noted, the district court's February 9,

17   2004, government contractor defense opinion granted the

18   plaintiffs a six-month discovery period and permission to seek

19   reconsideration of its summary judgment ruling.    Shortly

20   thereafter, the plaintiffs requested "the documents from all of

21   the other litigation that these [defendants] have been involved

22   in, involving the same pesticides and the same type of claims."

23   Tr. of Civil Conference Before The Hon. Joan M. Azrack at 10.

24   They did so without having attempted review of the MDL record.

25   

  The defendants objected on the grounds that documents

26   from other cases were likely to be largely irrelevant to the
                                    -51-
1    question of the applicability of the government contractor

2    defense, duplicative of MDL materials where relevant in any

3    event, and overly burdensome to produce.   

4              On March 2, 2004, Magistrate Judge Azrack denied the

5    request, ruling that the plaintiffs first had to familiarize

6    themselves with the MDL record before requesting additional

7    documents.   On March 19, 2004, Judge Weinstein granted the

8    plaintiffs access to six deposition transcripts from non-MDL

9    cases.

10             The plaintiffs now argue that the district court abused

11   its discretion by limiting the plaintiffs to the documents

12   produced in the MDL during the 1980s and six subsequent

13   depositions.   They assert that in the intervening period, the

14   defendants have been sued by other end-users of their commercial

15   herbicides, citizens exposed to industrial contamination from the

16   herbicides' production, and their workers.   Discovery in these

17   cases, they contend, was more extensive than the discovery

18   against the defendants that occurred during the 1980s and would

19   be germane to the defendants' knowledge of the adverse health

20   effects caused by their herbicides.   They list thirteen other

21   cases involving three defendants (Dow Chemical, Monsanto, and

22   Hercules) and various government hearings from which they suspect

23   discovery and papers would be helpful.   Beyond broad claims that

24   the discovery in those cases was more focused on the defendants'

25   knowledge as compared with the MDL, however, the plaintiffs do

26   not cite specific bases for a conclusion on our part that the

                                    -52-
1    documents would differ materially from the voluminous documents

2    available to them through the MDL.     The defendants do not respond

3    to the plaintiffs' discovery-related arguments.

4              The Federal Rules of Civil Procedure permit parties to

5    "obtain discovery regarding any matter, not privileged, that is

6    relevant to the claim or defense of any party," Fed. R. Civ. P.

7    26(b)(1), but a district court may limit discovery if, among

8    other things,

 9                   it determines that: (i) the
10                   discovery sought is unreasonably
11                   cumulative or duplicative, or is
12                   obtainable from some other source
13                   that is more convenient, less
14                   burdensome, or less expensive; (ii)
15                   the party seeking discovery has had
16                   ample opportunity by discovery in
17                   the action to obtain the
18                   information sought; or (iii) the
19                   burden or expense of the proposed
20                   discovery outweighs its likely
21                   benefit . . . .

22   

   A district court has wide latitude to

23   determine the scope of discovery, and "[w]e ordinarily defer to

24   the discretion of district courts regarding discovery matters."

25   Maresco v. Evans Chemetics, Div. of W.R. Grace & Co., 

  106, 114 (2d Cir. 1992).    A district court abuses its discretion

27   only "when the discovery is so limited as to affect a party's

28   substantial rights."    Long Island Lighting Co. v. Barbash, 779

, 795 (2d Cir. 1985).    A party must be afforded a

30   meaningful opportunity to establish the facts necessary to

31   support his claim.    

             The plaintiffs here have failed to demonstrate that the

2    district court's rulings limiting the scope of discovery

3    constituted an abuse of discretion.     We think the district court

4    reasonably concluded that the MDL files were likely the best

5    source regarding the information the plaintiffs' sought:

6    defendants' knowledge of 2,4,5-T's risks at the time of

7    production.    The plaintiffs' motion to Judge Azrack was an

8    unlimited and unfocused request for many thousands of additional

9    documents, made without any attempt to review what was already

10   available to them or to tailor their request to materials

11   reasonably expected to produce relevant, non-duplicative

12   information.    Accordingly, the district court's limitations were

13   well within its discretion under Rule 26.

14             III.    Stephensons' Motion to Amend

15             Finally, the Stephensons challenge the district court's

16   denial of their motion to amend their complaint.     Federal Rule of

17   Civil Procedure 15(a), as in effect at the time of the court's

18   order, provided that "[a] party may amend the party's pleading

19   once as a matter of course at any time before a responsive

20   pleading is served. . . .     Otherwise a party may amend the

21   party's pleading only by leave of court or by written consent of

22   the adverse party; and leave shall be freely given when justice

23   so requires."    

the determination of a district

24   court to deny a party leave to amend the complaint under Fed. R.

25   Civ. P. 15(a) for abuse of discretion."     McCarthy v. Dun &

26   Bradstreet Corp., 

, 200 (2d Cir. 2007).

                                      -54-
1              Here, at the time of the Stephensons' motion, the

2    defendants had not filed an answer to their complaint.

3    

.    Accordingly, the Stephensons were

4    entitled to amend their complaint as a matter of right without

5    leave of the district court, because "a motion is not a

6    responsive pleading," 6 Charles Alan Wright, Arthur R. Miller &

7    Mary Kay Kane, Federal Practice and Procedure § 1483, at 584 (2d

8    ed. 1990); see 

("Nor does a summary judgment motion

9    made before responding [to plaintiff's complaint] have any effect

10   on a party's ability to amend under the first sentence of Rule

11   15(a)."); accord, e.g., Zaidi v. Ehrlich, 

, 1219-20

12   (5th Cir. 1984); Miller v. Am. Exp. Lines, Inc., 

,

13   218-19 & n.1 (2d Cir. 1963).    Because the defendants had not

14   filed a responsive pleading when the Stephensons sought to amend

15   their complaint, the district court erred in denying the

16   amendment.

17             We conclude, however, that in light of our finding

18   regarding the government contractor defense, the district court's

19   erroneous denial of the Stephensons' motion was harmless.

20   Repleading could not avoid the application of the government

21   contractor defense and, therefore, remand to permit the amendment

22   would be futile.   See Sinicropi v. Nassau County, 

, 62

23   (2d Cir. 1979) (concluding that even if district court had erred

24   in denying motion to amend, any error would be harmless because

25   the proposed amendment would have been barred by res judicata),

26   cert. denied, 

(1979); cf. Unlaub Co., Inc. v.

                                     -55-
1   Sexton, 

, 78 (8th Cir. 1977) (concluding any abuse of

2   discretion by district court in failing to permit defendant to

3   amend his answer was harmless because "[n]one of the matters set

4   forth in the proposed amended answer would affect the result").

5                              CONCLUSION

6             For the foregoing reasons, we affirm the judgments of

7   the district court.




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