LSI 2010 NRD Santa Fe final conference binder 072110.pdf

Allan Kanner of Kanner & Whiteley, L.L.C. Speaker 23: 52
Orange” manufacturers, claiming injuries resulting from exposure to the chemical defoliant. 204
The defendants argued that the case should be removed pursuant to § 1442, asserting the
government contractor defense and immunity under the DPA. 205
Although the court ruled that
the DPA was a “colorable” defense for purposes of removal, the court questioned the validity of
such claims of immunity, stating “[t]here is a dispute as to whether section 707 [of the DPA]
provides immunity against tort suits based in strict liability and negligence of the sort the civilian
plaintiffs wish to pursue. On a previous occasion, this court was inclined to view section 707 as
immunizing contractors only for contract damages, although it did not rule on the issue.” 206
The
“previous occasion” referenced by the Ryan court, was the Eastern District of New York’s
decision in In re “Agent Orange” Product Liability Litigation, in which the defendant
manufacturers argued that, under the DPA, they should not be held liable for complying with
“Agent Orange” production contracts entered into with the United States government. 207
As
noted in Ryan, the Agent Orange court held that immunity under the DPA did not necessarily
extend to liability for torts:
It is indisputable that the statutory ancestors of section 707 only immunized
contractors from liability for breach of contract damages; the law was explicit on
that point . . . It is telling that neither the Defense Production Act itself nor the
legislative history made any reference to tort claims despite the fact that, as
evidenced by this suit, the contracts “rated” under the Act “involve items, the
production of which may . . . give[e] rise to the possibility of an enormous amount
of claims. If section 707 is to be applied to tort claims at all, it should only be read
to bar claims for strict liability, not negligence. The former involve holding a
defendant liable despite the fact that it may not have been at fault and the liability
thus truly “result[s] . . . from compliance with . . . this Act.” Whether this last
204 781 F. Supp. 934 (E.D.N.Y. 1992).
205 Id. at 938.
206 Id. at 945.
207 597 F. Supp. 740, 843 (E.D.N.Y. 1984).
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Law Seminars International | Natural Resource Damages | 07/16/10 in Santa Fe, NM