Full opinion text
TABLE OF CONTENTS Page INTRODUCTION 768 I. SUMMARY OF CLAIMS 769 II. GOVERNMENT’S MOTION TO DISMISS THIRD PARTY COMPLAINTS 769 A. FTCA AS A GENERAL WAIVER OF SOVEREIGN IMMUNITY ’ 769 B. THE FERES DOCTRINE 770 C. THIRD PARTY ACTIONS AGAINST THE GOVERNMENT 778 D. FERES/STENCEL IN THE CONTEXT OF THIS ACTION 778 E. SHOULD FERES/STENCEL APPLY TO THIS ACTION? 773 F. DID PLAINTIFFS’ INJURIES ARISE OUT OF OR INCIDENT TO MILITARY SERVICE? 774 1. General Principles 773 2. Application of Feres/Stencel to Plaintiffs' Claims 776 (a) Plaintiff Veterans’ Claims of Exposure 776 (b) Post-Discharge Failure to Warn 777 (c) The Australian Veterans’ Claims 779 (d) Derivative Claims of Spouses, Parents and Children 780 (e) Claims of Direct Injury to Veterans' Children 781 G. DEFENDANTS’ REMAINING CLAIMS AGAINST THE UNITED STATES 781 H. OTHER CLAIMS OF IMMUNITY 782 III. THE CASE MANAGEMENT PLAN 782 IV. CLASS ACTION 787 A. PREREQUISITES OF RULE 23(a) 787 1. Numerosity 787 2. Commonality 787 3. Typicality 787 4. Adequacy 788 5. Additional Requirements 788 B. THE REQUIREMENTS OF RULE 23(b) 788 1. Rule 23(b)(1) 789 2. Rule 23(b)(2) 790 3. Rule 23(b)(3) 790 C. NOTICE 791 V. SUMMARY JUDGMENT 792 A. THE GOVERNMENT CONTRACT DEFENSE 792 B. THE POSITIONS OF THE PARTIES 794 C. SUMMARY JUDGMENT DENIED 795 VI. DISCOVERY 797 VII. STATUTES OF LIMITATIONS 797 VIII. CONCLUSIONS 798 FOOTNOTES 798 INTRODUCTION GEORGE C. PRATT, District Judge. Plaintiffs, Vietnam war veterans and members of their families claiming to have suffered damage as a result of the veterans’ exposure to herbicides in Vietnam , commenced these actions against the defendant chemical companies. Defendants, seeking indemnification or contribution in the event they are held liable to plaintiffs, then served third party complaints against the United States. Five motions are now considered: (1) the government’s motion to dismiss the third party complaint on grounds of sovereign immunity; (2) plaintiffs’ motion for class action certification; (3) defendants’ motion for summary judgment; (4) plaintiffs’ motion to proceed with “serial trials”; and (5) plaintiffs’ motion to serve and file a fifth amended verified complaint. I. SUMMARY OF CLAIMS There are four groups of plaintiffs: Vietnam veterans, their spouses, their parents, and their children. They assert numerous theories of liability, including strict products liability, negligence, breach of warranty, intentional tort and nuisance. Plaintiff veterans seek to recover for personal injuries caused by their exposure to Agent Orange. The family members seek to recover on various derivative claims; some of the children assert claims in their own right for genetic injury and birth defects caused by their parents’ exposure to the Agent Orange; and some of the veterans’ wives seek to recover in their own right for miscarriages. In their third party complaints against the government defendants allege negligence, misuse of product, post-discharge failure to warn, implied indemnity, denial of due process and failure to comply with herbicide registration laws. II. GOVERNMENT’S MOTION TO DISMISS THIRD PARTY COMPLAINTS Moving to dismiss under F.R.C.P. 12(b)(6), the government claims “intra-military immunity” under the rule of Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), questions defendants’ standing to assert some of their claims, urges that other claims may only be considered in the Court of Claims, and argues the applicability of three statutory exceptions to federal court jurisdiction under the Federal Tort Claims Act: (1) the discretionary function exception, 28 U.S.C. § 2680(a); (2) the combatant exception, 28 U.S.C. § 2680(j); and (3) the foreign country exception, 28 U.S.C. § 2680(k). A. FTCA AS A GENERAL WAIVER OF SOVEREIGN IMMUNITY Under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b) et seq., the United States government waives its sovereign immunity from suits in tort, and vests jurisdiction over such claims exclusively in the United States District Courts. 28 U.S.C. § 1346(b). Its legislative history reveals two dominant congressional objectives. First, Congress sought to relieve itself of the overwhelming pressures and time consuming burdens of considering and passing upon the numerous private relief bills sought by claimants barred by the doctrine of sovereign immunity. Feres v. United States, 340 U.S. 135, 139-140, 71 S.Ct. 153, 156, 95 L.Ed. 152 (1950). Second, Congress sought to provide a judicial remedy for deserving claimants who had suffered injuries or losses at the hands of government officials and employees. 1 Jayson, Handling Federal Tort Claims § 65.01 at 3-3 (1980). Although the FTCA “waives the Government’s immunity from suit in sweeping language”, United States v. Yellow Cab Company, 340 U.S. 543, 547, 71 S.Ct. 399, 402, 95 L.Ed. 523 (1951), the waiver is limited by the terms of the act’s exceptions. If a claim falls within any exception to the FTCA, sovereign immunity has not been waived and the court is without jurisdiction to hear the case. United States v. Orleans, 425 U.S. 807, 814, 96 S.Ct. 1971, 1975, 48 L.Ed.2d 390 (1976); Dalehite v. United States, 346 U.S. 15, 30-31, 73 S.Ct. 956, 965, 97 L.Ed. 1427 (1953). B. THE FERES DOCTRINE In Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), the Supreme Court determined that the FTCA did not waive sovereign immunity with respect to claims of servicemen arising out of activities incident to or arising out of their military service. The Feres Court considered three separate cases, two claims of medical malpractice and the claimed negligent quartering of a serviceman in a barracks containing a defective heating unit. All three presented the same basic question: whether a serviceman who sustained injury due to the negligence of others in the armed forces could maintain suit under the FTCA. The Court recognized its task as one of statutory interpretation, stating: “The only issue of law raised is whether the Tort Claims Act extends its remedy to one sustaining ‘incident to the service’ what under other circumstances would be an actionable wrong.” 340 U.S. at 138, 71 S.Ct. at 155. After carefully considering the limited legislative history on point, the Feres Court concluded that “the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” 340 U.S. at 146, 71 S.Ct. at 159. Since much of the government’s immunity defense turns on the Supreme Court’s decision in Feres, a more detailed analysis of that case is appropriate. At the outset, the Feres Court recognized the difficulty of interpreting a statute having so little legislative history: There are few guiding materials for our task of statutory construction. No committee reports or floor debates disclose what effect the statute was designed to have on the problem before us, or that it even was in mind. Under these circumstances, no conclusion can be above challenge, but if we misinterpret the Act, at least Congress possesses a ready remedy. 340 U.S. at 138, 71 S.Ct. at 155. Digging deeper, the Court uncovered two clues to Congress’ intent in enacting the FTCA. First, because the relationship between the government and members of the armed forces is “distinctively federal in character”, 340 U.S. at 143, 71 S.Ct. at 158, the Court determined that Congress did not intend the government’s liability to members of the armed services to depend upon the law of the place where the soldier happened to be stationed at the time of injury: It would hardly be a rational plan of providing for those disabled in service by others in service to leave them dependent upon geographic considerations over which they have no control and to laws which fluctuate in existence and value. 340 U.S. at 143, 71 S.Ct. at 158. Second, the Court examined Congress’ failure to integrate a serviceman’s possible remedy in tort with the statutory “no fault” compensation scheme provided under the Veterans Benefits Act and concluded that If Congress had contemplated that this Tort Act would be held to apply in cases of this kind [where a serviceman sued the government], it is difficult to see why it should have omitted any provision to adjust these two types of remedy [FTCA and Veterans Benefit Act] to each other. The absence of any such adjustment is persuasive that there was no awareness that the Act might be interpreted to permit recovery for injuries incident to military service. 340 U.S. at 144, 71 S.Ct. at 158. A third factor supporting the “Feres doctrine” was later enunciated in United States v. Brown, 348 U.S. 110, 75 S.Ct. 141, 99 L.Ed. 139 (1954), where the Supreme Court considered “[t]he peculiar and special relationship of the soldier to his superiors, the effects of the maintenance of such suits on [military] discipline, and the extreme results that might obtain if suits under the Tort Claims Act were allowed for negligent orders given or negligent acts committed in the course of military duty.” 348 U.S. at 112, 75 S.Ct. at 143; see also Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 671-72, 97 S.Ct. 2054, 2057, 52 L.Ed.2d 665 (1977). Although it concluded that Congress did not intend to include in the FTCA’s waiver of sovereign immunity injuries sustained by a serviceman incident to his service, the Feres Court freely admitted that the issue was not free from doubt, and it invited congressional correction by calling attention to Congress’ ability to legislatively remedy any erroneous interpretation of the statute. 340 U.S. at 138, 71 S.Ct. at 155. Many courts have questioned the wisdom of the Feres decision, but its continued vitality is beyond dispute even to them. Moreover, Congress’s failure for 30 years to amend the FTCA and legislatively “correct” the Feres holding is a sub silentio “acquiescence] in the holding of Feres”, United States v. Lee, 400 F.2d 558, 561 (CA9 1968), cert. denied, 393 U.S. 1053, 89 S.Ct. 691, 21 L.Ed.2d 695 (1969), that strongly suggests that the Supreme Court correctly interpreted congressional intent. Any doubt as to the validity of the Feres doctrine was laid to rest in Stencei Aero Engineering Corp. v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977), which extended the reach of the “well established doctrine of Feres v. United Stated’ to third party claims against the government, 431 U.S. at 670, 97 S.Ct. at 2057, see discussion, infra. Even the Third Circuit Court of Appeals, the court most critical of the Feres doctrine, concedes Feres' continuing validity and broad application: Although the current climate of academic and judicial thought finds governmental immunity from suit in disfavor, a plausible explanation appears for its continued application to members of the armed forces injured while in the course of active duty, regardless of whether that injury is caused by the negligence of a superior officer or by a direct command. If claims for injuries sustained by members of the armed forces in the execution of military orders were subjected to the scrutiny of courts of justice, then the civil courts would be required to examine and pass upon the propriety of military decisions. The security and common defense of the country would quickly disintegrate under such meddling. “[A]ctions and essential military discipline would be impaired by subjecting the command to the public criticism and rebuke of any member of the armed forces who chose to bring a suit against the United States”. Jefferson v. United States, 178 F.2d 518, 520 (4th Cir. 1949), aff’d sub nom. Feres v. United States, 340 U.S. 135 [71 S.Ct. 153, 95 L.Ed. 152] (1950) Even if we were inclined to reconsider the doctrine in connection with an injury sustained as a result of a deliberate military command, we are foreclosed from so doing by the Supreme Court’s recent reiteration of the doctrine, although in a different context in United States v. Testan, 424 U.S. 392, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). Jaffe v. United States, 592 F.2d 712, 717 (CA3 1979) (citations and footnote omitted). C. THIRD PARTY ACTIONS AGAINST THE GOVERNMENT The same court that determined in Feres that the FTCA did not waive sovereign immunity with respect to claims by servicemen arising out of activities incident to their military service also decided United States v. Yellow Cab Company, 340 U.S. 543, 71 S.Ct. 399, 95 L.Ed. 523 (1951), which held that the FTCA permits a tort defendant to implead the United States as a third party defendant under a theory of indemnity or contribution. This created a new question: whether such a third party claim may be maintained when plaintiff’s direct claim against the government would be barred by the principles of Feres. The Supreme Court did not consider this question until 1977, when, in Steneel Aero Engineering Corp. v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977), it resolved the “tension between Feres and Yellow Cab” by holding that third party claims against the government are barred for essentially the same reasons that the direct action [against the government by plaintiff] is barred by Feres. * * * [T]he right of a third party to recover in an indemnity action against the United States recognized in Yellow Cab, must be held limited by the rationale of Feres where the injured party is a serviceman. 431 U.S. at 670, 673-4, 97 S.Ct. at 2058. To permit recovery against the government, the Court observed, “would be to judicially admit at the back door that which has been legislatively turned away at the front door”. 431 U.S. at 673, 97 S.Ct. at 2058, quoting Laird v. Nelms, 406 U.S. 797, 802, 92 S.Ct. 1899, 1902, 32 L.Ed.2d 499 (1972). D. FERES/STENCEL IN THE CONTEXT OF THIS ACTION To the extent that plaintiffs’ complaints seek recovery against the defendant chemical companies, of course, the Feres doctrine has no application. 1 Jayson, Handling Federal Tort Claims § 155.02 at 5-66 n.9 and 5-77 n.24. Under Steneel Aero Engineering Corp. v. United States, however, any damages recovered by plaintiffs against defendants that plaintiffs could not recover directly from the United States may not be the subject of a third party complaint against the United States. 1 Jayson, Handling Federal Tort Claims § 164 at 5-220. [N]either contribution nor indemnity may succeed without the support of the initial negligence. * * * [A]s the claimed contribution and indemnity must depend for success upon the alleged negligence of the Government towards plaintiffs, and that is a negligence which is not actionable, the claim must fail. Drumgoole v. Virginia Electric and Power Company, 170 F.Supp. 824, 825-26 (E.D.Va.1952). See also Steneel Aero Engineering Corp. v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977); Certain Underwriters at Lloyds v. United States, 511 F.2d 159 (CA5 1975); Barr v. Brezina Construction Company, 464 F.2d 1141 (CA 10 1972). For the sake of clear presentation in this opinion, however, the court will consider plaintiffs’ claims as if they were asserted directly against the United States government, for, to the extent that plaintiffs may not maintain actions directly against the government, under the principles of Steneel Aero, the defendants’ third party claims against the government must fall as well. At the outset, it is clear that Feres applies to suits against individual servicemen, claims by servicemen who served in Vietnam, claims of intentional torts, and claims styled as constitutional torts. This leaves two issues: first, whether the court should apply the principles of Feres/Stencel to this action at all; and second, whether plaintiffs’ injuries arose out of or were suffered “in the course of activity incident to service.” Feres v. United States, 340 U.S. at 146, 71 S.Ct. at 159. E. SHOULD FERES/STENCEL APPLY TO THIS ACTION? The government seeks to dismiss the third party complaints on the ground that the claims of the defendant chemical companies are barred by a straightforward application of Feres/Stencel principles. Defendants, however, argue that the court should undertake “a detailed and fresh examination of the rationale underlying those holdings [Feres and Stencel] in the light of other great and * * * superceding policy considerations”, Hercules/Diamond Shamrock/Monsanto Memorandum at 10, to determine if the Feres doctrine should be applied in this case. In support, defendants cite the “number of occasions [the Supreme Court has] reexamined and redefined or abandoned certain reasons for its holding in [the Feres] case.” Hercules/Diamond Shamrock/Monsanto Memorandum at 7. Defendants’ attempts to reargue the underlying rationale of Feres must be rejected, however, for two reasons. First, Feres was a case of statutory interpretation. 340 U.S. at 138, 71 S.Ct. at 155. Adams v. General Dynamics Corp., 385 F.Supp. 890, 891 (N.D.Cal.1974), aff’d, 535 F.2d 489 (CA9), cert. denied, 432 U.S. 905, 97 S.Ct. 2949, 53 L.Ed.2d 1077 (1976). Even were this court to believe the Supreme Court’s reasoning to be erroneous, neither the Court nor Congress itself has altered Feres’ basic holding, that in enacting the FTCA Congress did not intend to waive sovereign immunity with respect to injuries or loss suffered by servicemen in the course of activity incident to their service. Second, in holding the government immune from claims by servicemen the Supreme Court was concerned with more than the effects of servicemen recovering against the government; the Court was also concerned about the disruptive effects caused by the very commencement of actions by servicemen complaining about the conduct of superiors. As the Court later observed in United States v. Brown, 348 U.S. 110, 75 S.Ct. 141, 99 L.Ed. 139 (1954): The peculiar and special relationship of the soldier to his superiors, the effects of the maintenance of such suits on discipline, and the extreme results that might obtain if such suits under the Tort Claims Act were allowed for negligent orders given or negligent acts committed in the course of military duty, led the [Feres] Court to read [the Federal Tort Claims] Act as excluding claims of [servicemen for injuries incident to their service]. 348 U.S. at 112, 75 S.Ct. at 143. Thus, it is the suit itself as much as the possibility of recovery, that the Supreme Court feared would disrupt military discipline and the orderly conduct of military affairs. Henninger v. United States, 473 F.2d 814, 815-16 (CA9), cert. denied, 414 U.S. 819, 94 S.Ct. 43, 38 L.Ed.2d 51 (1973). To reexamine the Feres rationale in light of the circumstances of this case as defendants suggest, would itself defeat one of the very factors defendants seek to have the court reconsider. As the Supreme Court noted long ago in discussing the relationship between a soldier and his superiors: An army is not a deliberate body. It is the executive arm. Its law is that of obedience. No question can be left open as to the right to command in the officer, or the duty of obedience in the soldier. Vigor and efficiency on the part of the officer and confidence among the soldiers in one another, are impaired if any question be left open as to their attitude to each other. United States v. Grimley, 137 U.S. 147,153,11 S.Ct. 54, 55, 34 L.Ed. 636 (1890). For these reasons, this court will neither reconsider the underlying rationale of the Feres decision nor weigh the circumstances here presented against the “Feres factors”. Right or wrong, the Supreme Court’s conclusion that Congress did not intend passage of the FTCA to act as a waiver of sovereign immunity as to claims of servicemen injured incident to their service remains the law of the land. The Feres/Stencel doctrine bars defendants’ attempt to seek contribution or indemnity from the United States based on any recovery plaintiffs may obtain for injuries that arose out of or were suffered incident to service. F. DID PLAINTIFFS’ INJURIES ARISE OUT OF OR INCIDENT TO MILITARY SERVICE? The second issue is whether the claims of particular plaintiffs arose out of or in the course of activity incident to service. As Professor Jayson has noted, “neither the [Federal Tort Claims] Act nor the opinions of the Supreme Court have indicated definitively the full meaning of the phrase ‘incident to service’ ”. 1 Jayson, Handling Federal Tort Claims § 155.01 at 5-65. This lack of definition complicates the task of applying the standard considerably, 1 Jayson Handling Federal Tort Claims § 155.01 at 5-65, but certain principles do emerge from an examination of the cases. 1. General Principles First, the phrase “incident to service” is not to be narrowly applied or “restricted to actual military operations such as field maneuvers or small arms instruction.” Hass v. United States, 518 F.2d 1138,1141 (CA4 1975). Rather, “incident to service” is a broad concept that depends on a rational connection between the plaintiff’s claim or loss and his status as a member of the armed forces. Woodside v. United States, 606 F.2d 134, 141 (CA6 1979); Harten v. Coons, 502 F.2d 1363,1365 (CA 10 1974), cert. denied, 420 U.S. 963, 95 S.Ct. 1354, 43 L.Ed.2d 441 (1975). Professor Jayson summarizes this concept: [I]f the serviceman’s injury or loss, when viewed in all the surrounding circumstances, has a real and substantial relationship to his military service, it will be regarded as incident to service and consequently barred under the Feres doctrine. 1 Jayson, Handling Federal Tort Claims § 155.02 at 5-66. Second, the cases applying the Feres doctrine emphasize that “it is the status of the claimant as a serviceman rather than the legal theory of his claim which governs.” Rotko v. Abrams, 338 F.Supp. 46, 47 (D.Conn.1971) (emphasis added), aff’d on opinion below, 455 F.2d 992 (CA2 1972). Thus, the Feres doctrine has barred the claims of off duty servicemen injured before leaving their military base, Watkins v. United States, 462 F.Supp. 980, 988-89 (S.D.Ga.1977), aff’d on opinion below, 587 F.2d 279 (CA5 1979), of off duty serviceman injured while “hitching” a ride home on military aircraft, Archer v. United States, 217 F.2d 548, 552 (CA9 1954), cert. denied, 348 U.S. 953, 75 S.Ct. 441, 99 L.Ed. 745 (1955); Homlitas v. United States, 202 F.Supp. 520 (D.Ore.1962); Fass v. United States, 191 F.Supp. 367 (E.D.N.Y.1961), and the wrongful death claim of the widow of a serviceman killed in an air crash while receiving flight instruction toward a commercial pilot’s license. Woodside v. United States, 606 F.2d 134 (CA6 1979). Third, at the time of his injury plaintiff need not be on any military mission. Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950) (serviceman died when barracks he was sleeping in burned due to defective heating unit), nor subject to military discipline, Hall v. United States, 451 F.2d 353, 354 (CA1 1971) (no “connection between the activity which injured plaintiff and [military] discipline” necessary). Professor Jayson concisely and fairly synthesizes the “incident to service” cases as follows: The duty status of the serviceman-claimant is of particular significance in determining whether the injury or loss was incident to service. The [Supreme Court’s rationale in Feres/Stencel] applies to almost every situation which can be envisaged in which the injury or loss was sustained by a serviceman while on duty (as distinguished from one who is on leave or furlough), and it seems safe to say that the Feres doctrine will always apply in such circumstances. 1 Jayson, Handling Federal Tort Claims § 155.02 at 5-69 through 5-71. [I] f the serviceman’s injury or loss occurs while he is off duty, while he is not within the physical confines of his military base, while he is not engaged in any military mission, and is not directly under military discipline, it is likely that the Brooks doctrine allowing Tort Claims Act recovery will apply; in other words, that the injury or loss will be regarded as not incident to service. It should be noted, however, that the application of Brooks generally requires all of the mentioned factual elements to be present. Contrariwise, if the injury or loss occurs while the serviceman is on duty, or— without regard to whether he is on or off duty—if it occurs on the military base where he is stationed or on a military aircraft where he is directly under military control and discipline, or if it occurs while he is engaged in a military mission, it is likely that the Feres doctrine excluding the claim will apply. Again speaking generally, the presence of any one of the mentioned factual elements will bring application of the Feres doctrine. Jayson, Handling Federal Tort Claims § 155.02 at 5-67 through 5-68. 2. Application of Feres/Stencel to Plaintiffs’ Claims (a) Plaintiff Veterans’ Claims of Exposure The veterans’ claims of injury clearly arise from their alleged exposure to Agent Orange during their military service. While virtually all of the veterans allege that their exposure took place in southeast Asia as a direct result of government efforts to defoliate the forests during the Vietnam war, the circumstances of each veteran’s claimed exposure may vary. Some claim to have been directly sprayed with Agent Orange; some claim to have come into contact with Agent Orange as a result of being transported through sprayed areas; others claim to have been exposed to Agent Orange by ingesting water or food contaminated with the herbicide; and still others claim exposure during the transportation and handling of Agent Orange or its containers. Whatever the facts surrounding a particular veteran’s claim of exposure may be, each veteran’s presence in southeast Asia resulted solely from their military service, and, as to each veteran, “as an incident to his service or employment [he was] placed in a position where he [was] surrounded with conditions giving rise to the claim” of exposure. See 1 Jayson Handling Federal Tort Claims § 155.02 at 5-78 through 5-79. Even veterans who claim injury as the result of exposure to Agent Orange while off duty are within the parameters of the Feres doctrine because “when viewed in all the surrounding circumstances”, a veteran’s exposure in southeast Asia to a herbicide used for military purposes “has a real and substantial relationship to his military service * * * and consequently [his claim] is barred under the Feres doctrine.” 1 Jayson, flan dling Federal Tort Claims § 155.02 at 5-66. The analysis is similar for those veterans who claim that their exposure to Agent Orange occurred within the United States or places other than southeast Asia during their military service. Their handling, transportation or distribution of Agent Orange during the course of their military duties was incident to their service, and their claims are equally barred under the Feres doctrine. (b) Post-Discharge Failure to Warn Only one of plaintiff veterans’ claims does not fall easily under this analysis, i. e., that defendants breached a post-discharge duty to the veterans by failing to notify them of new scientific information concerning the possible harm that could result from exposure to Agent Orange. Plaintiff veterans allege that defendants’ failure to inform them of possible dangers associated with exposure to Agent Orange prevented them from seeking more frequent medical examinations and thereby insuring early detection and treatment of disease. Defendants seek indemnity and contribution from the government on this claim too. Defendants rely on three cases in opposition to the government’s motion to dismiss these “post-discharge” claims: Schwartz v. United States, 230 F.Supp. 536 (E.D.Pa. 1964); Thornwell v. United States, 471 F.Supp. 344 (D.D.C.1979); Everett v. United States, 492 F.Supp. 318 (S.D.Ohio 1980). In Schwartz v. United States a serviceman treated for a sinus condition during the course of his military service had a radioactive dye, umbrathor, inserted into his sinus. After discharge from the military, plaintiff sought additional medical treatment for his sinus difficulties, but the Veterans Administration hospital that considered his treatment failed to obtain and examine his medical records, and, as a result of the hospital’s negligence, the continued presence of the earlier-inserted umbrathor went undetected. As a result plaintiff contracted cancer. The court held that Feres did not bar plaintiff’s claim against the government, because plaintiff’s claim of negligence lay not in the original insertion of the umbrathor at the time he was in the military; rather, the court found that the actionable negligence was the hospital’s failure to take reasonable steps to diagnose and solve plaintiff’s problem, the continued presence of the umbrathor in his sinus. 230 F.Supp. at 539-40. The court further opined that the government was negligent for its failure to followup its umbrathor patients in order to inform them of newly discovered dangers associated with the drug. 230 F.Supp. at 540. In the second case relied on by the defendants, Thornwell v. United States, a former serviceman alleged that he was intentionally drugged with LSD as part of a secret government experiment and that the government negligently failed to warn plaintiff that his exposure to the drug subjected him to certain medical risks. The Thornwell court, noting the difficulties that courts encounter when the acts complained of commence while plaintiff is on active duty and then continue until well after discharge, 471 F.Supp. at 350, held that Thornwell’s claim against the government was not barred by the principles of Feres because he did not allege merely continuing negligence. Rather, [h]e claim[ed] that he was intentionally harmed while he was on active duty and he further claim[ed] that, after he became a citizen [left the military], the defendants failed to exercise their duty of care by neglecting to rescue him from the position of danger which they had created, * * * two distinctly separate patterns of conduct, one intentional and [one] negligent. 471 F.Supp. at 351. The Thornwell court then found that plaintiff had alleged “two entirely different torts”, and since the “complaint [was] perfectly clear in its allegation that the negligent act occurred, in its entirety, after [plaintiff] attained civilian status”, 471 F.Supp. at 351 (emphasis in original), plaintiff’s claim of governmental negligence was not barred by Feres. Id. The Thornwell court divided the cases involving servicemen’s claims of post-discharge negligence into three types: To summarize the relevant precedent, it appears that there are three types of personal injury cases which involve post-discharge negligence. In the first case, the military performed separate negligent acts (i. e., two improper operations), one before, and one after, discharge; United States v. Brown, 348 U.S. 110 [75 S.Ct. 141, 99 L.Ed. 139], and Hungerford v. United States, 192 F.Supp. 581 (N.D. Cal.1961), rev’d on other grounds, 307 F.2d 99 (9th Cir. 1962), both clearly indicate that the injured veteran may recover for the later act. In the second case, a single negligent act occurs and its effects linger after discharge; Feres v. United States, 340 U.S. 135 [71 S.Ct. 153, 95 L.Ed. 152] (1950), holds that, under some circumstances, this one act is subject to intra-military immunity. Third, the military may commit an intentional act and then negligently fail to protect a soldier turned civilian from the dire consequences which will flow from the original wrong. This Court holds that, under such circumstances, the injured civilian may have a valid claim against the tort feasors. The later negligence is a separate wrong, a new act or omission occurring after civilian status is attained; the perpetrators of this wrong must be held accountable for their conduct. 471 F.Supp. at 352. In defendants’ third case, Everett v. United States, 492 F.Supp. 318 (S.D.Ohio 1980), the wife of a deceased serviceman sued the government claiming that her husband’s death by cancer was the result of his being intentionally exposed to large doses of radiation when he was forced to participate as an Air Force enlisted man in military maneuvers in a nuclear blast area less than one hour after detonation of the nuclear device. Plaintiff argued that her husband’s march through the hazardous area was part of an experimental project to test the effects of nuclear radiation. Refusing to dismiss plaintiff’s claim of post-discharge negligence, the Everett court found that the fact picture “properly falls in the third category” of the Thornwell analysis—intentional act incident to service, plus a separate wrong of post-discharge negligence. 492 F.Supp. at 325. These cases are distinguishable from the facts at bar in several important respects. First, unlike the Schwartz case, the post-discharge negligence asserted here is not separate and distinct from the numerous acts of negligence alleged to have occurred incident to plaintiff’s service. Schwartz, who sought medical treatment after his discharge, had a predischarge condition that was improperly diagnosed and negligently treated after discharge. That the condition arose due to government installation of the umbrathor in plaintiff’s sinus while he was a serviceman does not alter the fact that the governmental negligence occurred, in its entirety, long after plaintiff became a civilian. Unsupported dicta aside, Schwartz stands only for the proposition that recovery for negligent performance of post-discharge medical treatment is not barred merely because the original condition arose from medical treatment that is not actionable under Feres. Thus, Schwartz properly falls under ThomwelTs “first case”, where “the military performed separate negligent acts (i. e., two improper operations), one before, and one after, discharge”. 471 F.Supp. at 352. Here, plaintiff’s claim of post-discharge failure to warn does not present a separate and distinct act of post-discharge negligence on the part of the government. Of course, any veteran in this case who faces a situation analogous to Schwartz, that is, who seeks post-discharge medical assistance from the government for an Agent Orange related malady and is negligently treated at a government hospital, may prosecute his claim for negligent treatment without the Feres impediment. Second, unlike the Thornwell and Everett cases, plaintiffs here do not allege that the government caused them intentional harm by subjecting them to a form of human experimentation. Thornwell, joined by Everett, emphasized the distinction between cases of predischarge torts that were intentional and those that were negligent: Mr. Thornwell * * * does not allege a mere continuing negligent omission [which would be barred by Feres]. He claims he was intentionally harmed while he was on active duty and he further claims that, after he became a civilian, the defendants failed to exercise their duty of care by neglecting to rescue him from the position of danger which they had created. * * * Mr. Thornwell’s claims for in-service, and out-of-service, injuries, certainly involve two distinctly separate patterns of conduct, one intentional and [one] negligent. 471 F.Supp. at 351 (emphasis in original) Thus, both the Thornwell and Everett courts were presented with the “third case” in the Thornwell analysis, where the military “commit[s] an intentional act and then negligently fail[s] to protect a soldier turned civilian from the dire consequences which will flow from the original [intentional] wrong.” 471 F.Supp. at 352. Here, the parties do not dispute that the government’s motives in using Agent Orange in southeast Asia were valid military objectives: defoliate jungle growth to deprive enemy forces of ground cover and destroy enemy crops to restrict enemy’s food supplies. Unlike Thornwell and Everett, plaintiffs here do not allege that the government committed “an intentional act and then negligently fail[ed] to protect [them]”, Thornwell v. United States, 471 F.Supp. at 352; Everett v. United States, 492 F.Supp. at 325. Accordingly, the facts at bar do not present the “third case” of the Thornwell analysis. If this case fits within the Thornwell analysis at all, it is the “second case”, where “a single negligent act occurs and its effects linger after discharge.” 471 F.Supp. at 352. Despite all the inconsistencies pervading this difficult area of analysis, “it is clear, at the very least, that a mere act of negligence which takes place while the plaintiff is on active duty and which then remains uncorrected after discharge, is not grounds for suit”. Thornwell v. United States, 471 F.Supp. at 351. Plaintiffs’ complaints here neither allege nor support a conclusion that the post-discharge failure to warn was sufficiently separate and distinct from the underlying “incident to service” tort claims. Moreover, the Feres doctrine bars claims that are not only “incident to service” but also those which, like these, “arise out of” military service. The injuries here alleged are “inseparably entwined” with, and directly related to, plaintiffs’ military service, see Healy v. United States, 192 F.Supp. 325,328 (S.D.N.Y.1961), aff’d on opinion below, 295 F.2d 958 (C.A.2, 1961); Kilduff v. United States, 248 F.Supp. 310, 312 (E.D.Va.1960); 1 Jayson, Handling Federal Tort Claims § 155.08[3][b] at 5-124. The important and well established principles of the Feres doctrine cannot be circumvented by inventive presentation or artful pleading which attempts to create an actionable post-discharge claim out of what is in reality a claim of continuing neglect. See Thornwell v. United States, 471 F.Supp. at 352. (c) The Australian Veterans’ Claims The above analysis applies with equal force to the claims of the Australian veterans. The only reported case on point, Daberkow v. United States, 581 F.2d 785 (C.A.9, 1978), reached a similar conclusion. There, the claims of a West German serviceman, killed performing duties incident to joint military activity conducted by the United States and West German governments, were held barred under Feres. The Daberkow court undertook an analysis of the three “Feres factors” and concluded that Feres applies with equal force to foreign servicemen injured incident to joint military activities because: (1) the scope of the United States government’s liability should not depend on the fortuity of the location of any serviceman’s duty station, whether that serviceman is an American or foreign serviceman; (2) the foreign government there involved had provided a means of compensating veterans and their families for injuries incident to service; and (3) the possible disruption of military discipline resulting from servicemens’ claims is similar whether the serviceman is American or not. 581 F.2d at 788. Here, the claims of the Australian plaintiffs clearly fall within the Daberkow analysis. The Australian plaintiffs concede that their presence in southeast Asia during the period in question was the direct result of their country’s participation in joint military operations with the United States, memorandum of Australian plaintiffs at 3, and they acknowledge the existence of a compensation scheme for Australian veterans similar to that provided by the United States government. Memorandum of Australian plaintiffs at 8. Moreover, to rule that the United States government has waived sovereign immunity with respect to the tort claims of foreign servicemen but not with respect to the claims of American servicemen would distort the underlying purposes of the FTCA, defy common sense, and almost certainly be contrary to the intent of an elected Congress. Since the court determines that the Australian veterans could not maintain an action directly against the United States, defendants in turn may not maintain their third party action for indemnity or contribution based on any recovery the Australian veterans may obtain from them. Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977). (d) Derivative Claims of Spouses, Parents and Children Although the Feres doctrine does not apply to the servicemen’s next of kin insofar as their own direct injuries or deaths are concerned, 1 Jayson, Handling Federal Tort Claims § 156 at 5-142 through 5-143 and cases cited therein, Feres does bar suits by a serviceman’s family for damages resulting from injuries the serviceman suffered incident to service, 1 Jayson, Handling Federal Tort Claims § 156 at 5-144, even where the derivative action is technically personal in character (e. g., wrongful death, loss of consortium). Van Siekel v. United States, 285 F.2d 87, 91 (CA9 1969). This principle is demonstrated by Feres itself, where two of the three suits barred in that decision were wrongful death actions instituted on behalf of widows of servicemen who had died from injuries suffered incident to their service. Feres v. United States, United States v. Griggs, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). (Deciding appeals from Feres v. United States, 177 F.2d 535 (CA2 1949), and Griggs v. United States, 178 F.2d 1 (CA 10 1949)). Further, application of this rule bars claims of mental anguish suffered by family members, DeFont v. United States, 453 F.2d 1239,1240 (CA1 1972), cert. denied, 407 U.S. 910, 92 S.Ct. 2436, 32 L.Ed.2d 684 (1972) (wife’s mental anguish over inadequate care provided serviceman husband not separate and distinct claim under Feres), and also bars the claims of veterans’ spouses who allege damages that actually were the result of harm done to servicemen, Harten v. Coons, 502 F.2d 1363, 1365 (CA 10 1974), cert. denied, 420 U.S. 963, 95 S.Ct. 1354, 43 L.Ed.2d 441 (1975) (mother of accidentally conceived child cannot recover for negligent vasectomy performed on serviceman husband). Applying these principles to the case at bar, it is clear that members of the veterans’ families may not maintain actions against the United States based on their derivative claims (e. g., loss of society, comfort, companionship, services, consortium, guidance and support), or claims that result from a serviceman’s injury (e. g., miscarriage). Accordingly, under the principles of Stencel Aero, the defendants may not seek indemnity or contribution from the United States for any liability imposed on them for claims of this nature. (e) Claims of Direct Injury to Veterans’ Children Only the veterans’ children’s claim of direct injury requires additional analysis. Here, children of Vietnam veterans allege that they have suffered genetic and somatic injury as a result of a parent having been exposed to Agent Orange. This presents the difficult question of whether the injuries suffered by these children, who are not and never were members of the military, are derivative injuries suffered “incident to or arising out of military service”, or whether they are direct injuries independent of those of their parents. The closest precedent is Monaco v. United States, No. C 79-0860 (N.D.Cal. Nov. 2, 1979), where plaintiff, the daughter of a serviceman exposed to radiation during his military service, claimed the government’s negligence towards her father caused her to be affected with “chromosomal and genetic change” which in turn resulted in her being born with a birth defect. Monaco v. United States, slip op. at 3. There, the court held that “[t]he test of Feres is whether plaintiff’s injuries have as their genesis injuries allegedly sustained incident to the performance of military service”, slip op. at 3, and found plaintiff’s claim barred under this standard because “[plaintiff’s] injuries are directly related to and arise out of the injury sustained by her father at the time he was a member of the United States Army.” Slip op. at 4. In the case at bar, the children’s claims of genetic and physical harm are indirect because they arise only as the result of injuries to their veteran parents. The injuries alleged by the children had their genesis in the exposure of their parents and, assuming that Agent Orange could produce the genetic changes alleged, the injuries were inflicted on the serviceman at the time of exposure. Thus, although Agent Orange may ultimately be found to have caused injuries in subsequently conceived children, those injuries, nevertheless, arose out of and were incident to the service of the parent. To hold otherwise might open the door for governmental liability to countless generations of claimants having ever diminishing genetic relationship to the person actually injured. For these reasons, the court holds that the children’s claims for genetic injury and birth defects from Agent Orange exposure of their veteran parents are injuries suffered “incident to and arising out of service” under Feres and cannot be recompensed in an action maintained directly against the government. Consequently, the defendants may not seek indemnity or contribution against the United States for any liability they ultimately may incur as a result of these claims. Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977). G. DEFENDANTS’ REMAINING CLAIMS AGAINST THE UNITED STATES Defendants have sought to style the remaining claims of their third party complaints in terms of constitutional deprivation and torts committed directly against them by the United States. This appears to be another exercise in pleading in an attempt to avoid statutory jurisdictional problems because, notwithstanding the defendants’ characterizations, these remaining claims against the government are not tort claims; rather, they are essentially contractual in nature and must be so treated. Congress has conferred on the courts jurisdiction over contract claims that is different from that over tort claims. Under the Tucker Act, 28 U.S.C. § 1491, jurisdiction for any claim founded upon an express or implied contract with the United States is conferred on the Court of Claims, where cases sounding in tort may not be maintained. The United States District Courts have concurrent jurisdiction over contract claims, but only when the claim does not exceed $10,000. 28 U.S.C. § 1346(a)(2). Here, it is beyond dispute that defendants’ remaining third party claims against the government involve more than the $10,000 that deprives this court of jurisdiction over them. Consequently, the government’s motion to dismiss must be granted as to the remaining claims. Of course, dismissal of defendants’ third party claims here is without prejudice to defendants’ right to pursue their claims against the government in the proper forum. H. OTHER CLAIMS OF IMMUNITY Arguing in the alternative, the United States seeks to dismiss defendants’ third party complaints under three statutory exceptions to the FTCA: the combatant exception, 28 U.S.C. § 2680(j) (immunity not waived for “[a]ny claim arising out of the combatant activities of the military * * * during time of war”); the foreign country exception, 28 U.S.C. § 2680(k) (immunity not waived for “any claim arising in a foreign country”); and the discretionary function exception, 28 U.S.C. § 2680(a) (immunity continues for “act or omission of an employee of the government * * * based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of [the government]”). Notwithstanding the apparent application of these exceptions to some of the claims here asserted, the court’s determination that the Feres/Stencel doctrine operates to bar all tort claims advanced in the third party complaint makes it unnecessary to consider whether these exceptions do apply. For all these reasons, the government’s motion to dismiss the third party complaints is granted, and the third party complaints against the government deemed to have been made in all actions under MDL 381, are dismissed. III. THE CASE MANAGEMENT PLAN There have been pending for some time motions by various parties urging the court to make various orders affecting the overall management of this action, including such matters as class action treatment, summary judgment, discovery, and division of the action into various parts for pretrial and trial purposes. The court has reserved decision on all these motions pending resolution of two major questions that greatly affect how the case might be managed efficiently: (1) whether the United States was to be a party to the action, and (2) whether jurisdiction lies under federal common law or whether the principles and consequences of diversity jurisdiction must be considered. Now that both of these questions have been answered, it is time to get on with orderly discovery and ultimate disposition of the litigation. In developing the case management plan described in this section, the court has weighed and considered many problems presented by this litigation. Some of them are: 1. There are a large number of plaintiffs and potential plaintiffs who claim to have been injured by exposure to Agent Orange. There are now approximately 167 suits pending in the Eastern District of New York involving over 3,400 plaintiffs. The court has been informed that there are many thousands more who have, at the court’s request and pending decision of the class action motion, refrained from bringing individual actions. 2. There are numerous chemical companies named as defendants. The fact that they may have had differing degrees of involvement in manufacturing and supplying Agent Orange for the government may or may not cause differing levels of responsibility for the effects of Agent Orange on plaintiffs. 3. The present plaintiffs come from most of the 50 states and from Australia. This may require consideration of varying standards of conduct, rules of causation and principles of damages that may substantially affect the results in individual cases. 4. The causation issues are difficult and complex. Clearly this is not the “simple” type of “disaster” litigation such as an airplane crash involving a single incident, having a causation picture that is readily grasped through conventional litigation techniques, and presenting comparatively small variations among the claimants as to the effects upon them of the crash. With the Agent Orange litigation, injuries are claimed to have resulted from exposure to a chemical that was disseminated in the air over southeast Asia during a period of several years. Each veteran was exposed differently, although undoubtedly patterns of exposure will emerge. The claimed injuries vary significantly. Moreover, there is a major dispute over whether Agent Orange can cause the injuries in question, and there are separate disputes over whether the exposure claimed in each case did cause the injuries claimed. The picture is further complicated by the use in Vietnam of other chemicals and drugs that also are claimed to be capable of causing many of the injuries attributed to Agent Orange. 5. The litigation presents numerous questions of law that lie at the frontier of modern tort jurisprudence. Among them are questions of enterprise liability, strict products liability, liability for injuries that appear long after original exposure to the offending substance, and liability for so-called genetic injuries. 6. Many of the people exposed to Agent Orange may not even yet have experienced the harm it may cause. 7. Numerous scientific and medical issues are presented, and there are serious questions of whether there is adequate data to reach scientifically sound conclusions about them. There is the further question of whether legally permissible conclusions may nevertheless be reached on data that would not permit “scientific” conclusions. 8. Various agencies of the government have expressed concern but as yet have shown little tangible action about the problems claimed to have been caused by the government’s use of Agent Orange. • 9. There are important and conflicting public policies that run as crosscurrents through many phases of both the substantive and procedural problems of this litigation. 10. There is a wide choice available among the many procedural devices that could be used for addressing and ultimately deciding this controversy. All of these problems are compounded by the practical realities of having on one side of the litigation plaintiffs who seek damages, but who have limited resources with which to press their claims and whose plight becomes more desperate and depressing as time goes on, and having on the other side defendants who strenuously contest their liability, who have ample resources for counsel and expert witnesses to defend them, and who probably gain significantly, although immeasurably, from every delay that they can produce. Overarching the entire dispute is a feeling on both sides that whatever existing law and procedures may technically require, fairness, justice and equity in this unprecedented controversy demand that the government assume responsibility for the harm caused our soldiers and their families by its use of Agent Orange in southeast Asia. Out of these and other problems it is this court’s task as the transferee judge in this multidistrict litigation to supervise and manage the action so as to bring it to a “just, speedy and inexpensive determination”, Rule 1 FRCP, either in this court, or if that is not possible, then in the transferor courts after completion here of as much of the litigation as may fairly and reasonably be resolved under the supervision of this single judge. With the foregoing and other problems in mind, the court has considered a variety of possibilities for managing this multidistrict litigation. Each possibility has both advantages and disadvantages. Among the numerous possibilities are the following: 1. Transfer all actions to the Eastern District of New York for trial before this court. a. Advantages: All parties would know precisely where they stand, and how the action would be handled. There would tend to be consistency in the results to the extent permitted by the varying applicable laws. b. Disadvantages: Handling the cases would take the full time of this court, which would be able to handle no other cases, a result that would be unfair not only to the other judges in the Eastern District of New York who are already overburdened with one of the heaviest criminal workloads in the nation, but also to other civil litigants in the Eastern District, who would be further delayed in getting their cases to trial. Moreover, to separately try these actions would take far too long a time; probably neither the litigants nor this court would live long enough to see the last case tried. 2. Supervise all discovery, prepare a pretrial order, and then remand the cases for separate trials in the transferor districts around the country. a. Advantages: This is by far the easiest course of action for this court to take. In many MDL cases this is an acceptable and proper technique and achieves all of the MDL benefits available to those cases. It accomplishes coordinated discovery, a single plan for processing up through the pretrial order, and a shared workload in the actual trial of the individual actions. b. Disadvantages: This technique would require separate trials of each action in the transferor courts, a technique that would be repetitious and wasteful with respect to the issues that are common to all actions. Although testimony of key expert witnesses might be made available to each of the transferor courts through use of videotape so that the need for those witnesses to personally appear at each trial would thereby be eliminated, the opportunity to cross-examine the experts on special problems that relate to the individual plaintiffs would still be lost. The greatest disadvantage of this method is that it would place unnecessary burdens on each of the transferor judges, each of whom would have to struggle with identical legal and factual issues, and it would thus fail to reach the level of judicial efficiency and economy that MDL procedures were designed to achieve. 3. Coordinate discovery and other pretrial work, consolidate the actions for trial of the common issues of fact and law, and then remand to the transferor districts for separate trials of the individual issues such as specific causation and damages. a. Advantages: A single trial of common issues has obvious benefits in economy and efficiency. Spreading to other courts the workload of trying individual cases at least makes a judicial solution to this litigation possible in terms of time and workloads. b. Disadvantages: The consolidation technique addresses only the pending actions, that is, it involves those situations where the plaintiff has seized the initiative and brought suit. However, there are many people with valid claims who for one reason or another have not asserted them by bringing suit and who would therefore not recover for damages inflicted, including damages of which they might not yet even be aware. 4. Certify the litigation as a class action, using all the flexibility of that device, including subclasses, to determine common issues before this court and ultimately determine the individual issues either under the direct supervision of this court or after remand to other courts. a. Advantages: Class action treatment would give this court full control over the entire litigation. Any determinations reached in the class action would bind all defendants as well as all members of the class except those who chose to opt out, and as to them, their suits could be consolidated for joint trial with the class action. By use of subclasses to be certified as the need later arises, additional trials on issues common to identified subclasses may be conducted either here in the Eastern District of New York, or by the transferor courts after remand, or by a combination of both. This method provides the greatest flexibility and the greatest opportunity for judicial efficiency and economy of time and money. b. Disadvantages: The disadvantages with class action treatment lie largely in technical and procedural problems that have arisen with the class action device in other contexts. Such problems have proved particularly troublesome in the context of mass tort cases. Having considered carefully the nature of those technical problems, this court is satisfied that they can be over-, come by following the case management plan described in this section and the steps described under the section entitled “Class Action”. After considering the submissions and arguments of the parties and after weighing all of the foregoing and many other considerations, the court has developed the following plan for management of the Agent Orange litigation assigned to it under MDL No. 381: 1. Class action. The Agent Orange litigation will be certified as a class action under F.R.C.P. 23(b)(3). (See discussion below entitled “Class Action”). 2. Statutes of limitations. The court will take up immediately the problems of statutes of limitations. (See discussion below entitled “Statutes of Limitations”). 3. Separate trials of some issues. Whenever common issues are presented, a common trial should be had, if practicable. These trials will be held as promptly as possible in the Eastern District of New York, preserving at all times the parties’ right to a jury trial when properly demanded. Plaintiffs have moved for so-called “serial” trials, describing in some detail the issues they would like tried and the order in which they should be tried. Except insofar as plaintiffs’ plan is adopted by this decision, that motion is denied. As appears in the discussion below entitled “Summary Judgment” there is an issue that can be separately tried at the threshold of this action: whether the defendants are protected by the “gove