Full opinion text
MEMORANDUM, ORDER, JUDGMENT of DISMISSAL, and STAY in AGENT ORANGE III WEINSTEIN, Senior District Judge. TABLE OF CONTENTS I. INTRODUCTION.407 II. AGENT ORANGE LITIGATIONS rH A. Generally. t — I B. Agent Orange I. i — l 1. MDL Panel. i — i 2. 1983 Class Certification .. i — I 3. Class and Notice. r — i 4. Settlement. i — 1 5. Post Settlement. i — 1 a. Dismissal of Opt-Out Claims.419 b. Appeals.419 6. Plan for Distribution.420 7. Distribution of Settlement Fund.421 C. Agent Orange II.421 D. Agent Orange III, the Instant Litigation.422 1. District Court .422 2. Appeals.•.423 III. FACTS AS TO GOVERNMENT CONTRACTOR DEFENSE .424 A. Orders from Government.424 B. Awareness by Government of Dangers.426 C. Designation by Government of Specifications.429 IV. LAW.431 A. Summary Judgment Standard.431 B. Government Contractor Defense.432 1. Reasonably Precise Specifications.433 2. Conformity to Specifications.434 3. Warning of Dangers Not Known to Government.435 C. Claims Based on Failure to Warn.436 D. Claims Based on Manufacturing Defects.437 E. Cost of Denying Defense .438 F. Decisions Applying Defense to Agent Orange.439 V. APPLICATION OF LAW TO FACTS .441 VI. CONCLUSION.442 VII. DISCOVERY AND STAY.442 I. Introduction Plaintiffs, Vietnam veterans, sue manufacturers who supplied Agent Orange, a herbicide used in the 1960s by the United States armed forces as a spray, primarily from aircraft, to reduce foliage behind which the enemy might lurk. They allege that they suffer from diseases that have just recently become apparent, and that the cause of their ailments is the negligence of the manufacturers in delivering to the government Agent Orange containing an unnecessary toxic substance—dioxin. Mistakes in and of Vietnam can be attributed to the United States under at least three presidents. Cf. “The Fog of War” (Sony Classics 2003) (former Secretary of Defense Robert S. McNamara on Agent Orange and related matters). These errors do not form the basis for a tort action by these plaintiffs against these defendants. In earlier waves of such suits in the 1970s, 1980s and 1990s, the courts concluded that none of the available evidence would support a finding to a more-probable-than-not standard of causality between exposure to Agent Orange and disease (except for a quickly discoverable and curable form of skin irritation, chloracne). The scientific basis for that conclusion of lack of any substantial proof of causality, either general or specific to individuals, remains much the same. See Institute of Medicine, Veterans and Agent Orange: Update 2002 (2003). Congress has now provided for payment to veterans of compensation for a series of diseases presumptively caused by exposure to Agent Orange. See, e.g. McMillan v. Togus Regional Office, Dep’t of Veterans Affairs, 294 F.Supp.2d 305 (E.D.N.Y.2003) (“Based on statistical associations, the Academy’s studies have resulted in the creation of presumptions that certain diseases are attributable to Agent Orange for purposes of Veteran’s compensation. These ‘associations’ are not equivalent to cause in a legal sense for such purposes as mass tort liabilities. These presumption decisions are made by the Secretary for Veterans Affairs. A showing of cause to any degree of probability is not required. The result is summarized in the privately funded National Veterans Legal Services Program, Self-Help Guide on Agent Orange, Advice for Vietnam Veterans and their Families (2000 plus supplement) (‘Self-Help Guide’), financed, in part, by this court from proceeds from an Agent Orange Settlement Fund created by contributions from manufacturers of Agent Orange.”). Some three hundred and thirty million dollars was distributed to veterans and their families from an Agent Orange Settlement Fund resulting from a class action. Payments into the fund of one hundred and eighty million dollars were made by defendants in the instant case in settlement of the class action designed to terminate any liability they might have — -present or future — for the production of Agent Orange. See Deborah E. Greenspan, Special Master, In Re "Agent Orange" Product Liability Litigation: Final Report of the Special Master on the Distribution of the Agent Orange Settlement Fund (1997) (“Final Report”). A total of 105,817 individual veterans’ claims were processed, of which 52,220 were approved for payment from the Fund. Id. at 30. 24,776 individual appeals were decided by the court and Special Master for Appeals. The Class Assistance Program for members of veterans’ families granted funds to programs that served 239,110 members of Vietnam veterans’ families. Id. at 41. Funds to many Vietnam veterans in Australia and New Zealand were distributed by committees in those countries. In the present suit, plaintiff Joe Isaac-son alleges that he has non-Hodgkin’s lymphoma and other ailments that he attributes to exposure to Agent Orange while serving as a crew chief for an attack fighter squadron in Vietnam from 1968 to 1969; his wife sues for loss of consortium. Plaintiff Daniel Raymond Stephenson alleges that he has multiple myeloma, a cancer of the bone marrow, from exposure to Agent Orange while serving both on the ground in Vietnam from 1965 to 1966 and as a helicopter pilot from 1969 to 1970; his wife and children sue for loss of consortium. These diseases may be recognized by the Veterans Administration as presumptively connected to Agent Orange exposure. See Self-Help Guide at 5-6. Under the government program, both plaintiff veterans might qualify for a veteran’s disability benefit regardless of when these diseases first appeared. Id. Both veterans allege that they discovered their diseases after the Agent Orange Fund had been fully expended and it was too late to apply for payment as a member of the class; that they had not been properly represented as members of the class; and that the settlement did not bind them. Plaintiffs claims are based on theories of strict products liability in tort, including design defects, manufacturing defects, failure to warn, breach of implied warranty, negligence, fraud, and misrepresentation. They seek compensatory and punitive damages. All of the claims center on the presence of 2,3,7,8-tetrachlorodibenzo para dioxin (“dioxin”) in Agent Orange. Defendants manufactured and sold Agent Orange to the United States government for use by the military as a defoliant in Vietnam pursuant to contracts they entered into with the government at various times during the 1960s. They contend that dioxin contamination was known to, and considered by, the government in light of all the information then available of the possible hazards it posed, at the time Agent Orange was ordered from defendants and used in Vietnam. They claim that they were ordered by the government to supply the product according to government specifications; that the material supplied by the defendants was manufactured, mixed, used and marked on government orders and under its supervision; that the government was fully aware of dangers; and that the warnings they would have used had a similar product been sold commercially by them were omitted by government direction — in short, that the government contractor defense applies. Because the present plaintiffs discovered what they believe to be their Agent Orange-related diseases after the Agent Orange Fund was fully expended, the appellate courts have now held that these post-Fund-discovery plaintiffs are not bound by the class action settlement that created the Fund. Stephenson, v. Dow Chemical, 273 F.3d 249 (2d Cir.2001), aff'd as to the Stephensons by an equally divided k to I court and vacated as to the Isaacsons in light of Syngenta Crop Protection, Inc. v. Henson, in Dow Chemical Co. v. Stephenson, 539 U.S. 111, 123 S.Ct. 2161, 156 L.Ed.2d 106 (2003). Defendants might have moved for summary judgment on the ground that plaintiffs could not prove causality, or for other reasons. Instead, they have chosen to seek dismissal based only on the government contractor defense. “If a subsequent summary judgment motion raises different issues, however, including grounds different from those raised in the first motion, it is considered proper and will be reviewed and decided by the court.” 3 Moore’s Federal Practice § 56.10[7]. Two procedural approaches are at war. First, it is desirable to provide a court with all possible credible bases for disposing of a case on the merits at one time in order to avoid the necessity of successive motions. Second, it is useful to minimize the burden of a litigation by resolving it on a theory requiring the least expense and consumption of time even though another theory could be established by the available proof. Such tactical courage is unusual since it risks a loss on appeal should only one member of the Court of Appeals panel prefer the basis proffered for finding in the movants’ favor, while another would have favored only another basis which was not put forward, and the third member would reject both. Here the second path is defensible. Were the motion for summary judgment made on the ground of lack of plausible causality evidence sufficient to support a verdict, enormous epidemiological and exposure data as well as details of plaintiffs’ service in Vietnam and medical history might need to be explored in pretrial proceedings at great expense to the parties. Dauberi and other hearings would probably be required. It is much simpler to decide the case in the first instance on the dispositive government contractor defense. As indicated below, Part VII, infra, the court is tentatively ruling on the motion for summary judgment even though it is allowing plaintiffs additional time for discovery. Plaintiffs’ contention that they have faced difficulties in obtaining information sufficient to contest the motion appears based in part on the fact that many of the critical acts occurred many years ago. By tentatively deciding the motion now, and permitting discovery over the period requested by plaintiffs, the court focuses the parties’ attention on the critical issues and evidence. Cf. Mason Tenders Dist. Council Pension Fund v. Messera, 958 F.Supp. 869, 894 (S.D.N.Y.1997) (denying request for further discovery when party lacked specificity as to what additional information was required). Normally a court will postpone decision on a summary judgment motion until the completion of discovery. If a court finds, however, that a party cannot present facts sufficient to oppose the motion, it may inter alia “make such other order as is just.” Fed.R.CivJP. 56(f); see also 3 Moore’s Federal Practice § 56.10[8][a]. The rest of this memorandum is divided as follows: Part II recounts briefly prior Agent Orange litigation; Part III states the facts relating to the government contractor defense; Part IV sets out the law on the government contractor defense; Part V applies the law to the facts; Part VI is the Conclusion dismissing the complaints; and Part VII stays the judgment until the completion of further discovery. II. Agent Orange Litigations Litigation arising from claims that Vietnam veterans contracted diseases as a result of defendants’ supplying Agent Orange has been extensive. It is briefly summarized below. The docket sheets in this court under MDL 381 (Agent Orange) list almost 17,000 entries (Hon. Sol Schreiber and Hon. Shira A. Scheindlin supervising discovery). In addition there are: hundreds of thousands of inquiries, applications and decisions of the Agent Orange insurance facility; tens of thousands of administrative appeals (Special Master for Appeals W. Bernard Richland); decisions in the operation of the payment plan (Special Masters Kenneth R. Fein-berg and Deborah Greenspan); decisions and minutes of the Advisory Committee to the Court of Vietnam Veterans (Charles Timothy Hagel et al. advisors); decisions and minutes of the Advisory Committees on Banks and Investments (Richard J. Davis et al. advisors); reports of the banks, investment advisers, the insurance facility, and others; extensive correspondence, books, training guides, brochures, reports and video cassettes for those providing services to families under the direction of the court created Agent Orange facility which dealt with families and social agencies in all the states, Puerto Rico and United States dependencies (Dennis K. Rhodes, administrator); and correspondence reports and orders in connection with services to Australian and New Zea-land veterans. These huge files are available in the archival storage of this court and in the National Archives. See Final Report. A. Generally The current controversy is part of a continuing litigation whose first phase ended in settlement after six years of effort by many lawyers and court officers — special masters, magistrates, and judges. Among the hundreds of published and unpublished decisions, see Dow Chemical Co. v. Stephenson, 539 U.S. 111, 123 S.Ct. 2161, 156 L.Ed.2d 106 (2003) (per curiam); Dow Chemical Co. v. Ryan, 484 U.S. 953, 108 S.Ct. 344, 98 L.Ed.2d 370 (1987); Stephenson v. Dow Chemical Co., 346 F.3d 19 (2d Cir.2003); Stephenson v. Dow Chemical Co., 273 F.3d 249, 51 Fed. R. Serv.3d 334 (2d Cir.2001); Miller v. Diamond Shamrock Co., 275 F.3d 414 (5th Cir.2001) (holding that plaintiffs claims were barred by the government contractor defense); In re “Agent Orange” Prod. Liab. Litig., 1999 WL 1045197 (E.D.N.Y.1999); Winters v. Diamond Shamrock Chemical Co., 149 F.3d 387 (5th Cir.1998) (holding that plaintiffs’ claims were barred by the government contractor defense); Jenkins v. Agent Orange Settlement Fund, 131 F.3d 131 (2d Cir. Dec 17, 1997) (unpublished disposition); Addington v. Agent Orange Veterans Payment Program, 131 F.3d 130 (2d Cir. Nov 24, 1997) (unpublished disposition); Gough v. Agent Orange Settlement Fund, 104 F.3d 353 (2d Cir. Nov 05, 1996) (unpublished disposition); In re Agent Orange Prod. Liab. Litig., 996 F.2d 1425 (2d Cir.1993); Ryan v. Dow Chemical Co., 781 F.Supp. 902 (E.D.N.Y.1991) (plaintiffs cannot collaterally attack prior settlement); In re Ivy, 901 F.2d 7 (2d Cir.1990) (MDL Panel had jurisdiction to transfer); In re “Agent Orange” Prod. Liab. Litig., 689 F.Supp. 1250 (E.D.N.Y.1988) (approved settlement and allowed opt-out claimants to be included in class); In re “Agent Orange” Prod. Liab. Litig., 821 F.2d 139, 56 U.S.L.W.2028, 7 Fed. R. Serv.3d 1091 (2d Cir.1987) (no abuse of discretion in unsealing documents); In re “Agent Orange” Prod. Liab. Litig., 818 F.2d 179, 7 Fed.R.Serv.3d 1078 (2d Cir.1987) (appeal reviewing settlement plan); In re “Agent Orange” Prod. Liab. Litig., 818 F.2d 194 (2d Cir.1987) (affirming dismissal of Federal Tort Claims Act claims of servicemen); In re “Agent Orange” Prod. Liab. Litig., 818 F.2d 204 (2d Cir.1987); In re “Agent Orange” Prod. Liab. Litig., 818 F.2d 210 (2d Cir.1987); In re “Agent Orange” Prod. Liab. Litig., 818 F.2d 216 (2d Cir.1987); In re “Agent Orange” Prod. Liab. Litig., 818 F.2d 226 (2d Cir.1987); In re “Agent Orange” Prod. Liab. Litig., 475 F.Supp. 928, 206 U.S.P.Q.2d (BNA) 378 (E.D.N.Y.1979) (dismissing federal constitutional and statutory claims, reserving possible federal common law claims, denying motion to limit communications to third parties); In re “Agent Orange” Prod. Liab. Litig., 506 F.Supp. 737 (E.D.N.Y.1979) (finding subject matter jurisdiction on basis of federal common law issues), rev’d, 635 F.2d 987 (2d Cir.1980), cert. denied, 454 U.S. 1128, 102 S.Ct. 980, 71 L.Ed.2d 116 (1981); In re “Agent Orange” Prod. Liab. Litig., 1980 WL 324478, 28 Fed.R.Serv.2d 993 (E.D.N.Y.1980) (granting motion of terminally ill plaintiff to videotape his own deposition); In re “Agent Orange” Prod. Liab. Litig., 506 F.Supp. 750 (E.D.N.Y.1980) (ordering government to refrain from destruction of documents pursuant to internal procedure); In re “Agent Orange” Prod. Liab. Litig., 506 F.Supp. 753 (E.D.N.Y.1980) (various orders concerning modification of complaint and answers); In re “Agent Orange” Prod. Liab. Litig., 506 F.Supp. 754 (E.D.N.Y.1980) (ordering videotaped deposition); In re “Agent Orange” Prod. Liab. Litig., 506 F.Supp. 756 (E.D.N.Y.1980) (establishing agenda for status conference); In re “Agent Orange” Prod. Liab. Litig., 506 F.Supp. 757 (E.D.N.Y.1980) (requiring plaintiffs to file individual notices to retain right to bring actions against federal government); In re “Agent Orange” Prod. Liab. Litig., 506 F.Supp. 762 (E.D.N.Y.1980) (dismissing claims against government as third-party defendant, establishing case management plan, conditionally certifying Rule 23(b)(3) class, and denying defendants’ motion for summary judgment); In re “Agent Orange” Prod. Liab. Litig., 91 F.R.D. 616 (E.D.N.Y.1981) (establishing committee to review procedures for videotaped depositions); In re “Agent Orange" Prod. Liab. Litig., 91 F.R.D. 618 (E.D.N.Y.1981) (allowing motion to amend caption, denying motion to amend complaint, denying defendants’ motion for summary judgment on government contractor defense); In re “Agent Orange” Prod. Liab. Litig., 93 F.R.D. 514 (E.D.N.Y.1982) (allowing defendant to proceed with scheduled destruction of documents); In re “Agent Orange” Prod. Liab. Litig., 534 F.Supp. 1046 (E.D.N.Y.1982) (denying reargument on dismissal of government as third-party defendant, denying interlocutory appeal, provisionally dismissing claims against non-manufacturer defendants, denying motion to form steering committee for plaintiffs’ counsel, denying motion for decertification of class, deferring decision on statute of limitations issues, and establishing elements of government contractor defense); In re “Agent Orange” Prod. Liab. Litig., 537 F.Supp. 977 (E.D.N.Y.1982) (provisionally dismissing claims against non-manufacturer defendant); In re “Agent Orange” Prod. Liab. Litig., 94 F.R.D. 173 (E.D.N.Y.1982) (appointing special master to supervise discovery); In re “Agent Orange” Prod. Liab. Litig., 544 F.Supp. 808 (E.D.N.Y.1982) (denying motion to disqualify defense attorneys; provisionally dismissing claims against certain non-manufacturer defendants, and denying motion to implead suppliers); In re “Agent Orange” Prod. Liab. Litig., 95 F.R.D. 191 (E.D.N.Y.1982) (clarifying that denial of motion to implead suppliers was without prejudice); In re “Agent Orange” Prod. Liab. Litig., 95 F.R.D. 192 (E.D.N.Y.1982) (affirming special master’s ruling as to location of depositions); In re “Agent Orange” Prod. Liab. Litig., 96 F.R.D. 578 (E.D.N.Y.1983) (adopting special master’s protective order for discovery of government documents); In re “Agent Orange” Prod. Liab. Litig., 96 F.R.D. 582 (E.D.N.Y.1983) (rejecting first amendment challenge to protective order); In re “Agent Orange" Prod. Liab. Litig., 96 F.R.D. 587 (E.D.N.Y.1983) (adopting with modifications special master’s order regarding videotaped depositions); In re “Agent Orange" Prod. Liab. Litig., 97 F.R.D. 424 (E.D.N.Y.1983) (adopting protective order); In re “Agent Orange” Prod. Liab. Litig., 97 F.R.D. 424 (E.D.N.Y.1983) (adopting special master’s protective order for Department of Agriculture documents); In re “Agent Orange” Prod. Liab. Litig., 97 F.R.D. 427 (E.D.N.Y.1983) (adopting special master’s procedures for discovery of documents possibly subject to executive privilege); In re “Agent Orange” Prod. Liab. Litig., 97 F.R.D. 541 (E.D.N.Y.1983) (denying interlocutory appeal of decision deferring certification of class and determination of appropriate notice); In re “Agent Orange” Prod. Liab. Litig., 97 F.R.D. 542 (E.D.N.Y.1983) (affirming special master’s denial of discovery request); In re “Agent Orange” Prod. Liab. Litig., 565 F.Supp. 1263 (E.D.N.Y.1983) (granting summary judgment for four defendants on government contractor defense; denying summary judgment for other defendants); In re “Agent Orange” Prod. Liab. Litig., 98 F.R.D. 522 (E.D.N.Y.1983) (adopting order of special master concerning discovery of government documents); In re “Agent Orange” Prod. Liab. Litig., 98 F.R.D. 539 (E.D.N.Y.1983) (adopting special master’s order to unseal documents in connection with summary judgment motions); In re “Agent Orange” Prod. Liab. Litig., 98 F.R.D. 554 (E.D.N.Y.1983) (denying request for reconsideration of order to unseal documents); In re “Agent Orange” Prod. Liab. Litig., 98 F.R.D. 557 (E.D.N.Y.1983) (ordering special master to review discovery decisions in light of court’s decision to try causality and liability issues);' In re “Agent Orange” Prod. Liab. Litig., 98 F.R.D. 558 (E.D.N.Y.1983) (approving special master’s order of additional discovery to clarify circumstances surrounding document destruction); In re “Agent Orange” Prod. Liab. Litig., 570 F.Supp. 693 (E.D.N.Y.1983) (clarifying program for discovery); In re “Agent Orange” Prod. Liab. Litig., 571 F.Supp. 481 (E.D.N.Y.1983) (granting motion of law firm to be relieved as lead counsel for plaintiffs and appointing new plaintiffs’ management committee); In re “Agent Orange” Prod. Liab. Litig., 99 F.R.D. 338 (E.D.N.Y.1983) (approving discovery recommendations of special master); In re “Agent Orange” Prod. Liab. Litig., 99 F.R.D. 645 (E.D.N.Y.1983) (lifting prior protective order applying to government documents obtained during discovery); In re “Agent Orange” Prod. Liab. Liab., 100 F.R.D. 718 (E.D.N.Y.) (certifying Rule 23(b)(3) and Rule 23(b)(1)(B) classes), appeal denied, 100 F.R.D. 735 (E.D.N.Y.1983), mandamus denied, 725 F.2d 858 (2d Cir.1984), aff'd, 818 F.2d 145 (2d Cir.1987), cert. denied, 484 U.S. 1004, 108 S.Ct. 695, 98 L.Ed.2d 648 (1988); In re “Agent Orange” Prod. Liab. Litig., 100 F.R.D. 778 (E.D.N.Y.1984) (denying motion to implead suppliers of chemical components); In re “Agent Orange” Prod. Liab. Litig., 580 F.Supp. 690 (E.D.N.Y.1984) (finding national consensus law on issues of liability, government contractor defense and punitive damages); In re “Agent Orange” Prod. Liab. Litig., 580 F.Supp. 1242 (E.D.N.Y.1984) (reinstating third-party plaintiffs’ claim for indemnity against government with respect to claims of veterans’ wives and children), mandamus denied, 733 F.2d 10 (2d Cir.1984), appeal denied, 745 F.2d 161 (2d Cir.1984), cert. denied, 465 U.S. 1067, 104 S.Ct. 1417, 79 L.Ed.2d 743 (1984); In re “Agent Orange” Prod. Liab. Litig., 101 F.R.D. 97 (E.D.N.Y.1984) (ordering in camera disclosure of names of scientists deleted from government report); In re “Agent Orange” Prod. Liab. Litig., 597 F.Supp. 740 (E.D.N.Y.1984) (approving settlement of class action subject to fairness hearings); In re “Agent Orange” Prod. Liab. Litig., 603 F.Supp. 239 (E.D.N.Y.1985) (dismissing claims of veterans’ wives and children against government), aff'd in part, vacated in part, 818 F.2d 201 (2d Cir.1987), cert. denied, 484 U.S. 1004, 108 S.Ct. 695, 98 L.Ed.2d 647 (1988); In re “Agent Orange” Prod. Liab. Litig., 104 F.R.D. 559 (E.D.N.Y.1985) (modifying protective orders); In re “Agent Orange” Prod. Liab. Litig., 105 F.R.D. 577 (E.D.N.Y.1985) (affirming with modification magistrate’s order that defendants in two non-settled cases produce deponents); In re “Agent Orange” Prod. Liab. Litig., 611 F.Supp. 1221 (E.D.N.Y. 1985) (dismissing defendants’ claim for indemnity from government for settlement payments to veterans’ families), aff'd, 818 F.2d 204 (2d Cir.1987); In re “Agent Orange” Prod. Liab. Litig., 611 F.Supp. 1223 (E.D.N.Y.1985) (ruling as to admissibility of opt-out plaintiffs’ scientific evidence and expert testimony and granting summary judgment in favor of defendants for plaintiffs’ failure to establish causation), aff'd, 818 F.2d 187 (2d Cir.1987), cert. denied, 487 U.S. 1234, 108 S.Ct. 2898, 101 L.Ed.2d 932 (1988); In re “Agent Orange” Prod. Liab. Litig., 611 F.Supp. 1267 (E.D.N.Y.1985) (same), aff'd, 818 F.2d 187 (2d Cir.1987), cert. denied, 487 U.S. 1234, 108 S.Ct. 2898, 101 L.Ed.2d 932 (1988); In re “Agent Orange” Prod. Liab. Litig., 611 F.Supp. 1285 (E.D.N.Y.1985) (dismissing action brought by Hawaiian civilians), aff'd in part, vacated in part, 818 F.2d 210 (2d Cir.1987), cert. denied, 484 U.S. 1004, 108 S.Ct. 695, 98 L.Ed.2d 648 (1988); In re “Agent Orange” Prod. Liab Litig., 611 F.Supp. 1290 (E.D.N.Y.1985) (dismissing claim of civilian physician for failure to demonstrate exposure to herbicides), aff'd in part, vacated in part, 818 F.2d 210 (2d Cir.1987), cert. denied, 484 U.S. 1004, 108 S.Ct. 695, 98 L.Ed.2d 648 (1988); In re “Agent Orange” Prod. Liab. Litig., 611 F.Supp. 1296 (E.D.N.Y.1985) (determining class-action plaintiffs’ attorney fees and reaffirming settlement); aff'd in part, rev’d in part, 818 F.2d 226 (2d Cir.1987); In re “Agent Orange” Prod. Liab. Litig., 611 F.Supp. 1396 (E.D.N.Y.1985) (establishing plan for disbursement of settlement fund pending appeals), aff'd in part, rev’d in part, 818 F.2d 179 (2d Cir.1987); In re “Agent Orange” Prod. Liab. Litig., 611 F.Supp. 1452 (E.D.N.Y.1985) (denying motion to set aside attorney fee-sharing arrangement), rev’d in part, 818 F.2d 216 (2d Cir.), cert. denied, 484 U.S. 926, 108 S.Ct. 289, 98 L.Ed.2d 249 (1987); In re “Agent Orange” Prod. Liab. Litig., 618 F.Supp. 623 (E.D.N.Y.1985) (approving settlement of class action and dismissing with prejudice claims of class members) (Special Masters for Settlement Kenneth R. Fein-berg and David I. Shapiro); In re “Agent Orange” Prod. Liab. Litig., 618 F.Supp. 625 (E.D.N.Y.1985) (approving plan for Australia and New Zealand); In re “Agent Orange” Prod. Liab. Litig., 787 F.2d 822 (2d Cir.1986) (dismissing claims of non-class plaintiffs against defendant not named in complaints); In re “Agent Orange” Prod. Liab. Litig., 800 F.2d 14 (2d Cir.1986) (denying motion to disqualify plaintiffs’ attorneys from appealing settlement); In re “Agent Orange” Prod. Liab. Litig., 804 F.2d 19 (2d Cir.1986) (denying repeal of stay on settlement funds pending appeal); In re “Agent Orange” Prod. Liab. Litig., 689 F.Supp. 1250 (E.D.N.Y.1988) (modifying class assistance program as required by 818 F.2d 179 and granting opt-out plaintiffs opportunity to opt into class for purposes of benefitting from settlement fund). See also other Agent Orange cáses: Ryan v. Dow Chemical Co., 781 F.Supp. 934 (E.D.N.Y.1992); Ryan v. Dow Chemical Co., 1991 WL 243311 (E.D.N.Y., Nov 12, 1991); In re Agent Orange Fee Application of Yannacone, 139 F.R.D. 581 (E.D.N.Y.1991); Ryan v. Dow Chemical Co., 1991 WL 200866, 60 U.S.L.W. 2284 (E.D.N.Y.1991). For further information, see VA Home Page, Agent Orange and Vietnam Veterans, Agent Orange Helpline, e-mail GW/AO Helpline@vba.va.gov (2003); Jeanne Mager Stellman, Steven D. Stellman, Tracy Weber, Carrie Tomasallo, Andrew B. Stellman and Richard Christian, Jr. A Geographic Information System for characterizing exposure to Agent Orange and other Herbicides in Vietnam, III Environmental Health Perspectives 321(2003); Institute of Medicine, Veterans and Agent Orange: Update 2002 (2002); Institute of Medicine, Veterans and Agent Orange: Update 2000 (2000); Leonard Rivkin & Jeffrey Silberfeld, From Auto Accidents to Agent Orange (2000); Nat’l Veterans Legal Services Program, Self-Help Guide on Agent Orange: Advice for Vietnam Veterans & their Families (2000); Institute of Medicine, Veterans and Agent Orange: Update 1998 (1998); Deborah E. Greenspan, Special Master, In re “Agent Orange” Product Liability Litigation: Final Report of the Special Master on the Distribution of the Agent Orange Settlement Fund (1997); Institute of Medicine, Veterans and Agent Orange: Update 1996 (1996); Individual Justice in Mass Tort Litigation (1995); The Legacy of Vietnam Veterans and their Families: Survivors of War: Catalysts for Change: Papers from the 1994 National Symposium (Dennis K. Rhoades ed., 1995); Institute of Medicine, Veterans and Agent Orange: Health Effects of Herbicides Used in Vietnam (1994); Michael Fumento, Science Under Siege: Balancing Technology and the Environment (1993); Ronald E. Gots, Toxic Risks: Science, Regulation, and Perception (1993); Peter H. Schuck, Fashioning a Settlement: Agent Orange on Trial, in The Responsible Judge: Readings in Judicial Ethics (John T. Noonan & Kenneth I. Winston, eds., 1993); Michael E. Wildha-ber, Veteran’s Benefit Manual: An Advocate’s Guide to Representing Veterans and their Dependents (1991); Kenneth R. Feinberg, Special Master, In Re “Agent Orange” Product Liability Litigation: Report of the Special Master Pertaining to the Disposition of the Settlement Fund (1989); Peter H. Schuck, Agent Orange on Trial: Mass Toxic Disasters in the Courts (1986); Kenneth R. Feinberg, Special Mastter, In Re “Agent Orange” Product Liability Litigation: Report of the Special Master Pertaining to the Disposition of the Settlement Fund (1985); In Re “Agent Orange” Product Liability Litigation: Preliminary Memorandum and Order on Settlement (1984); New York State Temporary Commission on Dioxin Exposure, Findings, Conclusions and Recommendations of the New York State Temporary Commission on Dioxin Exposure (1983); Carol Van Strum, A Bitter Fog: herbicides and human rights (1983); Fred Wilcox, Waiting for an Army to Die: The Tragedy of Agent Orange (1983); Procedural History of the Agent Orange Products Liability Litigation, 52 Brook. L.Rev. 335 (1986); Jeanne Mager Stell-man, Steven D. Stellman, Richard Christian, Tracy Weber and Carrie Tomasallo, The Extent and Patterns of Usage of Agent Orange and other Herbicides in Vietnam, 422 Nature 681 (2003); Richard A. Nagareda, Closure in Damage Class Settlements: The Godfather Guide to Opt-Out Rights, 2003 U. Chi. L. Forum 141, 156; Joseph M. Guzzardo & Jennifer L. Monachino, Gulf War Syndrome — Is Litigation the Ansiuer?: Learning Lessons from In re Agent Orange, 10 St. John’s J. Leg. Comment. 673 (1995); Aaron D. Twerski, With Liberty and Justice for All: An Essay on Agent Orange and Choice of Lato, 52 Brook. L.Rev. 341 (1986); Peter H. Schuck, The Role of Judges in Settling Complex Cases: The Agent Orange Example, 53 U. Chi. L.Rev. 337 (1986); Paula Batt Wilson, Note, Attorney Investment in Class Action Litigation: The Agent Orange Example, 45 Case W. Res. L.Rev. 291 (1994); Michael D. Green, Expert Witnesses and Sufficiency of Evidence in Toxic Substances Litigation: The Legacy of Agent Orange and Bendectin Litigation, 86 Northwestern Univ. L.Rev. 643 (1992); Harvey P. Berman, The Agent Orange Veteran Payment Program, 53 L. & Contemp. Probs. 49 (1990); Robert L. Rabin, Tort System on Trial: The Burden of Mass Toxics Litigation, 98 Yale L.J. 813 (1989) (reviewing Peter Schuck, Agent Orange on Trial: Mass Toxic Disasters in the Court (1987)); Charles Nesson, Agent Orange Meets the Blue Bus: Factfinding at the Frontier of Knowledge, 66 B.U. L.Rev. 521 (1986); Paul Sherman, Agent Orange and the Problem of the Indeterminate Plaintiff, 52 Brook. L.Rev. 369 (1986). B. Agent Orange I On February 19, 1979, the plaintiffs filed a 162-page complaint on behalf of named and unnamed Vietnam veterans and members of their families who claimed to have been injured as a result of their exposure to various phenoxy herbicides, including Agent Orange. See Dowd v. Dow Chemical Company, 79 CV 467 (E.D.N.Y.1979). Plaintiffs alleged, among other things, that defendants negligently manufactured and sold to the government for use in Vietnam herbicides that contained 2,3,7,8 tetrachlo-rodibenzo-p-dioxin (TCDD or dioxin). Plaintiffs relied on theories of strict liability, breach of warranty, intentional tort and nuisance. According to plaintiffs, the veterans’ exposure to dioxin-contaminated herbicides in Vietnam resulted in a wide variety of systemic diseases including soft tissue sarcoma and porphyria cutanea tar-da as well as miscarriages to veterans’ wives and birth defects in their children. Similar eases were pending in other jurisdictions. See, e.g., United States v. Vertac Chemical Corp., 489 F.Supp. 870, 876 (E.D.Ark.1980); Green v. Dow Chem. Co., No. 79-651 (N.D.Ill.1979); Chapman v. Dow Chemical, No. 79-652 (N.D.Ill.1979); Citizens Against Toxic Sprays, Inc. v. Bergland, 428 F.Supp. 908, 914 (D.Or.1977); R. Bovey & A. Young, The Science of 2,4,5-T and Associated Phenoxy Herbicides 134 (1980). All cases were transferred to this district by the Judicial Panel on Multidistrict Litigation (“MDL Panel”) for consolidation of pretrial proceedings. State cases were removed to the federal courts on various theories. Almost 600 cases originally filed in state and federal district courts throughout the country were transferred here for inclusion in this multidistrict litigation, MDL No. 381 (Agent Orange). There were several actions involving claims by civilians. The civilian plaintiffs included: a proposed class of civilians allegedly exposed to phenoxy herbicides in Vietnam, Thornton v. Dow, C-81-005-JLQ (D.Wash.1981); a proposed class of thirty-five thousand civilian residents of the County of Kaui, State of Hawaii, who alleged exposure to Agent Orange and other phenoxy herbicides during a testing program conducted in 1967, Fraticelli v. Dow, CV No. 82-0021 (D.Haw.1982); civilian employees of defense contractors who were allegedly exposed to phenoxy herbicides in Vietnam in 1967, Kjome v. Dow, CV 83C-3876 (N.D.Ill.1983) and Vaughan v. Dow, CV No. 83-1440 (D.Ariz.1983); a medical doctor who served in Vietnam, in the employ of the State Department, Hogan v. Dow, CV-R-81-410ECR (D.Nev.1981); and a civilian employee of a contractor exposed to Agent Orange in 1975, Lester v. Dow, CV No. H-80-587 (S.D.Tex.1980). These and similar actions filed by various civilian plaintiffs were also transferred to this district by the MDL Panel. Civilian cases were ultimately dismissed. 1. MDL Panel Since 1968, section 1407 of title 28 of the United States Code has provided a means for the MDL panel’s transfer of related cases pending in different federal district courts to a single district judge for pretrial proceedings. See 28 U.S.C § 1407. The savings in time and money when many cases are investigated and prepared together for disposition can be enormous. Mass tort actions are especially suited to MDL treatment. See, e.g., In re Silicone Gel Breast Implants Prods. Liab. Litig., 793 F.Supp. 1098 (J.P.M.D.L.1992); In re Air Crash Disaster at Boston, Massachusetts on July 31, 1973, 399 F.Supp. 1106 (D.Mass.1975); In re “A. H. Robins Co., Inc., Daikon Shield” IUD Products Liab. Litig., 406 F.Supp. 540 (J.P.M.D.L.1975) (consolidation for pretrial proceedings of actions involving claims for damages arising out of use of intrauterine contraceptive devices); In re Celotex Corp. “Technifoam” Products Liab. Litig., 68 F.R.D. 502 (J.P.M.D.L.1975) (transfer of actions in which plaintiffs claimed fire losses and structural damages as a result of defects in defendant’s insulation material). While a trial in this district of all the Agent Orange cases was once contemplated, the transferee count is not now authorized to try cases transferred from another district by the MDL panel on the basis of that transfer alone. See Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 118 S.Ct. 956, 140 L.Ed.2d 62 (1998); David F. Herr, Annotated Manuel for Complex Litigation 3d at 31.132 (2002). Many MDL cases are, however, still terminated in the transferee court by motion, settlement or on the basis of other forms of transfer. The transferee court has broad powers in matters relating to management of the multidistrict case before it. Weigel, The Judicial Panel on Multidistrict Litigation, Transferor Courts and Transferee Courts, 78 F.R.D. 575, 584 (1978). Once a case has been transferred by the Panel, the transferee court assumes complete jurisdiction for pretrial purposes. It has authority to decide all pretrial motions including dispositive motions such as those for summary judgment or approval of a settlement. Id. at 582. The transferee court is also authorized to handle matters relating to class action certification to prevent inconsistent rulings and to promote judicial efficiency. See In re Piper Aircraft Distribution System Antitrust Litigation, 405 F.Supp. 1402, 1403-04 (J.P.M.D.L.1975). 2.1983 Class Certification In 1983, this court certified' a large class of Agent Orange related plaintiffs under Federal Rules of Civil Procedure Rule 23(b)(3) for liability issues, and under Rule 23(b)(1)(B) for punitive damages. In re “Agent Orange” Prod. Liab. Litig., 100 F.R.D. at 118. Five factors were recognized as making the desirability of class certification even greater than it would be in most mass tort litigation. The first was size; plaintiffs’ class in the litigation potentially numbered millions. If the claims were dealt with individually the result might have “result[ed] in a tedium of repetition lasting well into the next century.” In re No. Dist. of Cal. “Dalkon Shield” IUD Prod. Liab. Litig., 526 F.Supp. 887, 894 (N.D.Cal.1981), rev’d, 693 F.2d 847 (9th Cir.1982), cert. denied sub nom. A.H. Robins v. Abed, 459 U.S. 1171, 103 S.Ct. 817, 74 L.Ed.2d 1015 (1983). Second, was the need to assure that the financial burden would ultimately fall on the parties which should, as a matter of fairness, bear it. Third, certification would encourage settlement of the litigation; in a situation where there are potentially tens of thousands of plaintiffs, the defendants may naturally be reluctant to settle with individual claimants on a piecemeal basis. Fourth, a global settlement would permit a sharp reduction of transactional costs. Fifth, a reasoned, fair and economical scheme to administer the recovery settlement would permit swift and effective assistance to veterans and their families. 3. Class and Notice In 1983, the court defined the class as: those persons who were in the United States, New Zealand or Australian Armed Forces at any time from 1961 to 1972 who were injured while in or near Vietnam by exposure to Agent Orange or other phenoxy herbicides, including those composed in whole or in part of 2, 4, 5-trichlorophenoxyacetic acid or containing some amount of 2, 3, 7, 8-tetra-chlorodibenzo-p-dioxin. The class also includes spouses, parents, and children of the veterans born before January 1, 1984, directly or derivatively injured as a result of the exposure. In re “Agent Orange" Prod. Liab. Litig., 100 F.R.D. at 729. Personal notice was mailed to several hundred thousand persons. The largest group represented names on file at the Veterans Administration Agent Orange Registry. A copy of the class order and notice was also sent to the governors of each of the states asking that the notice be referred to the appropriate state organizations dealing with Vietnam veterans. Cooperation was excellent. Many states gave wide circulation to the notice and others provided a list of names and addresses so the notice could be mailed to those veterans. A court-approved announcement on nationwide television networks and on radio stations with a combined coverage of at least fifty percent of the listener audience in each of the top 100 radio markets was circulated. The text of that notice can be found in 100 F.R.D. at 734. The class notice was also published in three national general circulation newspapers and magazines and six veterans’ magazines. Notice was directed to be sent to the ten largest circulation newspapers in Australia and the five largest circulation newspapers in New Zealand. The text of the newspaper and magazine notice can be found at 100 F.R.D. at 734-35. Informal notice through the news media was widespread. Plaintiffs were authorized to arrange a toll-free telephone number. Callers were to be told where to write to obtain more information concerning the litigation. Those requesting a copy of the notice mailed to class members were sent one. A large number of people called the toll-free number. 4. Settlement Plaintiffs were represented by highly skilled and aggressive attorneys. Defense counsel were also adroit. Negotiations on behalf of present and potential future plaintiffs was intense. Defendants agreed to pay $180 million (the “Settlement Amount”) in full and final settlement of all claims for compensatory damages against them, and their foreign and domestic predecessors, successors, parents, subsidiaries, affiliates and insurers, as well as any of their stockholders, directors, officers, employees and agents, that arose out of or were based on, or could have in the future arisen out of or have been based on, any of the matters alleged in the complaint. All amounts paid by defendants were placed into a fund (the “Fund”) established, maintained and administered by this court. The Fund was under the Court’s continuous jurisdiction, control and supervision to assure that it earned the maximum interest consistent with safety and that all disbursements were properly made. The sum, at the time, was unprecedented. See, e.g., Ralph Blumenthal, Veterans Accept $180 Million Pact on Agent Orange, N.Y. Times, May 8, 1984, at Al. Because of high interest rates and investment policies, the total Fund ultimately grew to some $330 million. Claims against the Fund were the exclusive remedy of all Class members arising out of or relating to, or in the future arising out of or relating to, the subject matter of the Complaint. The settlement required the setting aside of $10 million of the $180 million to indemnify the defendants from any judgments obtained in state court actions by members of the class alleging harm caused by exposure to Agent Orange in or near Vietnam. Any part of the indemnity fund not used was to revert to the benefit of the class members. This $10 million was subsequently combined with the rest of the Fund with the consent of defendants. The Class specifically included persons who had not yet manifested injury. All persons who were otherwise qualified but who had previously requested exclusion from the Class had the opportunity to withdraw their exclusion (opt back in) within a reasonable time as determined by the court. As administered, all those who opted out of the class in effect had the option of reentering the class at any time since any veteran or veteran’s family was not asked what their position had been in the litigation when applying for help from the Fund. 5. Post Settlement Following the settlement, the court held extensive hearings on fairness and adequacy in New York, Chicago, Houston, Atlanta and San Francisco. Some 500 witnesses were heard. The court considered hundreds' of additional written communications from veterans, members of their families, veterans’ organizations, and others. In September of 1984 the court issued a preliminary memorandum and order-approving the settlement as fair, reasonable and adequate. In re “Agent Orange” Prod. Liab. Litig., 597 F.Supp. 740 (E.D.N.Y.1984) (Preliminary Memorandum and Order on Settlement). After the further determinations required by that order were made — the plan for distribution to eligible class members and the amount of reasonable attorneys’ fee awards to plaintiffs’ attorneys — final approval of the settlement was granted. In re “Agent Orange” Prod. Liab. Litig., 611 F.Supp. 1396 (E.D.N.Y.1985) (Memorandum, Order and Judgment on Distribution of the Settlement Fund), aff'd in part, rev’d in part, 818 F.2d 179 (2d Cir.1987); In re “Agent Orange” Prod. Liab. Litig., 611 F.Supp. 1296 (E.D.N.Y.1985) (Memorandum and Order on Attorney Fees as Modified and Final Judgment), aff'd in part, rev’d in part, 818 F.2d 216 (2d Cir.1987); 818 F.2d 226 (2d Cm. 1987), cert. denied sub nom. Newton Schwartz v. Dean, 484 U.S. 926, 108 S.Ct. 289, 98 L.Ed.2d 249 (1987). a. Dismissal of Opt-Out Claims After the court preliminarily approved the Settlement Agreement, most of the original 2,500 opt-outs chose to come back into the class with the court’s permission. Two hundred and eighty-two service persons did not. See In re “Agent Orange” Prod. Liab. Litig., 611 F.Supp. at 1230. Their claims were embodied in seventeen different cases. Summary judgment was granted against each opt-out plaintiff on the grounds, inter alia, that none could prove by the probability demanded in tort litigation that his or her ailment was caused by Agent Orange, see 611 F.Supp. at 1260-63; 611 F.Supp. at 1284-85, and that all the claims were barred by the military contractor defense. See 611 F.Supp. at 1263-64; 611 F.Supp. at 1285. As already noted, those dismissed plaintiffs were nonetheless permitted by the court to obtain full benefits from the Fund. b. Appeals Appeals were taken from numerous orders including the orders certifying the class action, approving the settlement, outlining the distribution plan, awarding counsel fees, granting summary judgment against the opt-out claimants, dismissing untimely claims, dismissing all the claims against the United States, and unsealing discovery materials. In nine unanimous opinions dated April 21, 1987 a panel of the Second Circuit Court of Appeals disposed of all of the numerous individual appeals except those from the order of the district court providing for public access to documents sealed from public view during the discovery phase of the litigation. Following the denial of several petitions for rehearing and for rehearing en banc, six petitions for writs of certiorari were filed with the Supreme Court by the opt-out plaintiffs, by class members who objected to the settlement and distribution, by other plaintiffs whose claims were dismissed, and by one of the plaintiffs’ attorneys who sought reversal of the appellate court’s rulings on counsel fees. The petitions for writs of certiorari were all denied by the Supreme Court. In re “Agent Orange” Prod. Liab. Litig., 818 F.2d 145 (2d Cir.1987) (affirming class certification and approving of settlement), cert. denied sub nom. Pinkney v. Dow, 484 U.S. 1004, 108 S.Ct. 695, 98 L.Ed.2d 648 (1988), and Krupkin v. Dow, 487 U.S. 1234, 108 S.Ct. 2898, 101 L.Ed.2d 932 (1988); 818 F.2d 179 (2d Cir.1987) (approving Payment Program but rejecting Class Assistance Foundation); 818 F.2d 187 (2d Cir.1987) (affirming summary judgment entered against opt-out plaintiffs on ground of government contractor defense), cert. denied sub nom. Lombardi v. Dow, 487 U.S. 1234, 108 S.Ct. 2898, 101 L.Ed.2d 932 (1988); 818 F.2d 194 (2d Cir.1987) (affirming dismissal of Federal Tort Claims Act claims of servicemen and their relatives against the United States, on the grounds that they are barred by the Feres doctrine and by the discretionary function exception to the Federal Tort Claims Act); 818 F.2d 201 (2d Cir.1987) (affirming dismissal of “direct” claims against United States brought by wives and children of servicemen, on Feres grounds), cert. denied sub nom. Adams v. United States, 484 U.S. 1004, 108 S.Ct. 695, 98 L.Ed.2d 647 (1988); 818 F.2d 204, 98 L.Ed.2d 647 (2d Cir.1987) (affirming dismissal of claims of “Agent Orange” manufacturers against United States for contribution and indemnity for the class action settlement payments); 818 F.2d 210 (2d Cir.1987) (affirming dismissals of Hawaiian civilians’ actions against the United States and the chemical companies), cert. denied sub nom. Fraticelli v. Dow, 484 U.S. 1004, 108 S.Ct. 695, 98 L.Ed.2d 648 (1988); 818 F.2d 216 (2d Cir.1987) (rejecting plaintiff class’ attorneys’ fee-sharing agreement and reinstating fee award determined by district court), cert. denied sub nom. Newton Schwartz v. Dean, 484 U.S. 926, 108 S.Ct. 289, 98 L.Ed.2d 249 (1987), 818 F.2d 226 (2d Cir.1987) (approving district court’s calculations of attorneys’ fee awards, with abrogated award reinstated), cert. denied sub nom. Newton Schwartz v. Dean, 484 U.S. 926, 108 S.Ct. 289, 98 L.Ed.2d 249 (1987). In an opinion dated June 10, 1987, a separate panel of the Court of Appeals for the Second Circuit affirmed the district court’s order unsealing materials produced or generated during discovery in the Agent Orange litigation; defendants filed a petition for writ of certiorari with the Supreme Court, which was denied on November 17, 1987. In re “Agent Orange” Prod. Liab. Litig., 104 F.R.D. 559, 562 (E.D.N.Y.1985) (Magistrate’s Pretrial Order No. 33, dated December 17, 1984) (“Protective Orders Opinion”), aff'd, 821 F.2d 139 (2d Cir.1987), cert. denied sub nom. Dow v. Ryan, 484 U.S. 953, 108 S.Ct. 344, 98 L.Ed.2d 370 (1987). 6. Plan for Distribution After additional formal hearings, the court adopted (with slight revision) a plan of distribution'prepared by Special Master Kenneth R. Feinberg after consultation with the court; it took into account the suggestions from various veteran advisors. In re “Agent Orange” Prod. Liab. Litig., 611 F.Supp. 1396 (E.D.N.Y.1985), modified, 818 F.2d 179 (2d Cir.1987), cert. denied, 487 U.S. 1234, 108 S.Ct. 2899, 101 L.Ed.2d 932, and modified, 689 F.Supp. 1250 (1988). The plan specified two mechanisms for the distribution of the Fund to the class members residing in the United States. First, it provided for distribution of cash payments to individual veterans based generally on the severity of the veteran’s medical condition or death (along with other factors). The objective of the cash payment program was to provide prompt financial benefits to those most in need. Second, it leveraged Fund assets for the benefit of families of the veterans through the establishment of a grant-making “foundation.” The foundation was to provide initial funding for organizations to provide services and benefits specifically targeted to the needs of the class, including, particularly, the children of the veterans. The hope was that through education and provision of directed funding the foundation (1) would create a lasting legacy for the Vietnam veteran community by institutionalizing a services support network directed at the needs of the population of Vietnam veterans and their families, and (2) establish a basis for the government’s recognizing the possible impact of Agent Orange on children and families of the veterans. Both these hopes have been substantially realized. The United States Court of Appeals for the Second Circuit stayed implementation of the distribution plan pending the resolution of appeals. Finally, on April 21, 1987, this court’s decisions certifying the class, finding the settlement to be fair, reasonable and adequate, and adopting the distribution plan (with modification) were affirmed. In re “Agent Orange” Prod. Liab. Litig., 818 F.2d 145 (2d Cir.1987); In re “Agent Orange” Prod. Liab. Litig., 818 F.2d 179 (2d Cir.1987) (grant-making to be directly controlled by the court). 7. Distribution of the Settlement Fund As of June 30, 1997 the Fund had all been distributed or committed for the benefit of the class of plaintiffs in accordance with the plan of distribution approved by the court. The Final Report on the distribution of the Fund was issued in September of 1997. During the course of the nine-year distribution of approximately $330,000,000, the Fund provided $267,901,842.66 (consisting of $196,595,084.66 through the Agent Orange Veteran Payment Program and $71,306,758 through the Agent Orange Class Assistance Program) to and for the benefit of some 291,000 class members associated with the United States armed forces in the form of either direct cash payments or provision of services. An additional $692,834.70 was distributed by the New Zealand Agent Orange Trust to and for the benefit of class members in New Zealand, and $7,086,684 was distributed by the Australian Vietnam War Veterans Trust to and for the benefit of Vietnam veterans in Australia. A total of $2.7 million was being distributed to veterans or for them benefit when the program ended. The remainder was used to pay attorney’s fees and transactional expenses. See Final Report at 3. C. Agent Orange II In 1989 and 1990, two overlapping class actions, Ivy v. Diamond Shamrock Chemicals Co. and Hartman v. Diamond Shamrock Chemicals Co., were brought in Texas courts. See Ryan v. Dow Chemical, 781 F.Supp. 902 (E.D.N.Y.1991). The two actions described in Ryan were, in effect, direct challenges to the validity of the settlement and the programs financed by the Fund. Those plaintiffs, who were class members, sued the same chemical companies who were defendants in the original Agent Orange litigation on the same grounds and for the same relief as was originally sought and compromised in the class action. If plaintiffs were successful, they would have automatically reduced the sums available for other class members, since the terms of the settlement set aside $10 million for indemnification of the defendants against suits of that kind. The cases presented the question of whether members of a class whose action was brought and was still pending in federal court could circumvent the effect of a federal judgment by bringing new actions in a state court, relying exclusively on state law. The need to protect other class members, the importance of maintaining the class action as viable litigation device, and the interest of all litigants in the finality of settlements required that the question be answered in the negative. At the heart of these lawsuits was plaintiffs’ belief that it was unfair to bind them to the settlement because the latency of their injuries prevented them from knowing definitively whether or not they were included in the class at the time of the first deadline for opting out of the Agent Orange class action. This court held that they were in fact bound. In re “Agent Orange” Prod. Liab. Litig., 618 F.Supp. at 625, aff'd, 818 F.2d 145 (2d Cir.1987), cert. denied, 484 U.S. 1004, 108 S.Ct. 695, 98 L.Ed.2d 647. See also, Kane v. Johns-Manville Corp., 843 F.2d 636, 638-639 (2d Cir.1988) (affirming reorganization plan that binds future claimants with no present injuries). Nevertheless, plaintiffs’ argument raised significant considerations of justice. All of the courts which considered the Agent Orange Settlement were fully cognizant of the conflict arguments hypothesized by the plaintiffs in this second wave of complaints. They took steps to minimize the problem in the way they arranged for long-term administration of the Settlement Fund. In many cases the conflict between the interests of present and future claimants was insignificant. Those plaintiffs, like all class members who suffered death or disability before the end of 1994, were eligible for compensation from the Settlement Fund. The relevant latency periods and the age of the veterans ensured that almost all valid claims would be revealed before that time. As veterans become older and diseases of their peer non-veteran group are more and more common, it is less and less likely that a connection of the disease for a particular veteran to Agent Orange can be proved to any substantial degree of probability through epidemiological or other scientific techniques. In addition, the generous government V.A. programs for allowing Agent Orange disabilities on the most tenuous statistical bases for many diseases ensures that those who learn of their disease long after service in Vietnam will be compensated by disability and other payments for their lifetime as service-connected disabled persons. This government program was adopted after the Agent Orange private Fund was established. Accepting benefits from either the private Fund or the V.A. program did not disqualify a claimant from the other remedy. This court ultimately held that, except for overseeing the expenditure of the Settlement Fund to ensure that it did the greatest possible good for the veterans and their families, the court could do nothing more for plaintiffs in the second wave of complaints. The Court of Appeals for the Second Circuit upheld the decision, stating that “victims with no visible symptoms, were included in the plaintiff class.” In re “Agent Orange” Prod. Liab. Lit., 996 F.2d 1425, 1434 (2d Cir.1993). The Court of Appeals’ 1993 opinion was believed to have effectively closed the door to claims against manufacturers of Agent Orange. From 1993 to the commencement of the instant litigation, the spigot of litigation that had gushed since the early 1980s slowed considerably. For published opinions dating from 1993, see, for example, Miller v. Diamond Shamrock Co., 275 F.3d 414 (5th Cir.2001) (civilian workers’ claims were barred by the military contractor defense); Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387 (5th Cir.1998) (holding that removal was proper under Federal Officer Removal Statute and that claims were barred by statute of limitations); In re “Agent Orange” Prod. Liab. Lit., 1999 WL 1045197 (E.D.N.Y.1999) (barred by statute of limitations). D. Agent Orange III, the Instant Litigation Plaintiffs in a third wave of litigation now contend that their diseases became known to them after the Settlement Fund was expended. 1. District Court In August of 1998, the Isaacsons began this latest group of Agent Orange cases with the filing of a suit in New Jersey state court, asserting only state law claims. Defendants removed the case to federal court. Isaacsons’ motion to remand was denied by the District Court in New Jersey. Thereafter, the case was transferred to this court by the MDL Panel. The Stephensons filed their suit pro se in the United States District Court for the Western District of Louisiana in February of 1999. Soon thereafter they obtained counsel. Defendants were granted an order by the MDL Panel, transferring the ease to this court. The Isaacson and Stephenson cases were consolidated for pretrial proceedings by this court. Defendants moved in this court to dismiss the complaints under Rule 12(b)(6) of the Federal Rules of Civil Procedure. They argued that plaintiffs’ claims were barred by the 1984 class settlement and subsequent final judgment. The motion was granted. This court concluded that the suit was an impermissible collateral attack on the prior settlement. A number of other similar cases are now pending in this court. See Schuckman v. Dow Chemical Co., No. 03-02120 (E.D.N.Y. filed May 2, 2003); Skinner v. Dow Chemical Co., No. 03-02935 (E.D.N.Y. filed June 9, 2003); Kidd v. Dow Chemical Co., No. 03-05047 (E.D.N.Y. filled Oct. 2, 2003); Anderson v. Dow Chemical Co., No. 03-05227 (E.D.N.Y. filed Oct. 17, 2003); Gallagher v. Dow Chemical Co., No. 03-05875 (E.D.N.Y. filed Nov. 11, 2003); Stearns v. Dow Chemical Co., No. 03-05965 (E.D.N.Y. filed Nov. 7, 2003); Breaux v. Dow Chemical Co., No. 03-05966 (E.D.N.Y. filed Nov. 7, 2003); Breaux v. Dow Chemical Co., No. 03-05967 (E.D.N.Y. filed Nov. 25, 2003); Gallagher v. Dow Chemical Co., No. 03-05970 (E.D.N.Y. filed Nov. 25, 2003). Calls to the Clerk’s office indicate that hundreds of additional such cases can be expected to be filed shortly. 2. Appeals The Second Circuit Court of Appeals reversed this court’s holding that the instant suits constituted an impermissible collateral attack on the settlement, but it upheld the District Court’s jurisdiction over Isaacson under the All Writs Act. Stephenson v. Dow Chemical Co., 273 F.3d 249 (2nd Cir.2001), aff'd in part, vacated in part by Dow Chemical Co. v. Stephenson, 539 U.S. 111, 123 S.Ct. 2161, 156 L.Ed.2d 106 (2003). The Court of Appeals held that plaintiffs’ suits could proceed because there had been no “prior adequacy of representation determination with respect to individuals whose claims [arose] after the depletion of the settlement fund.” Id. at 258. Both Stephenson and Isaacson fell within the class defined in the 1984 settlement, but their alleged injuries allegedly did not manifest themselves until after the Settlement Fund had been expended. The Court of Appeals found that there was an apparent conflict between plaintiffs and the class representatives because the litigation addressed all future claimants, but only provided recovery for those whose injuries were discovered prior to 1994. It believed that under Amchem Products, Inc. v. Windsor, 521 U.S. 591, 117 S.Ct. 2231, 138 L.Ed.2d 689.(199