Document jgqXqRwnobyQ45Rx696M2qQeZ

DAY AGENT ORANGE TESTIMONY MOYER V DOW U N I T E D STATES D I S T R I C T C O U R T 'EASTERN DISTRICT' OF. N E W YORK In re --X "AGENT ORANGE" P roduct L ia b ility L itig a tio n MDL No. 38 (All Cases) s AW x filed IN CLERK'S O t !CE, ' ' d. S.D' " COIIRI e.D N.Y. * NOV 18 1983 * TIME A.M P.M NOTICE OF CONFIDENTIALITY^ AND UPDATED INDEX OF CONFIDENTIAL DOCUMENTS OF DEFENDANT THE DOW CHEMICAL COMPANY ' R ivkin,Leff,S h e r m a n & R a d l e r At t o r n e y s a n d C o u n s e l l o r s a t Law IO O G a r d e n C ity P la za , Ga r d e n C ity, N. Y. 11530 H 1 * a JLJi j_ Q UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK In re "AGENT ORANGE" Product Liability Litigation NOTICE OF CONFIDENTIALITY AND UPDATED INDEX OF CONFIDENTIAL DOCUMENTS OF DEFENDANT THE DOW CHEMICAL COMPANY MDL No. 381 (All Cases) Defendant The Dow Chemical Company ("Dow"), pursuant to the Protective Order regarding Production of Confidential Documents by Defendants dated February 6, 1981 (the "Confidentiality Order"), annexes hereto a Notice of C o n f i d e n t i a l i t y (Exhibit A) and an Updated Index of C o nfidential Documents (Exhibit B) for those documents which Dow has designated as "CONFIDENTIAL." In accordance with the C o n f i d e n t i a li t y Order, documents produced pursuant to Procedure B are designated by asterisks herein. All documents produced pursuant to Procedure B are also produced pursuant to Procedure A of the Confidentiality Order. In accordance with paragraph 14 of the Confidentiality Order Dow reserves its right to prepare and distribute further notices of con fidentiality and indexes as the need arises, and to avail itself of the procedures set forth in the C o n f i d e n t i a l i t y Order for the documents identified therein. Dated: Garden City, New York November 16, 1983 RIVKIN, LEFF, SHERMAN, & RADLER BY: ____ A MemDer or m e rm u Attorneys for the Dow Chemical Company 100 Garden City Plaza Garden City, New York 11530 (516) 746-7500 TO: Attached Service List 49 NOTICE OF CONFIDENTIALITY AND UPDATED INDEX OF CONFIDENTIAL DOCUMENTS OF THE DOW CHEMICAL C O M P A N Y _______________ _ NOTICE OF CONFIDENTIALITY Dow Number 04241120424114* Date 641006 Author Dow C a m p b e ll, CA Recipient 04241220424124* 650302 Dow C a m p b e ll, CA Distributees Campbell, CA Dow Ballman, DK Barstow, ED Bennett, EW Bennett, RB Beutel, AP Boundy, RH Branch, CB Calvin, M Doan, HD Doan, LA Doan, LI Dow, AB Dow, HH Gerstacker, CA Griswold, ND Lyon, HH Weaver, CF Whiting, M Campbell, CA Dow Ballman, DK Barstow, ED Bennett, EW Bennett, RB Beutel, AP Boundy, RH Branch, CB Calvin, M Doan, HD Doan, LI Dow, AB Dow, HH Gerstacker, CA Griswold, ND Lyon, HH Weaver, CF Whiting, M Page 1 General Subject Matter Dow Directors' Meeting-Tuesday, 641006 Dow Directors' Meeting-Tuesday, 650203 Dow Number 04241340424136* 04241370424139* 04241570424159* 04241880424190* 04241910424192* Date 650706 650707 651102 670606 670505 Author Dow Dow Dow Dow Dow Distributees Page 2 General Subject Matter Dow Directors' Meeting-Tuesday, 650706 Summary of Executive Committee Minutes - (650707 650711) Dow Directors' Meeting-Tuesday, 651102 Dow Directors Meeting-Tuesday, 670606 Summary of Executive Committee Mi nutes-670505 670512 670519 Dow Number 11249771125002* Date 670420 Author Recipient Distributees Dow Kennett, WW Putnam, MS Staehling, EC Page 3 General Subject Matter Defense Dept. Orange Project Bases for Dow Proposal Dow Number 17263311726333* Date 000000 Author Recipient D1strlbutees Page 4 General Subject Matter Consequences of Overexposure For Tordon; 597 Building H4 H* Ol C'T Dow Number 1784663* Date 000000 Author 1784664* 1784665* 000000 000000 Reci pfent D1stributees Page 5 General Subject Matter Vinyltoluene-Tar Collection System and Furnace Reboilers (M-32052M) 245 - Trichlorophenol - New Facility 245 - Trichol orophenol - New Production Facilities Dow Number 20223982022406* 20224072022488* 20224892022503* 20225042022519* Date 706217 66000 710324 65101 2 20225202022528* 651012 20225292022537* 650518 20225482022571* 700400 Author Liening, EL Recipient Dow Dow Kennedy, TL Tree, RM Anderson, RE Harris, JS Anderson, RE Harris, JS Wehn, ViE Anderson, R.E. DeLisle, NG Leuck, AF Georgen, G Dow Bosscher, H Anderson, RE Lueck, AF Schmidtke, DJ Wehn, WE Anderson, RE Lueck, AF Schmidtke, DJ Wehn, WE \ OT I Distributees Gorgacz, SM Hicks, GM Stone Page 6 General Subject Matter Review of Materials Experience at the Trichloropenol Plant, 804 Building, for 1973, 1974 and 1975. 2, 4, 5-Trichlorophenol New Plant - 1966 Trichlorophenol Plant Cooling Tower, In-Plant Portion (M-700498) Trichlorophenol Project-Process Engineering Trichlorophenol Project-Process Engi neeri ng New 245-Trichi orophenol Plant Arteberry, DG Barton, JT Bauman, WC Bechtold, RF Bellow, RE Organic Chemicals Department-TS&D Hi ghli ghts Dow Number Date AutIhor Recipient h4 OT GO Di stributees Bernstein, MK Blair, EH Blue, RD Bremmer, BJ Brown, TE Brown, WE Bryant, F Burgert, BE Butcher, BB Byrd, GW Carlson, RG Carmouche, LN Cessna, OC Chamberlain, M Christian, CA Coker, WP Coon, ET Davis, RH Davis, RM Derby, RL Dii ley, R Dreyer, JW Dunn, EE Fay, BW Fischback, BC Friedli, H Gold, WL Grabiel, CE Hanners, HW Hansen, R Hanson, AW Heitz, RG Hickner, RA Hoblit, LD General Subject Matter Dow Number Date Author Recipient CK CD Distributees Honea, CR Johnson, J Jones, GD Karns, RE Kelly, ME Kuchinic, RM Langner, RB Lindy, LB Litherland, LO Leavitt, FC Look, AT Maasberg, AT Mackenzie, GF Mackey, JC Madison, NL Marklewitz, WE Marks, CD McClure, HH McCoy, CE McDuff, JM Me Inti re, OR Munden, BJ Nelson, DL Nielson, JT Nielson, WH Neumann, FW Ohlmann, EO Palmer, T Parsons, CP Pearson, KS Peterson, LR Potts, WT Prince, AK General Subject Matter Dow Number Date Author Recipient 20226162022666* 700600 Dow ^uiA |*wSi CD O Distributees Rogers, WA Ruh, RP Sarge, TW Schuhmann, JG Sheehan, TJ Sheetz, DP Sienknecht, P Snyder, IJ Sorenson, RH Sparta, TA Stehling, EC Trapp, WB Tucker, JC Tuttle, FC Warren, GW Yocum, RH Yoshimine, M Mummy, WR Maasberg, AT Ettinger, MB Busk, RS Blue, RD Peterson, NR Johnson, JE Bauman, WC Boyer, RF Lindsav, RA Look, AT Struthers, JA Rausch, DA McCoy, E Prince, AK Kimmel, CE General Subject Matter Page 9 Biochemical Research Laboratory. Quarterly Report April-June 1970 Dow tyumber Date -Au-i-th-or Recipient h--fi, CD Di stributees Westveer, WM Schwarz, AJ Harrison, RP MeInti re, OR McIntyre, HH Gordon, HL MacCutcheon, SM Kelly, ME Dumb, RR Dean, PE Johnson, RL Lake, DE Meyer, FJ Erratt, RL Cheney,GW Schaefer, HL Graham, DL Flynn, JM Johnston, RV Dowell, FH Sauriedel, WR Blair, EH Howe, RG Barrons, KC Hymas, TA Johnston, Chas. Moss, RD McCollister, DD Reifschneider, W Smith, GN Osborne, DW Strycker, SJ Dunbar, JE Dorman, LC General Subject Matter Dow Number Date Author Recipient Distributees Young, AE Bjork, CK Johnson, MR Yates, WM Post, T Holder, BB Kramer, CG Morse, DB Shannon, ES Brower, FM Englibous, DL Kiley, LR Bearner, WW Muelder, WW Rabold, GP Kagel, R Frevel, LK Alfrey, T Burgert, BE Houtman, T Murdoch, PG Leavitt, FC Pumpelly, CT Jezic, Z DeMott, DN Jones, GD Axe, FD Boeckler, WH Branson, DR Charm, JB Chenoweth, MB Dunn, EE Dunn, FL Gerguson, JT General Subject Matter Dow Number Date Author Recipient !* 03 CO Di stributees Flores, GH Gehring, PJ Gooch, RM Hinman, CW Holmsen, TW Hoover, WE Hoyle, HR Humiston, CG Kociba, R Leong, BK McCarty, LP McCollister, SB McDermott, RD Moyle,CL Neely, WB Norris, JM Oriel, PJ Piper, WN Riley, WH Rodia, RM Rov/e, VK Schneider, CW Schneider, EJ Schwetz, BA Silverstein, LG Sparschu, GL Spencer, HC Torkel son, TR Ts'o, TO Wolf, MA Wolf, PA Wyse, HA Milch, LJ Renzi, AA General Subject Matter Dow Number Date Author Recipient h* OD Ui* Distributees General Subject Matter Barnhart, JW Robinson, VB White, HC Hake, Cl Daniels, ME Miner, NA Steward, D Kilian, DJ Edwards, HN Barton, JA Pruitt, ME Brown, JH Ludwig, PD Heitz, RG Kagy, JF Goring, CAI Lloyd, BH Staehling, EC Biggers, MW Tobey, SW Hillary, BB Skory, L DeGesero, R Rinzema, L Schaffer, A Thompson,C Naranjo, P Maffii, G Sensi, P Zeller-Celso, L Lanci ni, G Arri goni-Martel! i, E Dow Number 20226742022701* Date 700600 Author Dow Recipient Di stributees Johnson, JE Nummy, WR Barrons, KC Hymas, TA Kagy, JF Goring, CAI Heitz, RG Bail es, RH Johnston, H Johnston, RV Gowell, JH Popoff, FP Dowell, FH Holmsen, TW Reifschnei der, W Getzendaner, ME Lynn, GE Bjork, CK Blair, EH Schwarz, AJ Ludwig, PD Moss, RD McCollister, DD Osborne, DW Seymour, KG Winquist, ME Gum, W Busk, RS Cheney, GW Flynn, JM Kelly, ME McCoy, CE MeInti re, OR Prince, AK General Subject Matter Agricultural Department Quarterly Progress Report April - May - June 1970 Dow Number Date Author Recipient 2022702202274* 700727 Dow Distributees Schwarz, AJ Struthers, JA Peterson, LI Johnston, C Blair, EH Hinman, CW Gaska, R Frevel, LK Potts, WL Friedli, HR Kelly, ME Bowman, C Stall, DR MeInti re, OR Johnson, JE Blue, RD Nummy, WR VanWestenberg, JA Prince, AK Maasberg, AT Peterson, LI Brower, F McCay, CE Engibous, DL Busk, RS Sheetz, DP Cook, P Hanson, AW Struthers, JA Mackenzie, F Leavier, FC White, LW Schwarz, AJ General Subject Matter Eastern Research Lab Quarterly Progress Report - April - June 1970 Dow Nu- m>b-er Date Author Recipient 20227622022801* 691200 Dow 03 Distributees Burgert, BE Novak, RM Flynn, JM Alfrey, T Morocci, PG Houtman, T Bearne, WH Bache, AF Griffii, JD Rosene, R Biggers, r-IW Blake, CL White, HC Quinn, H Thompson, CF Brown, JH Ludwig, PD McClure, HH Rogers, WA Pruitt, ME Heitz, RG Kagy, JK Bail es, R Brown, CF Mackey, JC Johnson, JE Nummy, WR Barrons, KC Hymas, TA Kagy, JF Goring, CAI Heitz, RG Bail es, RH General Subject Matter Page 16 Agricultural DepartmentQuarterly Progress Report October - November - December - 1969 Dow Number Date Author Recipient 20228312022849* 700200 Dow 20228592022891* 700300 Dow h- a OD Di stributees Johnston, H Johnston, RV Gowel1, JH Popoff, FP Dowel 1, FH Holmsen, TW Reifshneider, W Getzendaner, ME Lynn, GE Spalding, JL Blair, EH Schwarz, AJ Ludwig, PD Jones, GD Moss, RD McCollister, DD Osborne, OW Seymour, KG Winquist, ME Johnson, JE Nummy, V/R Barrons, KC Hymas, TA Kagy, JF Goring, CAI Heitz, RG Bailes, RH Johnston, H General Subject Matter Page 17 Organic Chemicals Production Research - Monthly Summary February 1970 Agricultural Department Quarterly Progress Report - January - February March 1970 Dow Number Date Author Recipient 20228922022972* 700600 Dow Distributees Johnston, RV Gowell, JH Popoff, FP Dowel 1, FH Holmsen, TW Reifschneider, W Getzendaner, ME Lynn, GE Bjork, CK Blair, EH Schwarz, AJ Ludwig, PD Jones, GD Moss, RD McCollister, DD Osborne, DW Seymour, KG Winquist, ME Gum, W Busk, RS Cheney, GW Flynn, JM Kelly, ME McCoy, CE MeInti re, OR Prince, AK Schwarz, AJ Struthers, JA General Subject Matter Page 18 Radiochemistry Research Laboratory - Quarterly Progress Reports - April - May - June 1970 Dow Number 20229732023110 Date 700600 Author Dow Recipient Distributees Milch, LJ Brunton, AM Dacquisto, MP Hake, CL Marshall, FN Miller, BH Munden, BJ Renzi, AA Robinson, VB Schell, K Stavropoulos, WS White, HC Shea, PJ Barnhart, J Trepanier, DL Kulkarni, A Eble, J Abdallah, A Wagner, E Lewis, JE Miner, N Steward D Kenny, M Torney, H Taylor, H Sargent. R Broersma, R Anderson, JT Kammeraad, A Zoccolino, R Johnson, JE Hinman, CS McIntyre, OR Peterson, NR Page 19 General Subject Matter Semi-Annual Progress ReportHuman Health Research and Development Laboratories - January June 1970 Dow Number Date Author Reci 20231732023219* 700900 Dow Di stributees Reifschneider, W Nummy, WB Schwarz, AJ Rampy, LW Johnson, MR Blair, E Strycker, SJ Johnston, RV Chenoweth MB Neely, WB Moss, RD Champlain, CE CRI Peterson, L Johnson, FE Kagy, JF Heitz, RG Mul hoi land, RS Zelter-Celso, L Sensi, P Maffii, G Nicoli as, FB Furesz, S Naranjo, P Blair, EH Hinman, CW Hinman, CW Gaska, R Frevel, LK Potts, WJ Friedli, HR Kelly, ME Bowman, C General Subject Matter Page 20 Eastern Research Laboratory Quarterly Progress Report July - September 1970 Dow Number Date Author Recipient Di stributees Stull, DR Mclntire, OR Johnson, JE Blue, RD Nummy, WB VanWestenburg, JA Prince, AK Maasberg, AT Peterson, LI Brower, F McCoy, CE Engibous.DL Busk, RS Sheetz, DP Look, AT Hanson, AW Struthers, JA MacKenzie, GF Leavitt, FC White, LW Schwarz, AJ Burgert, BE Nowak, RM Flynn, JM Alfrey, T Murdock, PG Houtman, T Beamer, WH Griffin, JD Roche, AF Rosene, R Biggers, MW Hake, CL General Subject Matter Dow Number Date Author Reel plent 20232562023336* 701200 Dow Distributees Quinn, H Thompson, CF Brown, JH Ludwig, PD McClure, HH Rogers, WA Pruitt, ME Heitz, RG Kagy, JF Bailes, R Brown, WE MacKey, JC Milch, LJ Brunton, AH Dacquisto, MP Hake, CL Marshal 1 ,FN Miller, BH Munden, BJ Renzi, AA Robinson, VB Schel1, K Tedeschi, R Stravropoulos, WS White, HC Shea, PJ Barnhart, J Trepanier, DL Kulkarni, A Foie, J Abadallah, A Wagner, E Lewis, T General Subject Matter Page 22 Human Health Research and Development Lanoratories Semi-Annual Progress Report - July - December 1970 Dow Number Date Author Recipient Distributees Steward, D Kenny, M Turney, H Taylor, H Sargent, R McCarthy, J Jackson, J Warner, S Emerson, J Mol el lo, J Gerbig, C Boerman, R Anderson, JT Kammeraad,A Zoccolino, K Johnson, JE Hinman, CW McIntyre, OR Peterson, NR Reifschneider, W Nummy, W Schwartz, AJ Rampy, LW Bjork, CK Blair, E Strycker, SJ Johnston, RV Chenoweth, MB Neely, WB Moss, RD Champlain, E Reitz, R Dorman, L Chow, R General Subject Matter Dpw Number Date Author Recipient 20233872023478* 701200 20235572023578* 700615 Anders, 0U Atchison, GJ Blanchard, FA Doorenbos, HE Harmer, DE Himes, RP Jewett, GL Kamp, AJ Kawahara, Y Kocher, CW Logan, RA Mani, I Muelder, WW Powers, JB Babold, GP Takahaski, IT Wass, MM Dow vU Page 24 Distributees General Subject Matter Frei ter, E Wysong, D Tobey, SW Johnson, FE Mul hoi land, RS Zeller Celso, L Sensi, P Maffii, G Nicol is, FB Arri goni-Martel 1i, E Nathansohn, G Silvestri, L Naranjo, P Progress Report Covering October, November, December 1970 and Yearly Summary Barrons, KC Blair, EH Agricultural Department Research and Development Dow Number Date Author Reci pient -a oe Di stributees Bremmer, BJ Carlson, RG Dowell, FH Gantz, RL Getzendaner, ME Goring, CAI Kagy, JF Gowel1, JH Hanson, RG Hymas, TA Jantz, OK Johnston, C Johnston, RV Laning, ER Library, JC Little, JC Ludwig, PD Shaver, RJ MacLean,GJ McCollister, DD Lynn, GE Moss, RD Naegele, RE Nyman, FA Osborne, DW Seymour, KG Sheldon, HW Gehring, P Frevel, LK MeInti re, OR Johnson, RB Nummy, WR Kelly, ME Peterson, LI General Subject Matter Staff Meeting - June 15, 1970 Dow Number Date Author Recipient 20235792023975* 690000 Hess, TM 20239762024000* 20240012024014* 691200 700109 H4 Nummy, WR Frevel, LK Potts, WJ Department File Distributees DeMott, DN Prince, AK Nichols, JL Schwarz, AJ Sheetz, DP Bremner, NW Kuyper, CK Ferguson, RH Saunders, ES Dalman, G Leavitt, FC Cheney, GW Bjork, K Jones, P Spalding, J Flynn, JM Jones, IC McClure, HH Pruitt, ME Bailes, RH Johnston, H Thompson, C Johnson, JE Chamberlain, LC General Subject Matter Chemical Physics Research Laboratory, Yearly Progrs Report and Fourth Quarter Summary Organic Chemicals Production Research Monthly Summary Summary of Activities of the Electrochemical Dow Number Date Author Recipient ` -A 00 Distributees Busk, RS Bauman, WC Blue, RD Klesney, SP Jowanovitz, LS Burgert, BE Jones, GD Jeitz, RG Brubaker, RI Nei pert, MP Myers, JC Hickey, JR Roll wage, WA Williams, EJ Frevel, LK Dale, EM Houtman, T Corey, JW Lindsay, RA Blackney, WC Guebert, KW Hotchkiss, RL Anderson, DL McCoy, CE Nei echter!ein, DC Drake, LR Murdoch, PG Wilcox, AC Engibous, DL Groves, KO Gaska, RA Stuart, GA Gilbert, JF Hillary, BB Page 27 General Subject Matter and Inorganic Chemical Research Laboratory (Midland) for the months October - November - December 1969 Dow Number Date Author Recipient 20240152024023* 700100 Distributees Matheson, LA MeIntire, OR Beamer, WH Lowry, BS Stenger, VA Pumpelly, CT Sarge, TW Jones, IC Mod, WA Bothwell, MR Thompson, CF Nelson, DL Ogden, SO Parizek, E Peterson, LI Prince, AK Pumpelly, CT Putnam, MW Roche, AF Ruh, RP Rausch, D Skochdopole, RE Sheetz, DP Struthers, JA Sutherland, S Wegner, ER Wing, MW Woodward, GE Woodward, RE Hultin, R Nielsoh, WH Hanmond, D Chase, F General Subject Matter Page 28 Hydrocarbons and Monomers Research Laboratory - Inorganic and Hydrocarbons Research Department 1969 Fourth Quarter Progress Report - October -November December - 1969 Dow Number Date Author Recipient 20240242024042* 20240812024139* 700100 700216 Dow 20241402024163* 691200 Distributees Shannon, F Zheitoun, M Ilgenfritz, BM Deline, D Pfrommer, C Alexander, HC Baker, RL 3ek, CM Brosier, JS Colbry, RJ Daniele, SL Davis, RD Fox, RD Hall, JR Hall, SD Hamilton, CE Hintz, MJ Ilgenfritz, EM Kraut, DE Krienke, ME Lynch, JE Novak, RG Pfrommer, C Putnam, MS Reinker, RE General Subject Matter Page 29 Organic Chemicals Production Research Monthly Summary Chemical Physics Research Laboratory Summary -Progress Report - October - November December - 1969 Waste Control Progress Report October - November - December 1969 Dow Number Date Author Recipient 20241672024186* 20241872024204* 700300 700416 Dow Distributees Sawinski, RJ Sercu, CL Shannon, ES Shively, JF Teal, JL Terryah, GG Wass, WE Weburg, AW Wilson, JD Zillich, JA Bublitz, DW Bauer, DL Bremner, F Batchelder, TL McClure, HH Mclver, JH Smith, DH Strahan, JM Skory, LK CRI Blair, EH Kiley, LR Hinman, C Gaska, RA Bowman, CM Maasberg, AT Nummy, W Kelley, M Henson, W Jones, GD General Subject Matter Page 30 Organic Chemicals Production Research - March 1970 Radiochemistry Research Laboratory - Quarterly Summary Progress Report - January February - March, 1970 Dow Number Date Author Recipient 20242202024239* 20242402024261* 700400 700500 Dow Distributees Tobey, S Vanwestenburg, JA Hemwall, J Johnson, RC Peterson, LI Brower, F McCoy, GE Engibous, D Csaky, E Smith, RA Bothwell, M Busk, RS Bauman, W Drake, LR Pumpelly, C Burgert, W Rieke, J FI ori a, V Flynn, JM Murdoch, PG Prince, AK Wright, ER Larson, W Brown, JH Pruitt, ME Prophet, H Heitz, RG Kagy, JF General Subject Matter Page 31 Organic Chemicals Production Research - Monthly Summary April, 1970 Organic Chemicals Production Research - Monthly Summary May, 1970 Dow Number 20242642024275* Date 700600 Author Recipient Distributees Arcangeli, M Bosscher, H Brubaker, RI Chase, FI Clark, GA Coulter, KE Deline, DD Engibous, DL Ettinger, MB Fletcher, WH Griffin, JD Gunkler, AA Hammond, DD Hillary, BB Jacob, E Johnson, JE Kline, C Kline, PE Leathers, JM Leavitt, FC Look, AT Lueck, AF Maasberg, AT Mcllhemy, WF McKennon, KR Nielsen, WH Otis, CE Peterson, NR Pfrommer, CP Prince, AK Pumpelly, CT Putnam, MS Rector, MR Reinker, RE Page 32 General Subject Matter Environmental Research Laboratory - Monthly Summary June 1970 Dow Number Date Author Recipient 20242762024288* 20242802024359* 700600 700400 Dow Dow GO Distributees Sanders, ME Sercu, CL Shannon, ES Sheetz, DP Shelton, LG Sienknecht, PJ Smart, RC, Jr. Syyder, RE Staehling, EC Struthers, JA Teal, JL Tree, RM. Jr. Wilcox, AC Woodward, RE Wuckasch, RF CRI(4) Crummett, WB Kiley, LR Bowman, CM Pumpelly, CT Johnson, JE Bauman, WC Nummy, WR Blue, RD Nussbaum, E Rosene, RB Tobey, SW Hinman, CW Coker, WP Vanwestenburg, JA General Subject Matter Page 33 Research and Development Monthly Summary June, 1970 Chemical Physics Research Laboratory - January - April 1970 Dow Number Date Author Recipient 20243602024381* 701100 GO a\ Distributees Peterson, LI Engibous, DL Look, AT Sheetz, DP Leavitt, FC Burgert, BE Nowak, RM Hillary, BB Spettigue, TE Griffin, JD Wright, ER Pruitt, ME Yeaman, MD Heitz, RG Arcangel i, M Bosscher, H Brubaker, RI Bugg, DA Chase, FI Clark, GA Coulter, KE Daigre, GW Davis, RM Deline, DD DeMott, D Engibous, DL Ettinger, MB Gunkler, AA Hammond, DD Hillary, BB Hinman, CW Jacob, E Johnson, JE General Subject Matter Page 34 Environmental Research Laboratory - Monthly SummaryNovember 1970 Dow Number Date Author Recipient Di stributees Kearney, JK Kenaga, EE Kennedy, TL Kline, C Laman, JD Leathers, JM Leavitt, FC Lichy, C Look, AT Maasberg, AT Matheson, LA McClure, HH Mcllheny, WF McKennon, KR Nielsen, WH Otis, CE Pankratz, PM Pavlick, J Peterson, NR Pfronmer, CP Prince, AK Pumpe!ly, CT Putnam, MS Rector, MR Reinker, RE Rogers, W Sanders, ME Schultz, WD Sercu, CL Shannon, ES Sheetz, DP Shelton, LG Sienknecht, PJ Smart, RC, Jr. General Subject Matter Dow Number Date Author Reel 20243822024405* 20244062024420* 20244302024439* 701100 701100 701200 Dow Dow Dow Distributees Sy.yder, RE Staehling, EC Struthers, JA Teal, JL Tree, RM. Jr. Van Westenburg, J Wilcox, AC Woodward, RE Wuckasch, RF CRI(5) Arcangeli, M Bosscher, E Brubaker, RI Bugg, DA Chase, FI Clark, GA Coulter, KE Daigre, GW Davis, RM Deline, DD DeMott, DN Engibous, DL Ettinger, MB Gunkler, AA Hammond, DD General Subject Matter Page 36 Organic Chemicals Production Research Monthly Summary November 1970 Reserach and Development Monthly Summary - November 1970 Dow Number Date Author Recipient ;-i GO 05 Di stributees Hillary, BB Hioman, CW Holiday, Al Jacob, E Johnson, JE Kearney, JK Kenaga, EE Kennedy, TL Kline, CW Laman, JD Leathers, JM Leavitt, FC Lichy, C Rector, MR Look, AT Maasberg, AT Matheson, LA McClure, HH Rodgers, W Mcllheny, WF McKennon, KR Nielson, WH Otis, CE Pankratz, PM Pavlick, JE Peterson, NR Pfrommer, CP Prince, AK Pumpe!ly, CT Putnam, MS Reinker, RE Sanders, ME Schaffer, AW Schultz, WD General Subject Matter Dow N-1--umb*er D ate Author Recipient 20244412024454* 20244552024479* 20244802024518* 701200 701200 701200 Dow Dow Dow Distributees Sercu, CL Shannon, ES Teal, J . Sheetz, DP Shelton, LG Sienknecht, PJ Smart, RC Schuessler, RG Snyder, RE Staehling, EC Tree, RM VanDusen, G Van Westenburg, JA Wilcox, AC Woodward, RE Wukasch, RF CRI Alexander, HC Baker, RL Bek, CM Brosier, JS Bosscher, H Colbry, RJ Daniels, SL Davis, RD General Subject Matter Page 38 Research and Development Monthly Summary December 1970 Organic Chemicals Production Research Monthly Summary December 1970 Waste Control Progress Report October - November - December 1970 Dow Number Date Author Recipient 20245192024553* 701200 Dow V-Jk . cp o Distributees Fox, RD Gaska, RA Hall, SD Hamilton, CE Hintz, MJ IIgenfritz, EM Kaut, DE Krienke, ME Lynch, JE Novak, RG Pfrommer, C Putnam, MS Reinker, RE Sawinski, RJ Shannon, ES Shively, JF Stielstra, C Teal, JL Terryah, GG Wass, WE Weburg, AW Wilson, JD Zil 1ich, JA Ludwig, RC Johnson, JE Nummy, WR 3arrons, KC Hymas, TA Kagy, JF Goring, CAI Heitz, RG Bailes, RH Johnston, H GeneralSubject Matter Page 39 Argicultural Department Quarterly Progress Report October November - December 1970 Dow Number Date Author Recipient 20245542024601* 701000 Dow .s & 'cp Di stributees Johnston, RV Gowell, JH Popoff, FP Dowel 1, FH Holmsen, TW Reifschneider, W Getzendaner, ME Lynn, GE Bjork, CK Blair, EH Schwarz, AJ Ludwig, PD Moss, RD McCollister, DD Osborne, DW Seymour, KG Winquist, ME Gum, W Busk, RS Cheney, GW Flynn, JM Kelly, ME McCoy, CE Mclntire, OR Prince, AK Struthers, JA Peterson, LI Johnston, C Dishburger, JH Gehring, P Pruitt, ME Arcangeli, M Bosscher, H General Subject Matter Page 40 Process Engineering Progress Report - September - October Dow Number pate Author Recipient CD CO Di stributees Briggs, RL Brower, FM Cermak, RW Chisholm, DS Copeland, RA Costa, JE Deline, DD Engibous, DL Gaska, RA Graves, HE Griffin, JD Jacobs, CE Kehde, H Kennett, WW Larsen, PE Leathers, JM Leavitt, FM Look, AT Sheetz, DP Ioranger, HR Maasberg, AT Maier, RW Miller, RE Murdoch, PG Otto, KA Pumpelly, CT Rousch, WE Schorr, JF Scovic, JM Petrunia, G Sheffield, PH Stagg, DM Szymanski, L Treibilock, J General Subject Matter 1970 Dow Number Date Author Recipient 20246022024613* 20246242024641* 700800 700600 20246422024651* 700700 Dow Dow Dow CP CP Di stributees Wilcox, AC Biggers, MW Dehaven, ES Herron, RE Arcangeli, M Bosscher, H Brubaker, RI Bugg, DA Chase, FI Clark, GA Coulter, KE Daigre, GW. Deline, DD Engibous, DL Ettinger, MB Fletcher, WH Griffin, JD Gunkler, AA Hammond, DD Hillary, BB Holder, BB Jacob, E Johnson, JE Kearney, JK Kennedy, TL Kline, C General Subject Matter Page 42 Research and Development Monthly Summary August 1970 Organic Chemicals Production Research - Monthly Summary June 1970 Monthly Summary July 1970 Dow Number Date Author Recipient 20246522024680* 700300 Dow CD Distributees Kline, PE Leathers, JM Leavitt, FC Look, AT Maasberg, AT Mcllhemy, WF McKennon, KR Nielsen, WH Otis, CE Peterson, NR Pfrommer, CP Prince, AK Pumpelly, CT Putnam, MS Rector, MR Reinker, RE Sanders, ME Sercu, CL Shannon, ES Sheetz, DP Shelton, LG Sienknecht, PJ Smart, RC, Jr. Syyder, RE Staehling, EC Struthers, JA Teal, JL Tree, RM. Jr. Wilcox, AC Woodward, RE Wuckasch, RF CRI(5) Alexander, HC Baker, RL General Subject Matter Page 43 Waste Control Progress Report January - February - March 1970 Dow Number Date Author Recipient Distributees Bek, CM Brosien, JS Colbry, FJ Daniels, SL Davis, RD Fox, RD Hall, JR Hall, SD Hamilton, CE Hintz, MJ Filgenfritz, EM Kraut, DE Krienke, ME Lynch, JE Novak, RG Pfrommer, C Putnam, MS Reinker, RE Sawinski, RJ Shannon, ES Shively, JF Teal, JL Terryah, GG Wass, WE Weburg, AW Wilson, JD Zillich, JA Bublitz, DW Bauer, DL Bremner, F Batcheider, TL McClure, HH Mclver, JH Smith, DH General Subject Matter Page 44 Dow Number Date Author Recipient 20246812024692* 20246932024730* 700700 700600 Dow Dow CD CH Di stributees Strahan, JM Skory, LK Halphen, CE Alexander, HC Baker, RL Bek, CM Brosier, JS Colbry, RJ Daniels, SL Davis, RD Fox, RD Gaska, RA Hall, JR Hall, SD Hamilton, CE Hintz, MJ Ilgenfritz, EM Kraut, DE Krienke, E Lynch, JE Novak, RG Pfrommer, C Putnam, MS Reinker, RE Sawinski, RJ Shannon, ES Shively, JF Stielstra, C Teal, JL General Subject Matter Page 45 Research and Development Monthly Summary - July 1970 Waste Control Progress Report April, May, June 1970 pow Number Date Author Recipient 20247312024745* . 700700 20247462024756* 700800 Dow Dow CJ3 -J Di stributees Terryah, GG Wass, WE Weburg, AW Wilson, JD Zi 11 ich, JA Bublitz, DW Bauer, DL Bremner, F Batcheider, TL McClure, HH Mclver, JH Smith, DH Strahan, JM Skory, LK Halphen, CE Arcangeli, M Bosscher, H Brubaker, RI Bugg, DA Chase, FI Clark, GA Coulter, KE Daigre, GW Deline, DD Engibous, DL Ettinger, MB Fletcher, WH Griffin, JD Gunkler, AA General Subject Matter Page 46 Organic Chemicals Production Research - Monthly Summary July 1970 Environmental Research Laboratory - Monthly Summary August 1970 11198 Dow Number Date Author Recipient Distributees Hammond, DD Hillary, BB Holder, BB Jacob, E Johnson, JE Kearney, JK Kennedy, TL Kline, C Kline, PE Laman, JD Leathers, JM Leavitt, FC Lichey, C Look, AT Maasberg, AT Mcllheny, WF McKennon, KR Nielsen, WH Otis, CE Peterson, NR Pfrommer, CP Prince, AK Pumpelly, CT Putnam, MS Rector, MR Reinker, RE Sanders, ME Sercu, CL Shannon, ES Sheetz, DP Shelton, LG Sienknecht, PJ Smart, RC, Jr. Snyder, RE General Subject Matter Dow Nuijiber Date Author Recipient 20247572024775* 700800 20247762024797* 20247882024799* 700800 700900 Dow Dow Dow Di stributees Staehling, EC Struthers, JA Teal, JL Tree, RM. Jr. Wilcox, AC Woodward, RE Wuckasch, RF CRI5) Arcngeli, M Bosscher, H Brubaker, RI Bugg, DA Chase, FI Clark, GA Coulter, KE Daigre, GW. Deline, DD Engibous, DL Ettinger, MB Fletcher, WH Griffin, JD Gunkler, AA Hammond, DD Hillary, BB Hinman, CW Jacob, E General Subject Matter Page 48 Organic Chemicals Production Research - Monthly Summary August 1970 Research and Development Monthly Summary August 1970 Environmental Research Monthly Summary - September 1970 Dow Number Date Author Recipient Distributees Johnson, JE Kearney, JK Kennedy, TL Kline, C Kline, PE Laman, JD Leathers, JM Lichy, C Look, AT Maasberg, AT Matheson, LA Mcllheny, WF McKennon, KR Nielsen, WH Otis, CE Peterson, NR Pfrommer, CP Prince, AK Pumpelly, CT Putnam, MS Rector, MR Reinker, RE Sanders, ME Sercu, CL Shannon, ES Sheetz, DP Shelton, LG Sienknecht, PJ Smart, RC, Jr. Snyder, RE Staehling, EC Struthers, JA Teal, JL Tree, RM. Jr. General Subject Matter Page 49 Dow Number Date Author Recipient 20248002024811* 20248122024831* 20248322024855* 20248562024868* 700900 700900 701000 701000 Dow Dow Dow Dow Distributees Wilcox, AC Woodward, RE Wuckasch, RF CR 1(5) General Subject Matter Page 50 Research and Development Monthly Summary - September 1970 Organic Chemicals Production Research Monthly Summary September 1970 Organic Chemicals Production Research Monthly Summary October 1970 Research and Development Monthly Summary - October 1970 UPDATED INDEX OF CONFIDENTIAL DOCUMENTS Dow Number 00883470088348* 00883490088350* 00886490088650* Date 701217 701217 590122 0088651 * 00889110088913* 590500 660506 00889140088916* 00889300088962* 00889690088972* 771001 661209 670316 00889730089003* 690515 tocoo Author Dow Hoyle, HR Morris, JM Dow Norris, JM Dow Hoyle, HR McCollister Wolf, MA Dow Dow Hoyle, HR McCol1ister Olson, KJ Dow Dow Dow Hoyle, HR Olson, KJ Oyen, F Buerge, TE Dow Norris, JM Torkel son Recipient Distributees Page 1 General Subject Matter M-3592 (Data sheet of properties, health hazards, and precautions for safe handling of materials) M-32592 (Medical information) Forron Brush Killer (Data sheet of properties health hazards and pre cautions for safe handling of materials) Forron Brush Killer M-1368, Safety data sheet M-2993 (Data sheet of properties, health hazards, and precautions for safe handling of materials) Tordon 155 Mixture Brush Killer (Material safety data sheet) 2M0-3083-1 (Request for screening or application testing) Tordon 105 Mixture (Data sheet of properties, health hazards, and precautions for safe handling of materi als ) Toxicological properties and industrial handling hazards of Tordon 225 Mixture herbicide (M-3199X) Dow Number 00911730091176* Date 670316 Author Buerge, TE Dow Lynn, GE Olson, K Oyen, F Recipient 0091177- 670227 0091178* Dow Hoyle, HR Olson, KJ Oyen, F to o Distributees Boundy, RH Dean, P Dow Elshere, D Holder, BB Jones, GD Kagy, JF Kilian, DJ Luce, EN Lynn, GE McIntyre, HH Moss, RD Sheetz, DP Shrader, SA Wilson, AW Wright, N Boundy, RH Dean, P Dow Elshere, D Holder, BB Jones, GD Kagy, JF Kilian, DJ Luce, EN Lynn, GE McIntyre, HH Moss, RD Sheetz, DP Shrader, SA Wilson, AW Wright, N Page 2 General Subject Matter Toxicological properties and industrial handling hazards of Tordon 105 Mixture (T2.M031-3132-1) (CRI 123032) Tordon 105 Mixture data sheet of properties, health hazards, and precautions for safe handling of materials (T2.MO-3132-1) Dow Number 02010200201021* Date 670213 Author PI etcher, DE Recipient Barnes, EB 0201023 * 660428 0201024 * 0201025 * 0201026 * 0201027 * 0201031 * 0201032 * 0201034- 0201035* 0201038- 0201039 660800 660425 .660523 660422 660422 660421 660425 660315 Carlson, R Staehling, EC BJC 3 Illegible Dow Kennett, W 3osscher, H Anderson, RE Coppage, JS Carlson, RG Key, M Bosscher, Beck, RH REA Ford, FE Anderson, RE Comer, WL Coppage, J to o CJX Di stributees Bosscher, H Staehling, EC Goergen, GG Dixon, WR Henske, JM Gill Streeter, LE General Subject Matter New Tetrachlorobenzene fcil ity Page 3 Cost of Tetrachlorobenzene expansion Tetrachlorobenzene cost capacity Tetrachlorobenzene economic summary Tetrachlorobenzene expansion Tetrachlorobenzene project scope summary Beginning Tetrachlorobenzene expansion Manpower request Tetrachlorobenzene expansion cost estimate Tetrachlorobenzene plot plan Dow Number 0201040 * Date 670529 0201041 * 670529 0201042 * 0201043 * 0201044 * 0201045 * 670700 670622 670608 670608 Author Carlson, R Staehling, EC Bosscher, H EBB CBB BJC Carlson, R Staeling, EC BJC Dow Woodward, EE Recipient Bosscher, H Nummy, WR Barnes, EB Barnes, EB 0201046201048* 0201049201050* 0201051201052* 0201053 * 670526 670531 670531 660421 Anderson, RE Baltusis, M Carlson, RG Tacey, WJ Beck, RH Bosscher, H Carlson, RG Coppage, J Distributees Page 4 General Subject Matter Capital authorization for Tetrachlorobenzene expansion Bosscher, H Staehling, EC Carlson, RG Dixon, WR Streeter, LE Expense authorization for Tetrachlorobenzene expansion Tetrachlorobenzene expansion Economic summary for Tetra chlorobenzene expansion Tetrachlorobenzene expansion Tetrachlorobenzene expansion Tetrachlorobenzene project scope summary Tectrachlorobenzene expansion Tetrachlorobenzene capacity Manpower request Dow Number 0201054 * 0201055201056* 02010570201058 0201080 * Date 670526 670526 660315 670000 Author Recipient Brauer, AR Wappenhensch, 0 Brauer, AR Wappenhensch, 0 Anderson, RE Anderson, RE Comer, WL Dow 0201081 * 0201082 * 0201083 * 670418 670501 670412 Staehling, EC Goergen, GG Bosscher, H B J .C . Bosscher, H Barnes, EB Lueck, AF Bosscher, H 0201084 * 670320 Wehn, WE O.A.W. Jacobs, CE 0201085 * 670320 jp sa A ro o Wehn, WE Jacobs, CE Distributees Staehling, EC Putnam, MS Goergen, GG Staehling, EC Putnam, MS Goergen, GG Bosscher, H Leuck, AF Staehling, EC Lueck, AF Page 5 General Subject Matter Tetrachlorobenzene expansion cost estimate Tetrachlorobenzene expansion expense estimate Tetrachlorobenzene plot plan 245-Trichlorophenol (Board of Dir. agenda) (authorization request M-32063A) 245-Trichlorophenol 804-7 Bldgs, production facilities 245-Trichlorophenol plant return of funds (authorization M-32063A) 245-Trichlorophenol plant 245-Trichlorophenol plant 804-7 Bldg, cost estimate 245-Trichlorophenol plant 804-7 Bldg, cost estimate - changes and Dow Number Date Author O.A.W. 0201086 * 000000 Dow Recipient 0201087 650000 W.C.T. 0201088 * 02010890201090* 0201091 * 651006 551021 651020 Hutchenreuther, C Goergen, GG Bosscher, H M.K. B .J .C . Bosscher, H Timm, WC Dixon, WR Key, M 0201092 * 0201093 * 0201094- 0201097* ro O' CO 651011 651027 651027 Bosscher, H Goergen, G Wehn, WE Key, M Pistributees Putnam, MS Goergen, GG Bosscher, H Staehling, EC Lueck, AF Bosscher, H Putnam, MS Goergen, GG General Subject Matter alterations Page 6 245-Trichlorophenol authorized spent differences capital New 245-Trichlorophenol (Dow Bd. of Dir. authorization request M-32063) 245-Trichlorophenol additional funds Bosscher, H Henske, JM Pletcher, DE Review of Trichlorophenol job Position on the Midland division Trichlorophenol plant New 245-Trichlorophenol plant M-32063 245 Trichlorophenol plant 660000 Trichlorophenol plant cost reduction Dow Number 0201098 * 02010990201101* 02011020201104* Date 650707 651021 650927 0201105 * 02011060201107* 651007 651004 0201108 * 0201109 * 02011100201111* 651001 650929 651012 Author Goergen, G Bosscher, H Recipient Branch, CB Delfsie, NG Wappenhensch, 0A Stuart, GA Goergen, GG Goergen, GG Bosscher, H Vanarsdale, JD Timm, W Dimmick, D Doedens, J Hutchenreuther Staehling, E Gill, W Perry, R Goergen, G Lundquist, J Saphier, L Vanarsdale, JD Goergen, GG Taylor, N Delisle, NG Churchman, JW Bosscher, H K-* k> o C Distributees Key, M Page 7 General Subject Matter New Trichlorophenol plant Trichlorophenol authorization New 245-Trichlorophenol plant project scope summary (job 50175) 245-Trichlorophenol 245-Trichlorophenol expansion Delisle, NG Domick, D Hutchenreuther, C Timm, WC Goergen, GG Mitchel, JE Moore, HJ Trichlorophenol requirements Manning of new Trichlorophenol plant Overrun 245-Trichlorophenol new facility Dow* Number - -, - - 0201112 * 02011130201114* 0201115 * 0201116 * 0201117 * 0201118 * 02783950278390* 02783900278392* 02783930278395* 02783960278404* 04241120424114* Date 651018 651000 000000 650526 650608 650622 540106 531230 540106 540106 641006 Author Churchman, JW Recipient Wehn, WE Wappenhensch, 0 H.A.S. Churchman, JW Bosscher, H Branch, CB Henske, JM Doedens, JD Dow Wolf, MA Branch, CB Dow Campbell, CA Distributees Campbel 1, CA Dow Ballman, DK Barstow, ED Page 8 General Subject Matter 245-Trichlorophenol new facility (economic summary 39458-65) 245-Trichlorophenol (cost estimate) 245-Trichlorophenol new facility (Dow Bd. of Dir. agenda) 245-Trichlorophenol new facility economic summary 245-Trichlorophenol new facilities 245-Trichlorophenol new facilities M-213 (Acute oral toxicity) M-213 (Acute oral toxicity) M-213 M-213 (Skin irritation) Dow Directors' Meeting-Tuesday, 641006 Dow Number Date Author Recipient 04241220424124* 650302 Dow Campbell, CA Distributees Bennett, EW Bennett, RB Beutel, AP Boundy, RH Branch, CB Calvin, M Doan, HD Doan, LA Doan, LI Dow, AB Dow, HH Gerstacker, CA Griswold, ND Lyon, HH Weaver, CF Whiting, M Campbell, CA Dow Ballman, DK Barstow, ED Bennett, EW Bennett, RB Beutel, AP Boundy, RH Branch, CB Calvin, M Doan, HD Doan, LI Dow, AB Dow, HH Gerstacker, CA Griswold, ND Lyon, HH General Subject Matter Page 9 Dow Directors' Meeting-Tuesday, 650203 Dow-- Num-b-ei--r Date Author Recipient 04241340424136* 04241370424139* 04241570424159* 04241880424190* 04241910424192* 650706 650707 651102 670606 670505 05012850501288* 05012890501291* 0501292 * 0501356501360* 0501415 * 701111 701110 700615 651105 660105 0501418 * 660105 Dow Dow Dow Dow Dow Hoerger, FD USDA ARS Hoerger, FD USDA ARS Gladstone, MM Dow Hoerger, FD Dow Dow ?\D Pistributees Weaver, CF Whiting, M General Subject Matter Page 10 Dow Directors' Meeting-Tuesday, 650706 Summary of Executive Committee Minutes - (650707 650711) Dow Directors' Meeting-Tuesday, 651102 Dow Directors Meeting-Tuesday, 670606 Summary of Executive Committee Minutes-670505 670512 670519 Brush Killer LV2-2 Brush killer LV2-2 Product registration Brush killer LV 2-2 composition statement Brush killer X confidential state ment of formula Brush killer X confidential statement of formula Dow Number 0501659 * 0501660- 0501668* 0502357- 502358* 0502631 * 0502740 * Date 691015 700629 650613 660630 690108 Author Turner, WF Parsey, ES Van Horn, RL Sachs, SD Recipient Downard, GM Dow Dow 0503722 * 670111 Dow 0503890 * 0503923 * 0504055 * 630910 000000 660721 Dow Dow Dow Di stributees Rutherford, RE Sunderland, WW Hammer, OH Alford, HG McCollister, DD Davidson, JH McCoy, WJ Sunderkland, WW Talcott, AT Hammer, OH Downard, GM Sachs, SB Hammer, OH Sunderland, WW Page 11 General Subject Matter Registration of economic poisons Butyl 400 evaluation DMA-6 confidential ingredient statement Esteron brush killer OS complete ingredient statement Esteron 3-3 weed and brush killer production specifications Esteron 67-33 OS confidential complete statement of ingredients and sources of raw materials Esteron 76BE production speci fication Esteron 76BE Production specifications for Esteron 76E and sources of raw materials Dow Number 0504056 * Date 667021 Author Dow Recipient 0504060 * 05040900504093* 0504094 * 0504438 * 05044390504447* 0505582 * 0525660- 0525661* 0526601 * 05266020526603* 640422 000000 620521 700619 700519 000000 660427 671030 671030 White, LC, Jr. Delong, HC Highhill, CA Hudberg, RN Loucks, MF Ouellette, FE Korsmeier, KB Dow Hoi deman, GE * Gil dart, CM Van Horn, RL Parsey, ES Dow Dow Dow Distributees Downard, GM Sachs, SB Hammer, OH Sunderland, WW Sheddel, RJ Higgins, HS Page 12 General Subject Matter Production specifications for Esteron 76E and sources of raw materials Production specifications for Esteron 76E Vanvalkenburg, JW Information on inert ingredients used in Dow pesticides Carl isle base 5136 Carlisle chemical works Esteron 99 concentrate, com position and raw materials Esteron 99 concentrate - eva luation of revised formulation Formula 40, ingredient statement M-3060 specifications Composition and raw materials for Tordon 2S weed killer Composition and raw materials for Tordon 202 mixture Dow Number 0526604- 0526605* 0526606- 0526607* 0526608- 0526612* 05381710538172* 0538173 * 0538174 * 0538175 * 0538176 * 0538177 * 0538178 * 0538179 * 0538180 * 0538181 * 0538182 * Date 671030 671030 671103 710114 710114 710114 710114 710114 710114 710114 710114 710114 710114 710114 Author Dow Dow Dow Dow Dow Dow Dow Dow Dow Dow Dow Dow Dow Dow Recipient Distributees Page 13 General Subject Matter Composition and raw materials for Tordon 212 mixture Composition and raw materials for Tordon 225 herbicide Composition of formulations used in experimental work for registration Brush killer LV 4T specifications Brush killer T specifications Brush killer TX specifications Esteron 3-3 specifications Esteron 245 specifications Esteron 245 specifications Esteron brush killer specifi cations Reddon specifications Tippon 2-2 specifications Tippon T6 specifications Veon 245 specifications Dow Number 05541250554176* Date 680613 Author Seidel, M Brown, M. Highhill, C Recipient 05648500564851* 000000 07066490706659* 07248390724844* 07248450724872* 650518 000000 631104 Dow Hoyle, JMN Dow Dow Seidel Distributees Bleiweiss, J Beauchamp, R Crummett, W Deline, D Delong, H Dosser, R Fernandez, J Highhill, C Hoff, D Seidel, M Schwark, J Snodgrass, B Woodward, D Chase, FI Seidel, EM Dosser, RC Amstutz, FC Dylewski, SW Deline, DD Delisle, NG Crose, WL Fernandez, JB Page 14 General Subject Matter A technological review of phenoxy and Tordon formulation Tordon 225 herbicide (Data sheet of properties, health hazards, and precautions for safe handling of materials) 245T plant operations course P.O.C. 6020-Unit 13 General process description new processes for 2,4-D, 2,4,5-T Preliminary economics in alter nate 245T ester process Dow Number Date Author 07248730724885* 640309 Seidel, EM 07248860724892* 0724963 * 07250720725075* 07250760725078* 07251070725112* 0725134 * 07251350725136* 07251370725144* 640104 000000 000000 000000 000000 000000 660608 000000 Seidel Dow Dow Dow Dow Chase, Dow Dow Distributees Sculati, JJ Sei del, EM Dosser, RC Amstutz, FC Dylewski, SW Deline, DD Delisle, NG Grose, WL Highhill, CA Fernandez, JB Sculati, JJ Chase, FI General Subject Matter Page 15 Economic evaluation of alternate 245T ester process Analysis of two processes for producing phenoxy esters 245T process block flow chart Direct ester operating instructions Transfer of raw materials to H, E &C Procedures Switching pumps, instructions Column flush Operating instructions Dow Number 0725145 * 07251790725184* 07251900725191* 07252180725224* 0725503 * Dat 000000 650615 000000 000000 640810 Author Dow Dow Recipient Dow T.A.G. White, LC, Jr. Delong, HC Highhill, CA Amstutz, FC Hudberg, RN Loucks, MF McCoy, WJ Ouellette, FE Hoi deman, GE 0725504 * 640810 White, LC, Jr. Delong, HC Highhill, CA Amstutz, FC Hudberg, RN Loucks, MF Corbin, WL Ouellette, FE Hoi deman, GE 0 Distributees White, LC, Jr. Delong, HC Highhill, CA Amstutz, FC Hudberg, RN Loucks, MF McCoy, WJ Ouellette, FE Hoi deman, GE Scheddel, RT Higgins, HS White, LC, Jr. Delong, HC Highhill, CA Amstutz, FC Hudberg, RN Loucks, MF Corbin, WLN Ouellette, FE Hoi deman, GE Scheddel, RT Higgins, HS Page 16 General Subject Matter Instructions Pulsafeeder test sheet hydroch loric acid Instructions, procedures Direct Ester reaction information 489 Bldg. Dichlorophenol Dowanol Product spcification for Veon 245 Product specification for Veon brush killer Dow Number 0725505 * Date 601101 0725508 * 660406 0725509 * 670413 Author Dosser, RC Highhill, CA Luce, EN Loucks, MF Nyman, FA Smith, HL Ouellette, FE Highhill, CA White, LC, Jr. Delong, HC Amstutz, FC Hudberg, RN Loucks, MF McCoy, WO Talcott, AT Holdeman, GE Recipient Falkenstein, WJ Amstutz, FC Hudberg, RN Loucks, MF McCoy, WJ Talcott, AT Holdeman, GE 0725510 * K* -O |nn>^ GO 690227 Matuska, RJ Murphy, RW Distributees Dosser, RC Highhill, CA Luce, EN Loucks, MF Nyman, FA Smith, HL Ouellette, FE Highhill, CA White, LC, Jr. Delong, HC Amstutz, FC Loucks, MF McCoy, WJ Talcott, AT Hoi deman, GE Scheddel, RP Higgins, HS Falkenstein, WJ Amstutz, FC Hudberg, RN Loucks, MF McCoy, WJ Talcott, AT Hoi deman, GE Scheddel, RT Higgins, HA Richardson, HA Skory, L Brown, R Matuska, RJ Murphy, RW General Subject Matter Page 17 Product specification for 245T Amine weed killer Product specifications for weed killer LV4 Product specification for Verton T Product specification for Verton 4D Dow Number Date 0725511 * 680416 Author Loucks, MF Fraser, JM Hawley, HM Sheldon, HW Talcott, AT Hoi deman, GE Recipient White, LC Falkenstein, WJ Hawley, HM Corbin, WL Talcott, AT Hoi deman, GE 0725512 * 670708 Falkenstein, WJ Scoi es, GW Amstutz, FC Hudberg, EN Scheddel, RT Luce, EN McCoy, WJ Talcott, AT Hoi deman, GE 0725513 * 730223 Blosser, KC Gill, HH Chase, FI Distributees Loucks, MF Fraser, JM Hawley, HM Sheldon, HW Talcott, AT Hoi deman, GE McCoy, WJ White, LC Falkenstein, WJ Hawley, HM Corbin, WL Talcott, AT Hoi deman, GE Scheddel, RT Reigler, PT Falkenstein, WJ Amstutz, FC Hudberg, EN Scheddel, RT Luce, EN McCoy, WJ Talcott, AT Hoi deman, GE Wiffin, EE Richardson, HA Skory, L Brown, R Butler, A Blosser, KC Gill, HH Chase, FI General Subject Matter Page 18 Product specification for Verton 2D Product specification for Verton CE Product specification for Dow Butyl 400 24D weed killer Dow Number Date 0725514 * 630507 0725515 * 720316 0725516 * 630507 K> ro Author Woodward, R Hoff, RC Fraser, JM Seymour, KG Hanson, KY Flannery, RF Talcott, AT Hoi deman, GE White, LC, Jr. Delong, HC Highhill, CA Amstutz, FC Niehoff, BR Loucks, MF Korsmeier, RB Ouellette, FE Hoi deman, GE Flannery, RF Seymour, KG Chase, FI Woodward, R Gill, HH Blosser, KC Hoff, RC Scoles, GW Talcott, AT Hoi deman, GE White, LC, Jr. Delong, HC Highhill, CA Amstutz, FC Recipient Distributees Woodward, R Hoff, RC Frazer, JM Seymour, KG Hanson, KY Flannery, RF Talcott, AT Hoi deman, GE White, LC, Jr. Delong, HC Highhill, CA Amstutz, FC Niehoff, BR Loucks, MF Ouellette, FE Hoi deman, GE Flannery, RF Seymour, KG Chase, FT Woodward, R Gill, HH Blosser, KC Hoff, RC Scoles, GW Talcott, AT Hoi deman, GE White, LC. Jr. Delong, HC Highhill, CA Amstutz, FC General Subject Matter Page 19 Product specification for Dow Butyl 400 Product specification for lawn weed killer Product specification for Reddon Dow Number 0725517 * 0725518 * 0725519 * fO ro ro Date 640213 630415 730822 Author Niehoff, BR Loucks, MF Korsmeier, RB Ouellette, FE Hoi deman, GE Recipient White, LC, Jr. Delong, HC Highhill, CA Amstutz, FC Niehoff, BR Loucks, MF Korsmeier, RB Ouellette, FE Hoi deman, GE Highhill, CA Amstutz, FC White, LC, Jr. Niehoff, BR Loucks, MF Korsmeier, RB Ouellette, FE Hoi deman, GE Seymour, KG Blosser, KC Hodges, KL Chase, FI Woodward, R Hoff, RC Fraser, JM McCutchen, L Distributees Niehoff, BR Loucks, MF Ouellette, FE Hol deman, GE White, LC, Jr. Delong, HC Highhill, CA Amstutz, FC Niehoff, BR Loucks, MF Korsmeier, RB Ouellette, FE Holdeman, GE Highhill, CA Amstutz, FC White, LC, Jr. Niehoff, BR Loucks, MF Ouellette, FE Holdeman, GE Seymour, KG Blosser, KC Hodges, KL Chase, FI Woodward, R Hoff, RC Fraser, JM McCutchen, L General Subject Matter Page 20 Product specification for Tippon 2-2 Product specification for Tippon T4 Production specification for Tippon T6 weed and brush killer Dow Number Date 0725522 * 0725523 * 690106 690106 Author Flannery, RF Talcott, AT Hoi deman, GE Dow Dow Recipient 0725524 * 660418 White, LC, Jr. Delong, HC Amstutz, FC Hudberg, RN Loucks, MF McCoy, WJ Talcott, AT Hoi deman, GE 0725525 * 720218 0725526 * 660418 Seymour, KG Chase, FI Flannery, MF Tait, SR Woodward, R Scoles, GW Hoff, RC Talcott, AT Flannery, RF Hoi deman, GE White, LC, Jr. -Delong, HC ?Y) CtOo Di stributees Flannery, RF Talcott, AT Holdeman, GE White, LC, Jr. Delong, HC Amstutz, FC Hudberg, RN Loucks, MF McCoy, WJ Talcott, AT Holdeman, GE Scheddel, RT Higgins, HS Seymour, KG Chase, FI Flannery, MF Tait, SR Woodward, R Scoles, GW Hoff, RC Talcott, AT Flannery, RF Holdeman, GE White, LC, Jr. Delong, HC General Subject Matter Page 21 Suggested product specification for brush killer T 334 Suggested product specification for brush killer 50-25 Product specification for brush killer LV 4T Product specification for brush killer LV 2-2 Product specification for brush killer LV 2-2 Dow Number Date Author Amstutz, FC Hudberg, RN Loucks, MF McCoy, WJ Talcott, AT Hoi deman, GE Recipient 0725527 * 651007 Dow 0725528 * 0725529 * 0725530 * 630424 721013 630424 Delong, HC Highhill, CA Amstutz, FC White, LC, Jr. Hoff, RC Loucks, MF Korsmeier, RB Ouellette, FE Flannery, RF Blosser, KC Gill, HH Chase, FI Woodward, R Hoff, RC Fraser, JM Talcott, AT Hoi deman, GE Delong, HC Highhill, CA Distributees Amstutz, FC Hudberg, RN Loucks, MF McCoy, WJ Talcott, AT Holdeman, GE Scheddel, RT Higgins, HS Delong, HC Highhill, CA Amstutz, FC White, LC, Jr. Hoff, RC Loucks, MF Ouellette, FE Holdeman, FE Flannery, RF Blosser, KC Gill, HH Chase, FI Woodward, R Hoff, RC Fraser, JM Talcott, AT Holdeman, GE Delong, HC Highhill, CA General Subject Matter Page 22 Product specification for brush killer Lv 2-2 Product specification for Esteron brush killer OS Product specification for Reddon Product specification for Esteron Ten-Ten Dow Number Date 0725531 * 720108 0725532 * 601004 0725533 * 0725534 * 650125 640612 Author Amstutz, FC White, LC, Jr. Hoff, RC Loucks, MF Korsmeier, RB Ouellette, FE Flannery, RF Seymour, KG Loucks, MF Tait, SR Chase, FI Woodward, R. Hoff, RC Scoles, GW Talcott, AT Hoi deman, GE Dosser, RC Delong, HC Loucks, MF Luce, EN Nyman, FA Smith, HL Ouellette, FE Dow White, LC, Jr. Delong, HC Highhill, CA Amstutz, FC Distributees Amstutz, FC White, LC, Jr. Hoff, RC Loucks, MF Ouellette, FE Hoi deman, GE Flannery, RF Seymour, KG Loucks, MF Tait, SR Chase, FI Woodward, R Hoff, RC Scoles, GW Talcott, AT Hoi deman, GE Dosser, RC Delong, HC Loucks, MF Luce, EM Nyman, FA Smith, HL Ouellette, FE White, LC, Jr. Delong, HC Hudberg, RN Loucks, MF General Subject Matter Page 23 Product specification for Esteron 44 weed killer Product specification for Esteron 44 Suggested product specification for Esteron 47 Product specification for Esteron 67-33 OS Dow Number Date 0725535 * 660721 Author Hudberg, RN Loucks, MF Korsmeer, R3 Ouellette, FE Hoi deman, GE White, LC, Jr. Delong, HC Highhill, CA Deline, DD Hudberg, RN Loucks, MF McCoy, WJ Talcott, AT Hoi deman, GE Recipient 0725536 * 0725537 * ! * to to CQ 681118 710317 Highhil1, CA Woodward, RE Hawley, HM Loucks, MF McCoy, WJ Talcott, AT Hoi deman, GE Seymour, KG Chase, FI Loucks, MF Reigler, PF Woodward, R Hawley, HM Di stributees Korsmeier, RB Ouellette,- FE Hoi deman, GE Higgins, HS Scheddel, RT White, LC, Jr. Delong, HC Highhill, CA Deline, DD Hudberg, RN Loucks, MF McCoy, WJ Talcott, AT Hoi deman, GE Scheddel, RT Higgins, HS Highhil1, CA Woodward, RE Hawley, HM Talcott, AT General Subject Matter Page 24 Product specification for Esteron 76E Product specification for Esteron 76BE Seymour, KG Chase, FI Loucks, MF Rei gl er, PF Woodward, R Hawley, HM Product specification for Esteron 76E herbicide Dow Number Date 0725538 * 630424 0725539 * 670717 Author Talcott, AT MacDonald, LA Hoi deman, GE Delong, HC Hi ghhil1, CA Amstutz, FC White, LC, Jr. Hoff, RC Loucks, MF Korsmeier, RB Ouellette, FE Hoi deman, FE Hi ghhil1, CA White, LC Deline, DD Hudberg, RN Loucks, MF McCoy, WJ Talcott, AT Hoi deman, GE Recipient 0725540 * ro to -a 670214 White, LC Delong, HC Highhill, CA Deline, DD Di stributees Talcott, AT MacDonald, LA Hoi deman, GE Delong, HC Hi ghhil1, CA Amstutz, FC White, LC, Jr. Hoff, RC Loucks, MF Ouellette, FE Hoi deman, GE Highhil 1, CA White, LC Deline, DD Hudberg, RN Loucks, MF McCoy, WJ Talcott, AT Hoi deman, GE Higgins, HS Scheddel, RT Wiffen, EE Richardson, HA Skory, LK Brown, R Butler, A White, LC Delong, HC Highhill, CA Deline, DD General Subject Matter Page 25 Product specification for Esteron 99 Product specification for Esteron 99 concentrate Product specification for Esteron 245 OS Dow Number Date Author Hudberg, RN Loucks, MF McCoy, WJ Talcott, AT Hoi deman, GE Recipient 0725541 * 630507 White, LC, Jr. Delong, HC Highhill, CA Amstutz, FC Niehoff, BR Loucks, MF Korsmeier, RB Ouellette, FE Hoi deman, GE 0725542 0725543 * CO to 00 641019 610906 White, LC, Jr. Delong, HC Highhill, CA Amstutz, FC Hudberg, RN Loucks, MF McCoy, WJ Ouellette, FE Hoi deman, GE Vanvalkenburg, W White, LC, Jr. Distributees Hudberg, RN Loucks, MF McCoy, WJ Talcott, AT Hoi deman, GE Higgins, HS Scheddel, RL Richardson, HA Skory, L Brown, R White, LC, Jr. Delong, HC Highhil1, CA Amstutz, FC Niehoff, BR Loucks, MF Ouellette, FE Hoi deman, GE General Subject Matter Page 26 Product specification for Esteron 245 concentrate White, LC, Jr. Delong, HC Highhil 1, CA Hudberg, RN Loucks, MF McCoy, WJ Hoi deman, FE Scheddel, RT Higgins, HS Vanvalkenburg, W White, LC, Jr. Product specification for Esteron 600 Product specification for Esteron seventy Dow Number Date 0725544 * 660121 Author Delong, HC Luce, EN Loucks, MF Nyman, FA Smith, HL Ouellette, FE White, LC, Jr. Delong, HC Highhill, CA Amstutz, FC Hudberg, RN Loucks, MF McCoy, WJ Talcott, AT Hoi deman, GE Recipient 0725546 * 0725547 * 571226 620104 Watson, Scoi es, 0725548 * 0725549 * 0725550 * 690219 620213 620213 Vanhorn Scoles, Scoles, k - -a M CO QO Distributees Delong, HC Luce, EN Loucks, MF Nyman, FA Smith, HL Ouellette, FE White, LC, Jr. Delong, HC Highhill, CA Amstutz, FC Hudberg, RN Loucks, MF McCoy, WJ Talcott, AT Hoi deman, 6E Scheddel, RT Higgins, HS General Subject Matter Page 27 Product specification for Esteron 6E Production specification Brush Killer 21 Production specification Brush Killer 50-50 Brush Killer T production speci fication Brush Killer TX production specification Brush Killer X production speci fication Dow Number 0725551 * 0725555 * 0725558 * 072587107258811* 0725903 * 0725904 * 0725905 * 0725906 0725907 * 0725908 * 0725909 0725910 * Date 650809 610928 661011 000000 000000 000000 000000 000000 000000 000000 000000 000000 Author Vanhorn, R Scoles, G Vanhorn, R Dow Dow Dow Dow Dow Dow Dow Dow Dow Reci Distributees Page 28 General Subject Matter Esteron T2 production specification Clover Killer (discontinued) pro duction specification Verton 2 (not released) production speci fication Safe work procedure Tordon 225E Tordon production charges Tordon 101 batch calculations and adjustments Tordon 212 batch calculations and adjustments Tordon 2696 batch calculations and adjustments Tordon K salt and Tordon 22K batch calculations and adjustments Tordon 155 batch calculations and adjustments Tordon 472 batch calculations and adjustments Tordon 40 batch calculations and adjustments Dow Number 0725911 * 0725912 * 0725915 * 07259170725920* 0725940 * 07259540725960* 07259610725963* 0725977 07260260726036* 0726037 * Date 000000 000000 000000 000000 700414 690612 700921 . 720218 000000 701020 07464270746472* 670109 Author Dow Dow Dow Dow Dow Dow Dow Dow Dow Johnson, RL Wi di ger, AH Recipient j- '- 'A K-S, ? .5 QO f^-A Di stributees Johnson, RL Widiger, H Bender, S Bailey, C Silverstein, L Cobi er, J Haberstroh, W Sauers, R Page 29 General Subject Matter Loading TIPA Tordon concentrate Tordon formulations Tordon formulations Tordon 22K batch 810713 Tordon 225 product specification Tordon 225 formulation Description of process for produc tion of Tordon 225 245T production specification Formulating instructions for Tordon 472 Tordon brush killer 520 production and sales specifications Thermal decomposition of dry sodium salts of chlorinated phenates II Dow Number 07464300746447* 07471260747128* 07503320750354* Date 650804 640730 571122 Author Wagoner, EJ Cobler, JG Holmes, R Recipient Widiger, A Johnson, RL Hoyle, HR Dow McCollister, DD Olson, KJ 07504650750469* 501017 r* to (JO to Adams, EM Dow McCollister, DD Rowe, VK Allen, WW Alquist, FN Britton, JW Dosser, RC Dow Distributees Allinson, RL Athay, RN Beshgetoor, AW Boundy, RH Colby, RW Dosser, RC Dow Elshere, D Gay, HH Greene, LM Hart, A Hymas, TA Jones, GD Kilian, DJ Luce, EN Martin, D McIntyre, HH Mussel1, DR Perkins, RP Tisdale, WO White, LC Wright, N II Page 30 General Subject Matter Differential thermal analysis of various chlorophenol s Trichlorophenol manufacture Results of range finding toxicolo gical tests on Brush Killer X, Weed Killer X, and Brush Killer TX Results of skin irritation and skin sensitization tests conducted on human subjects with Esteron 245 (New Ester) ) Dow Number Date 07504700750484* 530217 Author Recipient Dutton, WC Irish, DD Kagy, JF Lynn, GE Dow RJE McCollister, DD Oyen, F t- to CO to Distributees General Subject Matter Page 31 Allen, WW Allinson, RL Al qui st, FN Beshgetoor, AW Boundy, RH Britton, EC Britton, JW Collier, B Davidson, JH Dow Dutton, WC Gay, HH Gibson, J Greene, LN Heath, SB Johnson, JE Kagy, JF Kelly, JA Kriner, RR Luce, EN Lynn, GE MacCutcheon Mel ass, VH Nation, HA Otis, CE Prendergast, DT Southwick, L Sunderland, WW Results of range finding toxlcolo gical tests on Esteron 245 Dow Number Date Author Recipient 07505600750587* 531030 Adams, EM Oyen, F 07506020750633* 560501 Dow McCollister, DD Torkelson, TR Distributees Vanhorn, JC Walker, H White, LC Wright, P Zuhl, HH Allen, WW Allinson, RL Alquist, FN Barrons, KC Beshgetoor, AW Boundy, RH Britton, EC Davidson, JH Dow Dutton, WC Gay, HH Greene, LM Kagy, JF Luce, EN Lynn, GE MacCutcheon, SM Prescott, RF Sunderland, WW White, L Wright, P Allinson, RL Beshgetoor, AW Boundy, RH Britton, EC Coulter, LL Dow General Subject Matter Page 32 Results of range finding toxicolo gical tests on Dow Brush Killer T Results of range finding toxicolo gical tests on M-631 (Esteron 245-Type Formulation) Dow Number Date Author Recipient 07506660750693* 560409 Dow McCollister, DD Wolf, MA 07506940750714* 560702 h-* I'O OJ UT Dow McColHster, DD Olson, KJ Distributees Elshere, D Gay, HH Greene, LM Hart, A Kilian, DJ Luce, EN McCutcheon, SM Martin, D Scoles, G Sunderland, WW Wright, N Allinson, RL Beshgetoor, AW Boundy, RH Britton, EC Colby, RW Dow Elshere, D Gay, HH Greene, LM Hart, A Kagy, JF Kelly, J Kilian, DJ Luce, EN Lynn, GE MacCutcheon, SM Sunderland, WW Wright, N Allinson, RL Alquist, FN Barrons, KC General Subject Matter Page 33 Results of range finding toxicolo gical tests on formulations of Reddon (M-640 and M-713) Results of range finding toxicolo gical tests on Esteron Brush Killer O.S. (M-726) Dow Number Date Author Recipient 07507190750726* 570806 Dow Hoyle, HR Wolf, MA Distributees Beshgetoor, AW Boundy, RH Britton, EC Colby, RW Dow Elshere, D Gay, HH Greene, LM Hart, A Kagy, KF Kelly, JA Kilian, DJ Luce, EN Lynn, GE MacCutcheon, SM Sunderland, WW Wright, N Allinson, RL Athay, RM Beshgetoor, AW Boundy, RH Colby, RW Dow Elshere, D Gay, HH Greene, LM Hart, A Jones, GD Kagy, JF Kilian, DJ Luce, EN Lynn, GE McCollister, DD General Subject Matter Page 34 Results of range finding toxicolo gical tests on M-1085 (A 245T Triethyl amine Liquid Formulation) Dow Number Date Author Recipient 07507270750736* 570510 07507390750740* 570510 07507410750743* 000000 07507440750746* 580521 07507470750764* 580425 Babcock, I Dow Dunn, EE KS MAW Dow Wolf, MA Dow Hoyle, HR McCollister, DD Wolf, MA Dow Hoyle, HR McCollister, DD Wolf, MA Dow Coulter, LL McCollister, DD Dow Olson, KJ Dow Hoyle, HR McCollister, DD Olson, KJ Distributees McIntyre, HH Mussel!, DR Perkins, RP Scoles, GW Tisdale, WL Wright, N Allinson, RL Athay, RM Beshgetoor, AW Boundy, RH Colby, RW Coulter, LL General Subject Matter Page 35 Request for application testing for M-1085 with eye and skin contact tests attached M-1085 data sheet of properties, health hazards, and precautions for safe handling of materials M-1085 data sheet of properties, health hazards, and precautions for safe handling of materials Results of range finding toxicolo gical tests on Weed Killer Formulation M-1094 containing a 245T Ester M-1094 Weed Killer Formulation Data sheet of properties, health hazards and precautions for safe handling of materials Dow Number Date Author Recipient 07507690750790* -610316 Hoyle, HR Olson, KJ Oyen, F Thompson, E O QQ Distributees Dow Elshere, D Fletcher, FW Gay, HH Greene, LM Hammer, OH Hart, A Jones, GD Kagy, JF Kilian, DJ Luce, EN McIntyre, HH Perkins, RP Scoles, GW Tisdale, WL Vanvalkenburg, W Wright, N Barrons, KC Boundy, RH Colby, RW Dow Elshere, D Falkenstein, WJ Gay, HH Greene, LM Hart, A Jones, GD Kagy, JF Kilian, DJ Luce, EN Lynn, GE McIntyre, HH Perkins, RP General Subject Matter I Page 36 Results of range finding toxicological tests on M-1123 Dow Number Date Author Recipient 07507910750793* 07507950750813* 000000 600125 Hoyle, HR Olson, KJ Oyen, F Dow Oyen, F Wolf, MA 07508140750827* 610601 Dow Olson, KJ Oyen, F ?\"> CO CO Distributees Shrader, SA Tisdale, WL Vanvalkenburg, W Wright, N Barrons, KC Boundy, RH Colby, RW Dow Elshere, D Gay, HH Greene, LM Hammer, OH Hart, A Hymas, TA Jones, GD Kagy, JF Kilian, DJ Luce, EN Lynn, GE McIntyre, HH Perkins, RP Stenger, VA Tisdale, WL Wright, N Barrons, KC Boundy, RH Colby, RW Dow General Subject Matter Page 37 M-1123 data sheet of properties, health hazards, and precautions for safe handling of materials Results of range finding toxicolo gical tests on Esteron 245 OS (M-1257) Results of range finding toxicolo gical tests on Esteron 245 OS (Replacement for present Formulation M-1257) Dow Number Date Author Recipient 07508330750854* 571122 Dow McCollister, DD Olson, KJ Distributees Elshere, D Falkenstein, WJ Gay, HH Greene, LM Hart, A Jones, GD Kagy, JF Kilian, DJ Luce, EN Lynn, GE McIntyre, HH Perkins, RP Shrader, SA Tisdale, WL White, LC, Jr. Wright, N Allinson, RL Athay, RM Beshgetoor, AW Boundy, RH Colby, RW Dosser, RC Dow Elshere, D Gay, HH Greene, LM Hart, A Hymas, TA Jones, GD Kilian, DJ Luce, EN Martin, D McIntyre, HH General Subject Matter I Page 38 Results of range finding toxicolo gical tests on Brush Killer X, Weed Killer X, and Brush Killer TX Dow Number Date Author Recipient 07508550750873* 590818 Olson, KJ Oyen, F 07508740750876* 590706 Dow Hoyle, HR Olson, KJ Oyen, F tO Distributees Mussell, DR Perkins, RP Tisdale, WL White, LC Wright, N Barrons, KC Boundy, RH Colby, RW Dow Elshere, D Gay, HH Gray, HE Greene, LM Hammer, OH Hart, A Hymas, TA Jones, GD Kagy, JF Kilian, DJ Luce, EN Lynn, GE McIntyre, HH Perkins, RP Scoles, G Stenger, VA Tisdale, WL Wright, N General Subject Matter Page 39 Results of range finding toxicolo gical tests on M-1413 (Formulation of Dowanol Ester 245T) made for the Stull Chemical Company M-1413 Formulation of K 7856 (Dowanol Ester 245T). Data sheet of properties, health hazards and precautions for safe handling of materi als Dow Number 07508780750903* Date 590506 Author Recipient Dow McCollister, DD Wolf, MA 07509150750940* 590505 Dow McCollister, DD Wolf, MA Distributees Barrons, KC Boundy, RH Colby, RW Dow Elshere, D Gay, HH Gray, HE Greene, LM Hammer, OH Hart, A Hymas, TA Jones, GD Kagy, JF Kilian, DJ Luce, EN Lynn, GE McIntyre, HH Perkins, RP Stenger, VA Tisdale, WL Vanvalkenburg, JW Wright, N Barrons, KC Boundy, RH Colby, RW Dow Elshere, D Gay, HH Gray, HE Greene, LM Hammer, OH Hart, A Hymas, TA Page 40 General Subject Matter Results of range finding toxicolo gical tests on M-1447 and M-1443 Weed Killer Formulations (Similar to Esteron 245 OS and Esteron Brush Killer OS respectively) Results of range finding toxicolo gical tests on M-1447 and M-1433 Weed Killer Formulations (Similar to Esteron 245 OS and Esteron Brush Killer OS respectively) Dow Number Date Author Recipient 07509510750952* 591209 Dow Wolf, MA 0750956- 590903 0750974* ' Dow Olson, KJ Oyen, F McIntyre, HH S3 Distributees Jones, JD Kagy, JF Kilian, DJ Luce, EN Lynn, GE McIntyre, HH Perkins, RP Stenger, VA Tisdale, WL Vanvalkenburg, JW Wright, N Dow Wolf, MA Barrons, KC Boundy, RH Colby, RW Dow Elshere, D Gay, HH Greene, LM Hammer, OH Hart, A Hymas, TA Jones, GD Kagy, JF Kilian, DJ Leasure, JK Luce, EN Lynn, GE McIntyre, HH General Subject Matter Page 41 Toxicological information on Esteron 99 granules (M-1741) suitable for presentation to the USDA Results of range finding toxicolo gical tests on Agricultural Chemical Formulation M-1511 con taining Dowanol 97B70 Ester 245T (K--7856) Dow Number Date Author Recipient 07509750750976* 590811 07509770550996* 600216 Dow HRH Olson, KJ Oyen, F Dow Olson, K Distributees Perkins, RP Scoles, G Stenger, VA Tisdale, WL Wright, N Barrons, KC Boundy, RH Colby, RW Dow Elshere, D Gay, HH Greene, LM Hammer, OH Hart, A Hymas, TA Jones, GD Kagy, JF Kilian, DJ Luce, EN Lynn, GE McIntyre, HH Perkins, RP Scoles, GW Stenger, VA Tisdale, WL Wright, N General Subject Matter Page 42 M-1511 Data sheet of properties, health hazards and precautions for safe handling of materials Results of range finding toxicolo gical tests on Agricultural Chemical Formulation M-1683 (Esteron 245 Type) ) Dow Number 07509980751016* Date 600223 Author Dow Olson, KJ Oyen, F Recipient 07510560751058* 611120 Dow Olson, KJ Oyen, F Plomer, ET Scoi es, GW Distributees Barrons, KC Boundy, RH Colby, RW Dow Elshere, D Gay, HH Greene, LM Hammer, OH Hart, A Hymas, TA Jones, GD Kagy, JF Kilian, DJ Luce, EN Lynn, GE McIntyre, HH Perkins, RP Scoles, GW Stenger, VA Tisdale, WL Wright, N Barrons, KC Boundy, RH Colby, RW Dow Elshere, D Falkenstein, W Gay, HH Greene, LM Hart, A Jones, GD Kagy, JF Kilian, DJ Page 43 General Subject Matter Results of range finding toxicolo glcal tests on Agricultural Chemical Formulation M-1684 (Esteron Brush Killer Type) Results of range finding toxicolo gical tests on M-2115, an agricultural chemical formulation containing 245T and triethyl amine Dow Number Date Author Recipient 0751059 * 611120 07510600751075* 611106 Dow Hoyle, HR Olson, KJ Oyen, F 11246 Distributees Luce, EN Lynn, GE McIntyre, HH Perkins, P Scoles, GW Shrader, SA Tisdale, WL Wright, N Barrons, KC Boundy, RH Colby, RW Dow Elshere, D Falkenstein, W Gay, HH Greene, LM Hart, A Jones, GD Kagy, JF Kilian, DJ Luce, EN Lynn, GE McIntyre, HH Perkins, P Scoles, GW Shrader, SA Tisdale, WL Wright, N Barrons, KC Boundy, RH Colby, RW Dow General Subject Matter Page 44 First aid measures M-2115 data sheet of properties, health hazards and precautions for safe handling of materials Dow Number Date Author Plomer, ET Recipient 0751078- 620403 0751080* Dow Olson, KJ Oyen, F Vanvalkenburg, W Distributees Elshere, D Falkenstein, W Gay, HH Greene, LM Hart, A Jones, GD Kagy, JF Kilian, DJ Luce, EN Lynn, GE McIntyre, HH Perkins, P Scoles, GW Shrader, SA Tisdale, WL Wright, N Barrons, KC Boundy, RH Brown, R Colby, RW Dow Elshere, D Falkenstein, WJ Gay, HH Greene, LM Hart, A Jones, GD Kagy, JF Kilian, DJ Luce, EN Lynn, GE McIntyre, HH Nash, HA I General Subject Matter Page 45 Results of range finding toxicolo gical tests on M-2235, an emulsi vi able formulation of 24D and 245T Dowanol Esters in kerosene Dow Number Date Author Recipient 0751081 * 620323 07510820751098* 620323 Dow H o y l e , HR O ls o n , KJ Oyen, F t1 GO Distributees Perkins, RP Shrader, SA Vanvalkenburg, W Wilson, AW Wright, N Barrons, KC Boundy, RH Brown, R Colby, RW Dow Elshere, D Falkenstein, WJ Gay, HH Greene, LM Hart, A Jones, GD Kagy, JF Kilian, DJ Luce, EN Lynn, GE McIntyre, HH Nash, HA Perkins, RP Shrader, SA Vanval kenburg, W Wilson, AW Wright, N Barrons, KC Boundy, RH Brown, R Colby, RW Dow General Subject Matter Page 46 First aid measures M-2235 data sheet of properties, health hazards, and precautions for safe handling of materials Dow Number Date Author Recipient 07510990751101* 0751102 * 07512090751210* 630809 620124 630225 Hoyle, HR Olson, KJ Oyen, F Dow Wolf, MA Dow Olson, KJ Oyen, F Scoi es, G Dow McIntyre, HH Distributees Elshere, D Falkenstein, WJ Gay, HH Greene, LM Hart, A Jones, GD Kagy, JF Kilian, DJ Luce, EN Lynn, GE McIntyre, HH Nash, HA Perkins, RP Shrader, SA Vanvalkenburg, W Wilson, AW Wright, N ) General Subject Matter Page 47 Verton T sales specification Barrons, KC Boundy, RH Brown, R Colby, RW Dow Elshere, D Falkenstein, WJ Gay, HH Greene, LM Suggested precautionary labeling for M-2235 Results of range finding toxicolo gical tests on agricultural chemi cal formulation M-2422 containing 91 percent Dowanol PIB Ester of 245T Dow Number Date Author Recipient 0751211 * 630225 Distributees Hart, A Jones, GD Kagy, JF Kilian, DJ Luce, EN Lynn, GE McIntyre, HH Mulllson, WR Nash, HA Norton, TR Shrader, SA Wilson, AW Wright, N Barrons, KC Boundy, RH Brown, R Colby, RW Dow Elshere, D Falkenstein, WJ Gay, HH Greene, LM Hart, A Jones, GD Kagy, JF Kilian, DJ Luce, EN Lynn, GE McIntyre, HH Mullison, WR Nash, HA Norton, TR Shrader, SA General Subject Matter First aid measures J Dow Number Date Author Recipient 07512120751213* 630220 Dow Hoyle, HR Olson, KJ Oyen, 07512140751236* 630225 to an Y* x Distributees Wilson, AW Wright, N Barrons, KC Boundy, RH Brown, R Colby, RW Dow Elshere, D Falkenstein, WJ Gay, HH Greene, LM Hart, A Jones, GD Kagy, JF Kilian, DJ Luce, EN Lynn, GE McIntyre, HH Mullison, WR Nash, HA Norton, TR Shrader, SA Wilson, AW Wright, N Barrons, KC Boundy, RH Brown, R Colby, RW Dow Elshere, D Falkenstein, WJ Gay, HH General Subject Matter Page 49 M-2422 data sheet of properties, health hazards and precautions for safe handling of materials Toxicological properties of Formulation M-2422 Dow Number Date Author Recipient 07522640752265* 670328 0752266 * 07523600752361* 07523850752386* 661220 670410 690415 Dow Hoyle, HR McCollister, DD Olson, KJ Buerge, TE Dow Dow Lynn, 6E Dow Norris, JM Torkelson, TR ^ ittA to cn tO Distributees Greene, LM Hart, A Jones, GD Kagy, JF Kilian, DJ Luce, EN Lynn, GE McIntyre, HH MulHson, WR Nash, HA Norton, TR Shrader, SA Wilson, AW Wright, N Axe, FD Barton, J Beauchamp, RR Blair, EH Burgert, BE Dow Edwards, H Elshere, D ) General Subject Matter Page 50 M-3060 data sheet of properties, health hazards and precautions for safe handling of materials M-3060 request for screening or application testing M-3060, Safety Data and Formulation M-3401 Brush Killer-A Tordon Acid Formulation ) Dow Number Date Author I Recipient 07523880752389* 690320 07523900752395* 07525500752552* 690417 700130 ro tn co Dow Hoyle, HR Norris, JM Torkelson, TR Dow Norris, JM Dow Gowell, JH Loucks, MF Lynn, GE Naegele, RE Newport, JJ Ridner, JM Seymour, KG Stein, JS Distributees Gordon, HL Holder, BB Johnson, JE Kagy, JF Kilian, DJ Kimme!, CE Lloyd, BH MacCutcheon, SM McCollister, DD McIntyre, HH Morse, D Pitman-Moore Robinson, VB Schwartz, AJ Wright, N General Subject Matter Page 51 M-3402 Brush Killer data sheet of properties, health hazards and precautions for safe handling of materials Toxicological properties of M-3401 Brush Killer-A Tordon acid formul ation Tordon 225 herbicide release to sales Dow Number Date 07525530752554* 690429 07624930762496* 500829 0762497 * 0762498 * '000000 490309 0762499 * 490412 0762500 * 490321 Author Williams, CS Williams, RW Wolf, MA Dow Hoyle, HR Norris, JM Dow Rowe, VK Spencer, HC Recipient Allen, WW Barrons, KC Britton, JW Dosser, RC Dow Dutton, WC Irish, DD Kagy, JF Lynn, GE Dow Irish, DD McCollister, DD Rowe, VK White, L Dow Wyse, H Dow Wyse, H Distributees I General Subject Matter Page 52 Tordon 225 mixture herbicide data sheet of properties, health hazards and precautions for safe handling of materials Results of range finding toxicolo gical tests on Esteron 245T formulations Summary of toxicological infor mation on 24D & 245T formulations Esteron 245T (New formulation) (Request for biological test) K7716-1 Esteron 245T (New formulation) (Acute oral toxicity) Esteron 245T (New formulation) )I pow Number 07625010762504* 0762505 * Date 490000 490517 0762506 * 490225 0762507 * 0762508 * 07625090762512* 0762513 * 490414 490321 490000 490517 07666980766699* 690415 Author Dow Wyse, H Dow Wyse, H Recipient Dow HAS RSH Irish Rowe, VK White, L Dow Wyse, H Dow Wyse, H Dow Wyse, H Dow Wyse, H Beauchamp, RR Dow Norris, JM Torkelson, TR CXI Ul Distributees Page 53 General Subject Matter K7716-1 Esteron 245T (New formulation) (Skin irritation) K771.6-1 Esteron 245T (New formulation) (Single absorption exposure record) Esteron 245T formulation (Request for biological test) Axe, FD Barron, J Beauchamp, RR Blair, EH Burgert, BE Dow Edwards, H K7716-2 Esteron 245T formulation (acute oral toxicity) Esteron 245T formulation K7716-2 Esteron 245T formulation (Skin irritation) K7716-2 Esteron 245T formulation (Single absorption exposure record) M-3401 Brush Killer-A Tordon Acid Formulation Dow Number Date Author Recipient 07667000766701* 690320 07667020766708* 0766709 * 690417 681008 0766710 * 681008 0766711- 0766726* 7 680000 Dow Hoyle, JR Norris, JM Torkelson, TR Dow Norris, JM Beauchamp, RR Dow McCollister, DD Byrd, BC Dow Hoerger, FD McCollister, DD Dow Dow Litchfield, N Norris, JM Distributees Elshere, D Gordon, HL Holder, BB Johnson, JE Kagy, JF Kilian, DJ Kirnmel, CE Lloyd, BH MacCutcheon, SM McCollister, DD McIntyre, HH Morse, D Robinson, VB Schwarz, AJ Wright, N General Subject Matter Page 54 M-3401 Brush Killer (Data sheet of properties, health hazards and precautions for safe handling of material s) Toxicological properties of M-3401 Brush Killer, a Tordon acid formulation Proposed name, Tordon 124V Brush Killer (M3401) (Request for screening or application testing) Toxoicology work sheet (Tordon 124V Brush Killer) Tordon 124V Brush Killer (Acute oral toxicity) ) Dow Number 07667270766729* 07667300766737* Date 690310 680000 07667380766740* 07667410766744* 07667450766746* 07667470766750* 07667510766765* 0766766 * 0766767 * 681000 681104 690128 690000 690123 690123 681008 07667680766769* 000000 Author Dow Norris, JM Dow King, CD Litchfield, N Sparschu, GL Trice, V Dow Dunn, FL Dow Dunn, FL Dow Dunn, FL Dow Litchfield, N Dow Norris, JM Recipient Dow Beauchamp, RR Dow McCollister, DD Dow to Ol -a Distributees ) Page 55 General Subject Matter M-3401 Brush Killer, oral dosage to male rats Tordon 124V Brush Killer (Request for pathology) Tordon 124V Brush Killer (Eye con tact test) Tordon 124V Brush Killer (Skin contact, irritation) M-3401 Tordon 124V Sample 2, (Skin contact, Irritation) Tordon (Skin contact absorption) Toxicological properties of Tordon 124V Brush Killer made with CA Tordon acid Tordon 124V Brush Killer (Toxicology work sheet) Proposed name Tordon 124V Brush Killer (Request for screening or application testing) M3401 Brush Killer (Data sheet of properties, health hazards and Dow Number Date Author Recipient 07667700766800* 07668010766821* 680000 680000 07668220766823* 690107 07668240766847* 690113 07668480766849* 690320 0766850 * 560524 Dow Dunn, FL Litchfield, N Conran, PB Dow King, CD Litchfield, N Sparschu, GL Trice, V Beauchamp, RR Dow Leong, BKJ Trice, VR Beauchamp, RR Conran, PB Dow Leong, BKJ Sparschu, GL Trice, VR Norris, JM Torkelson, TR Hoyle, HR Peterson, JE HRH Distributees ) Page 56 General Subject Matter precautions for safe handling of materials) Tordon 124V Brush Killer, male rat testing Tordon 124V Brush Killer (Request for pathology) Summary report on the effect of acute inhalation of the volatile components of California Tordon Acid and Texas Tordon Acid (Biochemical Res Lab Sample 1) Summary pathology report on the effect of acute inhalation of the volatile components of California Tordon Acid and Texas Acid (Biochem Res Lab Pathology Report Sample) M-3401 Brush Killer (data sheet of properties, health hazards, and precautions for safe handling of materials) Brush Killer ) Dow Number 07668*51 0766852* 07670180767019* 07670200767021* Date 690320 560412 610525 07670220767023* 07670240767025* 07670260767027* 790216 720329 580613 07670280767029* 610525 0767030 * 0767031 * 610531 000000 Author JMN H Dow Recipient Dow Hoyle, HR Olson, KJ Oyen, F Dow Fishbeck, WA Keeler, P Dow Dow McCollister, DD Wolf, MA Dow Olson, KJ Oyen, F Dow Dow to cn Distributees 1 Page 57 General Subject Matter M-3401 Brush Killer (safety information) Esteron Brush Killer OS M-726 (T2.30-71-1), safety data sheet with formulation Esteron 99 data sheet of proper ties, health hazards and pre cautions for safe handling of materials Esteron 99 medical information Esteron 99 material safety data sheet Esteron 99 data sheet of proper ties, health hazards and pre cautions for safe handling of materials Esteron 99 data sheet of proper ties, health hazards and pre cautions for safe handling of materials Esteron 99 (Replacement formulation) Esteron 99 medical information symptomatology and treatment Dow Number 0767032 * 07670330767034* 07670540767055* Date 700721 720329 570514 07670560767057* 580514 0767058 * 000000 07670590767060* 0767061 * 0767062 * 710900 580716 610112 07670630767064* 580425 Author Dow Recipient Dow Dow Hoyle, HR McCollister, DD Wolf, MA Dow Hoyle, HR McCollister, DD Wolf, MA Dow Hoyle, HR Wolf, MA Dow Dow Wolf, MA Dow Wolf, MA Dow McIntyre, HH Dow McIntyre, HH Dow Hoyle, HR McCollister, DD Olson, KJ Distributees Page 58 General Subject Matter Esteron 99 toxicology, anticipated human response Esteron 99 material safety data sheet M-1086 data sheet of properties, health hazards and precautions for safe handling of materials Veon brush killer (M-1086) data sheet of properties, health hazards and precautions for safe handling of materials M-1086 (A herbicidal formulation T2.3098), safety data sheet Veon brush killer Suggested precautionary labeling for M-1094 Suggested precautionary labeling for M-1094 M-1094 weed killer formulation data sheet of properties, health hazards and precautions for safe handling of materials Dow Number 0767065 * Date 580717 0767066 * 07670670767068* 570730 571120 07670690767070* 571028 0767071 * 571206 0767072 * 571206 0767073 * 07670730767074* 610112 610311 0767075 * 610400 Author Recipient Dow Hoyle, HR Olson, KJ Dow Wolf, MA Coulter, LL Dow Dow Hoyle, HR McCollister, DD Olson, KJ Dow Hoyle, HR McCollister, DD Olson, KJ Dow Hoyle, HR Olson, KJ Dow Hoyle, HR Olson, KJ Dow Wolf, MA Dow McIntyre, HH Dow Hoyle, HR Olson, KJ Oyen, F Dow Distributees Page 59 General Subject Matter M-1094 containing 245T Ester T2, 30-112-1, safety data sheet Inverton, a letter showing concern for hazards Inverton M-1116 data sheet of pro perties, health hazards and pre cautions for safe handling of materials M-1116 dilution Cl-14-100 data sheet of properties, health hazards and precautions for safe handling of materials Inverton weed killer (M-1116) T2.30-101-1, safety data sheet M-1116 dilution Inverton for mulation Suggested precautionary labeling for M-1123 M-1123 data sheet of properties, health hazards and precautions for safe handling of materials M-1123, safety data sheet Qow Number 07670920767098* Date 531029 Author Adams, EM Dow Eslunn, E Maxey, JS Oyen, F Recipient 07670990767119* 530325 07671530767160* 570806 Dow HCS Rowe, VK Wolf, MA Dow McCollister, DD Wolf, MA ^---j- cn> i3 Distributees Allen, WW Allinson, RL Alquist, FN Barrons, KC Beshgetoor, AW Boundy, RH Britton, EC Davidson, JH Dow Dutton, WC Gay, HH Greene, LM Kagy, JF Luce, EN Lynn, GE MacCutcheon, SM Prescott, RF Sunderland, WW White, LC Wright, P Allinson, RL Athay, RM Beshgetoor, AW Boundy, RF Colby, RW Dow Elshere General Subject Matter Page 60 Results of range finding toxicological tests on Dow Brush Killer 50-50 Toxicity of Dow Brush Killer 50-50 (T2.30-28-1) Results of range finding toxicolo gical tests on M-1085 (A 245T triethyl amine liquid formulation T2.30-97-1) Dow Number Date Author ) Recipient 07671540767155* 571005 0767161 * 0767162 * 07671630767164* 07671650767166* 570228 570301 570402 570415 Dow Hoyle, HR McCollister, DD Wolf, MA Dow Dow Babcock, D Dow Wolf, MA Dow Barrons, KC Dow K5 m GO Distributees Gay, HH Greene, LM Hart, A Jones, GD Kagy, JF Kilian, DJ Luceen Lynn, GE McIntyre, HH Mussel 1, DR Perkins, RP Scoles, GW Tisdale, WL Wright, N General Subject Matter Page 61 M-1085 (A 245T alkyl amine formulation) data sheet of pro perties, health hazards and pre cautions for safe handling of materials Sample 1, M-1085 (T2.30-97-1), eye and skin contact M-1085 request for applications testing (2.30-97-1) Sample 1 (2.30-97-1) (eye contact test) Sample 1 M-1085 skin contact irri tation T2.30-97-1 / Dow Number 07671840767191* Date 570806 Author Recipient Dow McColllster, DD Wolf, MA 07671850767186* 570511 0767192 * 0767193 * 570228 570227 Dow Hoyle, HR McColllster, DD Wolf, MA Dow Wolf, MA Dow Scoles, G Barrons, KC Dow 'CO CD Distributees Allison, RW Athay, RM Barrons, KC Beshgetoor, AW Boundy, RH Colby, RW Dow Elshere, D Gay, HH Greene, LM Hart, A Jones, GD Kagy, JF Kilian, DJ Luce, EN Lynn, GE McIntyre, HH Perkins, RP Russel, DR Scoles, G Tisdale, WL Wright, N \ Page 62 General Subject Matter Results of range finding toxicolo gical tests on M-1086 (A 245T and 24D alkyl amine formulation) M-1086 (Data sheet of properties, health hazards and precautions for safe handling of materials) Sample 1, M-1086 (Toxicology work sheet) M-1086 (2.30-96-1) (Request for applications testing) )} Dow Number 07671940767195* 07671960767197* 07672130767222* Date 570326 570228 580521 Author Dow Stagerstron, E Dow Recipient Dow McCollister, DD Olson, K 07672160767217* 580425 0767223 * 580225 Dow Hoyle, HR McCollister, DD Olson, KJ Dow \ * r-i sji Distributees Allinson, RL Athay, RM Beshgetoor, AW Boundy, RH Colby, RW Dow Elshere, D Gay, HH Greene, LM Hammer, OH Hart, A Jones, GD Kagy, JF Kilian, DJ Luce, EN McIntyre, HH Perkins, RP Scoles, GW Tisdale, WL Vanvalkenburg, W Wright, N I Page 63 General Subject Matter Eye contact test M-1086, T2.30-96-1 M-1086 (Skin contact irritation) (T2.30-96-1) Results of range finding toxicolo gical tests on weed killer for mulation M-1094 containing a 245T Ester (T2.30-112-1) M-1094 Weed Killer formulation (Data sheet of properties, health hazards, and precautions for safe handling of materials) Sample 1 Weed Killer formulation (M-1094) (Toxicology work sheet) / Dow Number 0767224 * 0767225 * Date 000000 580218 Author Dow Scoles, G Coulter, LL Dow Recipient Dow Rowe, VK 0767226 * 580225 07672270767228* 07672290767230* 0767231 * 530311 580525 580402 Dow NCG Dow NCG Dow NCG Coulter, LL Dow Dow Rowe, VK 07672430767251* 571220 Dow McCollister, DD Olson, KJ r-i Distributees Dow Fletcher, FW Scoi es, GW Vanvalkenburg, W Dow Fletcher, FW Scoles, GW Vanvalkenburg, JW Allinson, RL Beshgetoor, AW Boundy, RH Colby, RW Coulter, LL Dow Elshere, D Gay, HH Gray, HE Greene, LM ) Page 64 General Subject Matter 245T (Request for screening or application testing) Formulation M-1094, contemplated sales program Sample 1 Weed Killer formulation (M-1094) (T2.30-112-1) (acute oral toxicity) Sample 1 Weed Killer formulation (M-1094) (eye contact test) Sample 1, weed killer formulation (M-1094) (T2.30-112-1) (skin con tact irritation) M-1094, will remain in development during 580000 Results of range finding toxicolo gical tests on Inverton (brush killer). (T2.30-101-1) Dow Number Date Author Recipient 07672450767246* 571120 0767252 * 0767253 * 0767254 * 07672550767256* 07672570767258* 570520 000000 570520 570520 570624 Dow Hoyle, HR McColllster, DD Olson, KJ Dow Dow Scoles, G Dow Babcock, D Dow Babcock, D Dow Distributees Hart, A Hymas, TA Jones, GD Kagy, JF Kilian, DJ Luce, EN Lynn, GE McIntyre, HH Mussel 1, DR Perkins, RP Scoles, GW Tisdale, WL Wright, N 1 General Subject Matter Page 65 Inverton M-1116 (Data sheet of properties, health hazards and precautions for safe handling of materials) Sample 1 M-1116 (T2.30-101-1) (Toxicology work sheet) M-1116 (Request for applications testing) (2.30-101-1) Sample 1 M 1116 (Acute oral toxicity) (T2.30-101-1) Sample 1 M-1116 (Eye contact test) (T2.30-101-1) Sample 1 M-1116 (Skin contact irritation) (T2.30-101-1 ) Dow Number 0767259- 0767260* 0767261 * 0767262 * 07672630767267* Date 570730 580221 580408 610316 Author Recipient Dow Wolf, MA Coulter, LL Dow Dow Dow Olson, KJ Dow Wolf, MA Dow McIntyre, HH Dow Olson, KJ Oyen, K Thompson, E Vanvalkenburg, W 07672680767269* 610311 Dow Hoyle, HR Olson, KJ Oyen, F QO Distributees Barrons, KC Boundy, RH Colby, RW Dow Elshere, D Falkenstein, WJ Gay, HH Greene, LM Hart Jones, GD Kagy, JF Kilian, DJ Luce, EN Lynn, GE McIntyre, HH Perkins, RP Shrader, SA Tisdale, WL Vanvalkenburg, W Wright, N Page 66 General Subject Matter Inverton, a letter showing concern for hazards Request for report Suggested precautionary labelling for Inverton (M-1116) Results of range finding toxicologlcal tests on M-1123 (T2.30-201-1) M-1123 (Data sheet of properties, health hazards and precautions for safe handling of materials) II Dow Number 0767270 * 0767271 * 0767272 * Date 601228 601229 601223 0767273 * 0767274 * 07672750767276* 07672770767280* 07672810767282* 07672880767300* 610106 601228 610110 601228 610120 610601 Author Dow Recipient Dow Dow Dow Vanvalkenburg, W Olson, KJ Dow Wolf, MA Dow Dow Rltty, PM Dow Thompson, E Dow Thompson, E Dow Thompson, E Dow White, LC, Jr. Distributees Dow Johnson, JE Ritty, PM Barrons, KC Boundy, RH Colby, RW Dow Elshere, D Falkenstein, WJ Gay, HH Greene, LM Hart, A I Page 67 General Subject Matter M-1123 (Toxicology work sheet) (T2.30-201-1) M-1123 (request for screening or application testing) M-1123, Formulation, use, release to sale plans Formulation for M-1094, no data available on toxicity for M-1123 Sample 1 M-1123 (Acute oral toxicity) (T2.30-201-1 ) Sample 1 M-1123 (Eye contact test) (T2.30-201-1) Sample 1 M-1123 (Skin contact irritation) (T2.30-201-1 ) Sample 1 M-1123 (Skin contact absorption) (T2.30-201-1 ) Results of range finding toxicolo gical tests on Esteron 245-OS (replacement for present for mulation M-1257) (BC T2.30-167-2) I Dow Number Date Author Recipient 07673010767314* 600125 Dow Wolf, MA to a o Distributees Jones, GD Kagy, JF Kilian, DJ Luce, EN Lynn, GE McIntyre, HH Oyen, F Perkins, RP Shrader, SA Tisdale, WL White, LC, Jr. Wright, N Barrons, KC Boundy, RH Colby, RW Dow Elshere, D Gay, HH Greene, LM Hammer, OH Hart, A Hymas, TA Jones, GD Kagy, JF Kilian, DJ Luce, EN Lynn, GE McIntyre, HH Oyen, F Perkins, RP Stenger, VA Tisdale, WL Wright, N General Subject Matter Page 68 Results of range finding toxicolo gical tests on Esteron 245 0S(M.1257) (BC T2.30-167-1) Dow Number 0767309 * Date 591102 Author Recipient Dow Dow Vanvalkenburg,JW Wolf, MA 0767315 * 591028 Dow Ri tty, PM Dow Wolf, MA Distrlbutees Barrons, KC Boundy, RH Colby, RW Coulter, LL Dow Elshere, D Gay, HH Greene, LM Hammer, OH Hart, A Heath, SB Hymas, TA Jones, GD Kagy, JF Kilian, DJ Luce, EN Lynn, GE McIntyre, HH Oyen, F Perkins, RP Stenger, VA Tisdale, WL Wright, N Barrons, KC Boundy, RH Colby, RW Coulter, LL Dow Elshere, D Gay, HH Greene, LM Hammer, OH Hart, A Page 69 General Subject Matter Esteron 245 OS (M-1257), For mulation plans for toxicological evaluation Need toxicology information sheets on Esteron Brush Killer O.S. Dow Number Date Author Recipient 07673210767342* 571122 Dow Olson, KJ ro --to Distributees Heath, SB Hymas, TA Jones, GD Kagy, JF Kilian, DJ Luce, EN Lynn, GE McIntyre, HH Oyen, F Perkins, RP Stenger, VA Tisdale, WL Wright, N Allinson, RL Athay, RM Beshgetoor, AW Boundy, RH Colby, RW Dosser, RC Dow Elshere, D Gay, HH Greene, LM Hart, A Hymas, TA Jones, GD Kilian, DJ Luce, EN Martin, D McCollister, DD McIntyre, HH Mussel 1, DR Perkins, RP General Subject Matter Page 70 Results of range finding toxicolo gical tests on Brush Killer X, Weed Killer X and Brush Killer TX (T2.30-76-1 T2.30-77-1 T2.30-78-1) Dow Number Date Author Recipient 07673660767335* 590423 Dow Wolf, MA 07674020767416* 590818 Olson, KJ Oyen, F KS Distributees Tisdale, WL White, LC Wright, N Athay, RM Barrons, KC Boundy, RH Colby, RW Dow Elshere, D Gay, HH Greene, LM Hammer, OH Hart, A Hymas, TA Jones, GD Kagy, JF Kilian, DJ Luce, EN Lynn, GE McCollister, DD McIntyre, HH Perkins, RP Stenger, VA Tisdale, WL Vanvalkenburg, W Wright, N Barrons, KC Colby, RW Lynn, GE Boundy, RH McIntyre, HH Perkins, RP General Subject Matter Page 71 Results of range finding toxicolo gical tests on Forron brush killer (M--1368) (T2.30-123-1) Results of range finding toxicolo gical tests on Ml413, formulation of Dowanol Ester 245T made for Stull Chem. Data sheet of proper ties, health hazards and pre cautions for safe handling of Dow Number Date Author Recipient 07674170767418* 590506 Dow McCollister Wolf, MA 07674190767421* 590202 07674220767930* 590202 Dow Hoyle, HR McCollister Wolf, MA Dow Hoyle, HR McCollister Wolf, MA Distributees Hart, A Wright, N Hammer, OH Hymas, TA Jones, GD Gay, HH Tisdale, WL Luce, EN Green, LM Stenger, LM Scoi es, G Gray, HE Kilial, DJ Elshere, D Kagy, JF Barrons, KC Boundy, RH Colby, RW Dow Elshere, D Gay, HH General Subject Matter materials Page 72 Results of range finding toxicolo gical tests on M-1447 and M-1433 weed killer formulations (Similar to Esteron 245 OS and Esteron Brush Killer respectively) A concentrate formulation of 245T Dowanol 97B70 Ester data sheet of properties, health hazards and precautions for safe handling of materials A concentrate formulation of 24D and 245T Dowanol 97B70. Esters data sheet of properties, health hazards and precautions for safe handling of materials Dow Number Date Author Recipient 0767431 * 0767432 * 590127 581120 Dow Dow Wade, J 0767433 * 581121 07674340767439* 07674400767441* 581120 590506 Dow Dow Vanvalkenburg.JW Olson, KJ Dow Dow McCollister, DD Distributees Gray, HE Greene, LM Hammer, OH Hart, A Hymas, TA Jones, GD Kagy, JF Kilian, DJ Luce, EN Lynn, GE McIntyre, HH Perkins, RP Stenger, VA Tisdale, HH Vanvalkenburg, W Wright, N Coulter, LL Dow Heath, SB ) General Subject Matter Page 73 M-1433 Toxicology work sheet A concentrate brush killer for mulation of 31b. 24D and 31b. 245T acid equiv per gal. based on Dowanol 97B70 Esters. Request for screening or application testing M-1433 and M-1447, formulations M-1433 eye contact test Results of range finding toxicolo gical tests on M-1447 and M-1433 Dow Number Date Author Wolf, MA Recipient 07674420767444* 590202 07674450767453* 590202 Dow Hoyle, HR McCollister, DD Wolf, MA Dow Hoyle, HR McCollister, DD Wolf, MA 0767454 * 590127 Dow K) G '3 Distributees Barrons, KC Boundy, RH Colby, RW Dow Elshere, D Gay, HH Gray, HE Greene, LM Hammer, OH Hart, A Hymas, TA Jones, GD Kagy, JF Kilian, DJ Luce, EN Lynn, GE McIntyre, HH Perkins, RP Stenger, VA Tisdale, WL Vanvalkenburg, JW Wright, N Page 74 General Subject Matter weed killer formulations (Similar to Esteron 245 OS and Esteron Brush Killer OS respectively) M-1447 A concentrate formulation of 245T Dowanol 97B70 esters. Data sheet of properties, health hazards and precautions for safe handling of materials M-1433 A concentrate formulation of 24D and 245T Dowanol 97B70 esters. Data sheet of properties, health hazards and precautions for safe handling of materials M-1447 toxicology work sheet ) Dow Number 07674550767456* 07674570767462* 07674630767464* Date 581120 581120 590202 07674650767466* 07674780767479* 07674800767485* 700709 590713 590414 Author Recipient Dow Vanvalkenburg, JW Dow Dow Hoyle, HR McCollister, DD Wolf, MA Dow Dow McCollister, DD Wolf, MA Dow McCollister, DD Peterson, JE Wolf, MA H* ro Distributees Barrons, KC Boundy, RH Colby, RW Dow Elshere, D Gay, HH Greene, LM Hammer, OH Hart, A Hymas, TA Jones, GS Kagy, JF Kilian, DJ Luce, EN General Subject Matter Page 75 M-1447 request for screening or application testing M-1447 acute oral toxicity M-1433 A concentrate formulation of 24D and 245T Dowanol 97B70 esters. Data sheet of properties, health hazards and precautions for safe handling of materials Dowanol 97 B-70 medical Infor mation Results of range finding toxicolo gical tests on Forron 235T Forron 245 M-1456 data sheet of properties, health hazards and precautions for safe handling of materials Dow Number Date Author Recipient 0767486 * 0767487 * 590319 590127 Dow Dow 0767488 * 590113 07674890767493* 0767494 * 07674950767497* 590127 000000 590610 0767498 * 590722 Dow Dow Vanvalkenburg.JW Olson, RJ Dow Dow Wolf, MA Dow McCollister, DD Peterson, JE Wolf, MA Dow Olson, K Distributees Lynn, GE McIntyre, HH Perkins, RP Stenger, VA Tisdale, WL Vanvalkenburg, W Wright, N Coulter, LL Dow Heath, SB General Subject Matter Page 76 M-1456 (Forron 245T) toxicology work sheet M-1456 (Contains K-7756) (Forron 245) Request for screening of application testing Formulation M-1456 M-1456 acute oral toxicity Suggested precautionary labeling for Forron 245 Forron 245 (M-1456) Data sheet of properties, health hazards and precautions for safe handling of materials Results of range finding toxicolo gical tests on M-1459. Formulation of K-7797 and K-7856 Dow Number 07674990767504* Date 590702 Author Dow Hoyle, HR Olson, KJ Oyen, F Recipient 0767505 * 0767506 * 590618 590216 Dow Dow 07676350767637* 590901 Dow 01 son Oyen, F Scoi es, GE H* to Ci) ) Distributees Athay, RM Barrons, KC Boundy, RH Colby, RW Dow Elshere, D Gay, HH Gray, HE Greene, LM Hammer, OH Hart, A Hymas, T Jones, GD Kilian, DJ Lynn, GE Martin, D McIntyre, HH Perkins, RP Scoles, GE Stenger, VA Tisdale, WL Wright, N Barrons, KC Boundy, RH Colby, RW Dow Elshere, D ) Page 77 General Subject Matter M-1459 formulation of K-7797 and K-7856 M-1459 Toxicology work sheet M-1459 formulation of K-7797 and request for screening or applica tion testing Results of range finding toxicolo gical tests on M-1586 (Formulation containing Dowanol 97B70 Esters of 24D and 245T) (T2.30-156-1) Dow Number Date Author Recipient 07676380767639* 590811 0767640 * 0767641 * 590729 590611 Dow Hoyle, HR Olson, KJ Oyen, F Dow KO Dow Scoi es, G 0767642 * 590610 Dow Scoi es, GW Olson, KJ 0 QO CJ Distributees Gay, HH Greene, LM Hammer, OH Hart, A Hymas, TA Jones, GD Kagy, JF Kilian, DJ Leasure, JK Luce, EH Lynn, GE McIntyre, HH Perkins, RP Scoles, GE Stenger, VA Tisdale, WL Wright, N Coulter, LL Dow Scoles, G Coulter, LL Dow Dosser, RC General Subject Matter ) Page 78 M-1586 (Data sheet of properties, health hazards and precautions for safe handling of materials) M-1586 (Toxicology work sheet) (T2.30-156-1) Formulation containing the Dowanol 97B70 Esters of 24D and 245T (M-1586) (Request for screening or application testing) Improved Esteron formulation Dow Number Date Author Recipient 0767643 * 590710 07676440767646* 07676470767649* 07676500767652* 590721 590727 590811 07677670767780* 600331 Dow Greenhoe, NC KO Dow Greenhoe, NC KO Dow Greenhoe, NC KO Dow Hoyle, HR Olson, KJ Oyen, F Dow Olson, KJ Scoles, G Distributees Heath, SB Maddox, JF White, LC Barrons, KC Boundy, RH Colby, RW Dow Elshere, D Gay, HH Greene, LM Hammer, OH Hart, A Hymas, TA Jones, GD Kagy, JF General Subject Matter Page 79 M-1586 (Acute oral toxicity) (T2.30-156-1 ) M-1586 (Eye contact test) (T2.30-156-1) M-1586 (Skin contact irritation) (T2.30-156-1 ) M-1586 (Data sheet of properties, health hazards and precautions for safe handling of materials) Results of range finding toxicolo gical tests on agricultural chemi cal formulation M-1639 (Veon brush killer type) Dow Number Date Author Recipient 07677920767793* 600128 0767794 * 0767824 * 600313 600216 Dow Hoyle, HR Olson, KJ Oyen, F Dow Dow Olson, KJ Oyen, F U 'O Distributees Kilian, DJ Luce, EN Lynn, GE McIntyre, HH Oyen, F Perkins, RP Scoles, G Stenger, VA Tisdale, WL Wright, N Barrons, KC Boundy, RH Colby, RW Dow Elshere, D Gay, HH Greene, LM Hammer, OH Hart, A Hymas, TA Jones, GD Kagy, JF Kilian, DJ Luce, EN Lynn, GE General Subject Matter Page 80 M-1639 (Veon brush killer type) (Data sheet of properties, health hazards and precautions for safe handling of materials) M-1639 (Veon brush killer type), Safety data sheet Results of range finding toxlcological tests on agricultural chemi cal formulation M-1683 (Esteron 245 Type) )l Dow Number Date Author I Recipient 07678250767828* 600223 Dow Olson, KJ 07678290767830* 600126 07678310767841* 600000 0767351 0767852* ?'.) CO CO 600126 Dow Hoyle, HR Olson, KJ Oyen, F Dow EO NS O'Connor Scoles, GW Torkelson, Dow Hoyle, HR Distributees McIntyre, HH Perkins, RP Scoles, G Stenger, VA Tisdale, WL Wright, N General Subject Matter Page 81 Corrections in biochemical research laboratory reports (T2.30-177-1 ) Results of range finding toxicological tests on agricultural chemical formulation M-1683 (Esteron 245 Type), Results of range finding toxicological tests on Bis Acetonitrilo Decaborane (Band) (T23.14-94-2); Results of range finding toxicological tests on Alpha Phenoxy Propionic Acid M-1683 (Esteron 245T) (Data sheet of properties, health hazards and precautions for safe handling of materi als) Toxicology work sheet, acute oral toxicity, eye contact test, skin contact irritation, single vapor exposure record (M-1683) M-1683 (Esteron 245T) (Data sheet of properties, health hazards and ) Dow Number Date 0767853 * 0767854 * 0767872 * 600212 551108 600406 07678730767875* 600215 07679880767990* 611031 07679940767997* 611106 07680100768025* 611117 Author 01 son, KJ Oyen, F Dow Dow Dow Wolf, MA Dow 01 son, KJ Oyen, F Dow 01 son, KJ Oyen, F Dow Hoyle, HR Oyen, F Plomer, ET Dow 01 son, KJ Plomer, ET Recipient Dow McIntyre, HH to QO Distributees Dow Sales Wolf, MA Dow Hoyle, HR Dow Hoyle, HR Dow Hoyle, HR Barrons, KC Boundy, RH Colby, RW Dow Elshere, D Falkenstein, W Gay, HH Greene, LM Page 82 General Subject Matter precautions for safe handling of materials) AG chem formulation M-1683 Esteron 245T, safety data sheet Suggested precautionary labeling for M-1684 M-1684 (Esteron Brush Killer type) Data sheet of properties, health hazards and precautions for safe handling of materials M-2016 data sheet of properties, health hazards and precautions for safe handling of materials M-2115 data sheet of properties, health hazards and precautions for safe handling of materials Results of range finding toxicological tests on M-2115, an agricultural chemical formulation containing 245T acid and triethyl amine Dow Number Date Author Recipient 07680870768103* 611108 Olson, K Oyen, F Hoyle, HR KS Scoi es, GW Tompson, E 07681040768143* -Ai ZJ uo u\ 631129 Dow Lynn, GE Distributees Hart, A Jones, GD Kagy, JF Kilian, DJ Luce, EN Lynn, GE McIntyre, HH Oyen, F Perkins, RP Scoles, GW Shrader, Sa Tisdale, WL Wright, N Boundy, RH McIntyre, HH Perkins, RP Hart, A Jones, GD Scoles, G Gay, HH Tisdale, WL Luce, EN Greene, LM Shrader, SA Falkenstein, W Elshere, D Kagy, JF Barrons, KC Colby, RW Kilian, DJ Lynn, GE Barrons, KC Boundy, RH General Subject Matter Page 83 Results of range finding toxicolo gical tests on agricultural chemcical formulation M-2016 containing 35 percent Dowanol Ester 245T. Material safety data sheet Results of range finding toxicolo gical tests on Verton T herbicide Dow Number Date Author Olson, KJ Recipient 07682360768254* 620403 Olsen, KJ Oyen, F Vanvalkenburg, W to LO co Distributees Colby, RW Dow Elshere, D Epstein, J Falkenstein, WJ Gordon, HL Greene, LM Hake, CL Hart, A Jones, GD Kagy, JF Kilian, DJ Koerker, FW Luce, EH Lynn, GE McIntyre, HH Mullison, WR Norton, TR Oyen, F Shrader, SA Wilson, AW Wright, N Boundy, RK McIntyre, HH Perkins, RP Hart, A Wright, N Lynn, GE Jones, GD Barrons, K Vanvalkenburg, V Brown, R Gay, HH 1 Page 84 General Subject Matter (M-2137) a formulation containing Dowanol Ester of 245T Results of tox. tests on 24D + 245T dowanol esters in kerosene Dow Number Date Author Recipient 0768240768241* 620323 Olsen, KJ Oyen, F Hoyle, HR 0768243768244* tv> GO 611108 Vanvalkenburg, Olson, KJ Distributees Wilson, AW Luce, EN Greene, LM Shrader, SA Falkenstein, WJ Nash, HA Colby, RN Kilian, DJ Elshere, D Kagy, JF Boundy, RH McIntyre, HH Perkins, RP Hart, A Wright, N Lynn, GE Jones, GD Barrons, H Vanvalkenburg, V Brown, R Gay, HH Wilson, AW Luce, EN Greene, LM Shrader, SA Falkenstein, WJ Nash, HA Colby, RW Kilian, DJ Elshere, D Kagy, JF Johnson, JE Boundy, RK General Subject Matter Page 85 Data sheet for M2235 Cover letter with sample of M-2235 for testing Dow Number Date Author Recipient 07682620768263* 0768264 * 07682680768269* 620323 620300 720416 Olson, KJ Oxen, F Hoyle, HR Dow Wolf, MA Hoyle, HR 07682700768271* 720413 Wolf, MA 1. ' ' Distributees McIntyre, HH Perkins, RP Hart, A Wright, N Lynn, GE Jones, GD Barrons, K Vanvalkenburg, V Brown, R Gay, HH Wilson, AW Luce, EN Greene, SA Falkenstein, WJ Nash, HA Colby, RN Kilian, DJ Elshere, D Kagy, OF General Subject Matter Page 86 M-2235 (data sheet of properties, health hazards, and precautions for safe handling of materials) M-2235 (safety information) Verton CE (data sheet of proper ties, health, hazards, and pre cautions for safe handling of materials) Verton CE (medical information) Dow Number 07682970768299* Date 630108 07683000768301* 0768302 * 07683030768304* 07683050768306* 07686800768699* 710400 630507 720328 780401 660526 Author Dow Hoyle, HR Olson, KJ Oyen, F Recipient Dow Dow Dow Dow Stevenson, GT 0768961768962* 610601 Olson, KJ Oyen, F Hoyle, HR Distributees Page 87 General Subject Matter M-2422 (Data sheet of proportions for safe handling of materials) Esteron 245 concentrate Esteron 245 concentrate (Sales specification) Esteron 245 concentrate brush and weed killer (Material safety data sheet) Esteron 245 concentrate brush and weed killer (Material safety data sheet) Dow A summary of acute oral toxicity Haagsma, TA LD50 studies 1n poultry from BLS TOX-37 thru TOX-66 inclusive GTS (Report GH-A 186) KJO Prod. Plan Target Team Mgr. Robinson, VB RJS RMS RVJ Safety data sheet for Esteron 245 OS Dow Number 0768963768964* 0768965768966* 07689840769027* Date 580630 610531 660510 Author Recipient Wolf, MA McCollister, DD Hoyle, HR Dow Dow Lynn, GE Olson, KJ 0769080 * i-* ir'1<s>:> o- 001216 Dow Getzendaner, ME Herman, JL Moss, RD Distributees Barrons, KC Boundy, RH Dow Elshere, D Falkenstein, WJ Hart, A Holder, BB Johnston, RV Jones, GD Kagy, JF Kilian, DJ Luce, EN Lynn, GE McCollister, DD McIntyre, HH Moss, RD Mullison, WR Norton, TR Pitman-Moore Shrader, SA Wilson, AW Wright, N Barrons, KC Bauriedel, WR Dow Dowell, FH Page 88 General Subject Matter Safety data sheet for Reddon con centrate (M-2157) Safety data information on Esteron 245 OS Toxicological properties of her bicide formulation M-2993 con taining 4-amino-356-trichioropicolinic acid, isooctyl ester and 245T polypropylene glycol butyl ether ester A residue study picloram and 245T in grass from application of M-3060 formulation (GH-C 343) Dow Number Date Author Recipient 07690810769082* 07690830769085* 670410 661205 07690850769087* 661108 07690880769094* 07691600769162* 660816 670316 Dow Dow 01 son, KJ Oyen, F Wilson, H Dow Hoyle, HR 01 son, KJ Oyen, F Wilson, H Dow Wilson, H 01 son, KJ Oyen, F Distributees Hanson, RG Hymas, TA Johnston, RV Kagy, JF Laning, ER Ludwig, PD Moss, RD Osborne, DW Popoff, FP Ridner, JM Rowe, VK Seymour, KG Shaver, RJ Spalding, JL Williams, CS Dow Lynn, GE Boundy, RH Buerge, TE General Subject Matter Page 89 M-3060, safety data sheet Results of range finding toxicolo gical tests on Esteron O.S. (M-3094) (T2.3094-1) Esteron 245 O.S. (Data sheet of properties, health hazards and precautions for safe handling of materials) Esteron 245 O.S. (M-3094) Toxico logy work sheets Toxicological properties and industrial handling hazards of Dow Number Date Author Recipient 07691630769179* 07692680769271* 07692720769297* 660000 671224 680104 Dow Tinker, B Wilson, H Dow McCollister, DD Olson, KJ Dow Lynn, GE Olson, KJ Distributees Dean, P Dow Elshere, D Holder, BB Jones, GD Kagy, JF Kill an, DJ Luce, EN Lynn, GE McIntyre, HH Moss, RD Sheetz, DP Shrader, SA Wilson, AW Wright, N Boundy, RH Dean, P Dow Elshere, D Holder, BB Jones, GD Kagy, JF Luce, EN McCollister, DD McIntyre, HH General Subject Matter Tordon 105 mixture (T2.MO-3132-1) Page 90 Tordon 105 mixture (Toxicology worksheet) Tordon 144 mixture data sheet of properties, health hazards and precautions for safe handling Toxicological perperties and industrial handling hazards of Tordon 144 mixture herbicide Dow Number Date Author Recipient 07693510769352* 690121 Dow Hoyle, HR Norris, JM 07693530769354* 700130 07693550769356* 07700430770058* 681213 571122 Bjork, C Dow Gowel1, J H JBD Loucks, MF Nagele, RE Newport, JJ Seymour, KG Sheldon, HW Stein, JS Talcott, AT Williams, CS Wolf, MA Dow Norris, JM Dow Olson, KJ Distributees Moss, RD Olson, KJ Robinson, VB Sheetz, DP Shrader, SA Wilson, AW Wright, N General Subject Matter Page 91 M-3199X Tordon 225 mixture her bicide data sheet of properties, health hazards and precautions for safe handling of materials (T2.MO-003199-1 ) Tordon 225 herbicide release to sales Allinson, RL Athay, RM M-3199X Tordon 225 herbicide (T2.M0-003199-(l)), safety data sheet Results of range finding toxicolo gical tests on Brush Killer X, Dow Number Date Author Recipient 07700440770045* 571115 07700470770048* 571115 0770049 * 000000 Dow McCollister, DD Olson, KJ Peterson, JE Dow McCollister, DD Olson, KJ Peterson, JE Dow Distributees Beshgetoor, AW Boundy, RH Colby, RW Dosser, RC Dow Elshere, D Gay, HH Greene, LM Hart, A Hymas, TA Jones, GD Kilian, DJ Luce, EN Martin, D McCollister, DD McIntyre, HH Mussel1, DR Perkins, RP Tisdale, WL White, LC Wright, N )i Page 92 General Subject Matter Weed Killer X and Brush Killer TX Brush Killer TX (Data sheet of properties, health hazards and precautions for safe handling of materials) Weed Killer X (Data sheet of pro perties, health hazards and pre cautions for safe handling of materials) Brush Killer X (Data sheet of properties, health hazards and Dow Number Date Author Recipient 07700500770052* 571115 0770059 * 560308 07700600770061* 07700620770063* 07700640770065* ' 560424 560521 571115 07706650770684* 660526 Dow McCollister, DD Olson, KJ Peterson, JE Dow White, LE Dow Dow Dow McCollister, DD Olson, KJ Peterson, JE Dow Stevenson, GT Stock, BL 07817910781794* 501017 Dow Rowe, VK Allen, WW Alquist, FC Britton, JW Distributees BLS GTS K00 RJS RMS RVJ TAH VBR Page 93 General Subject Matter precautions for safe handling of materials) Brush Killer X (Data sheet of pro perties, health hazards and pre cautions for safe handling of materials) Brush Killer TX (Request for application testing). Brush Killer TX (Eye contact test) Brush Killer TX (Skin contact irritation) Brush Killer TX (Data sheet of properties, health hazards and precautions for safe handling of materials) A summary of acute oral toxicity LD50 studies in poultry from TOX-37 thru TOX-66 inclusive (GH-A 186) Results of skin irritation and skin sensitization tests conducted on human subjects with Esteron 245 Dow Number Date 0781795 * 500405 0708718719861- 0* 530217 Author Dow REW Streeter, LE Dow Oyen, F Recipient Dosser, RC Dow Dutton, WC Irish, FN Kagy, JF Lynn, GE Dow White, L Allen, WW Allinson, RL Al qui st, FN Beshgetoor, AW Boundy, RH Britton, EC Britton, JW Collier, B Davidson, JH Dow Dutton, WC Gay, HH Gibson, J Greene, LM Heath, SB Johnson, JE Kagy, JF Kelly, JA Kriner, RR Luce, EN Lynn, GE MacCutcheon, SM Mel ass, VH j* cl Distributees General Subject Matter (New Ester) (T2.30-3-1) Page 94 Esteron 245T (Main lab report sheet) Results of range finding toxicolo gical tests on Esteron 245 (T2.30-3-2) Dow Number Date Author 07820850782091* 531030 Dow Oyen, F Recipient Nation, HA Otis, CE Predergast Southwick, L Sunderland, WW Vanhorn, JC Walker, H White, LC Wright, P Zuhl, HH 0782092 * 530305 Dow Rowe, VK Distributees General Subject Matter age 95 Allen, WW Allinson, RL Alquist, FN Barrons, KC Beshgetoor, AW Boundy, RH Britton, EC Davidson, JH Dow Dutton, WC Gay, HH Greene, LM Kagy, JF Luce, EN Lynn, GE MacCutcheon, SM Prescott, RF Sunderland, WW White, L Wright, P Results of range finding toxlcolo gical tests on Dow Brush Killer T Dow Brush Killer T (Request for biological test) Dow Number Date 07820930782100* 0782101 0782103* 07821040782112* 07821130782114* 0782115 * 07821160782117* 530000 530000 530000 700721 000000 710714 07821180782119* 07821780782198* 710920 560501 Author Spencer, HC White, L Dow Wolf, MA Wyse, H Dow Wyse, H Dow Wyse, H Dow HCS Dow Recipient Dow Hoyle, HR Wolf, MA Dow Wolf, MA Dow McCollister, DD Torkel son, TR oo Distributees General Subject Matter Page 96 Allinson, RL Beshgetoor, AW Boundy, RH Britton, EC Coulter, LL Dow Elshere, D Dow Brush Killer T (Acute oral toxicity) Brush .Killer T (Eye irritation) Brush Killer T (Skin irritation) Brush Killer T, safety data sheet Brush Killer T (Medical information) Brush killer T (Data sheet of properties, health hazards and precautions for safe handling of materials) Brush Killer T (Medical information) Results of range finding toxicolo gical tests on M-631 (Esteron 245 type formulation) (BC T2.30-67-1) Dow Number Date Author Recipient 07821990782200* 580916 0782201 * 560504 Dow Hoyle, HR Torkel son, TR Dow 07822020782220* 560409 Dow McCollister, DD Wolf, MA Distributees Gay, HH Greene, LM Hart, A Kilian, DJ Luce, EN MacCutcheon, SM Martin, D Scoles, G Sunderland, WW Wright, N Allinson, RL Beshgetoor, AW Boundy, RH Britton, EC Colby, RW Dow Elshere, D Gay, HH Greene, LM Hart, A Kagy, JF Kelly, J Kilian, DJ Luce, EN General Subject Matter Page 97 Esteron 245 type formulation (M--631) (Data sheet of properties, health hazards and precautions for safe handling of materials) M-631 (Esteron 245 type for mulation) (T2.30-67-1), safety data sheet Results of range finding toxicolo gical tests on 2 formulations of Reddon (M-640 and M-713) Dow Number Author Recipient 07822850782306* 560503 Dow Lockwood, D McCollister, DD Torkelson, TR 07823790782393* 560702 Dow Lockwood, D McCollister, DD Olson, KJ Y-* to O Distributees Lynn, GE MacCutcheon, SM Sunderland, WW Wright, N Alllnson, RL Beshgetoor, AW Boundy, RH Britton, EC Coulter, LL Dow Elshere, D Gay, HH Greene, LM Hart, A Kilian, DJ Luce, EN MacCutcheon, SM Martin, D Scoles, G Sunderland, WW Wright, N Allinson, RL Alquist, FN Barrons, KC Beshgetoor, AW Boundy, RH Britton, EC Colby, RW Dow Elshere, D Gay, HH Greene, LM General Subject Matter Page 98 Results of range finding toxicolo gical tests on M-697 (Esteron Brush Killer type formulation) (T2.30-66) Results of range finding toxicological tests on Esteron Brush Killer OS (M-726) CT2.30-71-1) Dow Number Date Author Recipient 07869420786954* 07869550786975* 07870000787030* 08903940980398* 09703300970343* 09790330979047* 000000 000000 680122 000000 700901 691215 Dow Dow Delong, HC Dow Blair, EH Dow Bailey, RE CO o Distributees Hart, A Kagy, JF Kelly, JA Kilian, DJ Luce, EN Lynn, GE MacCutcheon, SM Sunderland, WW Wright, N Blair, EH Fernandez, JB Johnson, JE Moss, RD Chamberlain, LC Peterson, LI Strojny, EJ Tobey, $W Hillary, BB ) General Subject Matter Page 99 24D Esters-process information Direct Ester process Acid Ester operating instructions 489 Bldg General process description, 24D process Chemistry of the Dow agricultural department Miniplant preparation of 2,4-D and 2,4,5-T Dow Number Date Author Recipient 09791880979210* 09794110979416* 09794290979430* 0979686 * 0979732 * 0979733 * 0979734 * 0979735 * 680000 670828 670906 670915 670914 670914 670914 670914 Dow Seidel, EM Tacy, W Seidel, EM EMS EMS WHH EMS EMS oa iJ Page 100 Distributees General Subject Matter Rehurg, CE Moyer, JR Pumpelly, CT Poffenberger, N Haberstroh, WH Deline, DD Ayers, JE Woodward, RE Jones, GD Blue, RD Vanwestenburg, JA Historical overview of chloracne experiences, includes process informati on Agent Orange related costs and capacity Process flow chart with recommended raw material unit ratios for Orange Flow chart with costs and capacity for making Agent Orange Trichlorophenol plant unit ratios Diehlorophenol plant unit ratios Chloroacetic acid plant unit ratios Crystalline chloracetate acid unit ratios )I Dow Number 0979736 * 0979737 * 0979738 * 09798830979884* 0979885 * Date 670914 670914 670914 000000 670311 Author EMS EMS EMS Dow Delisle, NG Recipient 09798860979887* 09799270979934* 0979935 * 097Q9890979994* 0980024 * 09800850980086* 670829 670411 670427 670417 670130 661227 Delisle, NG Delisle, NG Delisle, NG Delisie, NG EMS Jossi, JA Gilbert, PW GO OCO Distributees Page 101 General Subject Matter Butyl chloroacetate plant unit ratios Butyl ester 24D plant unit ratios Butyl ester 245T plant unit ratios Process flow chart indicating costs and capacity for Agent Orange production Process flow chart indicating costs and capacity for Agent Orange production Process flow chart indicating costs and capacity for Agent Orange production Agent Orange production flow charts showing capacities Chart showing capacity and costs for Agent Orange production Flow sheets on 24D butyl ester acid Orange 24Dichlorophenol block flow sheet 245-Trichlorophenol block flow chart Dow Number 0980089 * 09801780980188 Date 670130 690307 Author EMS GTG Wen, RY Recipient 09803200980341* 09803940980398* 0980971 * 0980994Q381006* CO 660121 000000 000000 750000 Amstutz, FC Highhill, CA Kosinski, JE Delong, HC Dow Dow Dow Distributees Look, AT Sheetz, DP Pumpelly, CT Hennis, HE Thompson, CJ DeMott, DN McGee, TW Fernandez, JB Lindy, L Molehouse, D Wisner, R Wen, RY DeLine, DD Woodward, RE Seidel, EM Thurston, DH Kellom, DB Page 102 General Subject Matter Ester production product Orange Manufacture of 24D, 245T and 2,4,5-Tr1chiorophenoxyproploni c Acid: a literature survey Dow customer - Weed killer for mulating plant General process description, 24D process Mexico Phenoxy Ester process flow chart Cost data, process information ) Dow Number 09810120981024* 09810250981030* 09810310981036* 09813660981372 Date 691030 000000 691022 620227 Author Dow Recipient Dow Haberstroh, WH Fernandez, JB 0981474 * 711209 0981484 690227 Hoff, RC Wi11iams, CS Chase, FI Woodward, R Blosser, KC Scoles, GW 2 Illegible White, LC DeLong, HC Chase, FI Loucks, MF Hawley, HM Sheldon, HW Talcott, AT Hoi deman, GE O o CT Distributees Doser, RC Prescott, RF Sculati, JJ Hillary, BB Johnson, D Highhlll, CA Hoff, RC Williams, CJ Chase, FI Woodward, R. Blosser, KC Scoi es, GW 2 Illegible White, LC DeLong, HC Chase, FI Loucks, MF Scheddel, RT Sheldon, HW Talcott, AT Hoi deman, GE Rei gl er, PF McCoy, WJ ; General Subject Matter Technology review Page 103 Flow chart for 2,4-D process Projected book costs to 1977 (Dow and 2,4-D) 1969 accomplishments and goals, 1970 G & P The preparation of Esters of Phenoxy Acetic Acid Brush killer, LV4T, M3508, pro duct specification, 12662 24D, Butyl-Isopropyl Esters, 50-50 mix Dow Number 0981538 * Date 701005 0981590 690227 Author Chase, FI Loucks, MF Tait, SR Woodward, RE Hoi deman, GE Hawley, AM Seymour, KG Talcott, AT MacDonald, LA Williams, JL Loucks, MF Stobby, GE White, LC Hawley, HM Sheldon, HW Talcott, AT Hoi deman, GE Recipient 0981591 0981596 671 on 690227 Hawley, HM Sculati, JJ White, LC Williams, JL Loucks, MF Stobby, GE White, LC Hawley, HM Sheldon, HW Talcott, AT Hoi deman, GE Distributees Chase, FI Loucks, MF Tait, JR Woodward, RE Hoi deman, GE Hawley, HM Seymour, KG Talcott, AT MacDonald, LA Williams, JL Loucks, MF Stobby, GE White, LC Hawley, HM Sheldon, HW Talcott, AT Hoi deman, GE Rei gl er, PF Scheddel, RT Williams, JL Loucks, MF Stobby, GE White, LC Hawley, HM Sheldon, HW Talcott, AT Hoi deman, GE General Subject Matter Page 104 Esteron Ten-Ten, M3503, export only 245T - product specification P87523 245T - raw material specification 245T - product specification P87523 Dow Number Qate Author Recipient 0981597 09816170981520 0981895 * 0981896 0981899 0981900 671011 680207 690227 671011 671011 690227 White, LC Sculati, JJ Hawley, HM Kubiak, CJ VanHorn, R White, LC Sculati, JJ Hawley, HM White, LC Sculati, JJ Hawley, HM Williams, JL Loucks, MF Stobby, GE White, LC Hawley, HM Sheldon, HW Talcott, AT Hoi deman, GE 0981901 'V 710316 Gill, HH Reigler, PF Distributees Reigler, PF Scheddel, RT Williams, JL Loucks, MF Stobby, GE White, LC Hawley, HM Sheldon, HW Talcott, AT Hoi deman, GE Reigler, PF Scheddel, RT McCoy, WT Gill, HH Reigler, PF ) General Subject Matter Page 10 245T - raw material specification 245T - Butyl Esters - analytical method - 87554A M-3393 - 2nd revision 245T - raw material specification 245T - raw material specification 245T - product specification 245T, Butyl Esters production specification Dow Number Date Author Loucks, MF Tait, SR Chase, FI Woodward, RE Hawley, HM Hoff, RC Talcott, AT MacDonald, L Hoi deman, GE Recipient 0981901 11194991119500 11195951119599* 710316 670317 650315 Gill, HH Rei gl er, PF Loucks, MF Tait, SR Chase, FI Woodward, RE Hawley, HM Hoff, RC Talcott, AT MacDonald, L Hol deman, GE DeLong, HC White, LC Hawley, HM Anderson, RE Delisle, NG i- -A Distributees Loucks, MF Tait, SR Chase, FI Woodward, RE Hawley, HM Hoff, RC Talcott, AT MacDonald, L Hoi deman, 6E Reigler, PF Scheddel, RT McCoy, WT Gill, HH Reigler, PF Loucks, MF Tait, SR Chase, FI Woodward, RE Hawley, HM Hoff, RC Talcott, AT MacDonald, L Hoi deman, GE Coulter, KE Graves, HE Wolf, RR Goergen, GG Lueck, A General Subject Matter Page 106 245T, Butyl Esters production specification N-Butyl 2,4,5-Trichlorophenoxyacetate raw material specifica tion Trichlorophenol plant scope of project Dow Number Date Author Recipient 11199431119944* 11199471119952* 670420 670417 Dow Dow Nummy, WR 11199531119960* 11199611119968* 670410 670419 Dow Dow CO o CLD Distributees Dylewski, S Trapp, W Sauers, R Poffenberger, N Hutchenreuther, N Wappenhensch, CA Morello, VS Wehn, WR Staehling, EC Kennett, WW Putnam, MS PI etcher, DE Bosscher, H Timm, WC Coulter, KE Tacey, WJ Hensley, EF Gunkler, AA Kennett, WW Deline, DD Goergen, GG Carlson, RG Bender, SL Putnam, MS General Subject Matter Page 107 Agent Orange proposal listing capacity of non-herbicide product Orange information for development of reply to H.G. Fredricks letter dated 670331 Costs and capacity information about Agent Orange Costs, capacity and technical information about the proposed production of Agent Orange Dow Number 1119969 * Date 000000 Author Dow Recipient 11199901119991* 11200901120092* 11241BOll 24160* 660614 671220 650302 McCoy, WJ Bryant, CA Heath, WO Cornell, JL Anderson, RE Koster, W 11249771125002* 670420 Distributees Nielsen, WH Staehling, EC Putnam, MS Vanarsdale, JD Van Arsdale, JD Gill, WM Hanson, KY Page 108 General Subject Matter Tetrachlorobenzene capacity information 245T capabilities Coulter, KE Dylewski, SW Goergen, GG Haberstroh, WH Lueck, AF Poffenberger, N Sauers, RC Trapp, WB Wappenhensch, 0 West, KD Wehn, WE Widiger, AH Graves, HE Wolf, RR Delisle, NG Hutchenreuther, C Morello, VS Beyer, DG Harris, JS Dow Kennett, WW Project conference 14 million pounds per year. Trichlorophenol plant Job 50175 Defense Dept. Orange ProjectBases for Dow Proposal Dow Number Date Author Recipient 11273971127393 641208 Johnson, D 12321171232129* 12321301232143* 570806 600331 Dow McCollister, DD Wolf, MA Dow Olson, KJ Oyen, F Distributees Putnam, MS Staehling, EC Denlslk, R Hay, JM Hillary, BB LeSueur, RW Maunder, WG Morrison, JA Mul hol land, RS Smart, JL Smy, KG Sundberg, FA Veach, RH Young, DM Barrons, KC Boundy, RH Colby, RW Dow Eishere, D Gay, HH Greene, LM Hammer, OH Hart, A Hymas, TA Jones, GD Kagy, JF Kilian, DJ Luce, EN General Subject Matter Page 109 Condensation of Butyl Diehloroacetate with Sodium 24-Dichlorophenate Results of range finding toxicolo gical tests on Ml 086 (A 245T and 24D alkyl amine formulation) Results of range finding toxicolo gical tests on agricultural chemi cal formulation Ml639 (Veon Brush Killer type) Dow Number Date Author Recipient 12323551232378* 571122 Dow McCollister, DD Olson, KJ 12847281284733 650622 Tiffany, PA Gill, HH Distributees Lynn, GE McIntyre, HH Scoles, G Stenger, VA Tisdale, WL Wright, N Allinson, RL Allison, WE Athay, RM Beshgetoor, AW Boundy, RH Colby, RW Dosser, RC Dow Elshere, D Gay, HH Greene, LM Hart, A Hymas, TA Jones, GD Kilian, DJ Luce, EN Martin, D McIntyre, HH Mussel!, DR Perkins, RP Tisdale, WL White, LC Wright, N General Subject Matter Page 110 Results of range finding toxicolo gical tests on Brush Killer X, Weed Killer X and Brush Killer TX Analytical method for determination of TCDD in 2,4,5-T by GLC ) Dow Number 12881531288155* Date 700130 12884201288422* 660218 1288423 * 1295043* 660218 000000 Author Recipient Ridner, JM Williams, CS Loucks, MF Wolf, MA Seymour, KG Bjork, C Talcott, AT Lynn, GE Stein, JS Newport, JJ Nagele, RE Howell, JH Williams, R 1 Illegible Saunders, E Loucks, MF Wolf, MR Van Valkenberg, W J .R .B Sachs, SB Lynn, GE Branuman, J Gill, WM Highhill, CA Amstutz, FC Wiltse, ML Illegible Van Valkenburg, W Dow 11313 Distributees Page 111 General Subject Matter Tordon 225 - Release to Sales Tordon 105 - Release to sales Memo - Release to Sales-Tordon 105 Block flow sheet Tordon Ester form 11314 Dow Number 1298263- 1298290* 12982971298299* 1298300 * 12983011298302* 1298303 * 12983041298305* 1298306 * 12983071298309* 12983101298312* Date 670000 741204 640921 000000 000000 681030 741202 730315 490720 12983131298315* 680826 Author Dow Recipient Dow JNJ Dow EMS Dow Dow Dow Erickson, AC Dow JNJ Dow Dow BFW WJC Luce, EN Waling, BF Dow JJ Dow Schrauf, B Distributees Colby, A Dow Page 112 General Subject Matter Direct nuclear chlorination of phenoxyacetic acid, benzene Research lab 2-(2-4 dichlorophenoxy) proprionic acid (Physical properties data sheet) Dowanol Ester of 245T (Physical properties data sheet) Silvex (Physical properties data sheet) 24D NA salt monohydrate (Physical properties data sheet) 245-Trichlorophenol (Physical pro perties data sheet) 245T (Physical properties data sheet) Freezing point molten 24D HgO 24D report sheet (Main lab No. SSR 146-851 ) Herbicides, vapor pressure data (Analytical laboratories report Dow Number Date Author RH Stobby, G 12983161298320* 731128 Dow Messing, S Recipient Dow Hart, JP 12983211298322* 12983231298326* 1298328 * 670327 691022 710917 Dow Stull, DR Walker, LC Dow Sinke, GC Stull, DR Dow Gilbert, PW Hawley, HM Hoi deman, GE Loucks, MF MacDonald, LA 11315 Distributees Hoi deman, GE Kiley, L Shrader, S Wengert, GB Arestin, Bleiweiss, J Chase, F Dhingra, Y Dow Haberstroh Jones, W Lafevor, D Manfrom, R Martin, R Miller, B Mintz, M Morehouse, DS Yeager, L Dow Fernander, J Hoi deman, GE Dow Gilbert, PW Hawley, HM Hoi deman, GE Loucks, MF MacDonald, LA General Subject Matter AL 79-202) Page 713 24D acid ester process solubilities Thermal data for process steps in synthesis of 24D (HL-304) Heat of reaction of dimethyl amine and 24D (HL-527) 2,4-Dichlorophenol, technical (product specification) 11316 Dow Number ,Date 1298329 * 720615 1298330 * 1298331 * 720615 710118 1298332 * 730412 Author Reigler, PF Talcott, AT Recipient Blosser, KC Chase, FT Dow Flannery, RF Fraser, JM Gill, HH Hoff, RC Hoi deman, GE Talcott, AT Woodward, R Dow Chase, FI Dow Hawley, HM Hoi deman, GE Loucks, MF MacDonald, LA Reigler, PF Seymour, KG Tait, SR Talcott, AT Woodward, RE Blosser, KC Chase, FI Dow Flannery, RF Distributees Rei gl er, PF Talcott, AT Tree, RM Blosser, KC Chase, FT Dow Flannery, RF Fraser, JM Gill, HH Hoff, RC Talcott, AT Woodward, R Chase, FI Dow Hawley, HM Holdeman, GE Loucks, MF MacDonald, LA Rei gl er, PF Seymour, KG Tait, SR Talcott, AT Woodward, RE Blosser, KC Chase, FI Dow Flannery, RF General Subject Matter Page 114 245T propylene glycol butyl ether esters (Product specification) 245T propylene glycol butyl ether esters (Sales specification) Formula 40 Weed killer M-3604 (Product specification) DMA-6 unsequestered M-2255 (Product specification) ) Dow Number Date 1298333 * 710601 1298334 * 000000 Author Fraser, JM Hoff, RC Hoi deman, 6E Seymour, KG Talcott, AT Woodward, RE Recipient Chase, FI Dow Hawley, HM Hoi deman, GE Loucks, MF MacDonald, LA Reigler, PF Seymour, KG Tait, SR Talcott, AT Woodward, RE Dow 1298335 * 1298336 * 000000 000000 Dow Dow 1298337 * 000000 Dow CO Mh * Distributees Fraser, JM Hoff, RC Hoi deman, GE Seymour, KG Talcott, AT Woodward, RE Chase, FI Dow Hawley, HM Hoi deman, GE Loucks, MF MacDonald, LA Reigler, PF Seymour, KG Tait, SR Talcott, AT Woodward, RE General Subject Matter ) Page 115 DMA-6 sequestered M-3637 (Product specification Propylene glycol butyl ether esters of Silvex (Physical properties) Isooctyl esters of 245T (Physical properties) Low volatile esters of 245T Dow sales grade 245T, propylene glycol (C3H60 to C9H1803) butyl ether esters (Physical poperties) Isooctyl esters of 24D (Physical properties) ) Dow Number 1298338 * 1298339 * 1298340 * 1298341 * Date 000000 000000 710316 720117 1298342 * 000000 Author Dow Recipient Dow Dow Blosser, KC Chase, FI Dow Flannery, RF Gill, HH Hoff, RC Hoi deman, GE Scoles, GW Talcott, AT Woodward, RE Dow 12983431298344* 611017 1298345 * 000000 Dow Hoyle, HR Olson, KJ Dow 11318 Distributees Blosser, KC Chase, FI Dow Flannery, RF Gill, HH Hoff, RC Hoi deman, GE Scoles, GW Talcott, AT Woodward, RE Page 116 General Subject Matter N-Butyl ester of 24D (Physical properties) 24D Butyl esters (Physical properties) 24D propylene glycol butyl ether ester (Product specification) 24D (Product specification) Tordon 101 mixture (Data sheet of properties, health hazards and precautions for safe handling of materials) Dowanol PIB mix ester of 24D (Data sheet of properties, health hazards and precautions for safe handling of materials) 245-Trichlorophenol (Data sheet of properties, health hazards and precautions for safe handling of materials) 11319 Dow Number 12983461298347* 12983481298349* 1298350 * Date 570927 000000 741202 1298351 * 750109 1298352 * 700801 1298353 * 1298354 * 741211 750123 1298355 * 750123 1298356 * 750123 Author Dow Hoyle, HR Peterson, JE Dow Recipient Bethke Boust, HF Dersnah Dow Jones, W Dersnah Dow Fey, K Abegg, CF Dow Harris, W Higgins, HS Wozniak, LJ Dersnah Dow Jones, JN, Jr Dersnah Dow Jones, JN, Jr Dersnah Dow Jones, JN, Jr Distributees ,Jage 117 General Subject Matter 24D (Data sheet of properties, health hazards and precautions for safe handling of materials) Consequences of overexposure for chemicals in 489 building Bis-C24D) (Reactive chemical hazard data) Ethylene Glycol W/ 24D acid; molten 24D process (Reactive che mical hazard data) 24D (Reactive chemical hazard data) DE waste treatment plant Waste treatment, butyl ester of 24D, distillation feed (Reactive chemical hazard data) Waste treatment, butyl ester of 24D solvent (Reactive chemical hazard data) Waste treatment of butyl ester of 24D tars (Reactive chemical hazard data) 11320 Dow Number 12983571298360* 12983611298362* Date 741204 710526 12983631298369* 12986031298605* 12986061298607* 730000 000000 650119 12986081298609* 650125 12986101298611* 12986121298614* 740300 780601 Author Dow Jones, J Boggs, GU Dow Dow Southwlck, L Dow Dow Hoyle, HR Olson, KJ Oyen, F Dow Hoyle, HR Olson, KJ Dow Recipient Dow Dunlap, R Haberstroh, WH Higgins, HS Theis, JM Dow Distributees Page 118 General Subject Matter Alcohols, and molecular weight data summary Direct ester "T" waste 710309 from 489 (Analytical laboratories report AL28-830) Kuron Si1vex herbicide continues to gain acceptance (Ind vegetation mgmt 5(2), 18-24) Properties and hazards, flash points of various products Tordon 50D formulation (Data sheet of properties, health hazards and precautions for safe handling of materials) (T2.M0-2777X-1) Tordon 101 mixture (Data sheet of properties, health hazards and precautions for safe handling of materials) (T2.MO-2439-1) Tordon 101 mixture weed and brush killer (Material safety data sheet) (Form 336-158-74) Tordon (R) 101 mixture weed and brush killer (Material safety data sheet) )) Dow Number 12986151298617* 12986181298620* 12986211298623* 12986241298625* Date 780601 780601 780601 660412 12986261298627* 12986281298629* 740300 660201 12986301298632* 12986331298634* 780601 671031 12986351298636* 760800 iCvO> Author Dow Recipient Dow Dow Dow Hoyle, HR McCollister, DD Olson, KJ Dow Dow Hoyle, HR McCol11ster, DD Olson, KJ Dow Dow Hoyle, HR Norris, JM Olson, KJ Dow Distributees I Page 119 General Subject Matter Tordon (R) 101 mixture weed and brush killer private label (Material safety data sheet) Tordon (R) 101R forestry herbicide (material safety data sheet) Tordon (R) 155 mixture brush killer (Material safety data sheet) 1 Tordon 155 (Data sheet of pro perties, health hazards and pre cautions for safe handling of materials) (T2.MO-2993-1 ) Tordon 155 mixture brush killer (Material safety data sheet) Tordon 202 mixture (Data sheet of properties, health hazards and precautions for safe handling of materials) (T2.MO-2861-1) Tordon (R) 202C mixture herbicide (Material safety data sheet) Tordon 212 (Data sheet of proper ties, health hazards and pre cautions for safe handling of materials) (T2.M0-3200-1) Tordon 212 mixture herbicide (Material safety data sheet) (Form 336-161-76) 11322 Dow Number 12986371298638* 12986391298640* 12986411298643* 12986441298651* Date 780601 771001 780601 750811 12986521298653* 700514 12986541298655* 12986561298658* 12986591298660* 750600 780601 710422 12986611298662* 710917 Author Dow Recipient Dow Dow Dow Gutenkunst, V Porter, DF Skelly, NE Dow Hoyle, HR Norris, JM Dow Dow Dow Hoyle, HR Norris, JM Dow Hoyle, HR Wolf, MA Distributees Page 120 General Subject Matter Tordon (R) 212 mixture herbicide (Material safety data sheet) Tordon (R) 225 herbicide (Material safety data sheet) Tordon (R) 225E mixture herbicide (Material safety data sheet) Analytical method Tordon 225E mix ture herbicide by liquid chroma tography (Method 87141) Tordon 472 herbicide (Data sheet of properties, health hazards and precautions for safe handling of materials) (BC12.MO-3427-1) Tordon 472 herbicide (Material safety data sheet) (Form 336-166-75) Tordon (R) 472 weed killer (Material safety data sheet) DMA4 (Data sheet of properties, health hazards and precautions for safe handling of materials) (NB T2.MO-3538-1) 245T Dowanol 97B ester (Data sheet of properties, health hazards and precautions for safe handling of materials) (K-7856 NB725.14-106) ) Dow Number 12986631298664* Date 750310 12986651293666* 760823 1298667 * 000000 12986681298670* 760800 1298671- 710917 1298672* ' 12986731298674* 650125 12986751298676* 690909 12986771298678* 650119 Author Recipient Dow Silversteln, LG Wolf, MA Dow Langner, RR Wroblewski, D Dow Lamott, S Dow Rafos, G Dow Hoyle, HR Wolf, MA Dow Hoyle, HR Olson, KJ Dow Hoyle, HR Norris, JM Dow Hoyle, HR 11323 Distributees Page 121 General Subject Matter 24D Trl Isopropanol amine salt (Data sheet of properties, health hazards and precautions for safe handling of materials) (K-8866) DMA-6 (Data sheet of properties, health hazards and precautions for safe handling of materials) (M-3637) Cover memo for data sheets Tordon 212 mixture herbicide (Material safety data sheet) (Form 336-161-76) 245T Dowanol 97B ester (Data sheet of properties, health hazards and precautions for safe handling of materials) (K-7856 NBT25.14-106) Tordon 101 mixture (Data sheet of properties, health hazards and precautions for safe handling of materials) (T2.MO-2439-1) Tordon 472 herbicide (Data sheet of properties, health hazards and precautions for safe handling of materials) (BC T2.MO-3472-1) Tordon 50D formulation (Data sheet of properties, health hazards and Dow Number Date 12986791298680* 660412 12986811298682* 751009 Author Recipient Olson, KJ Oyen, F Dow Hoyle, HR McCollister, DD Olson, KJ Dow Hoyle, HR Yakel, HO 12986831298684* 700319 Dow Hoyle, HR Norris, JM 1298685 * 12986861298689* 1298690 * 750711 750711 711116 12986911298692* 000000 Dow Krumel, KL Dersnah, H Dow Brown, M Dow JL Robb, J Dow Dow Krumel, Kl 11324 Distributees Page 122 General Subject Matter precautions for safe handling of materials) (BC T2.M0-2777X-1) Tordon 155 (Data sheet of proper ties, health hazards and pre cautions for safe handling of materials) (T2.MO-2993-1) Tordon 212 mixture herbicide (Data sheet of properties, health hazards and precautions for safe handling of materials) (HET M--3179-- (2)) Tordon 212 mixture herbicide (Data sheet of properties, health hazards and precautions for safe handling of materials) (T2.MO-3179-1) 24D (Reactive chemical hazard data) Dust explosion properties of 24D acid (Analytical report) DMA-6 (unsequestered) (Reactive chemical hazard data) 24D (Summary of chemical reactiivity precautions and properties) 11325 Dow Number 1298693 * Date 741031 12986941298695* 690716 12986961298697* 1298698 * 690716 750206 12986991298700* 1298701 * 691003 710830 12987021298703* 12987041298714* 690716 710125 Author Dow Hebbourn, R Kerby, JE Dow Dullap, RL Mandrel 1, ME Dow Dunlap, RL Mandrel 1, ME Bethke Dersnah Dow Hoi deman, G Keeney, N Vanhorn, R Dow Gilbert, PW Mandrel1, ME Dow CJR JRL RSS Dow Dunlap, RL Mandrel 1, ME Dow Prophet, H Recipient Distributees / Page 123 General Subject Matter 24D PGBEE (Reactive chemical hazard data) Tordon 212 mixture (Summary of chemical reactivity precautions and properties) Tordon 101 mixture (Summary of chemical reactivity precautions and properties) Tordon 101 R (Reactive chemical hazard data) Tordon acid (Summary of chemical reactivity precautions and properties) Tordon 225 (Reactive chemical hazard data) Tordon 155 mixture (Summary of chemical reactivity precautions and properties) Studies of hazardous chemicals and their reactions, kinetics of che- 11326 Dow Number Date 1298715 * 710801 12987161298717* 690627 12987181298719* 690718 1298726 * 000000 1298766 * 12991651299169* 12992561299265* 12992671299270* 13394201339423* 000000 000000 000000 000000 650810 Author Stull, DR Dersnah, H Dow McCarty, WM Dow Gilbert, PW Mandrel1, ME Dow Gilbert, RW Mandrel1, ME Dow Dow Dow Dow Dow Barrons, KC Lynn, GE McCoy, WJ Southwick, L Wolf, MA Recipient Distributees Page 124 General Subject Matter mica! destruction by burning (NCT-5007) Esteron 245 CONC (Reactive chemi cal hazard data) Dowanol PIB esters of 245T (Summary of chemical reactivity precautions and properties) 24D TIPA mix (Summary of chemical reactivity precautions and properties) Chioro-Pyridines dept. Block flow H2O form. Tordon Formulations, special formulations area Tordon operations manual TIPA and TIPA 2D storage and transfer from 489 building Esteron TR2 (Release to Sales 12) Dow Number Date 13418341341853* 700422 Author Recipient Vanvalkenburg.W Sachs, SB Branaman, J Gill, WM Delong, HC Matutz, H Davis, H Corbin, WL Johnson, J CEO DEP Fauver, VA MacDonald,LA 14107901410792* 701217 Dow Gehring, PJ Norris, JM Williams, CS CO CO -sj Distributees General Subject Matter Page 125 Demott, DN Hanners, HH Martin, RA Tree, RM Deline, DD Kennedy, TL Robbins, LA Plepys, RA Stamand, VE Clark, GA Spencer, RA Dylewski, SW Bleiweiss, JC Barton, J Blair, EH Burgert, BE Clegg, DH Dow Edwards, H Frevel, LK Gordon, HL High purity 245-trichlorophenol, state of the art review Toxicological properties and industrial handling hazards of formulation M-3592 containing the propylene glycol butyl ether ester of 245T Dow Number Date Author Recipient 14107931410794* 14107951410798 701228 701217 Dow Hoyle, HR Norris, JM Dow Norris, JM 14107991410800* 14108011410802* 14108031410804* 701119 701228 701110 Bourne, JE Dow Silverstein, EH Silverstein, EG 11328 Distributees Goring, Ca Holder, BB Johnson, JE Kilian, DJ Kimmel, CE Lloyd, BH MacCutcheon, SM McCollister, DD McIntyre, HH Morgan, RW Morse, D Pitchforth, L Robinson, VB Schwarz, BA Williams, CS General Subject Matter < Page 126 M-3592 (Data sheet of properties, health hazards, and precautions for safe handling of materials) Acute toxicological properties of Formulation M-3592 containing the propylene glycol butyl ester of 245T M-3592 (Acute oral toxicity) M-3592 (Acute oral toxicity) M-3592 (Eye irritation) Dow Number 1410805 * 14108061410807* 14108101410811* 14108121410813* 14108141410815* Date 701106 701210 701210 701210 701217 Author Recipient Silverstein, EH Silverstein, EH Silverstein, EH Silverstein, EH Dow Gehring, PJ Norris, JM Williams, CS 14108161410817* 701217 Dow Hoyle, HR Norris, JM Distributees Bergeri, BE Blair, EH Clegg, DH Dow Frevel, LK Gordon, HL Goring, CA Holder, BB Johnson, JE Kirnmel, CE Lloyd, BH MacCutcheon, SM McCollister, DD McIntyre, HH Morgan, RW Morse, D Pitchforth, L Robinson, VB Schwarz, AJ Williams, CS Page 127 General Subject Matter M-3592 (Primary skin irritation patch test (household chemical)) M-3592 (Skin contact absorption) M-3592 (Skin contact absorption) M-3592 (Skin contact absorption) Toxicological properties and industrial handling hazards of formulation M-3592 containing the propylene glycol butyl ether ester of 245T M-3592, (Data sheet of properties, health hazards and precautions for safe handling of materials) ) Dow Number 14108181410821* Date 701217 Author Dow Norris, JM Recipient 14108221410823* 14108241410825* 14108261410827* 1410828 * 14108291410830* 14108311410832* 14108331410834* 14103351410836* 14108801410902* 701119 701228 701110 701106 701210 701210 701210 701210 630225 Bourne, JE Silverstein, EH Silverstein, EH Silverstein, EH Silverstein, EH Silverstein, EH Silverstein, EH Silverstein, EH Dow Olson, KJ Oyen, F Scoles, G fri.uuA CO CO o Distributees Barrons, KC Boundy, RH Brown, R Colby, RW Dow Page 128 General Subject Matter Acute toxicological properties of formulation M-3592 containing the propylene glycol butyl ether ester of 245T M-3592 (Acute oral toxicity) M-3592 (Acute oral toxicity) M-3592 (Eye irritation) M-3592 (Primary skin irritation patch test (household chemical)) M-3592 (Skin contact absorption) M-3592 (Skin contact absorption) M-3592 (Skin contact absorption) M-3592 (Skin contact absorption) Results of range finding toxicolo gical tests on agricultural chemi cal formulation M-2422 containing 91 percent Dowanol PIB ester of 245T (Biochemical Research Dow Number Date Author ; Recipient 14109031410909* 531030 Dreyer, F 11331 Distributees Elshere, D Falkenstein, WJ Gay, HH Greene, LM Hart, A Jones, GD Kagy, JF Kilian, DJ Luce, EN Lynn, GE McIntyre, HH Mullison, WR Nash, HA Norton, TR Scoi es, G Shrader, SA Wilson, AW Wright, N Adams, EM Allen, WW Allinson, RL Alquist, FN Barrons, KC Beshgetoor, AW Boundy, RH Britton, EC Davidson, JH Dow Dutton, WC Gay, HH Greene, LM Kagy, JF Luce, EN ) General Subject Matter Laboratory) Page 129 Results of range finding toxicolo gical tests on Dow Brush Killer T Dow Number Date Author Recipient 14286101428611* 14312591431263* 14363541436364* 14370601437102* 611228 000000 000000 660622 Dow Winston, AW, Jr. Ivon Watkins Graves, HH DRE 14439211443922* 701217 CCOO to Dow Gehring, PJ Distributees Lynn, GE MacCutcheon, SM Prescott, RF Sunderland, WW White, L Wright, P Goergen.GG Lueck.A Sauers, RC Widiger, AH Tuttle, FC Poffenberger, N Wolf, RR Eigsti, DR Hillman, RE Anderson, RE Graves, HE Coulter, KE Snyder, AP Delisle, NG Barton, J Blair, EH General Subject Matter Page 130 Fish toxicity of some herbicide formulations and their ingredi ents IWD 245T Esters Compounds showing toxicity to fish at 5 MG/L or less Pilot Plant Study of the Caustic Hydrolysis of 1245 Tetrachlorobenzene CF-1043-2 Toxicological properties and industrial handling hazards of Dow Number Date Author Norris, JM Williams, CS Recipient 14439231443924* 14439251443928* 14439291443932* 14439331443934* 701217 701217 700000 761110 Dow Hoyle, HR Norris, JM Dow Norris, JM Bourne, JE Dow Silverstein Dow Silverstein Distributees Burgert, BE Clegg, DH Dow Edwards, H Frevel, LK Gordon, HL Goring, CA Holder, BB Johnson, JE Kilian, DJ Kimmei, CE Lloyd, BH MacCutcheon, SM McCollister, DD McIntyre, HH Morgan, RW Morse, D Pitchforth, L Schwarz, AJ Williams, CS ) Page 131 General Subject Matter formulation M-3592 containing the propylene glycol butyl ether of 245T M-3592 (Data sheet of properties, health hazards and precautions for safe handling of materials) Acute toxicological properties of formulation M-3592T M-3592 (Acute oral toxicity) M-3592 (Eye Irritation) 11334 Dow Number 1443935 * 14439361443941* 1511476 * 15436521548663* 15494971549536* Date 701106 701210 800506 610124 501214 15496411549693* 700410 Author Recipient Dow Silverstein, EH Dow Silverstein, EH KSE Wine, LM Braun, WH Dow Strand, D HRH LGS Delisle, NG Strand, D LGS Prior, CA Teal, JL Brittos, WW Arnold, JB Delong, HC Pott, S Highhill, CA Brown, M Axe, FD Hoyle, HR Distributees Dow Tucker, M Page 132 General Subject Matter Primary skin irritation patch test (household chemical) (M-3592) M-3592 skin contact absorption Oil formulations 24D process Lynn, GE Deline, DD Schmidtke, DJ Hodson, RE Miller, DE Kramer, CG Holder, BB Morse, DB Rowe, VK Soule, RD Industrial hygiene survey of 245T Dow Number 1550150 * Date 710202 Author Olson, RD Axe, FE Hoyle, HR Recipient 15504011550407* 15504241550441* 1550444 1550445 1550446 1550447 1550448 690930 650716 000000 580807 580805 580808 580806 Mutcher, JE Dow Dow Bradford, R Bradford, R Bradford, R Bradford, R Tree, RM Plepys, RA Bailey, CE Kramer, CG Morse, DB Stehl, RH Seidel, EM Rowe, VK Snyder, RE Axe, FD Distributees Murray, N Deline, DD Tree, RM Bailey, CZ Seidel, EM Snyder, RE Holder, BB Silverstein, LG Page 133 General Subject Matter Summary of environmental con ditions in dowicides plant Dowicide plant environmental control task force minutes Dowicides - industrial hygiene job analysis Flowchart of production of Dowicides Flowchart - Dowicide B Flowchart - Dowicide P Flowchart - Scrubber and Trap Phenol Flowchart - Monochlorophenol crude production Dow Number 1550449 1550455 1550456 1550457 1550458 1550459 1550460 1550464 * Date 581015 651007 651007 651007 651007 651006 651007 000000 1550550 1550551 1550552 * 1550553 .580807 580807 580805 580805 1550554 * 15505771550579 15515891551 591* 651006 580807 580417 H* CO CO en Author Synder, RE Krohn, L Krohn, L Krohn, L Krohn, L Krohn, L Krohn, L Dow ''Recipient Bradford, ! Bradford, 1 Bradford, 1 Bradford, 1 Mutchler, . Krohn, L Bradford, Dow Stevenson, GT Distributees Barrons, KC Blair, EH Boundy, RH General Subject Matter Page 134 Flowchart - Monochlorophenol Flowchart - Dowicide 6 Flowchart - Dowicide 6 Flowchart - Orthochlorophenol Flowchart - Diehlorophenol Flowchart - Dowicide 2 Flowchart - Dowicide DPM Schematic diagram of 265 Bldg, processes Flowchart - Dowicide 1 Flowchart - Dowicide 2S Flowchart - Dowicide 6 Flowchart - Dowicide 6 Flowchart - Dowicide 7 Dowicide B process Inverton (brush killer) hay spray cattle feeding test Dow Number Date Author Recipient 1556945 * 000000 1558517 * 1558517 * 15585181558518A* 671027 670607 790316 Fairey, BP Chang, KY Fernandez, JB Krmel, KL Arnold, RF Howard, AC First, KE Owen, PW Distributees Colby, RW Coulter, LL Dow Green, J Hymas, TA Johnson, JE Kagy, JF Lippie, LJ Lynn, GE Norton, TR Nutting, HS Perkins, RP Rowe, VK Spalding, J Vanvalkenburg, JW General Subject Matter Page 135 Notes on Fort Saskatchewan D process, Hooker TCP and Hercules MCAA Laboratory preparation of 24D Laboratory preparation of 24D Bumb, RR Johnson, SR Pruitt, ME Ward, WH Williams, CS Maddox, JF Owen, PW May, VT McGregor, SD High yield aqueous 24D process a study of the modified Brazil process. )I I Dow Number Date Author Recipient 15585191558520 750101 Mintz, MJ Brust, HF 11338 Distributees Williams, AJ Tobey, SW Bohnert, TJ Morehouse, DS Buzzelli, DT Haberstroh, WH Woodward, RE Humbert, D Westover, LB Jewett, G Kleidon, D Fothergill, W Valcore, D Mendoza, C Hormel, T Kennedy, TL Aerstin, FG Manfrom, R Schloemann, P Bleiweiss, J Giebelhaus, L Dasilva, AA Blair, EH Hein, ND Karwal, JH Leng, ML Mintz, MJ Moss, RD Pruitt, ME Sheetz, DP Theis, JM Brust, HF Morehouse, DS General Subject Matter Page 136 Thermal decomposition rate of bis (24 dichlorophenyl) acetal of glyoxylic acid (BIS 24D) present in 24D ; Dow Number Date Author Recipient 1558521 -- 1558522* 810204 Krumel, KL Arnold, RF McGregor, SD 11339 Distributees Dhingra, YR Messing, SH Aerstin, FG Yeager, LM Bleiweiss, JC Kennedy, TL Haberstroh, WH McCoy, CE Woodward, RE Lafevor, DR Skelly, NE Robbins, LA Little, DW Kern, WG Hoffman, RL Werling, CL Mirsky, MJ Jones, WO Swogger, KW Chase, FI Carlson, RG Osborne, DW Gledhill, JR Sheetz, DP McGregor, SD May, VT Muench, WC Williams, A Tobey, S. Buzzelli, DT Woodward, RE Haberstroh, WH Gorgacz, S General Subject Matter Page 137 The continuous preparation of 24D and 2-methly-4-chloro- phenoxyacetic acid (MCPA) Dow Number Date Author Recipient 1559777 * 15597811559786* 15597871559788* 1559789 * . 1559790 * 671102 000000 640625 640625 640625 Seidel, EM T.A.G. Seidel, EM Seidel, EM Seidel, EM 15597911559797* 15597981559799* 1559800 * 15598011559806* 640618 650118 650118 000000 E.M.S. E.M.S. Seidel, EM Dow 11340 Distributees Hormel, T Moser, J Yocum, R Downs, T Veurink, G Westover, W Pierzinski, B Dersnah, BE General Subject Matter Page 138 245T process Direct Ester reaction information 489 bldg. Diehlorophenol Dowanol Material balance considerations 24D Ester (unit ratios) 245T Ester unit ratios material bai ance Utilities, DE Utility requirements 489 Utility requirements 260 Bldg. Direct Ester General process description Direct Ester process Dow Number 15601781560214* Date 681017 Author Seidel, EM Gilbert, PW Dunlap, RL Recipient 15602151560237* 681017 Seidel, EM Gilbert, PW Dunlap, RL 15602381560241* 681111 Seidel, EM Gilbert, PW Dunlap, RL ^*4 CO Distributees Seidel, EM Gilbert, PW Dunlap, RL Bleiweiss, J Chase, FI Deline, DD Delong, HC Jossi, JA Rogers, JP Schwark, GJ Williams, JL Woodward, RE Fernandez, JB Seidel, EM Gilbert, PW Dunlap. RL Bleiweiss, J Chase, FI Deline, DD Delong, HC Jossi, JA Rogers, JP Schwark, GJ Williams, JL Woodward, RE Fernandez, JB Seidel, EM Gilbert, PW Dunlap, RL Bleiweiss, J Chase, FI Page 139 General Subject Matter Technical report with information about 24D and 245T processes, costs, capacity and equipment Technical report with information about 24D and 245T processes, costs, capacity, plant design and equipment Technical report with information about 24D and 245T processes, capacity, plant design and equipment Dow Number Date Author Recipient 15602421560265* 681111 Seidel, EM Gilbert, PW Dunlap, RL 1560266 * 670109 Johnson, RL Widiger, AH 1560539 * 600324 Delong, HC Distributees Deline, DD Delong, HC Jossi, JA Rogers, JP Schwark, GJ Williams, JL Woodward, RE Fernandez, JB Seidel, EM Gilbert, PW Dunlap, RL Bleiweiss, J Chase, FI Deline, DD Delong, HC Jossi, JA Rogers, JP Schwark, GJ Williams, JL Woodward, RE Fernandez, JB Johnson, RL Widiger, AH Bender, S Bailey, C Silverstein, L Cobi er, J Haberstroh, WH Sauers, R General Subject Matter Page 140 Process information and operating procedures for 24D Esters Summary of laboratory research on temperature control of processes related to 24D and 245T formation Safety precautions Dow Number 1560540 * Date 491200 Author Dow Recipient 1560542 * 1560548 * 1560549 * 1560550 * 1560714 * 1560951- 1561000* 690722 000000 000000 000000 510228 680826 McKnight, FW Koslnskl, JE Kosinski, JE Koslnksl, JE Fernandez,, JB Seidel, M Brown, M Highhill, C 15613071561310* 670329 1561311 * 670118 1561312 * 670419 1561343- 670316 1561346* " CO CO GMS Hartenstein Hartenstein, P Sculati, JJ Distributees Hoff, RC Bielwelss, J Beauchamp, R Deline, DD Delong, H Dosser, R Schwark, J Snodgrass, B Woodward, D Deline, DD Kearney, JK Delisle, NG Page 141 General Subject Matter 24D Amine weed killer hazards and precautions Block flow diagram of Amine formulations Unit ratios Amine formulation Cycle times formulating Cycle times packaging Raw material specification L2-0-3 Technology review phenoxy & Tordon formulations 245T process 245T process 245T material balance 245T centrifuge installation Dow Number 15613531561375* Date 681114 Author Jossi, JA Seidel, EM Williams, JL Recipient 15613761561397* 681114 Seidel, EM Williams, JL Jossi, JA 15616951561698* 15616991561700* 03 690417 690413 Dow Wyant, G Brown, M Charlie Distributees Chase, F Jossi, JA Bleweiss, J Haberstroh, W Williams, L Marshall, S Rodgers, J Schwark, G, Seidel, M Snodgrass, W Woodward, RE Del isle, NG Fernandez, JB Del ine, DD Williams, L Marshall, S Rodgers, J Schwark, G Seidel, M Snodgrass, W Woodward, RE Delisle, NG Fernandez, JB Deline, DD Chase, F Jossi, JA Bleiweiss, J Haberstroh, W ! General Subject Matter Page 14 245T, 245T Esters and for mulations of Esters technology revi ew Silvex acid, Dowanol Ester of Silvex and Isooctyl Ester of Silvex technology review Veon 245 process Veon formulations Dow Number 1561701 * 1561702 * 15617031561705* 15617061561707* 15621771562119* 15623411562397* Date 690709 690319 690417 670700 000000 680711 Author CAH Highhill, CA Dow Recipient Chase, FI Dow Dow Dell se, NG Schmidtke, DJ Deli ne, DD 1562343 * 15623651562383 681024 650000 Deli sie, NG Harris, JS West, KD Bleiweiss, JC Pumpelly, CT Deline, DD Rogers, JP Fernandez, JB Schmidtke, DJ Goergen, GG Schwark, GJ Widiger, AH CO CN Distributees Fernandez, JB Bleiweiss, JC Goergen, GC Haberstroh, WH Pumpelly, CT Rogers, JP Schwark, GJ Widiger, AH General Subject Matter Page 143 245T formulation Australia 24D products Veon 245 process Esteron brush killer O.S., label & production specification Process descriptions 245T technology review Corrections for Trlchlorophenol technology review Trlchlorophenol plant Dow Number Date Author Passmore, L Knopp, DO McClure Owens, B Anderson, RE Cornell, JL Recipient 1562386 * 15626941562695* 15626961562697* 15642331564240 661212 000000 000000 700209 Johnson, RL Dow Dow Schmidtke, DJ 15684501568452* 15685111568513* 641118 640730 Widiger, AH Holmes, RD Holmes, R Greiss, GA Hoyle, HE Distributees General Subject Matter Page 144 Fernandez, JB Hanners, H Tree, R Fauver, V DeMott, D Stamend, V McDonald, L Haberstroh, W Elgsti, D Goergen, GG Alchollc caustic hydrolysis of Tetrachlorobenzene Block flow H2O from Tordon Tordon 1OK pellets process Routes to higher purity Trichiorophenol 199 building production of Sodium 245 Trichlorphenate Manufacture of Tri chiorophenol at 199 building Do,w Number 1568528 * 1568532 * Date 000000 650813 Author Dow Smith, FB Recipient Goodchlld, CD 15685331568534* 650707 Trapp, WB Merz, H 15685351568537* 1568549 1568552 * 1568553- 1568555 15685561568557 Cfi*O 650128 000215 650401 650621 650312 Trapp, WB Trapp, WB Trapp, WB Merz, H Deckers Tolkmlth, H Trapp, WB Merz, H Doll, 0 Kooperman, P Trapp, WB Merz, H Distributees Coulter, LL Trapp, WB Sinclair, JR Cessna, OC Visger, HC Coon, ET Wolker, E Farnum, JH Coon, ET Amos, JL Koopman, R Sinclair, J Coulter, LL Gill, HH Griess, Ga Dylewski, SW Silverstein, L Grote, M Amos, L Page 145 General Subject Matter Notes on 245T manufacturing process Ivon Watkins Trichlorophenol know how Analytical methods to determine TCDD in Phenols CTTL Summary of phone conversation between Dow employees 245T manufacturing processing contract CTTL Contract concerning Chloracne Gas Chromatography analyses CTTL Analyses of NA Trichlorophenate Solution and Ani sole Oil CTTL ) Dow Number Date Author Recipient 1568558 15685591568560 650000 650000 Dow Dow 15685691568572* 650126 Trapp, WB Chamber ain,LC 15685771568578* 15685791568580* 15685811568582* 15685831568586* 15685881568589* 1568592 wO 650422 650422 650422 650409 650330 650223 Merz, H Doll, 0 Merz, H Doll, 0 Merz, H Trapp, WB Mertz, H Sinclair, JR Trapp, WB Merz, H Gemer Trapp WB Distributees Silverstein, L Sinclair, JR Coulter, KE Haberstroh, WH Goergen, GG Sauers, RC Amos, L Grote Amos, L Coon, ET Koopman, P General Subject Matter Page 146 GLC analysis of your 245-Trichlorophenate Solution Analysis of caustic insoluble oil and 245 Trichlorophenol for com position by gas liquid chroma tography Trichlorophenol research 245T Contract 245T Contract 245T Contract Toxicological studies, Gas Chromatography and infrared ana lyses CTTL 245T Contract Chioroanisole Oil samples CTTL Dow Number 1568593 15685941568595 Date 650205 650113 Author Trapp, WB Trapp, WB Farnum, JH Recipient Merz, H Kudszus, CH 15686021568603 650113 Trapp, WB Farnum, JH Kudszus 15686041568605 15686061568608 1568609 15686101568613 641215 641215 641217 551005 Kudszus Merz Trapp, WB Kudszus Merz Merz Jaenlcke Boehrlnger Sohn 1568614568615* 650123 Trapp WB Dow Dow Silverstein Weyland Coulter, KE "11349 Distributees Griess, GA Griess, Ga Silverstein, L Goergen, GG Lueck, AF Poffenberger, N Sauers, RC Griess, GA Lueck, GA Silverstein, L Goergen, GG Poffenberger, N Sauers, RC Johne Knecht Nick Horner Sauers, RC Haberstroh, WH Page 147 General Subject Matter Chloroanisole Oil samples CTTL Request for Process information Request for additional infor mation on 245T production Report on isolation of chloracnegen sent to Dow Report on isolation of chloracnegen sent to Dow Enclosure letter for rabbit tests conducted in connection with 1955 plant disinfection Rabbit tests conducted in connec tion with 1955 plant disinfection C.H. Boehringer Sohn Contract Dow Number 15686221568626* Date 650105 Author Recipient Poffenberger, N 15686271568630 15686391568646* 15686471568664* 641208 610104 641127 Sauers, RC Poffenberger, N Sorge AWB Sauers 15686661568667 15636661568667 641208 641208 Sorge Sorge 15686871568690* 650105 Poffenberger, N H* CO m o Distributees Poffenberger, N Sauers, R Trapp, W Lueck, A Widiger, A Bradley, K Goergen, G Holmes, R Delis!e, N Poffenberger, N Sauers, R Trapp, W Page 148 General Subject Matter 245-Trichlorophenol notes, pro cess information and flowsheet Chronological survey of the first production period of 245T produc tion 245-Trichlorophenol flow sheet Description and prints for pro duction methods for obtaining 245-Trichlorophenolate solution in Boehringer process Chronological survey of the first production period of 245T pro duction Chronological survey of the first production period of 245T production 245-Trichlorophenol notes, process information and flowsheet Dow Number Date Author Recipient 15686911568735 15687361568778 15687791568780 15687811568795 15687961568797* 650107 560912 641208 641127 650319 Sorge Sorge Merz Sorge Branch, CB CH Boehringer Sohn 15688001568801 6503305 Trapp, WB Farnum, JH CH Boehringer Sohn 15688021568803* 650000 CH Boehringer Sohn Dow 11351 Distributees Lueck, A Widiger, A Bradley, K Goergen, G Holmes, R Delisle, N General Subject Matter Page 149 Attempts to determine the chloracne inciter in the pro duction of 245T Experiments to determine the chloracnegens in 245T production 245T production chronology Trichlorophenol process Agreement concerning the disclo sure of information regarding the prevention of Chloracne arising out of the production of Sodium 245-Tri chiorophenate Revision of agreement regarding disclosure of Information con cerning 245-Trichiorophenate pro cess Agreement concerning the disclo sure of information regarding the prevention of Chloracne arising Dow Number Date Author Recipient 15688041568805 650305 Trapp, WB Farnum, JH CH Boehringer Sohn 15688061568807* 650000 CH Boehringer Sohn Dow 15688141568815 570222 Smith, FB CH Boehringer Sohn 1568816 15688171568818* 15690061569019* 570211 570000 650107 CH Boehringer Sohn Weyland Dow Poffenberger, N CO to Distributees Amos, L Doedens, J Haberstroh, W Griswold, AM Vanderweele, JC Hoyle Mel ching, WA Knapp K1 ei ne Myers, JR Krahne, 0 Sauers, R Trapp, WB Poffenberger, N Widiger, A Lueck, A Page 150 General Subject Matter out of the production of Sodium 245-Trichlorophenate Revision of agreement regarding disclosure of information con cerning 245-Trichlorophenate pro cess Agreement concerning the disclo sure of Information regarding the prevention of chloracne arising out of the production of 245-Tri chiorophenate Preparation of Trlchlorophenol to avoid Chloracne Chloracne, preparation of Trlchlorophenol Preparation of 245T avoiding the formation of Chloracnegens 245-Trlchlorophenol, outline of requirements of applying Boehrlnger data to Midland operations Dow Number Date Author Recipient 15691 OS15691 12* 550209 Dow 1569137 * 1569138 * 15691391569140 15691411569142 650127 641128 650127 650310 AHW AHW RAJ AHW Anderson Lueck Goergen West Trapp Morello Wolf Wi di ger Poffenberger 15691431569153 15691541569167* 650211 650107 Bradley, KB Poffenberger, N h-* CO or CO Distributees Holmes, R Bradley, K Goergen, GG Haberstroh, WH General Subject Matter Page 151 German TCP process, safety techniques Sauers, RC Trapp, WB Poffenberger, N 245 Trichlorophenol reaction graph time vs temp Graph Chloracne exciter vs temp 245 Trichlorophenol reaction graph conversion vs time at 155**c Caustic hydrolysis of 1245 Tetrachlorobenzene graphs conversion vs time at 155%c & 165^c Data & graphs on hydrolysis of 1245-Tetrachlorobenzerie 245-Trichlorophenol; outline of batch reaction Dow Number Date Author Recipient 15691681569176* 650203 Poffenberger, N 15691771569192* 650212 Poffenberger, N 11354 Distributees Widiger, A Lueck, A Holmes, R Delisle, N Bradley, K Goergen, GG Bradley, K Graves, H Dylewski, S Delisle, N Haberstroh, WH Sauers, R Trapp, W Poffenberger, N Widiger, A Coulter, K Goergen, G Lueck, A Staehling, E Bradley, K Graves, H Dylewski, S Delisle, N Haberstroh, WH Sauers, R Trapp, W Poffenberger, N Widiger, A Coulter, K Goergen, G Lueck, A Staehling, E General Subject Matter Page 152 245-Trichlorophenol preliminary process design 245-Trichlorophenol preliminary process design appendix 355 ; Dow Number 15691951569197* 15692091569210* Date 650311 650518 15692211569223* 650302 15692321569233* 650304 Author Graves, HH Trapp, WB Cornell, JL Harris, JS Recipient Distributees Goergen, GG Anderson, RE Delisle, NG Lueck, AF Wehn, WE Hillman, RE Coulter, KE Delisle, NG Dylewski, SW Goergen, GG Hutchenreuther, CO Haberstroh, WH Lueck, AF Poffenberger, N Sauers, RC Trapp, WB Wappenhensch, 0 West, KD Wehn, WE Widiger, AH Graves, HE Wolf, RR Anderson, RE Morello, VS Beyer, DG Harris, JS Cornell, JL Coulter, KE Graves, HE Wolf, RR Page 15 General Subject Matter Pilot plant preparation of Sodium Trlchlorophenate solution TCP Process Project Conference Trlchlorophenol plant Notes from 6th Trlchlorophenol process review Dow Number Date Author Recipient 15692391569243* 650315 Anderson, RE Del isle, NJ 15692471569250* 650318 Harris, JS 15692511569254* 650317 Anderson, RE 11356 Distributees Haberstroh, WH Dylewski, SW Trapp, W Widiger, A Morello, V Cornell, J Goergen, G Coulter, KE Graves, HE Wolf, RR Goergen, GG Lueck, A Dylewski, SW Trapp, W Sauers, R Poffenberger, N Hutchenreuther, CO Wappenhensch, CA Morrello, VS Wehn, WE Coulter, KE Graves, HE Wolf, RR Haberstroh, WH Dylewski, SW Trapp, W Widiger, A Morello, V Lyon, G Goergen, G General Subject Matter Page 754 Trichlorophenol plant scope of project Notes from 9th Trichlorophenol process review Trichlorophenol reactor cycle Dow Number 15701561570165* 1570376 * 1570380 * 15723161572322* Date 000000 000000 000000 690310 Author Recipient Dow Dow Jankowski, SJ 15724291572440* . 15727301572734* 1572735 641110 710202 700914 1572736 700924 1572737 700406 EMS Theis, JM Knutson, AT Chase, FI Schmidtke, DJ Dorton, RO Knutson, AT Chase, FI Martin, RA Loucks, MF Knytson, AT Dorton, RO Yeager, LM 11357 Distributees Woodward, RE Marshall, SP Chase, FI Gilbert, PW Snodgrass, WA Kenslcki, RF Haberstroh, Jankowski, SJ Page 15 General Subject Matter Tordon process information Oil formulations Phenoxy herbicide formulations Preliminary Investigation of direct ester expansion capabilities Direct ester 24D, alternate facility Dow raw material specification 2,4-Dichlorophenol Dow raw material specification Sodium Monochloroacetate solution Caustic soda solution raw material specification Dow Number 1572738 Date 700721 1572739 660923 1573474* 700915 Author Knutson, AT Kennedy, TL Chase, FI Schmldtke, DJ Martin, RA Landis, CA Hawley, HM Delong, HC Highhill, CA White, LC Hawley, HM Haberstroh, WH Recipient Savaso, JC 15734751573482* 15790031579009* 15805421580566* 700910 701231 680514 15805671580585* 680822 Haberstroh, WH Seidel, EM Thels, JM SI edel , M JFL Kern, WG Fernandez Gorgasz Dal man Dow 05 CJX 00 Distributees Page 156 General Subject Matter Internal Dow raw material speci fication for Hydrochloric acid Bleiweiss, JC Deline, DD Henry, HE Hensley, EF Schmidt, BV Tefft, TH Dow raw material specification 24D 24D Capital Estimates Revision of 24D Capital Estimates Alkaline hydrolysis of 245T and si1vex Technology review of industrial chloracetic acid Dowanol, Butyl & Isooctyl Chioroacetate technology review Dow Number 15813611581376* 15813821581397* 15819831582013* Date 660000 660000 620700 15826541582657* 15836671583675* 000000 1583690- 721125 1583691* . 1630441* 500600 Author Dow Dow Gilzorrilla FGZ CAH McCauley, V Mathew, BA Millhisler, Vanhorn, R Bethke Recipient 1630444* 1630446* 510228 501000 Dupont 16304471630473* 1630466 501000 500810 Ott, RC 03 UJ CO Distributees General Subject Matter Chlorophenol Prod. Page 157 670000 Chlorophenol Research Preliminary engineering study for Dow Qulmica Argentina, SA Tordon 105 Manufacture Tordon 225E M3990 or Tordon 225E reactive chemical hazard data 24D Amine Weed Killer (Raw materials description and specifications) Raw material specification 24D Amine Weed Killer (Raw materials handling & storage conditions) 24D Amine Weed Killer (operating directions) Effect of DMA Concentration on PH of 24D Amine Weed Killer Dow Number 16304741630478* 16304791630483* 1630485* Date 491200 500201 500510 16304891630490* 491200 16304911630494* 491200 16318881631889* 16319011631913* 16426901642691* 16450901645098* 640624 000000 000000 550826 Author Jirouch, EA Dupont Seidel, EM Seidel, EM JRU Bennett, CM Widiger, A Dugan, G Recipient co O* o Distributees Griswold, A Williams, WH Britton, EC Alquist, FN Colby, A Vanarsdale, J Reese, R Brainerd, A Page 158 General Subject Matter 24D Amine Weed Killer (Operational hazards) Tentative Operating Instructions, Dimethyl amine 24D Amine Weed Killer Specifications & average analysis 24D Amine Weed Killer (Labor Required for Operation). 24D Amine Weed Killer (Production and Yield Accounting Methods and Information) Direct Ester Authorization Handwritten notes concerning various steps of 245T process Trichlorophenol Manufacturing Phenol, 245 Tricholor Dow Number Date Author Recipient 16500791650081* 630429 16501391650141* 670522 CO dh Barrons, KC Coulter, LL Johnson, JE Lynn, GE Wolf, MA Hunt, M Loucks, MF Vanvalkenburg, W Fayerweather, BL McIntyre, HH Branaman, J Lang, HC Falkenstein, WJ Davis, HW Allen, WW Barrons, KC Byrd, BC Wolf, MA Gowell Loucks, MF Falsey, MP Buerge, TE McIntyre, HH Hammer, OH Gill, WM Highhill, CA Woodward, RE Davis, H Corbin, WF Distributees Poffenberger, N Widiger, A Dugan, G General Subject Matter Verton CE with oil (Release to Sales) Tordon 155 Mixture (Release to Sales 9) Dow Number Date 16501461650148* 671009 Author Nummy, WR DEP CJK JLS Dow Recipient Woodward, RE 1650262 1650264* 630517 16504661650468* 621012 '` O CO CJ Barrons, KC Coulter, LL Johnson, JE Lynn, GE Ritty, PM Wolf, MA Loucks, MF Vanvalkenberg.W Branaman, J Lang, HC Falkenstein, WJ Allen Saunders, ES Amstutz, FC Barrons, KC Johnson, JE Lynn, GE Southwick, L Wolf, MA Vanvalkenberg.W McIntyre,HH Branaman,J Distributees General Subject Matter Page 160 Dosser, RC Hoff, RC Matuska, R Colby, A Stone, F Sales Release Tordon 155 Verton T (Release to Sales 16) Esteron 245 Concentrate (Proposed Release to Sales 21) Dow Number Date 17108381710856* 740221 Author Lang, HC Allen, WW JLS KEE ES PMR Saunders, E Roush, GJ Hoyle, HR Recipient 17108571710885* 700410 Axe, FD Hoyle, HR 1711008 * 000000 Dow 17183181718319* 000000 Dow Distributees General Subject Matter Page 161 Winters, RE Degeer, JL Williams, FL Langner, RR Kelyman, M Holder, BB Blair, EH Deline, DD Hodson, RE Miller, DE Kramer, CG Morse, DB Soule, RD Holder, BB Lynn, GE Rowe, VK Schmidtke, DJ Wipe test for Tertiary Butyl Catechol and TCDD in 267 bldg, prior to demolition Industrial hygiene survey of 245T production 267 production Notes on direct Ester production of 24D and 245T IWD 24D & MCPA & 245T esters ) Dow Number 17183331718335* 17195661719572* 17240981724104* Date 000000 000000 690310 Author Dow Recipient Dow Jankowski, SJ 17263311726333* 17279671727968* 000000 580630 17280491728050* 590702 17280531728054* 1728057M 1728058* CO C5 630108 621214 Dow McColHster, DD Wolf, MA Dow Olson, KJ Oyen, F Dow Olson, KJ Oyen, F Dow Olson, KJ Oyen, F Distributees Jankowski, SJ Woodward, RE Chase, FI Gilbert, PW Snodgrass, WA Marshall, SP Kensickl, RF Haberstroh, WH Dow Hoyle, HR Dow Hoyle, HR Dow Hoyle, HR Dow Hoyle, HR General Subject Matter Process time cycles Page 162 NATCP Solution IWD 24D and 245T Esters preliminary Investigation of Direct Ester ex pansion capabilities (ACPD 69-10) Consequences of Overexposure For Tordon; 597 Building Dow 245T amine weed killer (Data sheet of properties, health hazards and precautions for safe handling of materials) M-1459 formulation of K-7797 and K-7856 (Data sheet of properties, health hazards and precautions for safe handling of materials) M-2422 (Data sheet-of properties, health hazards and precautions for safe handling of materials) M-2468 (Data sheet of properties, health hazards and precautions for safe handling of materials) Dow Number 17280591728060* Date 660412 17280611728062* 700514 Author Recipient Dow McCollister, DD Olson, KJ Dow Norris, JM 17281011728102* 17281031728104* 17281671728168* 17285261728527* 17386271738628* 1765919* 17663001766308 580616 580630 580514 000000 000000 650919 661104 Dow McCollister, DD Wolf, MA Dow McCollister, DD Wolf, MA Dow McCollister, DD Wolf, MA Dow Dow Sinke, GC Widiger, AH Johnson, RL I( 3&<? Distributees Dow Hoyle, HR Dow Falkenstein, WJ Hoyle, HR Dow Hoyle, HR Dow Hoyle, HR Dow Hoyle, HR Widiger, AH Coulter, KE Page 163 General Subject Matter M-2993 (Data sheet of properties, health hazards and precautions for safe handling of materials). (T2.MO-2993-1) M-3427 (Data sheet of properties, health hazards and precautions for safe handling of materials) (BC T2.MO-3427-1) Reddon (Data sheet of properties, health hazards and precautions for safe handling of materials) Reddon concentrate (Data sheet of properties, health hazards and precautions for safe handling of material s) Veon brush killer (Data sheet of properties, health hazards and precautions for safe handling of materials) Tordon formulation plant and Tordon pellet plant Flow chart for Tordon production Heat of reaction data per GC Sinke of the Thermal Lab Phenol, 245 Trichloro study of Chloracne problem Dow Number Date Author Dugan, GF Recipient 17663091766336* 650203 Poffenberger.N Bradley, K Ebert Warren 1766651H* 1766660* CO 1766681^ 1766686* Ob 641125 650107 Poffenberger, N Distributees Johnson, R Thurston, D Dugan, G Haberstroh, WH Goergen, GG Sauers, RC Bender, S Wolf, RR Louck, A Poffenberger, N Bailey, CZ Putnam, MS Nielson, WH Staehling, EC Bradiey,K Graves, H Dylewski, S Haberstroh, WH Sauers, R Trapp, W Poffenberger, N Widiger, AH Coulter, KE Goergen, GG Lueck, A Redmond, W Deli sie, NG Staehling, EC Poffenberger, N Sauers, RC Page 164 General Subject Matter Preparation of 245 Trichlorophenol from Trichlorobenzene Phenol 245 Trichloro Preliminary Process Design Using 100 percent NAOH, PL2028-4 Trichlorophenol Process 245 Trichlorophenol - Outline of Requirements I Dow Number Date Author Recipient 17666871766694* 650112 Poffenberger, 17666951766698* 650105 Poffenberger, 17667041766708* 17667131766730* 641120 641224 Holmes, R Sorge Sauers w 05 "'1 Distributees Trapp, W8 Widiger, A Lueck, A Holmes, R Bradley, K Goergen, GG Poffenberger, N Delisle, NG Sauers, R Trapp, WB Widiger, A Lueck, A Holmes, R Bradley, K Goergen, G Poffenberger, N Sauers, R Trapp, W Lueck, A Widiger, A Bradley, K Goergen, G Holmes, R General Subject Matter Page 165 Appendix to Report PL2028-3 (245 Trichlorophenol) 245 Trichlorophenol Process Information Hydrolysis of Tetrachlorobenzene using flake caustic Description and prints for the current production methods for obtaining 245 Trichlorophenolate solution in building 74 (Report 50) ) Dow Number 17667341766736* Date 591212 Author Widiger, A Recipient Chang, KY 17667391766750* 700720 Chang, KY Tou, JC 1766760 1766761* 641118 17667621766764* 640730 co 03 00 Widiger, AH Holmes, RD Holmes, R Greiss, GA Hoyle, HR Distributees Leavittg, FC Demott, DN Poffenberger, N Tree, R Plepys, RA Schmidtke, DJ Chang, KY Tou, JC Look, A Leavitt, FC Demott, DN Poffenberger, N Gum, WF Plepys, RA Pierce, JK Frevel, LK Potts, WJ Westover, LB Fauver, VA Kennedy, TL Widiger, AT Pews, G Rodia, RM Nummy, WR Blue, RD Delisle, NG Sheetz, DP Goergen, GG Page 166 General Subject Matter Progress report on research on blooming of 245 Trichlorophenol Oxygen 18 labeling study on the mechanism of caustic hydrolysis of 1245 tetrachlorobenzene in methanol 199 Bldg Production of Sodium 245 Trichlorophenate Manufacture of Trichlorphenol at 199 Bui ding Dow Number 17667661766769* 17667701766771* 1766772* 17667731766784* 17668241766825* 17669441766948* 17682471768249* 17701871770195* Date 641120 000000 000000 340905 000000 000000 650317 661104 Author Holmes, RD Dow Dow Prescott, RF Dow Dow REA Widiger, A Johnson, RL Dugan, GF Recipient N ee* CO CD CO Distributees Widiger, A Johnson, RL Dugan, GF Coulter, KE Thurston, D Haberstroh, WH Sauers, RC Wolf, RR Poffenberger, N Goergen, GG Bender, S Louck, A Bailey, CZ Putnam, MS Page 167 General Subject Matter Hydrolysis of Tetrachlrobenzene using flake caustic TCP Process Flow Sheet TCP Process Flow Sheet Manufacture of 245 Trlchlorophenol from 1245 Trlchl orobenzol Diehlorophenol and trlchlorophenol proccess flow sheet 245 Tr1chlorphenol operations 804 Building Trlchlorophenol Reactor Cycle Phenol 245 - Trlchloro study of chloracne problem preparation of 245-Trlchiorophenol from Trichlorobenzene, PL 2064-13 Dow Number Date Author 17707051770709* 700525 Brady, P Recipient 1784663* 000000 1784664* 1784665* 20223982022406* 20224072022488* 20224892022503* 20225042022519* 000000 000000 706217 66000 710324 651012 20225202022528* 651012 Llening, EL Dow Dow Kennedy, TL Tree, RM Anderson, RE Harris, JS Anderson, RE Harris, JS Dow Bosscher, H Anderson, RE Lueck, AF Schmidtke, DJ Wehn, WE Anderson, RE Lueck, AF Distributees Nielson, WH Staehling, EC Schmidtke, DJ Haberstroh, WH Williams, L Vogelsang, P Chase, FI Kensicki, RF Gorgacz, SM Hicks, GM Stone General Subject Matter Page 1 Manufacture of Phenoxy Herbicides Vinyltoluene-Tar Collection System and Furnace Reboilers (M-32052M) 245 - Trichlorophenol - New Facility 245 - Tricholorophenol - New Production Facilities Review of Materials Experience at the Trichlorophenol Plant, 804 Building, for 1973, 1974 and 1975. 2, 4, 5-Trichlorophenol New Plant - 1966 Trichlorophenol Plant Cooling Tower, In-Plant Portion (M-700498) Trichiorophenol Proj ect-Process Engineering Trichiorophenol Proj ect-Process Engineering Dow Number Date 20225202022528* 651012 20225292022537* 650518 20225482022571* 700400 Author Anderson, RE Harris, JS Wehn, WE Anderson, R.E. DeLisle, NG Leuck, AF Georgen, G Recipient Schmldtke, DJ Wehn, WE Anderson, RE Lueck, AF Schmidtke, DJ Wehn, WE -4 i y '' J Di stributees General Subject Matter Page 169 Trichlorophenol Project-Process Engineering New 245-Trichlorophenol Plant Arteberry, DG Barton, JT Bauman, WC Bechtold, RF Bellow, RE Bernstein, MK Blair, EH Blue, RD Bremmer, BJ Brown, TE Brown, WE Bryant, F Bugert, BE Butcher, BB Byrd, GW Carlson, RG Carmouche, LN Cessna, OC Chamberlain, M Christian, CA Organic Chemicals Department-TS&D Highlights I Dow Number Date Author Recipient #=** CO si tO Di stributees Cocker, WP Coon, ET Davis, RH Davis, RM Derby, RL Diiley, R Dreyer, JW Dunn, EE Fay, BW Fischback, BC Friedli, H Gold, WL Grabi el, CE Hanners, HW Hansen, R Hanson, AW Heitz, RG Hickner, RA Hoblit, LD Honea, CR Johnson, J Jones, GD Karns, RE Kelly, ME Kuchinic, RM Langner, RB Lindy, LB Litherland, LO Leavitt, FC Look, AT Maasberg, AT Mackenzie, GF Mackey, JC Madison, NL General Subject Matter Dow Number Date Author Recipient Di strlbutees Marklewitz, WE Marks, CD McClure, HH McCoy, CE McDuff, JM Mclntire, OR Munden, BJ Nelson, DL Nielson, JT Nielson, WH Neumann, FW Ohlmann, EO Palmer, T Parsons, CP Pearson, KS Peterson, LR Potts, WT Prince, AK Pruitt, ME Rogers, WA Ruh, RP Sarge, TW Schuhmann, JG Sheehan, TJ Sheetz, DP Sienknecht, P Snyder, IJ Sorenson, RH Sparta, TA Stehling, EC Trapp, WB Tucker, JC Tuttle, FC Warren, GW General Subject Matter Dow Number Date Author 20226162022666* 700600 Dow Recipient h=* CO Distributees Yocum, RH Uoshimine, M Nummy, WR Maasberg, AT Ettinger, MB Busk, RS Blue, RD Peterson, NR Johnson, JE Bauman, WC Boyer, RF Lindsav, RA Look, AT Struthers, JA Rausch, DA McCoy, E Prince, AK Kimmei, CE Westveer, WM Schwarz, AJ Harrison, RP Mclntire, OR McIntyre, HH Gordon, HL MacCutcheon, SM Kelly, ME Bumb, RR Dean, PE Johnson, RL Lake, DE Meyer, FJ Erratt, RL Cheney,GW General Subject Matter Page 172 Biochemical Research Laboratory. Quarterly Report April-June 1970 Dow Number Date Author Recipient Distributees Schaefer, HL Graham, DL Flynn, JM Johnston, RV Dowel 1, FH Bauriedel, WR Blair, EH Howe, RG Barrons, KC Hymas, TA Johnston, Chas. Moss, RD McCollister, DD Reifschnei der, W Smith, GN Osborne, DW Strycker, SJ Dunbar, JE Dorman, LC Young, AE Bjork, CK Johnson, MR Yates, WM Post, T Holder, BB Kramer, CG Morse, DB Shannon, ES Brower, FM Englibous, DL Kiley, LR Beamer, WW Muelder, WW Rabold, GP General Subject Matter 11376 I Dow Number Date Author Recipient Distributees Kagel, R Frevel, LK Alfrey, T Burgert, BE Houtman, T Murdoch, PG Leavitt, FC Pumpelly, CT Jezic, Z DeMott, DN Jones, GD Axe, FD Boeckler, WH Branson, DR Charm, JB Chenoweth, MB Dunn, EE Dunn, FL Gerguson, JT Flores, GH Gehring, PJ Gooch, RM Hinman, CW Holmsen, TW Hoover, WE Hoyle, HR Humiston, CG Kociba, R Leong, BK McCarty, LP McCollister, SB McDermott, RD Moyle,CL Neely, WB General Subject Matter Page 174 Dow Number Date Author Recipient Distributees Norris, JM Oriel, PJ Piper, WN Riley, WH Rodi a, RM Rowe, VK Schneider, CW Schneider, EJ Schweiz, BA Si 1verstein, LG Sparschu, GL Spencer, HC Torkel son, TR Ts'o, TO Wolf, MA Wolf, PA Wyse, HA Milch, LJ Renzi, AA Barnhart, JW Robinson, VB White, HC Hake, Cl Daniels, ME Miner, NA Steward, D Kilian, DJ Edwards, HN Barton, JA Pruitt, ME Brown, JH Ludwig, PD Heitz, RG General Subject Matter Dow Number Date Author Recipient 20226742022701* 700600 Dow 11378 Distributees General Subject Matter Kagy, JF Goring, CAI Lloyd, BH Staehling, EC Biggers, MW Tobey, SW Hillary, BB Skory, L DeGesero, R Rinzema, L Schaffer, A Thompson,C Naranjo, P Maffii, G Sensi, P Zeller-Celso, L Lanci ni, G Arri goni-Martel H , E Johnson, JE Nummy, WR Barrons, KC Hymas, TA Kagy, JF Goring, CAI Heitz, RG Bai les, RH Johnston, H Johnston, RV Gowe! 1, JH Popoff, FP Dowell, FH Holmsen, TW Reifschnei der, W Agricultural Department Quarterly Progress Report April - May - June 1970 Dow Number Date Author Recipient 2022702202274* 700727 Dow CO CO Distributees Getzendaner, ME Lynn, GE Bjork, CK Blair, EH Schwarz., AJ Ludwig, PD Moss, RD McCollister, DD Osborne, DW Seymour, KG Winquist, ME Gum, W Busk, RS Cheney, GW Flynn, JM Kelly, ME McCoy, CE Mclntire, OR Prince, AK Schwarz, AJ Struthers, JA Peterson, LI Johnston, C Blair, EH Hinman, CW Gaska, R Frevel, LK Potts, WL Friedii, HR Kelly, ME Bowman, C Stall, DR Mclntire, OR General Subject Matter Eastern Research Lab Quarterly Progress Report - April - June 1970 11380 Dow Number Date Author Recipient Distributees Johnson, JE Blue, RD Nummy, WR VanWestenberg, JA Prince, AK Maasberg, AT Peterson, LI Brower, F McCay, CE Engibous, DL Busk, RS Sheetz, DP Cook, P Hanson, AW Struthers, JA Mackenzie, F Leavier, FC White, LW Schwarz, AJ Burgert, BE Novak, RM Flynn, JM Alfrey, T Morocci, PG Houtman, T Bearne, WH Bache, AF Griffii, JD Rosene, R Biggers, MW Blake, CL White, HC Quinn, H Thompson, CF General Subject Matter Dow Number Date Author Recipient 20227622022801* 691200 Dow hi CO 00 Distributees Brown, JH Ludwig, PD McClure, HH Rogers, WA Pruitt, ME Heitz, RG Kagy, JK Bailes, R Brown, CF Mackey, JC Johnson, JE Nummy, WR Barrons, KC Hymas, TA Kagy, JF Goring, CAI Heitz, RG Bail es, RH Johnston, H Johnston, RV Gov/ell, JH Popoff, FP Dowell, FH Holmsen, TW Reifshneider, W Getzendaner, ME Lynn, GE Spalding, JL Blair, EH Schwarz, AJ Ludwig, PD Jones, GD Moss, RD General Subject Matter Page 17S Agricultural Department- Quarterly Progress Report October - November - December - 196 Dow Number Date Author Recipient 20228312022849* 700200 Dow 20228592022891* 700300 Dow 11382 Distributees McCollister, DD Osborne, DW Seymour, KG Winquist, ME Johnson, JE Nummy, WR Barrons, KC Hymas, TA Kagy, JF Goring, CAI Heitz, RG Bail es, RH Johnston, H Johnston, RV Gowell, JH Popoff, FP Dowell, FH Holmsen, TW Reifschnei der, W Getzendaner, ME Lynn, GE Bjork, CK Blair, EH Schwarz, AJ Ludwig, PD Jones, GD Moss, RD McCollister, DD General Subject Matter Page 180 Organic Chemicals Production Research - Monthly Summary February 1970 Agricultural Department Quarterly Progress Report - January - February March 1970 Dow Number Date Author Recipient 20228922022972* 700600 Dow 20229732023110 700600 Dow OCOD CO Distributees Osborne, DW Seymour, KG Winquist, ME Gum, W Busk, RS Cheney, GW Flynn, JM Kelly, ME McCoy, CE Mclntire, OR Prince, AK Schwarz, AJ Struthers, JA Milch, LJ Brunton, AM Dacquisto, MP Hake, CL Marshall, FN Miller, BH Munden, BJ Renzi, AA Robinson, VB Schell, K Stavropoulos, WS White, HC Shea, PJ Barnhart, J General Subject Matter Page 181 Radiochemistry Research Laboratory - Quarterly Progress Reports - April - May - June 1970 Semi-Annual Progress ReportHuman Health Research and Development Laboratories - January June 1970 11384 Dow Number Date Author Recipient Distributees Trepanier, DL Kulkarni, A Eble, J Abdallah, A Wagner, E Lewis, JE Miner, N Steward D Kenny, M Torney, H Taylor, H Sargent. R Broersma, R Anderson, JT Kammeraad, A Zoccolino, R Johnson, JE Hinman, CS McIntyre, OR Peterson, NR Reifschnei der, W Nummy, WB Schwarz, AJ Rampy, LW Johnson, MR Blair, E Strycker, SJ Johnston, RV Chenoweth MB Neely, WB Moss, RD Champlain, CE CRI Peterson, L General Subject Matter Dow Number Date Author Recipient 20231732023219* 700900 Dow N4 CO O) Or Distributees Johnson, FE Kagy, JF Heitz, R6 Mul hoiland, RS Zelter-Celso, L Sensi, P Maffi1, G Nicolias, FB Furesz, S Naranjo, P Blair, EH Hinman, CW Hinman, CW Gaska, R Frevel, LK Potts, WJ Fri edi 1, HR Kelly, ME Bowman, C Stull, DR Mclntire, OR Johnson, JE Blue, RD Nummy, WB VanVfestenburg, JA Prince, AK Maasberg, AT Peterson, LI Brower, F McCoy, CE Engibous.DL Busk, RS Sheetz, DP General Subject Matter Page 183 Eastern Research Laboratory Quarterly Progress Report July - September 1970 Dow Number Date Author Recipient 20232562023386* CCOO CD 701200 Dow Distributees Look, AT Hanson, AW Struthers, JA Mackenzie, GF Leavitt, FC White, LW Schwarz, AJ Burgert, BE Nowak, RM Flynn, JM Alfrey, T Murdock, PG Houtman, T Beamer, WH Griffin, JD Roche, AF Rosene, R Biggers, MW Hake, CL White, HC Quinn, H Thompson, CF Brown, JH Ludwig, PD McClure, HH Rogers, WA Pruitt, ME Heitz, RG Kagy, JF Bail es, R Brown, WE MacKey, JC Milch, LJ Brunton, AH General Subject Matter Human Health Research and Development Lanoratories 11387 I Dow Number Date Author Recipient ) Distributees Dacquisto, MP Hake, CL Marshal 1 ,FN Miller, BH Munden, BJ Renzi, AA Robinson, VB Schell, K Tedeschi, R Stravropoulos, WS White, HC Shea, PJ Barnhart, J Trepanier, DL Kulkarni, A Fole, J Abadallah, A Wagner, E Lewis, T Steward, D Kenny, M Turney, H Taylor, H Sargent, R McCarthy, J Jackson, J Warner, S Emerson, J Mol el lo, J Gerbig, C Boerman, R Anderson, JT Kammeraad.A Zoccolino, K Page 185 General Subject Matter Semi-Annual Progress Report - July - December 1970 Dow Number Date Author Recipient 20233872023478* 701200 Anders, OU Atchison, GJ 88Ji Page 186 Distributees General Subject Matter Johnson, JE Hinman, CW McIntyre, OR Peterson, NR Reifschnei der, W Nurrniy, W Schwartz, AJ Rampy, LW Bjork, CK Blair, E Strycker, SJ Johnston, RV Chenoweth, MB Neely, WB Moss, RD Champlain, E Reitz, R Dorman, L Chow, R Freiter, E Wysong, D Tobey, SW Johnson, FE Mul hoi land, RS Zeller Celso, L Sensi, P Maffii, G Nicol is, FB Arrigoni-Martelli, E Nathansohn, G Silvestri, L Naranjo, P Progress Report Covering October, November, December 68eij Dow Number Date 20235572023578* 700615 Author Blanchard, FA Doorenbos, HE Harmer, DE Himes, RP Jewett, GL Kamp, AJ Kawahara, Y Kocher, CW Logan, RA Mani, I Muelder, WW Powers, JB Babold, GP Takahaski, IT Wass, MM Dow Recipient Distributees General Subject Matter 1970 and Yearly Summary Barrons, KC Blair, EH Bremmer, BJ Carlson, RG Dowell, FH Gantz, RL Getzendaner, ME Goring, CAI Kagy, JF Gowell, JH Hanson, RG Hymas, TA Jantz, OK Johnston, C Johnston, RV Laning, ER Library, JC Little, JC Agricultural Department Research and Development Staff Meeting - June 15, 1970 06 lj- 1\ Dow Number Date Author Recipient Di stributees Ludwig, PD Shaver, RJ MacLean,GJ McCollister, DD Lynn, GE Moss, RD Naegele, RE Nyman, FA Osborne, DW Seymour, KG Sheldon, HW Gehring, P Frevel, LK Mclntire, OR Johnson, RB Nummy, WR Kelly, ME Peterson, LI DeMott, DN Prince, AK Nichol s, JL Schwarz, AJ Sheetz, DP Bremner, NW Kuyper, CK Ferguson, RH Saunders, ES Dalman, G Leavitt, FC Cheney, GW Bjork, K Jones, P Spalding, J Flynn, JM General Subject Matter / Dow Number Date Author Recipient 20235792023975* 690000 Hess, TM 20239762024000* 20240012024014* 691200 700109 Nummy, WR Frevel, LK Potts, WJ Department File fa** Co CO Distributees Jones, IC McClure, HH Pruitt, ME Balles, RH Johnston, H Thompson, C Johnson, JE Chamberlain, LC Busk, RS Bauman, WC Blue, RD Klesney, SP Jowanovitz, LS Burgert, BE Jones, GD Jeitz, RG Brubaker, RI Nei pert, MP Myers, JC Hickey, JR Roll wage, WA Williams, EJ Frevel, LK General Subject Matter Page 189 Chemical Physics Research Laboratory, Yearly Progress Report and Fourth Quarter Summary Organic Chemicals Production Research Monthly Summary Summary of Activities of the Electrochemical and Inorganic Chemical Research Laboratory (Midland) for the months October - November - December 1969 ) Dow Number Date Author Recipient 20240152024023* 700100 Distributees Dale, EM Houtman, T Corey, JW Lindsay, RA Blackney, WC Guebert, KW Hotchkiss, RL Anderson, DL McCoy, CE Nei echterlein, DC Drake, LR Murdoch, PG Wilcox, AC Engibous, DL Groves, KO Gaska, RA Stuart, GA Gilbert, JF Hillary, BB Matheson, LA Mclntire, OR Bearner, WH Lowry, BS Stenger, VA Pumpelly, CT Sarge, TW Jones, IC Mod, WA Bothwel1, MR Thompson, CF Nelson, DL Ogden, SO Parizek, E General Subject Matter Page 190 Hydrocarbons and Monomers Research Laboratory - Inorganic and Hydrocarbons Research Department Dow Number Date Author Recipient /"^4 Co co Co Distributees Peterson, LI Prince, AK Pumpelly, CT Putnam, MW Roche, AF Ruh, RP Rausch, D Skochdopole, RE Sheetz, DP Struthers, JA Sutherland, S Wegner, ER Wing, MW Woodward, GE Woodward, RE Hultin, R Ni elsoh, WH Hammond, D Chase, F Shannon, F Zheitoun, M Ilgenfritz, BM Deline, D Pfrommer, C Page 191 General Subject Matter 1969 Fourth Quarter Progress Report - October -November December - 1969 I Dow Number 20240242024042* 20240812024139* Date 700100 700216 Author Dow 20241402024163* 691200 Recipient K* Co Co Distributees Alexander, HC Baker, RL Bek, CM Brosier, JS Colbry, RJ Daniele, SL Davis, RD Fox, RD Hall, JR Hall, SD Hamilton, CE Hintz, MJ Ilgenfritz, EM Kraut, DE Krienke, ME Lynch, JE Novak, RG Pfrommer, C Putnam, MS Reinker, RE Sawinski, RJ Sercu, CL Shannon, ES Shively, JF Teal, JL ) General Subject Matter Page 192 Organic Chemicals Production Research Monthly Summary Chemical Physics Research Laboratory Summary -Progress Report - October - November December - 1969 Waste Control Progress Report October - November - December 1969 Dow Number Date Author Recipient 20241672024186* 20241872024204* 700300 - 700416 Dow Distributees Terryah, GG Wass, WE Weburg, AW Wilson, JD Zillich, JA Bublitz, DW Bauer, DL Bremner, F Batcheider, TL McClure, HH Mclver, JH Smith, DH Strahan, JM Skory, LK CRI Blair, EH Kiley, LR Hinman, C Gaska, RA Bowman, CM Maasberg, AT Nummy, W Kelley, M Henson, W Jones, GD Tobey, S Vanwestenburg, JA Hemwall, J Johnson, RC Peterson, LI General Subject Matter Page 193 Organic Chemicals Production Research - March 1970 Radiochemistry Research Laboratory - Quarterly Summary Progress Report - January February - March, 1970 Dow Number Date Author Recipient 20242202024239* 700400 20242402024261* 700500 20242642024275* he* Co CO 05 700600 Dow Distributees Brower, F McCoy, GE Engibous, D Csaky, E Smith, RA Bothwell, M Busk, RS Bauman, W Drake, LR Pumpelly, C Burgert, W Rieke, J Floria, V Flynn, JM Murdoch, PG Prince, AK Wright, ER Larson, W Brown, JH Pruitt, ME Prophet, H Heitz, RG Kagy, JF Arcangeli, M Bosscher, H General Subject-Matter Page 194 Organic Chemicals Production Research - Monthly Summary April, 1970 Organic Chemicals Production Research - Monthly Summary May, 1970 Environmental Research Laboratory - Monthly Summary Dow Number Date Author Recipient Distributees Brubaker, RI Chase, FI Clark, GA Coulter, KE Deline, DD Engibous, DL Ettinger, MB Fletcher, WH Griffin, JD Gunkler, AA Hammond, DD Hillary, BB Jacob, E Johnson, JE Kline, C Kline, PE Leathers, JM Leavitt, FC Look, AT Lueck, AF Maasberg, AT Mcllhemy, WF McKennon, KR Nielsen, WH Otis, CE Peterson, NR Pfrommer, CP Prince, AK Pumpelly, CT Putnam, MS Rector, MR Reinker, RE Sanders, ME Sercu, CL General Subject Matter June 1970 Dow Number Date Author Recipient 20242762024288* 20242892024359* 700600 700400 Dow Dow Co CO Co Distributees Shannon, ES Sheetz, DP Shelton, LG Sienknecht, PJ Smart, RC, Jr. Syyder, RE Staehling, EC Struthers, JA Teal, JL Tree, RM. Jr. Wilcox, AC Woodward, RE Wuckasch, RF CRT(4) Crummett, WB Kiley, LR Bowman, CM Pumpelly, CT Johnson, JE Bauman, WC Nummy, WR Blue, RD Nussbaum, E Rosene, RB Tobey, SW Hinman, CW Coker, WP Vanwestenburg, JA Peterson, LI Engibous, DL General Subject Matter Page 196 Research and Development Monthly Summary June, 1970 Chemical Physics Research Laboratory - January - April 1970 Dow Number Date Author Recipient 20243602024381* 701100 Co Co Co Distributees Look, AT Sheetz, DP Leavitt, FC Burgert, BE Nowak, RM Hillary, BB Spettigue, TE Griffin, JD Wright, ER Pruitt, ME Yeaman, MD Heitz, RG Arcangeli, M Bosscher, H Brubaker, RI Bugg, DA Chase, FI Clark, GA Coulter, KE Daigre, GW Davis, RM Deline, DD DeMott, D Engibous, DL Ettinger, MB Gunkler, AA Hammond, DD Hillary, BB Hinman, CW Jacob, E Johnson, JE Kearney, JK Kenaga, EE General Subject Matter Page 197 Environmental Research Laboratory - Monthly Summary- November 1970 i Dow Number Date Author Recipient o o Distributees Kennedy, TL Kline, C Laman, JD Leathers, JM Leavitt, FC Lichy, C Look, AT Maasberg, AT Matheson, LA McClure, HH Mcllheny, WF McKennon, KR Nielsen, WH Otis, CE Pankratz, PM Pavlick, J Peterson, NR Pfrommer, CP Prince, AK Pumpelly, CT Putnam, MS Rector, MR Reinker, RE Rogers, W Sanders, ME Schultz, WD Sercu, CL Shannon, ES Sheetz, DP Shelton, LG Sienknecht, PJ Smart, RC, Jr. Syyder, RE Staehling, EC General Subject Matter Dow Number Date Author Recipient 20243822024405* 701100 20244062024420* 701100 20244302024439*' 701200 Dow Dow Dow Distributees Struthers, JA Teal, JL Tree, RM. Jr. Van Westenburg, J Wilcox, AC Woodward, RE Wuckasch, RF CRI(5) Arcangeli, M Bosscher, E Brubaker, RI Bugg, DA Chase, FI Clark, GA Coulter, KE Daigre, GW Davis, RM Deline, DD DeMott, DN Engibous, DL Ettinger, MB Gunkler, AA Hammond, DD Hillary, BB Hinman, CW General Subject-Matter Page 199 Organic Chemicals Production Research Monthly Summary November 1970 Reserach and Development Monthly Summary - November 1970 Dow Number Date Author Recipient /> -4 A! '"i4 A Q) Distributees Holiday, A1 Jacob, E Johnson, JE Kearney, JK Kenaga, EE Kennedy, TL Kline, CW Larnan, JD Leathers, JM Leavitt, FC Lichy, C Rector, MR Look, AT Maasberg, AT Matheson, LA McClure, HH Rodgers, W Mcllheny, WF McKennon, KR Nielson, WH Otis, CE Pankratz, PM Pavlick, JE Peterson, NR Pfrommer, CP Prince, AK Pumpelly, CT Putnam, MS Reinker, RE Sanders, ME Schaffer, AW Schultz, WD Sercu, CL Shannon, ES General Subject Matter Dow Number Date Author Recipient 20244412024454* 20244552024479* 20244802024518* 701200 701200 701200 Dow Dow Dow Distributees Teal, J . Sheetz, DP Shelton, LG Sienknecht, PJ Smart, RC Schuessler, RG Snyder, RE Staehling, EC Tree, RM VanDusen, G Van Westenburg, JA Wilcox, AC Woodward, RE Wukasch, RF CRI Alexander, HC Baker, RL Bek, CM Brosier, JS Bosscher, H Colbry, RJ Daniels, SL Davis, RD Fox, RD Gaska, RA General Subject Matter Page 201 Research and Development Monthly Summary December 1970 Organic Chemicals Production Research Monthly Summary December 1970 Waste Control Progress Report October - November - December 1970 Dow Number Date Author Recipient 20245192024553* 701200 Dow *. Distributees Hall, SD Hamilton, CE Hintz, MJ Ilgenfritz, EM Kaut, DE Krienke, ME Lynch, JE Novak, RG Pfrommer, C Putnam, MS Reinker, RE Sawinski, RJ Shannon, ES Shively, JF Stielstra, C Teal, JL Terryah, GG Wass, WE Weburg, AW Wilson, JD Zillich, JA Ludwig, RC Johnson, JE Nummy, WR Barrons, KC Hymas, TA Kagy, JF Goring, CAI Heitz, RG Bail es, RH Johnston, H Johnston, RV . Gowell, JH General Subject Matter Page 202 Argicultural Department Quarterly Progress Report October November - December 1970 Dow Number Date Author Recipient 20245542024601* 701000 Dow ' s '4 s'\ Oy Distributees Popoff, FP Dowell, FH Holmsen, TW Reifschneider, W Getzendaner, ME Lynn, GE Bjork, CK Blair, EH Schwarz, AJ Ludwig, PD Moss, RD McCollister, DD Osborne, DW Seymour, KG Winquist, ME Gum, W Busk, RS Cheney, GW Flynn, JM Kelly, ME McCoy, CE Mclntire, OR Prince, AK Struthers, JA Peterson, LI Johnston, C Dishburger, JH Gehring, P Pruitt, ME Arcangel i, M Bosscher, H Briggs, RL Brower, FM General Subject Matter Page 203 Process Engineering Progress Report - September - October 1970 ) Dow Number Date Author Recipient W. `"v y rC) !3 Distributees Cermak, RW Chisholm, DS Copeland, RA Costa, JE Deline, DD Engibous, DL Gaska, RA Graves, HE Griffin, JD Jacobs, CE Kehde, H Kennett, WW Larsen, PE Leathers, JM Leavitt, FM Look, AT Sheetz, DP Ioranger, HR Maasberg, AT Maier, RW Miller, RE Murdoch, PG Otto, KA Pumpelly, CT Rousch, WE Schorr, JF Scovic, JM Petrunia, G Sheffield, PH Stagg, DM Szymanski, L Treibilock, J Wilcox, AC Biggers, MW General Subject Matter Dow Number Date Author 20246022024613* 20246242024641* 700800 700600 20246422024651* 700700 Dow Dow Dow Reelplent O Di stributees Dehaven, ES Herron, RE Arcngel i, M Bosscher, H Brubaker, RI Bugg, DA Chase, FI Clark, GA Coulter, KE Daigre, GW. Deline, DD Engibous, DL Ettinger, MB Fletcher, WH Griffin, JD Gunkler, AA Hammond, DD Hillary, BB Holder, BB Jacob, E Johnson, JE Kearney, JK Kennedy, TL Kline, C Kline, PE Leathers, JM General Subject Matter Page 205 Research and Development Monthly Summary August 1970 Organic Chemicals Production Research - Monthly Summary June 1970 Monthly Summary July 1970 )I Dow Number Date Author Recipient 20246522024680* h~A V-* o Qd 700300 Dow Distributees Leavitt, FC Look, AT Maasberg, AT Mcllhemy, WF McKennon, KR Nielsen, WH Otis, CE Peterson, NR Pfrommer, CP Prince, AK Pumpelly, CT Putnam, MS Rector, MR Reinker, RE Sanders, ME Sercu, CL Shannon, ES Sheetz, DP Shelton, LG Sienknecht, PJ Smart, RC, Jr. Syyder, RE Staehling, EC Struthers, JA Teal, JL Tree, RM. Jr. Wilcox, AC Woodward, RE Wuckasch, RF CRI(5) Alexander, HC Baker, RL Bek, CM General Subject Matter Page 206 Waste Control Progress Report January - February - March 1970 Dow Number Date Author Recipient 1140 CD Distributees Brosien, JS Colbry, FJ Daniels, SL Davis, RD Fox, RD Hall, JR Hall, SD Hamilton, CE Hintz, MJ Filgenfritz, EM Kraut, DE Krienke, ME Lynch, JE Novak, RG P frommer, C Putnam, MS Reinker, RE Sawinski, RJ Shannon, ES Shively, JF Teal, JL Terryah, GG Wass, WE Weburg, AW Wilson, JD Zillich, JA Bubiitz, DW Bauer, DL Bremner, F Batcheider, TL McClure, HH Mclver, JH Smith, DH Strahan, JM General Subject Matter I Dow Number Date Author 20246812024692* 20246932024730* 700700 700600 Dow Dow Recipient h-* o Distributees Skory, LK Halphen, CE Alexander, HC Baker, RL Bek, CM Brosier, JS Colbry, RJ Daniels, SL Davis, RD Fox, RD Gaska, RA Hall, JR Hall, SD Hamilton, CE Hintz, MJ Ilgenfritz, EM Kraut, DE Krienke, E Lynch, JE Novak, RG Pfrommer, C Putnam, MS Reinker, RE Sawinski, RJ Shannon, ES Shively, JF Stielstra, C Teal, JL Terryah, GG General .Subject Matter Page 208 Research and Development Monthly Summary - July 1970 Waste Control Progress Report April, May, June 1970 Dow Number Date Author I Recipient t*4 >T* to Distributees Hillary, BB Holder, BB Jacob, E Johnson, JE Kearney, JK Kennedy, TL Kline, C Kline, PE Laman, JD Leathers, JM Leavitt, FC Lichey, C Look, AT Maasberg, AT Mcllheny, WF McKennon, KR Nielsen, WH Otis, CE Peterson, NR Pfrommer, CP Prince, AK Pumpelly, CT Putnam, MS Rector, MR Reinker, RE Sanders, ME Sercu, CL Shannon, ES Sheetz, DP Shelton, LG Sienknecht, PJ Smart, RC, Jr. Snyder, RE Staehling, EC General Subject Matter Dow Number Date Author Recipient 20247572024775* 700800 20247762024787* 20247882024799* 700800 700900 Dow Dow Dow Distributees Struthers, JA Teal, JL Tree, RM. Jr. Wilcox, AC Woodward, RE Wuckasch, RF CRI(5) Arcngel i, M Bosscher, H Brubaker, RI Bugg, DA Chase, FI Clark, GA Coulter, KE Daigre, GW. Deline, DD Engibous, DL Ettinger, MB Fletcher, WH Griffin, JD Gunkler, AA Hammond, DD Hillary, BB Hinman, CW Jacob, E Johnson, JE General Subject Matter Page 211 Organic Chemicals Production Research - Monthly Summary August 1970 Research and Development Monthly Summary August 1970 Environmental Research Monthly Summary - September 1970 )I Dow Number Date Author Recipient A Distributees Kearney, JK Kennedy, TL Kline, C Kline, PE Laman, JD Leathers, JM Lichy, C Look, AT Maasberg, AT Matheson, LA Mcllheny, WF McKennon, KR Nielsen, WH Otis, CE Peterson, NR Pfrommer, CP Prince, AK Pumpelly, CT Putnam, MS Rector, MR Reinker, RE Sanders, ME Sercu, CL Shannon, ES Sheetz, DP Shelton, LG Sienknecht, PJ Smart, RC, Jr. Snyder, RE Staehling, EC Struthers, JA Teal, JL Tree, RM. Jr. Wilcox, AC j General Subject Matter Page 212 )I Dow Number Date Author I Recipient 20248002024811* 20248122024831* 700900 700900 20248322024855* 701000 20248562024868* 701000 Dow Dow Dow Dow cn Distributees Woodward, RE Wuckasch, RF CRI(5) ) General Subject Matter Page 213 Research and Development Monthly Summary - September 1970 Organic Chemicals Production Research Monthly Summary September 1970 Organic Chemicals Production Research Monthly Summary October 1970 Research and Development Monthly Summary - October 1970 STATE OF NEW YORK ) ) SS: COUNTY OF NASSAU ) CAROLE BARNES, being duly sworn, deposes and says: That deponent is n ot a party to this action, is over 18 years of age and resides in West Hempstead, New York. That on the 16th day of November, 1983, deponent served the within Notice of Confidentiality and Updated Index of Confidential Documents of Defendant The Dow Chemical Company upon the attorneys below set forth representing the parties, as indicated, at the addresses shown, said addresses being designated by said attorneys for that purpose, by depositing a true copy of same, enclosed in a postpaid properly addressed wrapper in an official depository under the exclusive care and custody of the United States Post Office Department within the State of New York. TO: SEE ATTACHED SERVICE LIST Sworn to before me this day of November 16, 1983. NOTARY /PUBLIC CAROLE BARGE'S __ MTHRYHUWS IWMYhUC^j(NwVMt (.WQifmtaRiMbyhliwNmi Mm wCMhiStyTltaffui R iv k in , L e f f , S h e r m a n & R a d l e i* TO; k. M orton B. Silberman, Esq. C la rk , G a g lia r d i & M ille r T he^Inns o f C ourt 99 C ourt S tr e e t W h ite P l a in s , New Y ork 1 0 6 0 1 W en d ell B . A lc o r n , J r ., E sq . C a d w a la d er, W ick ersham & T a ft One W all S t r e e t New Y o rk , New Y ork 1 0 0 0 5 Howard L e s t e r , E sq . L e s t e r , Schw ab, K atz & Dwyer 120 Broadway New Y o rk , New Y ork 1 0 2 7 1 Stephen J . S c h le g e l, E sq. S c h le g e l & T r a fe le t, L td . One N o rth L a S a lle S t r e e t S u ite 3900 C h ica g o , I l l i n o i s 60602 John S a b etta , E sq. T o w n ley & U p d ik e 405 L ex in g to n Avenue New Y ork , New Y ork 1 0 1 7 4 W illia m K ro h ley , E sq . K e lle y , D rye & W arren 101 Park Avenue New Y o rk , New Y ork 1 0 1 7 8 David R. Gross, Esq. Budd, L arn er, K en t, G ro ss, & Rosenbaum 33 W ash in gton A venue N ew a rd , New J e r s e y 0 7 1 0 2 P ic illo B enton I-Iu sselw h ite, E sq . Law O f f ic e s o f B e n to n M u s s e lw h ite , S u ite 517 609 F an n in H ou ston , T exas 77002 In Thomas H en d erson , E sq . B ask in & S ea rs F rick B u ild in g - 10 th F lo o r P itts b u r g , P en n sy lv a n ia 15219 V ic to r J . Y annacone, J r ., E sq. Y annacone & Yannacone P .O . Box 109 P a t c h o g u e ,`New Y ork 1 1 7 7 2 Thomas A. B eck , E sq . A r th u r , D ry & K a lis h , P .C . 1230 A venue o f th e A m ericas New Y o rk , New Y ork 1 0 0 2 0 D avid D ean, E sq . Dean and F alan ga One O ld C o u n tr y R oad C a r le P l a c e , New Y ork 11514 A r v in M ask in , E sq . D epartm ent o f J u s t ic e Safew ay B u ild in g Room 904 D W a sh in g to n , D .C . 2 0 5 3 0 Judy S p a n ier, E sq . S h ea & G ould 330 M adison A venue 15th F lo o r New Y o r k , New Y ork 10017 Paul E sp o sito , E sq. -L e w is , O verbeck & Furm an 135 South L a S a lle S tr e e t S u ite 1060 C h ica g o , I l l i n o i s 60603 S o l S ch reib er, E sq. S p e c ia l M aster M ilb erg , W eiss, B ershad & S p e c th r ie One P e n n s y lv a n ia P la z a Room 4 9 1 5 , 4 9 t h F l o o r New Y o rk , New Y ork 1 0 0 1 9 C lerk o f th e P an el J u d ic ia l P an el on M u ltid is t r ic t L itig a tio n 1 1 2 0 V erm o n t A v e n u e , N .W . S u ite 1002 W a sh in g to n , D .C . 2 0005 ^ }L F n UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------- X In Re J "AGENT ORANGE" Product Liability Litigation ------------------------------------- X Le' fihrr P.M Ml (i PLAINTIFFS' MEMORANDUM ON THE APPLICABILITY OF THE LEGAL THEORIES OF FAILURE TO WARN, CONCERTED ACTION, ENTERPRISE LIABILITY AND ALTERNATIVE LIABILITY December 1, 19S3 PLAINTIFFS' MANAGEMENT COMMITTEE Mr. S t e p h e n J. Schlegel Schlegel & Trafelet, Ltd. One North LaSalle Street Suite 3900 Chicago, Illinois 60602 Mr. Benton Musslewhite Suite 517 - 609 Fannin Houston, Texas 77002 Mr. Thomas Henderson Baskin & Sears Frick Building - 10th Floor Pittsburgh, Pennsylvania 15219 1141 Introduction TABLE OF CONTENTS Page i FACTUAL BACKGROUND 1 I- DEFENDANTS W E R E K N O W L E D G E A B LE A B O U T THE MANUFACTURING PROCESS, DIOXIN AS A CON TAMINANT, DETECTION METHODS, RISK REDUCTION METHODS AND HEALTH HAZARDS ASSOCIATED WITH EXPOSURE TO DIOXIN A. Prior to Becoming a "Government Contractor" Dow had invented, Patented, and Sold Commercial Herbicides Containing a 50/50 Mixture of 2,4-D and 2,4,5-T B. Dow was K n o w l e d g e a b l e A bout the M a n u f a c t u r i n g Process of 2,4,5-T and Its Toxic Impurities C. D efendants were K n o w l e d g e a b le A b o u t D e t e c t i o n and Manufacturing Risk Reduction Techniques 2 2 4 25 D. D e f e n d a n t Monsa n t o ' s Knowledge About Manufacturing Process, Dioxin As Contaminant Detection Methods, Risk Reduction Methods, and Health Hazards Associated with Exposure to Dioxin E. D e f e n d a n t Diamond Shamrock C o r p o r a t i o n 's Knowledge About Manufacturing Process Dioxin As Contaminant, Detection Methods, Risk Reduction Methods and Health Hazards Associated With Exposure to Dioxin F. T.H. A g r i c u l t u r e and N u t r i t i o n 'C o m p a n y , Inc. Knew About Dioxin as a Contaminant in 2,4,5-T and Knew About Concomitant Health Hazards and Failed to Warn the Military G. The M i l i t a r y Was U n i n f o r m e d of T.H.'s Manufacturing Process and Its Capability for Risk Reduction 29 33 40 50 H. T.H. K n e w of Means For D e t e cting Dioxin An d Failed to Disclose Those Methods to the Military 53 11419 I. T . H . ' s Parti c i p a t i o n in the C o n s p i r a c y 55 J. T h o m p s o n C h e m i c a l Was K n o w l e d g e a b l e A b o u t The Manufacturing Process, Dioxin as a Contaminant, Detection Methods, Risk Reduction Methods, and Health Hazards Associated with Exposure to Dioxin 56 K. T.C. K n e w that a Highly Toxic Impurity Was in its TCP and 2,4,5-T L. H e r c u l e s I n c o r p o r a t e d W as K n o w l e d g e a b l e About The Manufacturing Process, Dioxin As a Contaminant, Detection Methods, Risk Reduction Methods and Health Hazards Associated with Exposure to Dioxin 56 59a II. D E F E N D A N T S ' MISREPRESENTATIONS OF THE SAFETY OF THEIR HERBICIDES TO OTHER GOVERNMENT AGENCIES 60 III. THE DEFENDANTS SUPPLIED DIOXIN CONTAMINATED HERBICIDES WHICH WERE MIXED TOGETHER BEFORE BEING SPRAYED IN VIETNAM MAKING IMPOSSIBLE I D E N T I F I C A T I O N OF W H I C H D E F E N D A N T 'S HE R B I C I D E CAUSED INJURIES TO PLAINTIFFS 73 IV DEFENDANTS' JOINT ACTION TO PREVENT GOVERNMENT PRODUCTION OF 2,4,5-T and 2,4-D 75 V. THE MILIT A R Y WAS NOT AS KNOWLEDGEA3LE AS THE DEFENDANTS ABOUT THE MANUFACTURING PROCESS, DIOXIN AS A CONTAMINANT, DETECTION METHODS, RISK REDUCTION METHODS AND HEALTH HAZARDS ASSOCIATED WITH EXPOSURE TO DIOXIN 77 VI. UNDER THE PRECEDING FACTS AND CIRCUMSTANCES, EACH DEFENDANT'S BREACH OF ITS SEPARATE DUTY TO WARN MAY BE CONSIDERED T H E "CAUSE IN FACT" OF P L A I N TIFFS' INJURIES, AND THE PROBLEM OF SEPARATE DEFENDANT IDENTIFICATION THEREFORE DOES NOT EXIST; BUT IN ANY EVENT, THE DEFENDANTS MAY BE HELD JOINTLY AND SEVERALLY LIABLE UNDER THE THEORIES OF CONCERTED ACTION, ENTERPRISE LIABILITY AND ALTERNATIVE LIABILITY A. The Facts and C i r c u m s t a n c e s W a r r a n t A p p l i c a t i o n of the Concerted Action Theory as a Basis for Defendants' Joint and Several Liability 82 114 20 96 B. The Facts and C i r c u m s t a n c e s of this Case al s o Warrant the Imposition of Liability Upon the Defendants Under the Theory of Enterprise Liability C. The Facts and C i r c u m s t a n c e s of this Case Also warrant the Imposition Liability Upon The Defendants under the Theory of Alternate Liability CONCLUSION 103 109 113 11421 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -----------------------------------------x In Re "Agent Orange" Products Liability Litigation X MDL No. 381 (All Cases) PLAINTIFFS' MEMORANDUM ON THE APPLICABILITY OF THE LEGAL THEORIES OF FAILURE TO WARN, CONCERTED ACTION, ENTERPRISE LIABILITY AND ALTERNATIVE LIABILITY INTRODUCTION Plaintiffs' Memorandum addresses the issue of whether the legal theories of concerted action, enterprise liability, or alternative liability may be applied here in the absence of evidence enabling plaintiffs to identify which defendants' tortious conduct caused the injuries complained of. However, plaintiffs do not solely rely on the aforementioned theories. It is plaintiffs' p o s i t i o n that: (1) ea c h d e f e n d a n t breached its duty to warn the government of the dioxin hazards to health known or which should have known by it to be associated with its own dioxin contaminated Agent Orange herbicide product and with the dioxin contaminated products sold by the other d e f e n d a n t s to the military; (2) that each defendant's breach of duty to warn was a substantial factor leading the military to decide to mix and deploy the dioxin contaminated Agent Orange herbicides supplied by defendants, w h i c h c a u s e d plaintiffs' injuries; and (3) that c o n s e q u e n t l y d e f e n d a n t s are liable as t o r t f e a s o r s jointly and severally for such injuries without any burden on the part of plaintiffs to identify and prove which defendant caused their injuries. If this Court agrees that the defendants' breach of their duty to warn carries such legal consequences, it need not decide with regard to the failure to warn issue, whether the theories of concerted activities, enterprise liability or alternative liability need to be applied on the identification/ causation issue. However, so that the Court may be in a position to consider the legal implications of all these theories, plaintiffs present herein a comprehensive historical record of defendants' c o n d u c t in the m a n u f a c t u r i n g and sale of' dioxin contaminated Agent Orange herbicides to the military for use in Vietnam, focusing on the realtions between the defendants and with the military and other government agencies during the period of the Vietnam era. Plaintiffs believe that this historical record fully supports any and all of the theories of concerted activities, 11423 11 alternative liability, enterprise liability, and that, should the Court deem it necessary to address the defendant identifi c ation c a u s ation issue, the d e f e n d a n t s m ay be held jointly arid severally liable under any of these three theories. In the detailed factual background statement which follows, a tragic hitherto unrecorded chapter of the Vietnam war is told of the misdeeds of chemical war contractors which injured American and allied soldiers. The defendant chemical companies owned or controlled virtually all of the Agent Orange herbicide production capacity. They supplied to the military, the sole source purchaser over 99% of the herbicides contracted for and received over 99% of the purch a s e price paid. (Exhibit 1) Each of the defendant's herbicides was contaminated with dioxin, in varying degrees and violated their contractual obligations to the military. Each defendant knew its product was contaminated and hazardous to human health. Each defendant knew that the other defendants' herbicides were dioxin contaminated and hazardous. Each knew, with varying degrees of expertise, how to eliminate or reduce the dioxin. None ever warned the trusting, less expert, military, or informed it of the dioxin problem and the means of its avoidance or elimination. 4 2 41L ? aiL in Instead, they conspired secretely and persistently to deceive the military and other government agencies about the matters hereinafter detailed which were of profound importance to the health of American soldiers and to the national security let alone to the American people generally. The.defendants used every device available to keep their dioxin problems confined to their inner circle and to keep the military and government agencies in the dark - secret meetings, confidential documents, misrepresentations, half truths, suppression and withholding of data and technology, task and trade association, fronts and position papers, ad hoc committees, and a myriad of other regrettable activits, which, if they had not occurred, might have led to military decisions which would have prevented the injuries inflicted by defendants. The full story is now told. 3 \> f iv FACTUAL BACKGROUND In order to address the issues of failure to warn and applicability of the theories of concerted action, enterprise lia bility and alternative liability, it is necessary to review in h i s torical sequence, the factual record as it has been developed to date The record is far from complete, but enough is already known upon which the Court may reach a preliminary judgment that the conduct, transactions and relationships between the defendants (horizontal) and between the defendants and the Government (vertical) are such as to warrant a finding that defendants have breached their duty to warn and that one or more of the above theories of liability are applicabl in this case. It is likely that additional discovery will, if a n y thing, buttress the appropriateness of applying these theories. We begin the review of the historical record with an examination of the knowledge and conduct of the defendant Dow Chemical Company, a key player in the events which followed and a linchpin connecting many of the horizontal and vertical relationships between the defendants and the Government in connection with the sale of the dioxin-contaminated Agent Orange herbicides which caused plaintiffs' injuries. Where necessary to present the full context of factual statements in this part of plaintiffs' memo, a limited number of documents have been appended which have previously been used as exhibits or referred to in plaintiffs' prior submissions or in depositions of the defendants and Government witnesses. U42R I. D E F E N D A N T S WE R E KN O W L E D G E A B LE ABOUT THE MANUFACTURING PROCESS, DIOXIN AS A CON TAMINANT, DETECTION METHODS, RISK REDUCTION METHODS AND HEALTH HAZARDS ASSOCIATED WITH EXPOSURE TO DIOXIN. A. Prior to B e c o m i n g a "Government Contractor," Dow had Invented, Patented and Sold Commercial Herbicides Containing a 50/50 Mixture of 2, .4-D and 2,4,5-T_________________________________ Dow admits to have known about a highly toxic impurity in 1/ 2,4,5-T since 1950. On A p r i l 15, 1970, Julius E. Johnson, V i c e - 1/ The record suggests Dow's earlier knowledge. 1. .1937--- F o u r h u n d r e d (400) lumber work e r s using Dowicide H (tetrachlorophenol), some of whom developed among other things, comedones, cysts and pustules (chloracne), urinary disturbances, skin leisons lasting seven years and marked hyperkeratosis; 2. 1 9 3 7 --- T w e n t y - o n e (21) work e r s at a D ow plant w h i c h m a n u f a c t u r e d tetrachlorophenol, some of w h o m developed the same symptoms as the 400 lumber w o r k e r s ; 3. 1 9 4 9 --- Ten (10) w o r k e r s exposed in Nordheim, W. Fahlen in the manufacture of 2,4,5-TCP, some of whom developed neuralgic pains, heart disorders and chloracne; 4. 1 9 4 9 --- One h u n d r e d s e v e n t e e n (117) workers exposed in the m a n u facture of 2,4,5-T and 228 family members and medical personnel dealing with the exposed workers, at a Monsanto plant in Nitro, West Virginia some of whom developed chloracne, liver damage, vomiting, papable liver and tiredness; 5. 1 9 5 4 --- T h i r t y - o n e (31) w o r k e r s at a C.H. Boehr i n g e r p l a n t exposed in the manufacture of 2,4,5-TCP and 2,4,5-T, some of whom develops liver damage and chloracne; 5. 1 9 5 6 --- T w e n t y - n i n e (29) w o r k e r s in a Dia m o n d Alkali (now D i a m o n d Shamrock) plant exposed in the manufacture of 2,4,5-T some of whom developed porphyria cutanea tarda, hyperpigmentation and hirsutisrr and 7. 1 9 6 4 --- F o r t y (40) plus wor k e r s in a Dow p l a n t in Midland, Michigar exposed in the manufacture of 2,4,5-T, some of whom developed chloracne and complaints of tiredness, weakness, and depression with some reduction in hemoglobin and red cel counts. Some worker with metaplastic changes were examined. 11427 -2- President and Director of Research for Dow, gave a statement before a subcommittee of the United States Senate Committee on Commerce. Mr. Johnson stated: Since 1950 we have been keenly aware of the possibility of a highly toxic impurity being formed in 2,4,5-trichlorophenol as a side reaction under conditions of elevated processing t e m p e r a t u r e s ...We also knew that if the impurity was present in the 2,4,5-trichlorophenol it could be carried forward to the end product, 2,4,5-T. A review of Dow's history of 2,4,5-trichlorophenol (hereafter "2,4,5-TCP") and 2,4,5-T production confirms that statement. Dow began making 2,4,5-TCP in mid-1946. In 1948, Dow registered its first 2,4,5-T product under the Federal Insecticide, Fungicide and Rodenticide Act. Since 1948, Dow has manufactured a number of products containing by volume (minus inert ingredients) a 50/50 mixture y of 2,4,5-T and 2,4-D. One such product was Brush Killer 50-50. Absent inert ingredients, that product contained a 50/50 mixture of 2,4,5-T and 2,4-D. In addition to Brush Killer 50-50, Dow also manufactured Brush Killer LV 2-2, Tippon 2-2, Verton CE, and Veon Brush Killer, each of which is approximately a 50/50 mixture of 2,4-D and 2,4,5-T. Dow patented Tippon 2-2 and Brush Killer 50-50. 2/ "Agent Orange" was a 50/50 mixture of 2,4,5-T and 2,4-D. -3- In the m a n u f acture of its commercial 50/50 mixtures of 2,4-D and 2,4,5-T, Dow developed internal specifications. Those specifications dealt with the manufacturing processes and the compositions of the final products. in addition to product specifications, Dow developed "accepted quality control procedures" and "quality requirements." Prior to selling "Agent Orange" to the United States Military, Dow was thoroughly familiar with commercial 50/50 mixtures of 2,4,5-T and 2,4-D. Prior to selling "Agent Orange" to the United States military, Dow had developed internal specifications and quality control programs for the production of commercial herbicides containing a 50/50 mixture of 2,4,5-T and 2,4-D. As the result of direct manufacturing experience ......... - ,J7. i 1 ~ ..............- -- since 1948 of commercial products containing 2,4,5-T, Dow developed a tremendous expertise with respect to that particular phenoxy herbicide. B. Dow was K n o w l e d g e a b l e A b o u t the M a n u f a c t u r i n g Process of 2,4,5-T and Its Toxic Impurities Though Dow has withheld as proprietary and confiden tial the specific manufacturing processes it utilized from 1948 to 1970, it is g e n e r a l l y known that Dow produced 2,4,5-T through the following process: vsc*. rvi^r-vw '/la _4 _ 1. C a u s t i c H y d r o l y s i s a. A s o l u t i o n of c a u s t i c (believed to be sodium hydroxide) in methanol was formed; b. The c a u s t i c and methanol were mixed with tetrachlorobenzene; c. The solution of caustic and methanol and tetrachlorobenzene were placed in a reactor under pressure and heat. 2. P r e p a r a t i o n of S o d i u m Sa l t of 2 , 4 , 5 - T C P a. D i s t i l l a t i o n of m e t h a n o l under heat; b. D i s t i l l a t i o n of w a t e r u n d e r heat; c. Driving off of trichloroanisole under heat; 3. C o u p l i n g S o d i u m 2 , 4 , 5 - t r i c h o l o p h e n a t e and MonochlorjDacetic Ester In 1945, Dow conducted the first rabbit skin test on the trichlorophenol process material. At that time the caustic insoluble oil from the 2,4,5-TCP process was found to cause acneform dermatitis on the rabbit's skin. As early as 1945, Dow knew that exposure to trichlorophenol process materials could cause acneform dermatitis. In 1952 Dow went from a "batch" process to a "continuous" process. By 1956, Dow learned of the particular substance in the 2,4,5-TCP and 2,4,5-T which was responsible for the acneform dermatitis. Knowledge of the toxic contaminant in 2,4,5-TCP was learned by Dw from the C.H. Boehringer Sohn Company of Germany. In 1951, C.H. Boehringer began experimenting with the p r o d u c t i o n of 2,4,5-TCP. B e t w e e n 1952 and 1954, 19 c a s e s of serious -5- c h l o r a c n e a p p e a r e d at the I n g e l h e i m p l a n t and 18 c a s e s a p p e a r e d at the Hamburg plant. The problem became so serious that production was halted at the Ingelheim plant in December of 1954. In the spring of 1955, production was halted at the Hamburg plant. The plants were closed. To test for toxicity in the plants, rabbits were placed on each of the floors with the doors and windows closed. All the rabbits died within five days. Autopsies showed pronounced liver changes and liver necrosis. By June of 1955, Dr. K.H. Schulz of the University Skin Clinic in Hamburg-Eppendorf had found that the "chloracne inciters" were present in the phenol,and the 2,4,5-trichlorophenolate solution. Dr. Schulz further determined that the anisle fraction was the carrier of the chloracnegenic substance. In 1956, Dr. Schulz identified the offending substance as 2,3,6,7-tetrachlorodibenzodioxine . Because C.H. Boehringer was having such difficulty w i t h c h l o r a c n e in the m a n u f a c t u r e of 2 , 4 , 5 - T C P , it s o u g h t outside help. C.H. Boehringer was put in touch with Dow. On January 27, 1955 Dow wrote to Boehringer, " [E]nclosing a data sheet describing the hazards due to toxicity and precautions for safe handling and use of 2,4,5-trichlorophenol and ansv/ered seven specific questions regarding experience in our own plant." In the course of attempting to identify the cause of the chloracne, researchers at C.H. Boehringer identified tetrachlorodibenzodioxine in 1956. As a r esult of C.H. B o e h r i n g e r 's i d e n t i f i c a t io n of dioxin as the chloracnegenic agent in 2,4,5-TCP, C.H. Boehringer instituted certain process changes to prevent the formation of dioxin. Since Dow had provided C.H. Boehringer information in 1955 concerning the chloracne problem, C.H. Boehringer sent to Dow, on February 11, 1957, information on the preparation of trichlorophenoxyacetic acid in a manner to avoid the formation of "chlorakne exciters." information was sent by C.H. Boehringer to all known producers 3/ of chlorophenol. In April, 1957, Dr. Schulz reported his findings w i t h respect to 2,3,7,8-tetrachlorodibenzodioxine together with Pro f e ssor Kimmig in "Die Naturwissenshaften" 44:337-338 (1957). In the article, Kimmig and Schulz described the appearance of workers at C.H. Boehringer's plants who had been exposed to the trichlorophenol c o ntaining the 2,3,6,7-tetrachlorodibenzodioxine which they believed to be the culpr it: The appearance of the illness was characterized by a scattering of comedones, pustules, small sebum retaining cysts in the regio-ns of' the face, neck, b r e a s t s , back, a n d extremities. Damages to liver functioning was determined in individual cases. 3/ This suggests that the other defendants knew at the time that - Dow did, how to avoid the formation of the toxic impurity that was causing the chloracne problem. t Kimmig and Schulz looted the "high general toxicity" of the compound and found upon autopsy of exposed rabbits "severe necroses as well as diffuse adiposis of the liver." The article states: "It was also p o s sible to isolate a tetrachlorodi b e n z o - dioxane, identical to the synthesized model substance, from the by-products resulting in the industrial pressure'phenol process." Dow either had a copy of the Kimmig and Schulz article in 1957 or sho u l d have had a copy of that article in light of their e x t e n s i v e d e a l i n g s w i t h C.H. B o e h r i n g e r . i- Coptcnber, liJCT. / D o w made a two-w e e k pilot p l a n t run using an approximate 24% caustic solution diluted with water. 4/ was raised. Again, the temperature In July, 1963, Dow shut down building 199, where 2,4,5-TCP was m a n u f actured, to install n e w e q u i p m e n t to increase D o w 's capacity to hydrolyze tetrachlorobenzene to 2,4,5-TCP using the 22% caustic solution. After reopening, Dow was "running at the limit of (its) h y d r o l y z i n g capacity". Dow was "pushing (the) e x i s t i n g plant to (its) limit." "Whenever p r o d u c t i o n is i n c r eased it is usually done by increasing the temperature of the synthesis 4/ The caustic insoluble oil from the production of 2,4,5-TCP was studied by the Biochemical Research Laboratory of Dow and found to be an active chloracnegen. -8- On J u l y 3, 1963, an e v e n t o c c u r r e d w h i c h illustrates that Dow and the defendant Hercules were both fully aware of the hazards associated with the use of 2,4-D and 2,4,5-t . On that date, Dr. John P. Frawley, Hercules' C h i e f Toxicologist, wrote to V.K. Rowe, Chief Toxicologist for the Dow Chemcial Company, to discuss the hazards associated with the use of 2,4,-D and 2,4,5-T. The letter reads in part as follows: "Dear V.K.: Several weeks ago I mentioned to Don McCallister that Dr. Jack Leary of U.S.D.A. has approached Hercules and Monsanto with a request to conduct subacute dermal toxicity studies on at least one chlorinated phenoxy herbicide. On June 27th, I had an opportunity to review this request with Leary and I will try to report to you the background. Undoubtedly you have seen the clinical reports of four cases of neuropathy which allegedly have been caused by 2,4-D salts and esters. (Archives o f I n ternal Medicine, Vol. 3, 1963, pp. 133-134; J.A.M.A. N o v e m b e r 7, 1959 p p . 1306 to 1389) In addition, I have heard of one previously unreported case involving a product liability claim which was successfully defended by a formulator. To my knowledge, Leary has not heard of this case... On the basis of these reports Leary feels that the hazards associated with the use of 2,4,-D and 2,4,5-T products should be understood more thoroughly. He specifically wishes to know whether repeated dermal exposure of animals to the free acids and the various salts and esters will cause peripheral neuropathy or the other related symptoms. He plans to make -an informal r e q u e s t of each m a n u f a c t u r e r to s t u d y at l e a s t one such product... Frankly I believe Leary's request is reasonable. It could have been m ade in the form of a dema n d and not a request, and certainly could have involved far more extensive design. I believe it is desirable for you, Bill Hunt and myself to confer on the desirability of conducting such studies and to consider carefully the design and the selection of minimum number of these products for such study... I also suggest that we handle such discussions by requesting NACA to appoint an ad hoc toxicology sub-committee c o n s i s t i n g of the three of us. A f t e r we ha v e c r y s t a l i z e d our own thinking we can invite others to serve as we see fit and can negotiate with USDA as a technical committee... Since Dow is g e n e r a l l y reg a r d e d as the largest m a n u f a c t u r e r of phenoxy herbicides, I suggest that you serve as Chairman o f this c o m m i t t e e . .. Sincerely, J o h n P. Frawley, P.H.D. 34 Chief Toxicologist..." This letter reveals three significant facts. First, the United States Department of Agriculture as early as July, 1963, was relying upon the phenoxy herbicide industry to make the studies necessary to determine whether phenoxy herbicides were toxic to humans. Second, both Dow and Hercules had seminal knowledge of problems associated with consumer use of 2,4,5-T, and third, in order to insure against any adverse findings, NACA (National Agricultural Chemical Association), an industry operated lobbying group would appoint industry representatives to "negotiate" with USDA so that the design and study of toxicity and potential hazards to human health would be minimal and not 5/ get out of hand. Incredible as it may seem, given its extensive knowledge of health hazards associated with the use of 2,4-D and 2,4,5-T in 1963, Dow affirmatively misrepresented to the United States military: (W)e have been manufacturing 2,4-D and 2,4,5-T for over ten years. To the best of our knowledge, none of the workmen in these factories have shown any ill effects as a result of working with these chemicals. 5/ From this seminal undertaking later emerged in the years 1965, 1966, and 1967, an industry-wide conspiracy whose sole function was to defraud the military and the government by concealing from them the knowledge which and the phenoxy herbicide industry possessed about dioxin as a contaminant poison in 2,4,5-T and its potential hazards to human health. -10- Dow made that representation knowing about the prior occupational health problems in its own and other chemical company plants, and knowing about C.H. Boehringers' horrifying experiences with chloracne and liver damage in 1954. Apparently Dow thought in 1963 that the military would be i n t e r e s t e d in D o w 's i n d u s t r i a l health history in the m a n u facture of 2,4,5-T as a benchmark of safety. As the result of pushing its production capacities to the limit where the temperatures employed were increased, workers in the Dow plants began to experience chloracne. In August of 1964, Dow utilized vapor phase chromatography to detect dioxin in the waste oils. The waste oils were fractionated, dioxin isolated and identified. Dow then proceeded to synthesize dioxin in the laboratory. In November, 1964 Dow prepared internally a confidential memorandum on an analytical method for "The Determination of 2,3,7,8-Tetrachlorodibenzo-p-Dioxin in 2,4,5-Trichlorophenoxyacetic Acid by Gas-Liquid Chromatography." The analytical method was for detection of cioxin in 2,4,5-T, the end product and not only for 2,4,5-TCP, the intermediary. Dow apparently thought it was necessary to analyze its end product. -ii- Y 8 Thus, by November, 1964, the Dow Chemical Company had identified dioxin as the toxic compound causing chloracne, an admittedly hideous disfiguring disease. This identifi cation of dioxin as the causative factor in the known health problems as set forth in the November 30, 1964 memorandum on the stationary of "The Dow Chemical Company", titled "The Determination of Compounds Capable of Causing Chloracne in 2,4,5-Trichlorophenol Process Samples By Gas-Liquid Chromatography." This memorandum describing the methods and means for detecting dioxin was later to be distributed to those attending the secret March 24, 1965 "dioxin" conference, described infra. Dow sought to advise the other manufacturers of 2,4,5-T that Dow knew their products were contaminated. Dr. R.C. Dosser of Dow pointed out to Mr. E.T. Upton of T.H. (Defendant T.H. Agri c u l t u r e & Nutrition, Inc.) in a telephone conversation on or before January 12, 1965: -12- [t]hat if a compound, found in 2, 4 , 5 - T acid or its esters, proved to be damaging that this might lead to a flurry of successful c l a i m s b y users of the herbicide who a l l e g e d l y had been inj u r e d b y it. On February 18, 1965, Dow held an internal "Exciter" Problem, Meeting. Minutes of that meeting state: Otis introduced the meeting by indicating that recent information indicates "Exciter" components may be present in Dow 2,4,5 - t r i c h l o r o p h e n o l . Bioproducts is concerned about 2,4,5-T acid, esters, formulations, silvex, ronnel, and Erbon. This meeting is to review status of our knowledge of this subject, potential hazards, possible effect on Dow image, legal implications, and need for possible quarantine. These basic decisions are to be made without consideration of economic impact. As a result of that meeting, Dow determined to meet with the other producers of 2,4,5-T. In February, 1965, Dr. Frawley, Chief Toxicologist of defendant Hercules learned from V.K. Rowe, Dow's Chief Toxicologist that 2,4,5-T was contaminated with an acnegen. This is the toxic impurity which was more accurately identified by Dr. Rowe at the secret conference called March 24, 1965 at Dow's headqu a r t e r s in Midland, Michigan. Prior to M a r c h 1, 1965, V.K. Rowe of D ow c o n t a c t e d the Medical Director (Emett Kelly, M.D.) and Assistant Medical Director at M o n s a n t o and the Chief T o x i c o l o g i s t at H e rcules (John P. Frawley) concerning dioxin contamination. -13- 1~ On M a r c h 19, 1965, D o w entered into a letter agreement with C.H. Boehringer, concerning the disclosure of processes and/or apparatus and/or production information regarding the prevention of incidence of chloracne arising out of the production of 2,4,5-T. The a g r e e m e n t p r o v i d e d for C.H. B o e h r i n g e r to d i s close to D o w t e c h n i c a l k n o w - h o w d e s i g n e d to p r e v e n t the occurrence of chloracne. The documentation and information was submitted within a covenant of secrecy. The agreement was to come into force D e c e m b e r 7, 1964 and be valid for a p e r i o d of ten years u n t i l Dec e m b e r 6, 1974. The importance of secrecy was emphasized in the following provisions: "You agree to keep any documents concerning the process as well as all verbal or written in formation and data strictly secret. You will bind your collaborators who get knowledge of this information, documents and data to the same obligation as that assumed by Dow by requiring them to execute an individual commitment. The obligation of secrecy hereunder shall not apply to any item of information disclosed hereunder which: 1. D o w can d e m o n s t r a t e was k n o w n to D o w and in its possession prior to disclosure by Boehringer on or after December 7th, 1964, or 2. Is n o w or h e r e a f t e r beco m e s g e n e r a l l y available to the public without fault of Dow, or 3. D o w can d e m o n s t r a t e w as o b t a i n e d by i t in good faith from a third party having a bona fide right to make such disclosure." We do n o t kno w at this time whether or the extent to w h i c h or at what time if ever, the existence of this agreement was made known by Dow to the other defendant chemical companies or the Government. -14- On March 19, 1965, V.K. Rowe of Do w wrote an identical letter to Enmefct Kelley, M.D., Dr. J. W i l k e n f e l d of Hooker Chemical Corporation, Mr. Raymond Verhoeze of Hooker Chemical Corporation, Mr. Francis Kennedy, Plant Manager of Diamond Alkali Company, Dr. Ed Chandler, Technical Services, Diamond Alkali Company, and Dr. John P. Frawley. That letter stated: [I] a m i n v i t i n g e a c h of you to c o m e to Midland to discuss the toxicological problems caused by the presence of certain highly toxic impurities in certain samples of 2,4,5-trichlorophenol and related materials. Our discussions will deal only with toxicological and analytical aspects of the problem. We will not discuss manufacturing know how, sales, or anything else not dealing with the problems of health. See, E x h i b i t 2 . The m e e t i n g occurred on M a r c h 24, 1965. Present at that meeting were: Dr. Wilkenfeld and Raymond Verhoeze of Hooker Chemical Corporation, Mr. Francis Kennedy and Dr. Edward C h a n d l e r of Diamond Alkali Company, and Mr. C.L. Dunn and Dr. J o h n P. F r a w l e y of H e r c u l e s P o w d e r C o m p a n y . At the meeting "V.K. R o w e r e c apped the Dow s i t u a t i o n in terms of the problem and the initial studies by Toxicology and Environmental Research Laboratory regarding the in-plant situation. He expanded this in general terms to the study of end p r o d u c t s , o u r s and other p e o p l e s . " S e e . E x h i b i t 3. ^ number of the attendees at the March 25, 1965 meeting drafted memos to file. Those memos are worth reviewing in their entirety. jF * * -15- A memo to file from E.L. Chandler of Diamond Alkali Company notes, among other things: The Dow people state that they intend to set a l i m i t o f z e r o w i t h s e n s i t i v i t y of p l u s or minus 1 ppm on this material. They have analyzed materials from other companies, including our company, and have found amounts as h i g h as 10 p p m in 2 , 4 , 5 - T acid (end product) and 20 to 30 ppm in p henates. They have made a single application to the ear s of test rab b i t s and have found that 20 ppm will not give folliculitis. Forty ppm d o e s g i v e a s l i g h t effect, a nd 100 p p m is severe. They have made repeated applications of from 10 to 100 ppb, and 25 of these treatments do not cause a response; however, 1 0 0 0 p p b (1 ppm) g i v e s a s l i g h t r e s p o n s e w i t h nine applications and a severe reaction with 11 applications. They conclude, therefore, that 1 ppm with repeat exposure can create a real problem. See, Exhibit 4 (Emphasis added). It is clear that Dow believed in 1965 that 1 ppm with repeated e x p osures presented a significant health hazard. C.L. Dunn of Hercules Powder Company also prepared a memo to file. In that memo Mr. Dunn notes, "Rowe e x p r e s s e d concern that carry-through of toxic materials into final formulated herbicide products may occur unless precautions are t a k e n . " S e e , E x h i b i t 5 , p. 1. On p a g e 2 of that m e m o to fi l e is found: " E v i d e n c e that the c h l o r a c n e g e n s m a y be s y stemic."; and "Hooker and Diamond people were quite aware of chloroacne. One of the Hooker people said that some cases are believed to relate to exposures occurring 20 years before." On page 4 -16- 1 JL. of that memo to file Mr. Dunn recorded the detection limits for Dow's gas chromatography: "2,4,5-TCP - 1 p.p.m." and "2,4,5-T acid - 1 p . p . m . " See, E x h i b i t 5 , p. 4. On page 5 is found: "C o m p e t i t o r p r o d u c t s - D o w ha s e x a m i n e d a l l m a n u f a c t u r e r ' s 2,4,5-T products. Some have "surprisingly high" amounts of chloroacnegens. This defined as 10 p.p.m. in 2,4,5-T acid, and up to 30 p.p.m. in 2 , 4 , 5 - t r i c h l o r o p h e n a t e ." Id-/ p. 5. Similarly, J. W i l k e n f e l d of Hooker Chemical Company recorded the information he had received at Dow on March 24, 1965. Dr. Wilkenfeld noted: Work with rabbits with washing after exposure, sometimes as soon as 15 minutes after application, did not stop the development of the chloracne and single, oral d o s e t o x i c i t y t e s t s (not (?) m 50) r e s u l t e d in the death of some rabbits at 17 micrograms per kilo. Peripheral liver cell necrosis occurred in some rabbits where the washing was done. The c u r r e n t inplant w o r k i n g limit is "no response" with less than one ppm by chromatography considered safe. When they were having difficulty, chloracne causers were in the order of 20 - 30 ppm. See, Exhibit 6 (parenthetical unclear). Not a single government representative was invited to attend the March, 1965 meeting. Dow nor any of the other defendants has produced any evidence suggesting that the information conveyed by Dow to the other d e f e n d a n t s at the Ma r c h 24, 1965 m e e t i n g was conveyed to any government representative or more properly, a high-ranking military official. 17 Defendants other than Dow were also communicating with each other as to their chloracne and dioxin p r o b l e m s . On April 9, 1965, Dr. Fraw l e y (Hercules) sent a m e m o r a n dum to Mr. C.L. Dunn. In the memorandum, Dr. Frawley refers to obtaining information from Monsanto, "...regarding the problems they and Badische have had on chloracne..." He then goes on to report that, "...from the data provided, a sample which contained 5 ppm of the Dioxin would be acutely toxic. Whether this refers to death or liver damage is not clear..." On J u n e 24, 1965, V.K. R o w e of D o w 's B i o c h e m i c a l R e s e a r c h L a b o r a t o r y wrote letter to Ross M u l h o l l a n d , Manager, Bioproducts, Dow Chemical of Canada. In that letter, Mr. Rowe stated : As you well know, we had a serious situation in our o p e r a t i n g p l a n t s b e c a u s e of contamination of 2,4,5-trichlorophenol with i m p u r i t i e s , the m o s t a c t i v e of w h i c h is 2 , 3 , 7 ,8 - t e t r a c h l o r o d i b e n z o d i o x i n . Thi s m a t e r i a l is e x c e p t i o n a l l y toxic; it has tremendous potential for producing chloracne a n d s y s t e m i c injury. If it is p r e s e n t in t he trichlorophenol, it will be carried through into the T acid and into the esters and hence into formulations which are to be sold to the p u b l i c ^ One of the things which we w a n t to avoid is the occurrence of any acne in consumers. I am particularly concerned here with persons who are using the material on a $*3 -18- daily, repeated basis such as custom operators m a y use it. If this should occur, the whole 2,4,5-T industry will be hard hit and I would expect restrictive legislation, either barring the m a t e r i a l or putting very ridged controls upon it. This is the main reason why we are so concerned that we clean up our own house from within, rather than having someone from wit h o u t do it for us. In this way, we can approach the problem in an orderly manner. If the producers and handlers of this material will cooperate, there is no reason why we cannot get this problem under strict control and thereby hopefully avoid restrictive legislation; in other words, let us practice good citizenship. We are not in any way attempting to hide our problem under a heap of sand, but we certainly do not want to have any situations arise which will cause the regulatory agencies to become restrictive. Our p r i m a r y o b j e c t i v e is to a v o i d this. I trust that you will be very judicious in your use of this information. It could be quite embarrassing if it were misinterpreted or misused. See, E x h i b i t 7, (emphasis a d d e d ) . In k e e p i n g with the d e sire to maintain secrecy, V.K. Rowe wrote as a postscript, "under no circumstances may this letter be reproduced, shown, or sent to anyone outside of Dow." I d . Later, a telephone c o n v e r s a t i o n took place on J u l y 9, 1965 b e t w e e n Dr. John P. Frawley, Chief T o x i c o l o g i s t for H e r c ules, and Earl Farnham, a Dow Company executive, who, according to this memorandum, was calling Dr. Frawley on behalf of Dow Vice-President, Donald Baldwin. The document dated July 12, 1965, an d marked "Conf idential", reads as follows: (Exhibit 8) 4,,4 4 -19- "NOTE TO JAC K S O N V I L L E ARKANSAS PLANT FILE, Re: 2,4,5-T On July 9, 1965, Mr. Earl F a r n h a m of D o w Chemical C o m p a n y telephoned stating that he was calling at the request of Mr. Donald Baldwin, Vice-President of Dow to inquire how serious I considered the chloracne problem in relation to the consumer use of 2 , 4 , 5-T. When I suggested that he should discuss this with Hercules management rather than with me, he stated that on the advice of their toxicologists, Dow had gone to great expense to alter their manufacturing conditions in order to produce 2,4,5-T acid which has less than 1 ppm acnegen. Since several months ago, Dow had made available to all other producers the same data which convinced their toxicologists to set an internal specification of 1 ppm on the acid, they had assumed that the other producers would take similar action. On the basis of their chemical analyses, they are convinced that no one else has done anything to remove the acnegen from their 2,4,5-T and consequently, they wanted my opinion whether they had been misadvised by their own toxicologists. I advised Mr. Farnham that I did not think this was a proper question for me and that he should seek outside advice from a private consultant if he doubted the advice of his own toxicologists. I pointed out that considerable individual professional judgment would be involved in establishing a specification of this type because all of the important facts are not known. He then stated that Dow was extremely frightened that this situation might explode. They are aware that their competitors are marketing 2,4,5-T which contains "alarming amounts" of acn egen and if the g o v e r n m e n t learns of this, the whole industry will suffer. They are particularly fearful of a Congressional investigation and excessive restrictive legislation on manufacture of pesticides which might result. I advised Mr. Farnham that we shared his fear but were not aware of his allegation that the competitors' products were hazardous. He asked if Hercules had established an internal specification. I stated that he should discuss this with someone in our m a n a g e m e n t and r e f e r r e d h i m to Mr. Copeland. I reminded him that we had experienced great difficulty in conducting the analyses for the acnegen by the Dow procedure, and that only within the past few weeks, following a visit of our chemists to Midland, have we been able to obtain any useful information. I suggested that if he wanted any additional information on this problem he should talk to Mr. Copeland. He asked that he be transferred to Mr. Copeland. (After the call was transferred I learned that Mr. Cop e l a n d was out of town and Mr. Farnham left w o r d that he would call on Monday, July 12)" -20- 0 The documents reveal that the chemical companies were all aware that their dioxin level in Agent Orange was totally unaccep table and a potential health hazard. No such communication or any of the information described above was ever transmitted by any chemical company to the Government or the military, even though the chemical companies knew that the dioxin level of some of the herbicides ranged from 20-140 ppm, and they all knew that their contaminated herbicides were being mixed together in drums before use in Vietnam. Silence and confidentiality were the code words utilized to conceal the knowledge which these defendants had amassed con cerning the potential health hazards associated with the contaminate Agent Orange herbicides. It is clear from the record that no one in the military was advised of the contamination of the defendants' Agent Orange herbicides with dioxin and of the concomitant health hazards until March 6, 1970. On that date, representatives of Dow provided a briefing to representatives of the United States military. The subject of that briefing was dioxin as an impurity in 2,4,5-TCP and 2,4,5-T. At that briefing, Dow representatives presented the following information on 2,4,5-T: -21- 1 Since 1950 it has been known that 2 , 3 , 7 , 8 - tetr a c h l o r o di b e n z o - p - d i o x i n is an impurity associated with 2,4,5-trichlorophenol (TP). The latter m a t e r i a l is used in the m a nufacture of 2,4,5 T. D i o x i n is a h i g h l y t o x i c m a t e r i a l ... In 1964, Dow closed their plant which manufa c t u r e d 2,4,5T due to widespread acne among plant workers. Dioxin and other impurities were found in the 2,4,5T. The plant was cleaned and the manufacturing process was changed to eliminate the dioxin and other impurities. The Dow 2,4,5T now contains less than 0.5 ppm of dioxin. See, E x h i b i t "9. The deposition of Dr. Robert Darrow is instructive on the level of the United States military's knowledge with respect to diox i n as late as March of 1970. Dr. Robert Darrow a t t e n d e d the m e e t i n g on M a r c h 6, 1970 at the P e n t a g o n w i t h Dr. C harles Minarik as representatives of the Crops Division at Fort Detrick. During examination by defendant's counsel, the following transpired: Question: Can you recall a meeting which took place on or about March 11, 1970, at which various representatives of Dow met with Gen. W i l l i a m Sloan (sic) and various others concerning Agent Orange? Mr. O ' B r i e n : (Objection) Mr, K r o h l e y: (question rephrased) Mr. O'Brien: (Objection) Answer: I was at a meeting with Dow's representatives but I don't recall the of it. The name General Sloan doesn't register with me. I'm not sure. date -22- Q u e s t i o n ; Do you recall what if anything you said at that meeting. Answer : I just listened. I didn't say anything. Q u e s t i o n : Do you r e c a l l w h a t if a n y t h i n g Dr. Minarik said at that meeting? Mr. O'Brien: Same Objection. Answ e r : The presentation was given by the Dow people. That was it. They presented information. Q u e s t i o n : Anyone at the meeting, Dr. Darrow, did they say in words or in substance to the Dow r e p r e s e ntatives why didn't you tell us about this before? Answer : I think the feeling was there but I'm not sure it was said. We were surprised when we got the information at this time. Question : By "we" who are you referring to? Answer : Dr. Minarik and myself. Question: Do y o u'recall what if anything was said in that regard by anyone at the meeting? Answer: No specific comments, no. In other words, this represented information that we w e r e r e c e i v i n g for the f i r s t time in this respect on the dioxin situation. Question: Where was that meeting held? Do you recall that? A n swer: It w a s in the P e n t a g o n . It was' in Washington, D.C., in the Pentagon. -23- Without any doubt, Dow and the other defendants in this litigation had conspired to withhold information from the United States military concerning dioxin contamination of the Agent Orange herbicides. On June 15, 1970, Dow wrote a letter addressed as follows: The H o n o r a b l e M e lvin R. Laird Secretary of Defense The Pentagon Washington, D.C. See, E x hibit 10. In that letter, Dow a d v i s e d the Secretary of Defense that Dow's Agent Orange contained one part per million of dioxin and that "certainly such a product is safer in use than one containing larger quantities". Thus was culminated a period of relationship between the government and defendants which began with Dow's misreresentations in 1963 of the safety of its herbicides and ended in 1970 after a continued conspiracy of silence and failure to warn, with admissions of their high toxicity, and the fact higher dioxin levels meant greater safety hazards. It is clear also that during the period of time of their relationship with the military, the defendants also withheld from the military their considerable knowledge about detection and manufacturing risk reduction techniques. -2 4- C. D e f e n d a n t s w e r e K n o w l e d g e a b le A b o u t De t e c t i o n and Manufacturing Risk Reduction Techniques Risk reduction requires a problem, method for investiga ting the problem, remedial action and a method for monitoring to prevent recurrence. The "highly toxic impurity" problem defined itself in 1937 when 400 lumber workers developed chloracne. The method for investigating the problem was animal testing which Dow did not undertake. The remedial action was a change in the manufacturing process. Plaintiffs are unaware whether such a change was made. As of 1941, the method for monitoring to prevent the recurrence was the rabbit skin test. In 1964, the problem was the same. The method for investigating the problem was gas liquid chromotagraphy and sample preparation techniques. The remedial action, at least w i t h respect to Dow was the purchase and implementation of C.H. Boehringer technology to produce 2,4,5-TCP and 2,4,5-T with less 6 than one ppm of dioxin. The method for monitoring the problem to prevent recurrence was liquid gas chromatography and separation techniques pioneered by Dow. 6/ The C.H. Boehringer technology called for, among other things, reducing the temperature of the reactor (autoclave) j to a m a x i m u m of 175 degrees centigrade; no more than 20 j a t m o s p h e r e s (hereinafter "atms") of pre s s u r e in the j reactor; rinsing salt deposits from the reactor after each \ use; cessation of the introduction of sodium hydroxide if the t e m p e r a t u r e or p r e s s u r e in the reactor w e n t above the maximum; distillation of methanol under heat and 5 atms until temperature at head has risen to 88-90 degrees centigrade with a cessation of distillation when -> ^ t r i c h l o r o a n i s o l e a p p e a r s ; m a x i m u m t e m p e r a t u r e of 11-5 0 degrees c e n t i g r a d e in the sump phase to prevent excess water evaporation from the phenolate solution; addition of water before driving off the trichloroanisole solution (primary carrier of dixion) by steam./ There can be no doubt that Dow was familiar with risk reduction techniques of a detection and manufacturing nature and the Dow had total discretion in the decision of whether to employ those techniques. The m i l i t a r y p l a c e d no r e s t r i c t i o n s on t h e defendants with respect to their manufacturing processes. Dow had clear discretion in the choice of processes to use. Dow well under stood that the process used determined the amount of dioxin in the 2,4,5-T. Dr. B.B. Holder, Medical Director, Medical Depart ment of Dow admitted: In 1964 at the trichlorophenol production area a process alteration was made changing the temperature and pressure levels previously used. It was well understood by all involved that we had to be extremely careful in process changes to prevent the formation of excessive chlorinated dioxins and similar toxic compounds. Dow was fully aware of process alternatives. In fact, to lower the dioxin contamination of its 2,4,5-TCP and 2,4,5-T, Dow purchased, in 1965, parts of a 2,4,5-TCP process from C.H. Boehringer. Dow had absolute freedom to do so. Dow was so concerned about end p r o d u c t c o n t a m i n a t i o n that on M ay 4, 1965, it e s t a b l i s h e d a specification requiring a gas liquid chromatographic analysis of all 2,4,5-T leaving the plant. Had the military known that different temperatures, pressures, alcohols, and phenolate water content resulted in different levels of dioxin contamination, there can be no doubt, the military would have required the safest method. -26- J * i /? a* N o t h i n g speaks m ore c l e a r l y to the effe c t of d i f f e r e n t processes on the level of dioxin contamination and to d e f e n d a n t s ' k n o w l e d g e on that s u b j e c t than the Jtollading e x c e r p t from an internal document: Chlorophenol and derivatives producers are Dow, Monsanto, Hercules, Diamond and Hooker- Dow and Hooker isolate and distill the trichlorphenol prior to sales and use, and analyses of samples of their sales p r o d u c t s show no exciter present. It is suspected that Hercules also distills the trichlorophenol as samples of their 2,4,5-T acid shows no exciter. Diamond and Monsanto do not isolate the trichlorophenol to purify it. b u t make nil dc r i " .nhives from the c o diun salt. Analysis of Monsanto's 2,4,5-T acid shows 3 - 8 ppm. exciter, and analyses of D i a m o n d 's sodiumtrichlorophenate shows 8 - 2 4 ppm. exciter. Clearly, different manufacturing processes resulted in different levels of dioxin contamination and Dow and the other defendants were clearly aware of that fact. Of equal clarity is the fact that the m i l i t a r y was i g n o r a n t of this matter. The evidence indicates that the military did not know indepen dently and was not informed by the defendants of the relationship between process selected and level of dioxin. A particularly irrational instance of "cover up" was in the defendants' withholding from the government of the technology necessary to analyze the products and to detect its deadly impurities. The Air Force was working on a method of analysis, gas chromotrograph^ which it hoped would prove more effective than the army's infrared spectrography, analysis and preliminary tests looked promising. The government was well behind the defendants in developing this technology, however. In a Hercules memorandum marked "confidential" and dated Septe m b e r 5; 1967, from M.A. T a v e s , S y n t h e t i c Re s e a r c h D i v ision, to Mr. J.M. Eagan, Synthetic Department, the government procedure (infrared) was described as "very tedious" and possibly was inaccurate. The report states that "they apparently are not aware of the components which we knew to be present." The memorandum conjectures that the government would probably be receptive to adopting Hercules' analytical method, but Taves cautioned, "we must carefully compare both methods because it is possible that their method may be giving beneficially higher analysis, particularly on 2,4-D, than our own m e t h o d ." -28- 1 1 17o3^ During the years that the defendants supplied contaminated herbicides to the military, Dow was not the only defendant possessed of expertise as to dioxin hazards and means of risk reduction. While their expertise may have varied in depth and time acquired, each of the defendants failed to warn the military of what defendant knew about its and other d e fendants' products and sooner or later became a party to the conspiracy to conceal or misrepresent the matters which the military needed to know in order to make informed choices and decisions as to herbicide procurement. We turn next to an historical review of the conduct of the other defendants. DEFENDANT MONSANTO'S KNOWLEDGE ABOUT MANUFACTURING PROCESS, DIOXIN AS CONTAMINANT, DETECTION METHODS, RISK REDUCTION METHODS, AND HEALTH HAZARDS ASSOCIATED WITH EXPOSURE TO DIOXIN Perhaps the most malevolent participant in the Chemical Company conspiracy to withhold from the Government and the general public the toxic effects of the dioxin content in their 2,4,5-T is the Monsanto Chemical Company. It was in 1949, at their Nitro, West Virginia plant' that Monsanto was first alerted to the existence of a contaminant present in their 2,4,5-T process. As a result of the "process upset", (Monsanto's term), workers participating in the refinement of sodium trichlorophenol (the precurser of 2,4,5-T) were exposed -29- to the product. Ultimately, more than 200 workers in the 2,4,5-T department began to develop manifestations of toxic exposure. Multiple workers' compensation claims were filed in which there were made acute complaints of liver damage, peripheral nerupathy, chloracne and severe systemic effects. Monsanto's extensive knowledge of the health problems associa ted with 2,4,5-T exposure is further illustrated by the communication from Elmer Wheeler, a key Monsanto employee, in which he discussed an incident at Badische, the German manufacturer of 2,4,5-T. Referring to a November, 1953 process disruption similar to that of the Nitro incident four years before, Mr. Wheeler acknowledged that approximately 50-60 cases of Badische worker health problems occurred following the incident. Stated the Monsanto hygienist, not only did Badische 2,4,5-T workers show "horrible skin eruptions" but that "In addition to the skin manifestations, their men reported all the additional symptoms as experienced in our workers, i.e. fatigue, vertigo, loss of libido, painful joints, etc." T h rough the 1 9 5 0 's M o n s a n t o c o n t i n u e d to be aler t e d to the problem of worker 2,4,5-T exposure. A 1955 confidential memorandum acknowledged widespread employee toxic reaction. It stated, "You also know that the 2,4,5-T problem has not been solved and chloracne remained as the o u t s t a n d i n g prob l e m of the Nitro p l a n t in d e a l i n g w i t h h o u r l y personnel". (Exhibit 11 ). -30- T h r o u g h o u t the ' 5 0 's, the w o r k e r illness p r o b l e m in the 2.4.5- T plant became so acute that the workers refused to labor in that environment. Monsanto was required to pay an hourly bonus to those volunteer workers who did subject themselves to the health problems which were rampant in the 2,4,5-T factory. In the '60's as p r o d u c t i o n increased, w o r k e r h e a l t h pr o b l e m s b e came even more frightening. As a matter of fact, James Springgate, who became P l a n t Manger of Nitro in '64 was r e q u ired, as part of his job, to review Monsanto worker health complaints and estimated that over 100 workers complained of chloracne during the p eriod from '64 to '68. S i g n i f i c a n t ly , the P l a n t M a n a g e r estimated that there were more 2,4,5-T Monsanto employees who compla i n e d of h e a l t h pro b l e m s in the period of '60 to '64 than the 100 he estimated in the next four years. In 1964, Monsanto sent to Dow for analysis, Monsanto's 2 . 4 . 5 - T. The d i o x i n c o n t e n t of the s a mple s h o w e d three to ten ppm's. (As high as this a m o u n t was, it was n o w h e r e near the huge amount of toxic contamination of the Monsanto product that further analysis was about to reveal.). On the 24th day of February, 1965, the Medical Director, Kelly, spoke to his Dow counterpart, V.K. Rowe. Rowe a c k n o w l e d g e d that D o w had 20 cases of chloracne and admitted that he was sure that dioxin was the cause. (Exhibit 11a) . The M e m o r a n d u m clea r l y r e v e a l s that D o w ' s motivation for its secret March meeting was hardly salutory; since Dow suggested a "crash meeting with all the producers" in -30a- ItA 0Q an attempt to eliminate the contamination before the "PHS got into the act." Of course, the Public Health Service couldn't get into the act unless they found out about the toxic contaminant, a discovery that the conspiring chemical companies mightily tried to avoid. It was only one month later that V.K. Rowe w r o t e the infamous M a r c h 19 s e cret communication to certain 2,4,5-T manufacturers in which he alluded to the dioxin content of 2,4,5-T as "certain highly toxic impurities". (Exhibit 2 ). In February of 1965 Monsanto and Dow shared information concerning their mutual problems. By that time, it was known by both companies that dioxin was the contaminant in their product. Therefore, as supported by the sworn admission of Monsanto employees as well as the annexed documentary evidence, Monsanto knew: a) of the c o n t i n u i n g a cute h e a l t h p r o b l e m s to which their 2,4,5-T employees had been subjected for the p a s t 17 years, b) that other c h e m i c a l companies, both here and abroad had similar pblems, and c) that the h e a l t h pr o b l e m s to w h i c h M o n s a n t o had personal knowledge not only included chloracne, but also involved: 1. fatigue 2. vertigo 3. loss of libido 4 . painful joints -30b- ili57 Monsanto's 2,4,5-T was enormously toxic. In a September 14, 1965 i n t e r d e p a r t me n t a l m e m o w h i c h w a s then filed in the "Confidential Folder," Monsanto admitted that "during April, 1965, production of TDD rose to an all-time high and remained m u c h higher than its previous n o r m - c u r r e n t - 50 ppm normal - 10 ppm". (Exhibit lib) .That a m o u n t was 50 times greater than the one ppm dioxin which Dow claimed was safe (although plaintiff's evidence establishes that even 1 ppm is t o x i c ) . Monsanto did not remove this acknowledged enormously toxic contaminant from its 2,4,5-T. In a confidential communication dated almost four years later, Monsanto acknowledged that their 1968 exper i e n c e showed a c o n t e n t of 40 p p m and that ev e n in 1969, their contamination ranged from 5 to 7 ppm. (Ex.11c). So serious was the problem that in 1968, after the medical director was informed that there had been no new chloracne cases since October of the previous year, he responded to that information by asking, "I don't w a n t to be cynical, b ut are there a n y em p l o y e e s in the department who don't have chloracne already?" (Ex.lid). As was reported in the confidential Monsanto final report on 2,4,5-T terminating January of 1969: "The incidence of chloracne has been almost universal among p e r s o n n e l engaged in the m a n u f a c t u r e of 2,4,5t r i c h l o r o p h e n o l (TCP) and 2 , 4 , 5 - t r i c h l o r o p h e n o x y acetic acid (2,4,5-T). The most severe cases have occurred in individuals involved in the clean up of uncontrolled autoclave batches (hydrolysis of tetrachlorobenzene). How ever, cases of varying severity have occurred consistently among operators primarily employed around the 2,4,5-T work up equipment - filteration, acidification, drying, etc." -31- Monsanto was able to isolate dioxin as the toxic ingredient when it first began to produce Agent Orange, and Monsanto knew for 20 years b efore 1969 that the 2,4,5-T that they pro d u c e d contained toxic impurities that were clearly and dramatically hazardous to humans. Their knowledge emanated from their own personal experiences, from the reports of industrial problems from other chemical companies producing the same product and from confidential exchanges from the manufacturers. There is no question that Dioxin was viewed by Monsanto and all other defendants as highly toxic. They knew that the dioxin contaminated 2,4,5-T sold by them to the Government was being mixed together and used in Vietnam. But Monsanto never informed any governmental officer with regard to the risks of dioxin contamination associated with Agent Orange or the methods of dioxin control; nor did Monsanto ever warn the Government with r e g a r d to the causal r e l a t i o n s h i p botv.'cen 2,4 , 5 - T exposure and serious injury. In their Verified Answer to the Plaintiffs' Interrogatories, Monsanto has admitted that they were not respon sible for, participated in, or familiar with any w arnings to the United States Government with regard to the risks of dioxin contamination associated with Agent Orange, or with the methods of dioxin control. R.Emmet Kelly, M.D., for many years the Director of the Monsanto Medical Department and the person whose responsibility it was to investigate and supervise Nitro workers' complaints, in his deposition, acknowledged the causal relationship between 2,4,5-T exposure and claims of peripheral neuropathy, nerve x* x . demyelination, chloracne, and even "the possibility of liver r ;j involvement". Thus, Monsanto's conduct clearly marks it as a prime participant with the other defendants in their efforts to conceal and misrepresent the hazards associated with the herbicides they were selling to the Government. E. D E F E N D A N T D I A M O N D S H A M R O C K C O R P O R A T I O N 'S KNOWLEDGE ABOUT MANUFACTURING PROCESS DIOXIN AS CONTAMINANT, DETECTION METHODS, RISK REDUCTION METHODS AND HEALTH HAZARDS ASSOCIATED WITH EXPOSURE TO DIOXIN. 1. D ocuments submitted b y Diamond Shamrock Corporation and testimony of the Defendant's own witnesses graphically demonstrate that there was an enormous amount of information exchanged relating to the contaminant involved herein, its manufacture, its means of analysis,.methods of elimination, and last, and perhaps most importantly, knowledge by the defendants of the extent of contamination in the product sold to the government by Diamond. 2. T h e h i s t o r i c a l e x p e r i e n c e of D i a m o n d S h a m r o c k Corporation with 2,4,5-T is encapsulated in communication from Richard W. McBurney, M.D., dated March 27, 1963, a d dressed to Mr. Frank W. Jarvis, Vice-President, of Diamond Shamrock Corporation, labeled C h l o racne-- C o n f i d e n t i a l . (Diamond Shamrock, Exhibit 12 This letter refers to a building of ancient vintage where 2,4,5-T acid processing actually takes place and advises that it is in this building that the 'workers are e a s i l y c o n t a m i n a t e d b y v a p o r s in the air. P a r a g r a p h 4, p a g e 1, admits: "As long as this plant has been in operation, there has been a chronic problem in the employees hired-- of a condition referred to as chloracne." At one time, approximately 40 of the 72 workers in the plant were affected by chloracne. Paragraph 5 of page 1 states, "It is my impression and the impression of the management (Newark plant), that these byproducts are those of a chlorinated ether and are a result of the reaction of caustic soda on 1,2,4,5-tetrachloro benzene as used in the making, of the 2,4,5-T." 1X4SQ -33- 3. T h i s c o n c e r n e x p r e s s e d b y Dr. McBurney, however, d o e not begin and end with the problem of chloracne in the production Yorkers- Rather, as may be seen on page 2 of his letter, there was a growing concern about a medical condition known as porphyria cutanea tarda. This is a disease of the blood forming elements of the body in w h i c h the h e m o g l o b i n o f the red b l o o d cells is brok e n down and, essentially, the Spleen, liver, and kidneys are effected to a greater or lesser extent, depending upon the ingestion of such a chlorinated benzene. One of the physicians working on behalf of Diamond Shamrock at the N e wark plant. Dr. Bleiberg, conducted a test on four men who had suffered the longest from chloracne only to find that two o f these men had positive porphyn reactions in their urine. 4. E u g e n e B a k in the m i d 1 9 6 0 's b e c a m e p r o d u c t i o n m a n a g o f t h e D i a m o n d S h a m r o c k N e w a r k p l a n t (page 2.7,;lines 17-25). B a k t e s t i f i e d at h i s d e p o s i t i o n on J a n u a r y 27, 19S3 that h e w a s . a d v i s e d o f health problems with the workers in the Newark plant when he first came to Newark and reported to Francis Kennedy, Plant Manager (page 39, lines 16-23; p a g e 21, lines 2-10). He testified that he felt chloracne was a serious health problem when he became production ma n a g e r (page 40, lines 19-23). He admitted that certainly h a l f the workers in Acid and T-Ester Building were effected by chloracne (page 59, lines 11-25; p a g e 60, lines 1-17). He conceded that the management suspected that the health hazard also included porphyria among the workers at Newark and that there was some positive findings in the u r i n e s p e c i m e n s o f these w o r k e r s (page 66, lines 10-25; p a g e 67, lines 1-25; page 68, lines 1-3). He testified that chloracne and liver problems existed in the Newark plant and he was concerned about it (page 68, lines 4-23). The plant manager for Diamond Shamrock at Newark considered chloracne to be a serious health problem while f u nctioning in that capacity (Deposition of Francis Kennedy, p a g e 48, lines 16-24; p a g e 50, lines 3-8). Mr. Bak admitted tha t the s a m e products were sold to the public that were suspected to cause c h l o r a c n e in w o r k e r s (page 74, lines 15-25; p a g e 75, lines 1-4). 5. Mr. B a k a l s o a d m i t t e d that t h e s e same p r o d u cstesn t w e r e o v e r s e a s as Ag e n t O r a n g e (page 75, lines 5-9). Given the a d m i t t e d knowledge of Diamond Shamrock's production manager, it is shocking to consider the complete lack of disclosure to the Government of the^ i n f o r m a t i o n p o s s e s s e d b y D i a m o n d S h a m r o c k (page 105, l i n e 2): A ^ "Q: At any time d u r i n g those years 1965 through 1968, did you personally ever advise the United States Army of the contaminant in the TCP process stream?" A: I have not personally. Q: Did anyone to your personal knowledge on the p a r t of Diamond Shamrock ever advise the Army of that? A: .1 don't know." 6. H a v i n g e s t a b l i s h e d the e x i s t e n c e o f and k n o w l e d health hazards, not only in the production stages of the product, but in the final product itself, consider the interchange of this information between Diamond Shamrock and the other defendants in this law suit. The deposition testimony of Edward Lee Chandler, taken on F e b r u a r y 8, 1983, i n d i c a t e s t h a t in 1957, C h a n d l e r b e c a m e m a n a g e r of the technical service department of Diamond Shamrock which was a liaison between the technical development of products and the sales of (pq. 30, lines 19-25; p g . 31, lines 1-2). Diamond S h a m r o c k Exhibit 13 is a n i n t e r o f f i c e m e m o r a n d u m a d d r e s s e d to Hr. R. A. Guidi, daTtstl^Juiy 9, 1962, f r o m Mr. E d w a r d L e e C h a n d l e r . At t h a t time, Mr. Guidi was the manager of the Newark plant. The letter clearly illustrates Diamond Shamrock's concern with the loss of two sizeable customers, Riverdale Chemical and Quaker City Tree, both of w hom complained of chloracne problems with the use of the final products sold to them by Diamond Shamrock. The dermatological problem was so severe to the employees of these companies that Diamond lost them as customers - -35- Diamond's knowledge of the health hazards associated with the use of its products was unquestionably established by a serious outbreak of chloracne among users of their 2,4-D and 2,4,5-T in Columbia, South America. This problem was described by Lex Creamer, Diamond's representative, who forwa r d e d a r e p o r t to D i a m o n d ' s N e w York offi c e on M a r c h 18, 1965 (Exhibit 13a). As his report indicates, in one area alone twenty people were affected with most of them being hospitalized for months. He also indicated that the horses were badly affected with loss of hair, skin lesions and in one case death. 7. C o n s i d e r i n g D i a m o n d Shamr o c k ' s con c e r n over the los customers because of health hazards and the use of their esters, it is not surprising that we see Francis Kennedy and Edward Lee Chandler on a list of invitees to the now infamous Dow-Midland Conference of March 24, 1965, by letter from V.K. Rowe of D ow C h e m i c a l dated M a r c h 19, 1965. In that invitation Rowe directly addresses the toxicological problems caused by the presence of certain highly toxic impurities in certain sam pies of 2,4,5-T. He does not confine these problems to any single compan but rather admits that the problem was industry-wide and that the -3 5a- 1 j*-. purpose of the meeting itself was to deal with the toxicological and analytical aspects of this problem. It is indisputable that as of that date, Dow had possessed a method of analysis which it . was willing to share with the invitees throughout the industry, but not with the military. Dr. Chandler never denied receiving this letter from Rowe, or in fact speaking to Rowe prior to his attendance at the meeting. He readily admitted attending this meeting. He did, however, deny any accurate recollection of what took place at the meeti n g in Midland (Chandler deposition, p. 96). In i n t e r o f f i c e c o r r e s p o n d e n c e from E.L. C h andler to John Cort, Jr. dated M a r c h 25, 1965 with carbon copies to F r a n c i s R. Kennedy, M a n a g e r of the N e w a r k Plant, and others (Exhibit 14 ), it is obvious first, that Dow Chemical was sharing with the rest of the industry the severe health hazards; secondly, Dow advised the industry that they had identified the causative agent as dioxin; thirdly, Dow had developed a new analytical method with a sensitivity level of 1 ppm; fourthly, Dow advised the industry of its intention to set a limit at that time of 1 ppm dioxin on this material; fifthly, Chandler admits that Dow had analyzed materials from other companies i n c l u d i n g D i a m o n d Shamrock and found amounts as high as 10 p p m of dioxin in the 2,4,5-T acid. The last paragraph in this exhibit reconfirms the purpose, industry-wide, of the Midland meeting of March 24, 1965, where Mr. Chandler concludes "the purpose of this meeting was designed to help us solve this problem before o u t s i d e r s c o n f u s e the issue and cause us no end of grief. D o w is sending the test results of our material to us incidentally and this will further check our techniques, etc." Having considered the I -36- universiality of the health problem of 2,4,5-T esters and the need throughout the industry to cooperate to some extent to alleviate this problem, w h a t steps if any, did Diamond Shamrock take to eliminate the contaminant dioxin from the T ester which com prised half of the Agent Orange product? Kennedy returned to the Newark Plant after attending the Dow conference at Midland on March 24, 1965 w i t h the k n o w l e d g e th a t there was a p r o b l e m i n v o l v i n g dioxin that had to be solved (Kennedy deposition, p. 135, line 1-17) 8. The dioxin c o n t a m i n a t i o n of Di a m o n d ' s h e r b i c i d e s c a u it to lose customers, in particular, Dow. On A p r i l 6, 1966 the f o l l o w i n g m e m o r a n d u m was sent f r o m J.C. Kelly, Diamond's sales shipping coordinator in Division headquarters of its Ag-Chem Division in Cleveland, to J.O. King, sales manager in that division, regarding Dow's refusal to purchase Diamond's production: A p r i l 6, 1966 "Mr. J.O. King Mr. J.C. Kelly Dow Chemical Company On March 21, we directed a sample of our Technical 2,4,5-T Acid to subject account. 'In talking with Ken Hanson on A p r i l 4, he a d v i s e d that they w o u l d not be in a market for our material. Apparently, they feel that our material could conceivably re create a chlor-acne problem at Midland and, as such, would not entertain the purchase of our present pro duction. J. C. KELLY JCK/im c c . Mr. F.R. Kennedy - Newark Mr. R.A. Guidi" 9. There is no d o u b t that Diam o n d had con si d e r a b l e k n o w l e of d i o x i n risk r e d u ctio n techniques. An inte r i m report, J a n u a r y 9, 1967 of experimental work for TCP purification, reveals their awareness of Dow's studies regarding identification of the com pounds causing chloracne and analytical procedures used to q u a n titatively identify the dioxin contamination. Diamond also knew what needed to be done to eliminate or reduce dioxin, and that this could be accomplished in several ways including alteration of the TCP condensation reaction or utilizing engineering techniques to remove dioxin from process streams after they have been reduced. 10. It is significant that from the time Do w gave Diamond Shamrock the means of analyzing its product in March of 1965, it was not until September of 1967 that a purification column was installed on the production floor and put into use. Despite such installation, and perhaps most significantly, by Diamond Shamrock's own analysis from January to March of 1968, it was running 3.8 ppm dioxin and related compounds in its 2,4,5-TCP. In October through December -38- 11 j 1968, it ran 9 ppm. Nevertheless, production continued, and the product was sold to the government. In the affidavit of Francis R. Kennedy, sworn to M a r c h 27, 1980, he speaks eloque n t l y of the g o v e r n m e n t 's need for A g e n t Orange, but is a b s o l u t e l y silent on Diamond Shamrock's need for purification of a contaminated product that it knew that it was selling to the government without disclosure of the contamination problems. What effect, if any, did the performance of Diamond Shamrock corporation have on the defendants? Did the concern e x p r e s s e d b y D o w in the M i d l a n d m e e t i n g in M a r c h of 1965 terminate its concern regarding the contaminant which it knew at that time was industry wide? Or in fact did the purported concern for this serious health problem continue among the various defen dants well beyond the Dow conference? An answer to that can clearly be seen in a confidential memorandum of J.P. Frawley, dated July 12, 1965, of the Hercules Powder Company which relates to a telephone c o n v e r s a t i o n dated Ju l y 9, 1965 with Mr. E a r l Far n h a n of Dow Chemical Company . Mr. Farnhan was convinced that no one else in the industry had done anything to remove the contaminant from their. 2,4,5-T. Mr. Farnhan further stated that Dow was extremely frightened that this situation might explode. Mr. Frawley quotes Mr. Farnhan as stating that Dow "aware that their competitors are marketing 2,4,5-T which contains alarming amounts of acnegen and that if the government learns of this the whole industry will suffer. They are particularly fearful of a congressional i nvestigation and excessive restrictive legislation on the m a n u facture of pesticides which might result." -39- Obviously, it was not the intention of Hercules, Dow and others to disclose a problem of health to its customer, the United States Government, but rather to try and induce the industry at large to "clean-up" ("cover-up?") its product before the government found out about the health hazard. It is hard to conceive of greater evidence of the conspiracy of silence where, as here, the industry admittedly knew of a serious health problem, unknown to the government, than Mr. Farnhan's own words of precaution that Dow is fearful if the g o v e r n m e n t learned of the a l a r m i n g amou n t s of acnegen, the entire industry would suffer. F. T.H. Agriculture and Nutrition Company, Inc. Knew About Dioxin as a Contaminant in 2,4,5-T and Knew About Concomitant Health Hazards and F a i l e d to Warn the Military._____________________ Much of what is known about the defendant T.H. Agriculture and Nutrition Company, Inc., formerly known as Thompson-Hayward Chemical Company, Inc., (hereafter "T.H.") is the result of a d eposition of Edwin T. U p t o n a nd a r e v i e w of T . H.'s pr o d u c e d documents. Mr. Upton was deposed on April 7 a n d 8, 1983 a n d T.H. p r o d u c e d d o c u m e n t s t o t a l i n g a p p r o x i m a t e l y 18,000 pages. Counsel for T.H. represented to counsel for plaintiffs that no confidential or proprietary documents were w i t h h e l d . Mr. U p t o n 's d e p o s i t i o n , in c o n j u n c t i o n w i t h the documents, c l e a r l y shows that T.H. k n e w about dioxin in its end product (hereafter variously 2,4,5-T, 2,4,5-T ester and isooctyl ester 2,4,5-trichlorophenoxyacetic acetate) and knew about concomitant health hazards. Mr. Upton's deposition and T.H.'s documents further establish that neither Mr. Upton nor anyone at T.H. warned the military. -4 0 - * Edwin T. U p t o n first w o r k e d for T.H. on a full-time basis as a c h e m i s t b e g i n n i n g in 1946. (Upton T r . at 27.) From Chemist, Mr. Upton progressed to Chief of the Quality Control Laboratory, Chief Chemist, and finally Laboratory Administrator. Id^ at 27, 44. F r o m 1946 to 1947 Mr. Upton w o r k e d o n f o r m u l a t i n g usable forms of 2,4,5-T. Id. at 29. In experimenting with formulations, Mr. Upton made an informal literature search resulting in a paper which was presented at a regional American Chemical Society meeting in 1946 or 1947. Id., at 29. In p r e p a r i n g that p aper he reviewed a number of patents on the use of p h e n o x y herbicides. Id_. at 30. Those p a tents were r e v i e w e d p r i o r to 1955. Id. at 31. In 1946 or 1947, Mr. Upton developed for T.H., a successful f o r m u l a t i o n of 2,4,5-T. Id_. at 32-33. B e t w e e n 1946 and 1947 , Mr. Upton also worked on products containing a mixture of 2,4,5-T and 2,4-D. Id. at 35. Through Mr. Upton's efforts, T.H. developed, in the early '50's, a herbicide which was a 50/50 mixture of 2,4-D and 2,4,5-T. That product was called DED WEED 50-50 BRUSH KIL. (Upton T r . at 36). T.H. also manufactured 3-3 BRUSH KIL. That product was a 50/50 mixture of 2,4,5-T and 2,4-D. (Upton at 41). -41- T.H. e s t a b l i s h e d s p e c i f i c a t i o n s for 2,4,5-T. Id. at 49. Those s p e c i f i c a t i on s 'were e s t ablished in the late '40s. Id. Beginning in 1950 or 1951, T.H. began manufacturing 2,4,5-T a c c o r d i n g to t h o s e s p e c i f i c a t i o n s . JEd. at 51. 2 , 4 , 5 - T was manufactured from a p p r o x i m a t e ly 1950 to some time before 1960 at a plant in Kansas City, Kansas. Some time after 1960, a new plant was opened in Turner, Kansas. In manufacturing the end product, isooctyl 2,4,5-trichlorophenoxyacetic acetate, T.H. began with trichlorophenol purchased from the Dow Chemical Company. The 2,4,5-trichlorophenol was converted to sodium 2.4.5- trichlorophenate. In a separate process, monochloroacetic acid was esterified with isooctyl alcohol to make isooctyl monochloroacet a t e . The two intermediates, sodium 2.4.5- trichlorophenate and isooctyl monochloroacetate were c o u p l e d to m a k e the end p r o d u c t , i s o o c t y l 2 , 4 , 5 - t r i c h l o r o p h e n o x y a c e t i c a c e t a t e . JCd. at 76. From 1947 when he was a chemist until 1974 when he was the Laboratory Administrator, Mr. Upton remained responsible in a "hands on" or supervisory capacity for the analytical testing of raw materials, interm e d i a r ie s and finished products. Id. at 44, 81. From 1947 to approximately 1965, T.H. utilized the official Agricultural Chemist Association method (Parr Bomb) for determining gross amounts of chlorine in the 2,4,5-T. U p t o n Tr. at 82. B e g i n n i n g in 1964 or `65, T.H. b e g a n u s i n g an infrared spectrometer for determining the gross composition of its 2,4,5-T. JEd. at 84. T h e i n f r a r e d s p e c t r o m e t e r c o n t i n u e d to be u s e d u n t i l Mr. U p t o n le f t T.H. in 1974. J[d. a t 85. In 1962 or 1963, T.H. o b t a i n e d a gas chromat o g r a ph . Id. at 87. -42- 1 From 1963 when T.H. obtained its gas chromatograph until the middle of 1964 that gas chromatograph was not used to deter m ine impurities in 2,4,5-T. Id. at 88,89. From 1963 until the middle of 1964, T.H.'s gas chromatograph was not utilized to determine the amount of inert ingredients in the 2,4,5-T being m a n u f a c t u r e d by T.H. Id. at 89, 90. O n D e c e m b e r 3, 1964, Dr. D avid Groth of the R e gional Health Reserach and Training Facility in Cincinnati, Ohio, wrote to Mr. Upton. In that letter, Dr. Groth indicated that he was interested in the "determination of the toxic compound present in the commercially available 2,4,5-trichlorophenoxy- acetic acid which is sold as the iso-octyl ester." David Groth further indicated that Kimmig and Schultz had published a paper "whic gave evidence that the skin and liver toxicity were not (emphasis in original) due to the 2,4,5-trichlorophenoxyacetic acid, but probably from some by-product which is present in very small quanities." From his reading of Kimmig and Schultz, Dr. Groth stated .^at he t h o u g h t to be the r e s p o n s i b l e c o m p o u n d a n d d r e w a schematic of that compound- Of greatest importance, he noted as a result of his lack of knowledge, "however, there is no conclusive evidence that this, or any other specific compound, is responsible since no one has yet separated the various compounds present in commercial 2,4,5-T." Apparently, in the hope of being able to separate those compounds, David Groth r e q u e s t e d E. T. Upton of T.H. to send him samples of isooctyl ester 2,4,5-T manufactured by T.H. -43- After letters and conversations with employees of the Dow Chemical Company - which were the direct result of David Groth's letter - E.T. U p t o n sent samples of T . H . 's 2,4,5-T a n d Dow's trichlorophenol to David Groth. In a letter of January 14, 1965 which accompanied the T.H. samples, Mr. Upton wrote "we would appreciate very much receiving a copy of your analytical method, which I assume is based on gas chromatography for determining the 2,3,7,8-tetrachlorodibenzo-p-dioxin." Apparently, Mr. Upton was aware that gas chromato- graphy could be utilized to determine the existence of 2,3,7,8- t e t r a c h l o r o di b e n z o - p - d i o x i n in the 2,4,5-T. To a s s u r e h i m s e l f that he w o u l d be a d v i s e d if Dr. Groth discovered anything, Mr. Upton wrote a second letter dated February 17, 1965 in which he stated: "We are very much interested in your study of the toxicity of the by-products present in commercially available 2,4,5-trichlorophenoxyacetic acid esters. For our information, please send us a copy of your analytical method for the determination of the 2,3,7,8- tetrachlorodibenzo-p-dioxin in technical 2,4,5-T esters." Exhibit 4 (emphasis added). See, Unfortunately, David Groth was never able to determine that, in fact, 2,3,7,8-tetrachlorodibenzo-p-dioxin was the s u b stance in commercially available 2,4,5-T causing liver damage an d chloracne. As e x p l a i n e d by David G r o t h in his letter to Mr. Upton of F e b r u a r y 26, 1965: -44- I had hoped by this time I would have been able to give you some results on our tech nique. However, due to a shortage of funds we have not yet purchased the thin-layer chromatography apparatus that we plan on using for the separation. In previous correspondence I mentioned some articles which referred to the toxicity of 2,4,5 trichlorophenoxyacetic acid and possible toxic contaminants. The principal (sic) a r t i c l e is by K i mmig in Derm a t o l o g i es 1 1 5 : 5 4 0 - 5 4 6 . 1957. So far, that is the present state of our knowledge on the subject. Like Kimmig and Schultz in 1957, David Groth was only able to speculate that 2,3,7,8-tetrachlorodibenzo-p-dioxin was the possible toxic contaminant. However, Mr. Upton, others at T.H. and others at Dow Chemical Company were keenly aware that David Groth was groping for answers to a serious industrial and end user helath problem. Representatives of Dow, T.H. and of the other defendant chemical companies had the answers Dr. Groth was seeking. Those answers were, never p r o v i d e d to him. Mr. Upton never wrote to Dr. Groth after David Groth's letter of February 26, 1965. Mr. Upton never informed Dr. G r o t h of i n f o r m a t i o n Mr. U p t o n ha d c o n c e r n i n g 2,3,7,8- tetrachlorodibenzo-p-dioxin, its relationship to 2,4,5-T and intermediaries, and analytical techniques for determining the presence of dioxin. Upton Tr. 225, 226. While David Groth was never able to determine whether dioxin was a contaminant in 2,4,5-T, the same cannot be said for Mr. Upton and others at T.H. -45- IX? D a v i d Groth's initial letter of Dec e m b e r 3, 1964 w a s the catalyst for a number of events. After receiving David Groth's letter, Mr. Upton discussed the contents of that letter w i t h L i n d l e y S. DeAtley, V i c e - P r e s i d e n t of R e s e a r c h and D e v e l o p m e n t for T .H .-Uptorr-Tp.. 102. W i t h i n a m a t t e r of days, Mr. DeAtley wrote a let ted, December 11, 1964 to Dr. R.C. Dosser, Laboratory or for the Dow Chemical Company. In that letter, Mr. DeAtley stated: "As we have corresponded and talked about the purity of trichlorophenol and related compounds on several o c c a s i o n s , I thought you wo u l d be interested in the a t t a c h e d letter of D e c em b e r 3, from Dr. D a v i d H. G r o t h of the Public Health Service." (Emphasis added.) When Mr. Dosser failed to respond, Mr. DeAtley wrote another letter of Decem ber 28, 1964 stating: "... we feel we m ust reply to the letter of D e c e m b e r 3 from David H. G roth ..." (Emphasis added). Mr. DeAtley never received a written response from Dow. Rather, Dr. R.C. Dosser of Dow called Mr. DeAtley on January 12, 1965 and "pointed out" that: "[I]f a compound, found in 2,4,5-T acid or its esters, proved to be damaging that this might lead to a flurry of successful claims by users of the herbicide who allegedly had been injured by it. Also, he said that although he did not know our method of proces sing D o w 's t r i c h o l o p h e n o l , his c h e m i s t s u s p e c t e d that by some procedures, the toxic compound might be formed in processing through the sodium salt of the phenol to the sodium salt of the acid. -46- Dr. Dosser, of Dow, was clearly aware of alleged "user" injuries. T.K. was advised of those end user injuries at this time, if it did not have previous knowledge. Dr. Dosser, of Dow, also informed Mr. DeAtley of T.H., that Dow had developed an analytical technique for detecting dioxin and had been utilizing animal tests (the rabbit ear test) which had a sensi tivity of about one part per million. Id. None of this infor mation was conveyed to Dr. Groth at the Public Health Service though he had clearly expressed his interest. Upton Tr. 225, 226. Representatives of Dow and the representatives of T.H. were well aware of his interest. When Mr. Upton responded to David Groth's letter on J a n u a r y 14, 1965-two or m o r e days a f t e r D osser's con v e r s a t i o n w i t h DeAtley - Mr. Upton failed to inform Dr. Groth of the information provided by Dr. Dosser, of Dow, to Mr. DeAtley, of T.H. Upton Tr. 225, 226. As noted earlier, Dr. Groth wrote to Mr. Upton on the 26th of February, 1965 and advised him that due to budgetary constraints, Dr. Groth would not be able to p u r sue his research. Upon receiving Dr. Groth's letter, E.T. Upton or others at T.H. clearly could and should have imparted to Dr. Groth all of the information they independently possessed and learned from the Dow Chemical Company. -47- I The information which should have been imparted to Dr. Groth and T . H . 's a b i l i t y to i m p a r t th a t i n f o r m a t i o n a re clear. In a d d i t i o n to information p rovided by Dr.. Dosser/ of Dow T.H- obtained information from the meeting at Dow. On February 19, 1965, Mr. DeAtley and D.W. Fuhlhage, T . H . 's S u p e r v i s o r for P r o c e s s D e v e l o p m e n t , v i s i t e d Dow headquarters in Midland, Michigan. Present at that meeting were the following Dow representa tives: J.C. Tucker, Product Sales Manager; Mr. Harold Gill, Chromatography Laboratory; Mr. Larry Silverstein, Biochemical Research; and Mr. Harold Hoyle, Biochemical Research. From minutes made by Mr. DeAtley of the February 19, 1965 meeting, it appears clear that Dow informed representatives of T.H. that Dow had e x p e r i e n c e d c a s e s of c h l o r a c n e prior to ~ December, 1964. At that meeting, Dow's representatives indicated that dioxin was systemic and generally taken into the body by physical contact. Dow's people noted that they had taken elaborate precautions without consideration of cost to e l i m i n a t e the health hazard to workers. Dow's repre sentatives stated that such precautions appeared necessary, in light of the "biological activity which sometimes exceeded expectations" upon conducting tests. Additionally, it wa s reported by Dr. Silverstein, of Dow, that lower levels of dioxin when repeatedly applied, even though totaling much less applied material than a single application, could produce extreme reactions. 11476 -48- As a r e s u l t of the F e b r u a r y 19, 1965 meeting. Dr. c a r l e s E. Lewis, w h o w o r k e d for T.H. as its I n d u s t r i a l H y g i e n e Advisor, v i s i t e d Dow. In his a l l e g e d R e p o r t o n . t h e C h l o r a c n e Problem, Dr. Lewis noted: Because of the past experience at Thompson-Hayward it would seem that two general approaches need to be made to the problem. First, because of the use of some material which was probably heavily contami nated with dioxin and other C.A. (chloracne) producting agents, it would seem important to sample (using the wipe sample method) the environment of the synthesis area to make sure that there is no residual contamination with these agents....It would seem highly desirable to go to the use of coveralls and showers as mandatory, as well as monthly inspection of these individuals for skin lesions and on an occasional, perhaps 2 to 3 months, check on blood tests for their liver function. In d i s c u s s i n g this with Mr. Rowe (Chief Toxicologist at Dow) it was also thought that it mi g h t be wise to do an occasiona 1 sample of the final product of the opera tion here with V.P.C. (believed to stand for Vapor Chromatography) for d ioxin and m a y b e (?) o c c a s i o n a l r a bbit t e s t . > ( e m p h a s i s a d d e d e x c e p t the l a s t p a r e n t h e t i c a l s a d d e d except the l a s t ) . If the c o v e r l e t t e r is an i n d i c a t i o n , Dr. Lewis' a l l e g e d r e p o r t was w r i t t e n p r i o r to Ap r i l 26, 1965. Dow and T.H. were clearly concerned about end product contami- nation and hazards to u s e r s . By F e b r u a r y 19, 1965, and c e r t a i n l y b y A p r i l 26, 1 9 6 5 T.H. had a store of information concerning dioxin and analytical methodology. Nonetheless, neither E.T. Upton nor any other -49- 11477 representative of Thompson-Hayward Chemical Company wrote to Dr. Groth after his letter of Fe b r u a r y 26, 1965 in which he indicated an inability to obtain answers to his questions. Upton Tr. 225, 226. G.The Military Was Uninformed of T.H.'s Manufacturing Process And Its Capability For Risk Reduction. In his first letter to Mr. Upton, Dr. Groth requested "any information you can give us concerning the manufacturing process, ie. starting compounds, reactions and possible by-products." In responding to Dr. Groth's request, Mr. Upton directed Dr. Groth to open literature on 2,4-D manu facturing processes. Mr. Upton did not direct Dr. Groth to open literature on 2,4,5-T manufacturing processes. The inference of conspiratorial silence again arises. In addition, Mr. Upton was undoubtedly reluctant to divulge trade secrets. When Dr. Dosser of Dow requested information on T.H.'s manu facturing process, T.H. again was willing only to direct the inquirer to p u b l i s h e d literature. F r o m .the p u b l i s h e d literature, neither Dow nor the military could have known T.H.'s manufacturing process. The military's lack of knowledge as to the manufacturing process is important because "the type of manufacturing process used a f f e c t e d the level of d i o x i n c o n t a m i n a t i o n and that by. exercising discretion as to the process, the defendants controlled the extent of the dioxin hazard." See, In Re Agent Ora n g e , 534 F.Supp. 1046, 1957 (E.D.N.Y., 1982). By admission, some of the material used in the manu- of T.H.'s 2,4,5-T was "heavily contaminated" in the ^ i d - '60s. According to Mr. Upton, by 1970 or 71 tests of T . H . ' s 2 , 4 , 5 - T e s t e r s s h o w e d a lower l e v e l of contamination of up to two parts per million {hereafter " p p m " ) . Upton Tr. at 143. Samples taken from excess stocks of T.H.'s "Agent Orange" in 1973 from an inventory at Gulfport, Missis sippi m a y belie those low 1970 or '71 figures. The Gulfport samples showed a contamination level of from 0.7 to 4.1 ppm. Unfortunately, the date upon which T.H. m a n u factured the Agent Orange samples taken at Gulfport has not yet been determined. From the rate at which Agent Orange was being used, however, the Agent Orange sampled was probably manufac tured by T.H. in the late '60s or early '70s. From the mid-'60s when T.H.'s isooctyl ester 2,4,5- tricholorophenoxyacetic acetate was "heavily contaminated" to the late '60s or early '70s when T.H.'s Agent Orange contained lower but still hazardous levels of up to (and perhaps higher than) 4.1 ppm, Gene Douglas, a T.H. chemist under Mr. Upton, at t e m p t e d to discover where dioxin was being produced in T.H.'s plant and to remove the dioxin with activated carbon. Whether an activated carbon clean up process was instituted and the levels of dioxin in this herbicide during 1960-1969, will only be known after plaintiffs have had the opportunity to complete their discovery of T.H.. 1. 1.4 -51- In addition to looking at an activated carbon clean up process, Gene Douglas conducted experiments in 1967 to determine the relationship between pressure/temperature and the production and amount of dioxin. From those experiments, Mr. Douglas clearly learned that over a certain temperature, dioxin formed and that if the higher the temperature the more dioxin was produced. With that knowledge, Gene Douglas would have been remiss if he had not suggested that the sodium trichlorophenate be dried at a lower temperature. He might also have suggested that the wet ester be dried at a lower temperature and that the excess unreacted phenol be driven off with steam instead of heat. Whether those suggestions were made and implemented will also not be known until plaintiffs complete their discovery. Clearly, T.H. knew of methods for reducing the level of dioxin in its end product. T.H. also knew from 1965 and perhaps b e f o r e 1965 of the dan g e r o u s n e s s of d i o x i n and T.H. kn e w th a t the level of hazard increased with the level of dioxin. There has been no proof, on the other hand, that the military knew about T.H.'s original manufacturing process. There has been no proof that the military experimented with a pressure/temperature dioxin relationship There has been no proof that the military experimented with an acti vated carbon clean up process. Nor has there been any proof by T.H. < any of the defendants that the military was told about the foregoing. 7/ Whenever p r o d u c t i o n is i n c r eased it is u s u a l l y done by i n creasing the temperature of the synthesis run." The higher temperature resulted in increased dioxin in the waste and in the end product. 11480 -52- Finally, neither T.H. nor the other defendants has put in any proof that "the government had knowledge equal to theirs (about the above discussed risk reducing techniques) and that even with that knowledge the government imposed no requirement or restriction w ith respect to the manufacturing process or the level of dioxin contamination." The evidence points instead to T.H.'s failure to disclose these techniques to the military, just as it failed to warn them of the hazards associated with the dioxin contaminated herbicides it was selling to the Government. H. T.H. Kne w of M e a n s For De t e c t i n g D i oxin And Failed To Disclose Those Methods to the Military._____________________ T.H. c l e a r l y learned from the Dow Ch e m i c a l Comp a n y (if they did not already know) how to use gas chromatography for the detection of dioxin in trichlorophenol, sodium trichlorophenate and later 2,4,5-trichlorophenoxyacetic acetate. From discus s i o n s w i t h H. Gill of Dow, Mr. DeAtley and Mr. Fuhlhage clearly knew about the use of gas chromatography for detecting dioxin. Mr. DeAtley and Mr. Fuhlhage learned about Dow's detection meth o d prior to February 23, 1965. T.H. never informed Dr. Groth of their knowledge concerning the use of gas chromato graphy even after Dr. Groth's letter of February 26, 1965 w h e r e i n he alerted T.H. that he had not been able to purchase a gas c h r o m a tograph and devise a method for separating the compounds. Whether or not T.H. and the other defendants had a duty to test their 9 f * \ products using gas chromatography, they had a clear duty to / advise the military of its availability. Use of a gas chromatograph to identify dioxin and deter mine the levels of contamination is a risk reduction technique. Knowledge of gas chromatography (and the rabbit ear test) before and after 1965 is important. Under the contracts for the procurement of "Agent Orange," the defendant chemical companies were required to utilize the Parr Bomb method and when it became available, mass spectrometry. Upton T r . 222. Neither of these methods is capable of detecting trace amounts of impurities. Neither of those m e t h o d s can d e t e c t dioxins. Ici. at 223,224. A government inspector was frequently present when T.H. conducted its Parr Bomb and later, mass spectrometry tests. Though present, that inspector could not learn about the presence of dioxin in the 2,4,5-T esters through either the Parr Bomb or mass spectrometry tests. T.H. and the other defendants in similar situations had a clear duty to divulge to those government inspectors the availability of a better method for the detection of dioxin and determination of levels of con tamination. That did not occur in T.H.'s case. During Mr. Upton's deposition, he stated that during the testing of the final 2,4,5-T product, a Mr. Block, who he believed to be a government inspector, was present. Upton T r . 8/ Defendants also had a duty to tell the military about the rabbit ear test which had been in existence since at least 1941 for detecting acnegens to 1 ppm. r" A at 221. The test method employed was the Parr Bomb. Gas c h r o m a tography was not utilized. Though Mr. Block was present during numerous tests of the 2,4,5-T end product, Mr. Upton never told Mr. Block about gas chromatography or the existence of dioxin as a contaminant in 2,4,5-T. Upton at 224, 225. Nor is there any evidence that anyone at T.H. informed the military of gas chroma tography as a method for detecting dioxin. I . T.H.'s Participation In The Conspiracy The evidence indicates that T.H. entered that conspiracy, as early as Decem b e r 11, 1965 wi t h Mr. D e A t l e y 's letter to Dow, two years before T.H. produced its first Agent Orange for the military. Dr. D a v i d G r o t h ' s l e t t e r of D e c e m b e r 3, 1964 was the catalyst for a series of meetings and conversations between January and March of 1965 involving most of the def e n dants in this litigation on the subjects of dioxin and hazards to workers a nd end users. T.H. clearly participated in those conversa tions and meetings. Out of those conversations and meetigs came a conspiracy of silence- T h o u g h Mr. U p t o n had the a b i l i t y to i n f o r m Dr. Groth, of the Public Health Service, of dioxin, gas chromatography, risk reducing manufacturing procedures and health hazards a s s o c i a t e d w i t h dioxin, he did not do so. Upton at 225, 226. If/ *4^ -55- Though Mr. Upton had the opportunity on numerous occasions to inform the government inspector, Mr. Block, of dioxin, its hazards and of availability of gas chromatography and alterna tive manu f a c t u r i ng processes, Mr. Upton did not do so. l . at 224, 225. Furthermore, the Court should note that T.H. has not produced evidence indicating that anyone at T.H. informed the military of the foregoing. A conspiracy of silence reigned. T. T H O M P S O N cmy/jCAT.. w a s KNOT'N\r\UCr,ARLE A B O U T THE MANUFACTURING. PROCESS,: DIOXIN AS A CONTAMINANT, DETECTION METHODS, RISK REDUCTION METHODS-, AND HEALTH HAZARDS ASSOCIATED WITH EXPOSURE TO DIOXIN. Thompson Chemical Company also had far more knowledge about the manufacturing process than military decision makers. There can be no q u e s t i o n that ov e r numerous y ears as a manufacturer of TCP and 2,4,5-T, T.C. was fully aware of the manu facturing process for those compounds. T.C. knew that in the synthe of tetrachlorobenze to TCP, heat and pressure were utilized. T.C. knew that in the distillation of water, alcohol and anisole, heat was employed in the production of 2,4,5-T, the end product. T.C. was thoroughly familiar with the manufacturing process for 2,4,5-TCP and 2,4,5-T. K. T.C. K n e w That A H i g h l y T oxic Imp u r i t y Was In Its TCP and 2,4,5-T As a manufacturer of TCP, T.C. may have been informed in 1956 by C.H. Boehringer Sohn that a TCP or 2,4,5-T process that used heat or pressure above a certain maximum the TCP and 2,4,5-T with a highly toxic impurity. C.H. Boehringer Sohn had experienced horrendous outbreaks of chloracne with liver damage in some cases in two separate plants. To assure that other manufacturers of TCP and 2,4,5-T did not ex perience similar incidences, C.H. Boehringer Sohn sent in 1957, "Information of the reaction conditions under which no chloracne results to all known p r o d u c e r s of c h l o r o p h e n o l ." Plaintiffs h a v e established that The Dow Chemical Company, as a manufacturer of TCP, received such information from C.H. Boehringer Sohn. As a m a n u f a c t u r e r of TCP (a c h l o r o p h e n o l ) , T.C. p r o b a b l y received the same i n f o r m a t i o n in 1957 from' C.H. B o e h r i n g e r Sohn, as to a toxic impurity arising under certain conditions in the manufacture of TCP and 2,4,5-T. Dr. K.H..Schulz of the University Skin Clinic in Hamburg reported in "Die Natu r w issenshaften" 44: 337-338(1957), what he believed to be the contaminant in the TCP and 2,4,5-T being manufactured by C.H. Boehringer Sohn. Had anyone at T.C. read that article, he or she would have been alerted to the possible presence of dioxin in T.C.'s 2,4,5-T and TCP. Though he did not start with T.C. until approximately 1965, Mr. M.S. Buckley m a y have read Dr. Sch u l z ' s article. T h o m p s o n Tr. p.43, 50. Regardless of whether T.C. received information from Boeh ringer, or the Naturwissenshaften article, T.C. was undoubtedly aware a number of industrial exposure incidents in which workers manufactur TCP and 2,4,5-T experienced chloracne, liver damage in some instances and maladies involving the nervous system. See, generally, t e t r a c h l o r o d i b e n z o - p a r a - d i o x i n in the E n v i r o n m e n t , R o bert W. Baughman (unpublished dissertation for the Harvard Department of -57- Chemistry, 1975) - An awareness of those incidents would have alerte T.C. to the presence of a highly toxic impurity in TCP and 2,4,5-T. If T.C. had not learned of the existence of a highly toxic contaminant in TCP and 2,4,5-T through C.H. Boehringer Sohn, Dr. Schulz' article in 1957 or through knowledge of industrial worker exposures, T.C. clearly came to learn about dioxin from its own e x p e r i e n c e s w i t h e m p l o y e e injury. S o m e time p r i o r to F e b r u a r y 3, 1967, employees at T.C. experienced cases of severe chloracne. For unexplained reason, Mr. M.S. Buckley of T.C. was sufficiently well informed to call The Dow Chemical Company to inquire of recommended treatment for the exposed. Mr. W.J. McCoy of Dow recorded in a memo to file his conversation with Mr. Buckley of T.C.: Mr. M.S. Buckley of Thompson Chemical phoned Howard Sheldor. F e b r u a r y 2, i n d i c a t i n g that h e b e l i e v e d t h e y h a v e a s e v e r e chloracne problem with some of their employees. He indicat that they already have two men affected and believe that th may have two more employees that appear to be affected as well. T h e y a r e u s i n g H o o k e r 's t e t r a c h l o r o b e n z e n e to m a k e their trichlorophenol. Buckley was asking if Dow would have any recommendations fo medical treatment for their employees. Thompson T r . 31. Thus, T.C. knew about dioxin as a contaminant in TCP and 2,4,5-T as early as 1956 and certainly no later than the end of 1966. The military placed no restrictions on T.C. with respect to its manufacturing processes. T.C. had clear discretion in the choice of processes to use. See, Thompson, TR. 38. T.C. well understood that the process used determined the amount of dioxin in the 2,4,5-%. When M.E. Buckley of T.C. called Dow to discuss T.C.'s chloracne problem, Mr. Buckley "started talking about the chemistry of this material. Apparently, Mr. Buckley knew the chemical origins of dioxin and knowing that, knew that alternative manufacturing processes existec T.C. was fully aware of process alternatives. T.C. had absolute freedom to select the manufacturing process. Had the military known that different temperatures, pressures, alcohols, and phenolate water content resulted in different levels of dioxin contamination, there can be no doubt, the military would have required the -safest method. As previously shown, different manufacturing processes resulted in different levels of dioxin contamination and while T.C. and the other defendants were clearly aware of that fact, the military was ignorant of this matter because T.C. did not warn the military of the relationship between process selected and level of dioxin. Thus, T.H. also was part of the conspiracy of silence to conceal from the military. The facts of presence of dioxin, associated health hazards, and risk reduction processes. 43? -59- L - HERCULES INCORPORATED WAS KNOWLEDGEABLE ABOUT THE MANUFACTURING PROCESS, DIOXIN AS A CONTAMINANT, DETECTION METHODS, RISK REDUCTION METHODS, AND HEALTH HAZARDS A S S O C I A T E D W I T H E X P O S U R E T O DIOXIN._______ Hercules sold the product known as "Agent Orange" to the military beginning sometime in July, 1965. The "orange" was a mixture composed of equal volumes of 2,4-D and 2,4,5-T. Sometime in February, 1965, Hercules learned from another defendant, Dow Chemical Company, that a previously identified a c nege n (chloracnegen) w as a c o n t a m i n a n t in 2,4,5-T (Frawley dep. 35) That beginning sometime in June, 1965, Hercules knew that the 2,4,5-T which it was selling to the military was contaminated with dioxin (Frawley d e p o . 24; 67). Hercules learned from Dow in March, 1965 that the acnegen was dioxin (Frawley depo. 37), and that dioxin had the capacity to produce physiologic and systemic injury at a very low dosage (Frawley depo. 47). Hercules knew that unless dioxin was removed from inter mediates such as trichlorophenol it would carry though to the f i n ished product. (Frawley depo. 65, 70). -59a- 11488 Hercules produced dioxin contaminated herbicides which were ultimately sold to the military for use in Vietnam. Although the evidence as to the dioxin content of Hercules' herbicides is disputed by Hercules, it was sufficient to persuade this Court to recently reconsider and deny Hercules' Motion for-Summary Judgment. The evidence included: 1. The Hercules i nternal m e m o r a n d u m (Ex.l4 a ) , reporting that Dow's sampling showed an excess of 2 ppm. dioxin in Hercules product as late as 1966 ; 2. The fact k n o w n to H ercules that D o w wa s p u r c h a s i n g Hercules' contaminated 2,4,5-T for sale to the military in order to fulfill Dow's contracts for delivery of Agent Orange; 3. The Gulfport, M i s s i s s i p p i sampling w h i c h r evealed that 5 - 10% of the Hercules samples tested contained d ioxin in the r ange of 14 - 16 p a r t s per million; 4. Hercules k n o w l e d g e since the 1950's of d i o x i n formation in its 2,4,5-T and 2,4-D manufacturing process; 5. Hercules k n o w l e d g e of c h l o racne p r o b l e m s e x p e r i e n c e d by its.plant employees during the period 1950 - 1959. -59b- Hercules never informed any agency or department of Government, particularly the United States military to whom it sold "orange", that the product it was selling to the military was contaminated with dioxin. That Hercules never disclosed to any agency, or any department of Government much less did it notify the military to whom it was selling the dioxin-contaminated "orange" the information it had obtained both from industry and independent sources concerning the toxic effects of exposure to dioxin and its potential hazard to human health including disfiguring skin diseases, liver damage and systemic diseases. (Frawley depo. 78-79; 87-88; 90-91; 93-94; 95; 104-107; 110-111; 113-114; 115; 130-133; 138). Hercules processes for manufacturing 2,4,5-T were at all times proprietary. (Frawley depo. 71-72). Hercules never disclosed the details of its manufacturing process to the military or to any agency of government at any of the times relevant to this litigation. (Frawley depo. 28). -59c- > I I . DEFENDANTS' MISREPRESENTATIONS OF THE SAFETY OF THEIR HERBICIDES TO OTHER GOVERNMENT AGENCIES Concurrently with their conspiracy of concealment and failure to warn the military, defendants also attempted to silence any criticism of dioxin contaminated 2,4,5-T and to obtain the United States Governments' approval of the contami nated herbicides whech they were selling to the military. De fendants formed what came to be known as a "joint industry task force on phenoxy herbicide tolerances" whose sole purpose was to p e r s u a d e the p e s t i c i d e r e g u l a t i o n d i v i s i o n (PRD) of the Unit e d States Department of A g r i c u l t u r e (USDA) to declare various phenoxy herbicides, including 2,4,5-T, as toxicologically safe. The technical term used was "negligible residue tolerance." On or about August 23, 1966, the Task Force held its first meeting at the Madison Hotel in Washington, D.C. Members of the Task Force included representatives of Defendants Diamond-Shamrock, Hercules, Inc., Monsanto Co., Dow Chemical C o . , and Thompson-Hayward, later to be joined by Thompson Chemical Corporation and Uniroyal, Inc. The Agricultural organization industry. Task Force was convened under the aegis of the National Chemicals Association, a chemical industry activist owned, operated, managed and controlled by the chemical Mr. George E. Lynn, an e x e c u t i v e of Dow C h e m i c a l C o m p a n y was elected Chairman while Mr. C.L. Dunn, an executive of Hercules, was elected Vice-Chairman. -60- The minutes of the August 23, 1966 meeting revealed that the National Agricultural Chemicals Association had called the meeting at the request of an unidentified member company. The purpose of the meeting as set forth in the minutes was to ascertain if the companies present wished to form a Task Force and work jointly in an effort to secure negligible residue tolerances for phenoxy herbicides. Put another way, its purpose was to persuade the United States Department of Agriculture to declare phenoxy herbicides such as 2,4,5-T safe (nontoxic to humans and animals), notwithstanding the mass of information which each other concerning the toxicity of 2,4,5-T to humans. The member companies meeting decided that the task force would be foremd, "...to work with the Food and Drug Administration and the United States Department of Agriculture for the purpose of securing the establishment of tolerances for existing no-residue registrations of phenoxy her b i cides (-- 2 , 4 , 5 - T -- )." One of the activities delineated in the minutes is as follows : "-- 2 Each member of the task force will compare and submit to the Chairman a listing of the toxicological and residue information which his company has on each of the herbicide chemicals involved..." The next meeting of the task force which occurred on September 27, 1966 at the Jefferson Hotel in Washington, D.C. was attended for the first time by a representative of Thompson Chemical C o r p . Consequently by September 27, 1966, d e f e n dants Dow Chemical Co., Thompson Chemical Corp., Diamond-Shamrock, Monsanto Co., Thompson-Hayward, and Hercules, Inc. -61- were now members of the industry Task Force. Significantly, by this time, all defendants were aware of dioxin contamination of 2,4,5-T and the fact that it carried through to the end p r o d u c t posing a h a z a r d to consumers. Hercules C h i e f Toxic o l o g i s t, Dr. J o h n P. Frawley, h a d b y this time not only received information from Dow, but also from Monsanto and Badische in Europe concerning their problems with dioxin contamination arising out of the manufacture of trichlorophenol. They were also aware of potential hazards to human health b a s e d upon the M a r c h 24, 1965 d i o x i n c o n f e r e n c e (supra) as w e l l as the subsequent contacts by Dow with other companies to inform them of the frightening implications of their continued manufacture of dioxin c o n t a m i n a t e d 2,4,5-T as per the F r a w l e y m e m o r a n d u m dated J u l y 12, 1965. At the S e p t e m b e r 26, 1966 meeting, the sub j e c t of "toxicological and residue data" arose and it was decided P"o-p-htahmat, aenaych a n dmema bl el r t o xofi c othl oe g ti caaskl afnodrcer e-siisd uteo dsea nt ad wtoh i cDhr. h e m a y h a v e r e l a t i v e to p h e n o x y h e r b i c i d e s . . ." The Task Force engaged a Dr. Po p h a m w h o m later min u tes w o u l d describe as formerly with the Agricultural Research Service of the United States Department of Agriculture. He was, in effect, to become the Task Force's point man for purposes of deceiving the government concerning the nature and extent of the toxicological data which was locxed within the phenoxy herbicides industries' confidential files. On O c t o b e r 25, 1966, the Task Force a g a i n met, this t i m e at the offices of the National Agricultural Chemicals Association in Washington, D. C. The minutes reflect that the -62- Agricultural Research Service of the United States Department of Agriculture, appointed Dr. L.L. Danielson of the Crops Research Division "--to work with the Task Force -- " The minutes further d e s c r i b e that Dr. D a n i e l s o n "-- is going to search the USDA files for any residue data that is available and Dr. Popham will work w i t h h i m to collate it with what the Task Force already has. -- " Dr. Danielson was to search the USDA files to determine whether those files had any information on the toxicity of the herbicides under consideration including 2,4,5-T. What Dr. Danielson and his superiors at the USDA did not know was that current toxicological data on the toxicity of 2,4,5-T was safely reposing w i t h i n the Task F orce c o m p a n i e s w h o h a d s o l i cited the U S D A 's "assistance." As will be seen (infra) the USDA had not an inkling of the problem of dioxin contamination of 2,4,5-T as the Task Force conspirators well knew. The m i nutes of the J a n u a r y 18, 1967 m e e t i n g of the Task F o r c e reveal that Dr. L.L. Danielson of the Agricultural Department had, by that time, been apparently retained as a part-time "consultant." How this squared with his duties at the US Department of Agriculture and a po ssible conflict of interest is unclear. It seems not to have presented any problem to the task force. At that meeting the committee "discussed" the fact that a p o i n t needs to be m a d e w i t h b o t h the FDA and P R D / U S D A that t h e r e is c o n s i d e r a b l e p u blic interest i nvolved in the c o n t i n u e d use of 2,4-D, etc., (including 2 , 4 , 5-T) and that in view of all the data now available, the agencies should extend themselves to consider and act favorably on the Task Force's proposition that the negligible residue tolerances should be established for all current registered uses. None of the data obtained by Hercules or any of the other producers from Dow concerning the toxicological hazards associated with the use of the product and the adverse impact upon laboratory animals as reported by Dow at the March 24, 1965 conference -63- l U 9 i and in the other'communications between the defendants ever found its way into the petition. On M a r c h 28 of 1967, Mr. G e o r g e E. Lynn, an ex e c u ti v e o f Do w Chemical then Chairman of the industry Task Force composed a report detailing the activities of the Task Force including the individuals who would be cooperating with it in establishing a negligible residue tolerance. The report shows that several representatives of the USDA including the Administrator of the Agricultural Research Service were invited to cooperate with the Task Force. The report further indicates that Dr. George W. Irving, Jr., administrator of the Agricultural Research Service of the USDA and Dr J a m e s L. Goddard, C o m m i s s i o n e r of Food and Drugs, w e r e i n v i t e d to "cooperate" with the Task Force in this project "by supplying such technical assistance and data as would be appropriate with the public interest." The report further shows that the committee in the presence of representatives of the USDA and the Food and Drug Administration made it a point to stress: "that in view of the wide use of these herbicides by the American farmer for food production, the Task Force felt the USDA and the FDA also had a vital interest in the continued a v a i l a b i l i t y of these essential h e r b i cides.. ." One of the objectives of the Task Force as described in the m e m o r a n d u m w a s to: -64- V "collect all available data from private and published sources with respect to toxicity . . pertinent to the use of any and all phenoxy herbicides--" "-- The probable sources of such data being (a) A g r i c u l t u r a l R e s e a r c h Service, USDA; (b) industry (data used in support of no res i d u e registrations); (c) state e x p e r i m e n t stations; (d) s c i e n t i f i c literature; (e) Food and Drug A d ministration, USDHEW. Significantly, the kind of "industry" data to be supplied was not left to speculation. It was to be only that data which could be "--used in support of no residue registrations -- " As will be seen, any b e l i e f that the U. S. D e p a r t m e n t of A g r i c u l t u r e or the Department of Health, Education and Welfare might have had about industry supplying its current data or directing USDA to its scientific literature would at the time of submission of the petition turn out to be a sham. As w i l l be further seen (infra)-, not o n l y did industry not report the state of its current knowledge about dioxin contamination of 2,4,5-T, but deliberately submitted antiquated literature none of which was critical of 2,4,5-T much less containing any mention of an acnegen or a chloracnegen and certainly not dioxin. By the time of the A p r i l 20, 1967 meeting, as r e f l e c t e d in the minutes, the Task Force learned that * ". . . the FDA's c o n c e p t of a n e g l i g i b l e t o l e r a n c e is in a range of 0.1 ppm but 0.2-0.3 ppm is not out of line if data justifies it. . ." Of course, the 0.1 ppm etc., has no reference to dioxin contamination since the USDA at that juncture has absolutely no knowledge from the Task Force about the problem of dioxin contamination of 2,4,5-T. One would expect that, given defendants claimed knowledge by USDA, FDA and HEW of the dioxin contamination problem and its potential to human health, at least one of these -65- 11496 minutes would have shown some discussion and perhaps even a disclosure to these agencies or their representatives at the meeting about the potential hazards. The minutes contain no such reference. The minutes contain a schedule of the diffrent phenoxy herbi c i d e s and o p p o s i t e 2 , 4 , 5 - T all d e f e n d a n t s ,e x c e p t U niroyal appear to have contributed towards the fee for putting the petition together and the filing. They each appear to have been assessed the sum of $1,100.00. On May 11, 1967, the National Agricultural Chemicals Association on behalf of the task force informed Hazelton laboratories by letter, that it had been selected to prepare the petition to have 2,4,5-T declared safe to humans, animals and crops. The fraud and deception continued with the following empty promise described in the third paragraph of the letter to Hazelton: "The industry Task Force will turn over to Hazelton all of the information on the above mentioned phenoxy herbicides which it has gathered from various sources with respect to animal toxicity and crop r e s i d u e s ..." An examination of the studies concerning animal toxicity submitted with the petition reveals in substance that 2,4,5-T is as safe as drinking water. Of course, the V.K. Rowe studies of 1950 were included, showing 2,4,5-T to be safe while the V.K. Rowe studies of 1965 showing toxicity to humans and animals as discussed at the secret March 1965 dioxin conference were conspicuously absent. i : ;97 -66- T h e Task Force min u t e s of O c t o b e r 17, 1967 r e p o r t "considerable discussion was given to possible handling of the use of these herbicides on rangeland. The high application rates involved, up to 6 pounds per acre, could result in high residues on the treated forage immediately a fter application. . ." i Significantly, the military only used 3 pounds per acre in V i e t Nam. The/ C o m m i t t e e then h a d to c o n s i d e r the p r o b l e m s a s s o c i a t e d with application of 6 pounds per acre of 2 , 4 , 5-T. The minutes reflect that there was discussion of possible approaches such as ". . .requesting a s u f f i c i e n t l y high n u m e r i c a l tolerance, requesting that the use be declared a "non-food use," and using label statements specifying a minimal time interval for grazing the treated range and/or for slaughtering cattle w h i c h h a v e grazed the land. . ." The Committee then decided as a better solution ". . . to list this use under a new h e a d i n g "Forest Grass, Pasture, Range. . ." It was also decided to include in the . . . petition the notation which appears in the 2,4-D entry in the USDA summary of registered agricultural pesticide c h e m i c a l uses under the "Pasture: Clover., Grass" item to the effect: "Do not graze dairy animals on treated areas within seven days after application." Nothing appears to have been beyond the imagination and ability of this resourceful group of conspirators. With a spray rate of 6 pounds per acre the only way to overcome the toxic residue was to have the USDA increase the tolerance level. Of course, at this point there is still no mention by industry of dioxin conta m i n a t i on to the product and its potential hazard to human health. The fact that the Task Force did not wish to permit the dairy animals to graze on treated areas for at least seven days after application demonstrates some consideration for animals when weighed against the fact that no one told the military to keep the soldiers out of the sprayed areas for at least one week. The minutes further reflect that at 12:00 noon, Drs. L.L. Danielson and D.L. Klingman of the Agricultural Research Service of the U SDA joined the group. Dr. Klingman is quoted as d i s c ussing the 11498spraying of range lands with herbic i d e s and that m any more acres w o u l d ' 67` be benifited if t h e y w e r e sprayed. He is further q u o t e d as urging that the task force seeked to obtain clearance for this use so that farmers and ranchers could continue to u t ilize these v a l u a b l e tools. ." However, his associate from the USDA, the 'occasional p a r t - t i m e consul t a n t to the task force, Dr. Danielson, went even further when he "promised to assist the task force in every way possible and proper in obtaining regulatory clearance for these materials so as to keep them available. Specifically, he and Dr. Klingman promised to consult their files in an effort to locate any pertinent data which would be helpful to the task force in its efforts to obtain tolerances." It is clear that the minutes do not reflect any knowledge by the USDA, FDA, HEW that any of these phenoxy herbicides, including 2,4,5-T are toxic. Significantly, for the first time, Uniroyal Chemical joined the Task Force by E.A. Hafner in attendance. On N o v e m b e r 27, 1967 on the s t a t i o n e r y of Hercules, Inc., C.L. Dunn, Chairman of the industry Task Force wrote to Dr. H a r r y A. Hayes, Director of the Pesticide Regulation Division of the United States Department of Agriculture. In substance, he stated that the National Agricultural Chemicals Association Industry Task Force on phenoxy herbicide tolerances had assembled petitions requesting tolerances to cover uses previously registered on a "no-residue" basis. What this means is that previously, the p h enoxy h e r b i c i d e s h a d been registered with the USDA as having a no residue toxicity. Now, the industry was seeking by its petition, to establish a toxicity tolerance for these very same herbicides. Hr. Dunn went on to misrepresent on page 1 of the letter: -68- f; "There is no hazard to animals as evidenced by the extensive use of these materials for more than a decade, nor is the presence of residues in meat or m i l k a r e g u l a t o r y p r o b l e m . .." Nothing was said in that letter about the animal studies conducted by Dow; nor that Dow had determined that dioxin was a contaminant in 2,4,5-T which carried through unless extracted, carried through to tne end product, nor that Dow had alerted all producers of 2,4,5-T to the potential hazards associated to humans exposed to dioxin contaminated 2,4,5-T; nor that Dow had set an internal specification of 1 ppm of dioxin contamination based upon their experience with laboratory animals; nor that Dow had expressed to the producers at the Ma r c h 24, 1965 meeting that their analysis of their competitors 2,4,5-T showed what fate described as "surprisingly high amounts of the acnegen" which they identified as dioxin; nor was there any mention of the telephone call of the substance of knowledge gained by Dr. Frawley from the telephone call received from Earl Farnham of Dow Chemical Company on July 9 of 1965 alerting Dr. Frawley to the fact that Dow was frightened that the whole industry might explode and that there might be governmental intervention by way of a Congressional investigation and a banning of pesticides because of what Dow perceived as "alarming amounts of acnegen" in their competitors' 2,4,5-T; nor any disclosures by M r . C.L. Dunn who attended the secret dioxin conference with Dr. John Frawley on behalf of Hercules and was copied on the memo Dr. Frawley wrote recounting his conversation with Farnham of Dow. At no time did the so-called industry Task Force on phenoxy herbicides -69- make disclosure- to the USDA or FDA people in attendance at their meetings of the common knowledge which they had all acquired beginning in November, 1964 when Dow had devised a means for the identification of dioxin in 2,4,5-T. On N o v e m b e r 27, 1967 on the statio n e r y of Hercules, Inc. Mr. C.L. Dunn, acting in his capacity of Chairman of the Task Force wrote to Dr. Harry Hayes, Director of the Pesticide Regulation Division of the United States Department of Agriculture informing him that the industry Task Force had assembled petitions requesting tolerances on the phenoxy herbicides. The fourth paragraph of Mr. Dunn's letter continues the misrepresentation and fraud when he states: "there is no hazard to animals as evidenced by the extensive use of these materials for more than a decade -- " O n that same date, N o v e m b e r 27, 1967, Mr. D u n n w r o t e to the Task Force informing them that both he and Don McCollister (Dow) were discouraged by the apparent unconcern of the USDA "for the farmer users of phenoxy herbicides. In addition. Dr. Anderson seemed quite opposed to a cooperative program. He expressed sensitivity to criticism by G.A.O. Investigators who recently complained about USDA developing data subsequently used by a manufacturer for registration, purposes. On Decem b e r 8, 1967, the c o n s p i r a t o r s s u b m i t t e d to the petition control branch of the Food and Drug Administration of the Department of Health, Education and Welfare a petition to have 2,4,5-T d e c l a r e d safe. The cover letter is on the s t a t i o n ery of N a t i o n a l Agricultural Chemicals A s s o c iation, s i g n e d by C. L. Dunn, Chairman. The petition consists of seven sections, -70- 11501 a-g. Section C reads as follows: "full- reports of i n v e s t i g a t i on s made w i t h respect to the safety of the pesticide chemical. An examination of the bibliography in support of the Task Force claims a lack of toxicity shows that not one study critical of 2,4,5-T was cited. Instead, these defendants submitted to the unsuspecting gullible and ingenuous USDA, Food & Drug Administration, and HEW studies by V. K. Rowe, M c C o l l i s t e r and Spen c e r of Dow C h e m i c a l C o mpan dated 1950, all of which had been negated by Dr. Rowe's "startling" c o n f i r m a t i o n of d ioxin as the toxic c h l o r a c n e g e n in November, 1964 anc Dow's subsequent experimentation with dioxin contaminated 2,4,5-T upo: laboratory animals, none of which work found its way into the open scientific literature much less into the FDA petition. Subsequently, the Task Force received a letter dated April 8, 1963 from the D e p a r t m e n t of Health, E d u c a t i o n and W e l f a r e to Mr. C. L. Dunn, C h a i r m a n of the Task Force, i n f o r m i n g Mr. Dunn that the toxicology data submitted by the industry was in sufficient especially with respect to the fact that there would be a carry over into meat and milk. The petition was subsequently withdrawn along with the petition which sought to have 2,4-D declared safe also. Defendants' efforts to disparage any claims of the toxicity of dioxin did not cease, however. When the National Cancer Insti tute which commissioned the so-called "Bionetics Report" released its findings concerning the potential health hazards of dioxin contaminated 2,4,5-T, Dr. John Frawley, Chief Toxicologist of Hercules, sought to belittle the ignorance of the National Cancer -71- Institute about the toxicity of dioxin. In a letter dated November 25, 1970 responding to a letter from his counterpart in England, Dr. John C. H iggins, of the H e r c u l e s P o w d e r Comp a n y of England, Dr. Frawley made the following caustic and critical disparagement of the National Cancer Institute's knowledge of dioxin and its toxicity: "--- the G o v e r n m e n t A g e n c y s ponsoring the study (NCI) was not familiar with the toxicity of the dioxin and allowed publicity on the results without consultation with better informed government or industrial scien tists. --- " He reserved his most severe criticism for the surgeon general when, in that same letter to Dr. Higgins, he wrote: "--- on the basis of this single o b s e r v a t i o n in mice, the Surgeon General (who has never in the past gotten involved in safety evaluations) declared before a Congressional Committee that even pure 2,4,5-1 presented an imminent hazard to the health of the public. This triggered the banning of 2,4,5-T for all household and several indus trial uses ..." It was not until 1979 that the Environmental Protection Agency (hereinafter "EPA"), although knowing that some manufacturers produced 2,4,5-T with less than 1PPM, instituted deregistration p r o c e e d i n g s - a g a i n s t 2 / 4 , 5-T. The E P A 's P r e h e a r i n g B r i e f on T he Risk Associated with the Registered Uses of 2,4,5-T and Silvex concludes: "In sum, the data on toxic effects in animals and humans together with the data on exposure potential establish that the continued use of 2,4,5-T and Sil vex contaminated with TCDD (dioxin) pose risks of adverse effects on human health. (parenthetical added). Though the EPA is undoubtedly concerned with the health - hazard dioxin in 2,4,5-T presents to those who manufacture it, the focus of EPA's concern is the user, the innocent bystander and the environment. Since EPA apparently believes that less than 1PPM is unsafe. The inescapable inference is that de f e n dants' conspiratorial conduct, misrepresentations and failure to warn were responsible in substantial measure for the EPA's delay in commencing deregistration proceedings. -72- III. THE DEFENDANTS SUPPLIED DIOXIN CONTAMINATED HERBICIDES WHICH WERE MIXED TOGETHER BEFORE BEING SPRAYED IN VIETNAM MAKING IMPOSSIBLE I D E N T I F I C A T I O N OF W H I C H D E F E N D A N T rS HERBICIDE C A U S E D INJURIES TO PLAINTIFFS.__________________ The defendants' dioxin contaminated herbicides were supplied in drums not bearing, the defendants' corporate name. They were mixed together before spraying. A description of "standard operating procedures" is contained in an official q/ U.S. A i r F orce T e c h n i c a l R e p o r t -- , (pp. 1-15, 15). Each of the 11 different companies that manufactured m i l i t a r y h e r b i c i d e s p a c k e d t h e m in ne w ICC 17C 55-gal 18 gauge steel drums for shipment to Southeast Asia. Each herbicide drum was marked with a three-inch colorcoded band around the center to identify the specific military herbicide. This marking was initially a 12-inch band, but was changed to a 3-inch band in March 1966. A b o u t 10 out of e v e r y 10,000 drums shipped w e r e rec e i v e d in a damaged or defective state. This represented a damage rate of 0.1 percent. A b o u t 50 percent of these damaged drums leaked as a result of punctures or split seams. There were caused by improper loading and defective drums. Forklifts operated by Stevedores also caused punctures. Redrumming was accomplished at the ports. About 65 percent of the herbicide was shipped to the 20th Ordna n c e Storage Depot, Saigon, and 35 percent was shipped to 9_/ "The T o x i c o l o g y , E n v i r o n m e n t a l Fate and Human Ri s k of H e r b i cide Orange and its A s s o ciated Dioxin" Alvin L. Young, et al., October 1978. the 511th Ordnance Storage Depot, Da Nang. Under the normal handling procedures, drums were unloaded at Da Nang and Saigon from the cargo vessel directly into semi-trailers and were placed in an upright position. The trailers were driven to the various units of the 12th Air Commando Squadron (primarily at the bases of Da Nang, Phu Cat, or Bien Hoa) for disposition. Normally the contents of the drums were transferred into blocked F-6 trailer tanks through a suction tube without remov ing the full drums from the semi-trailers. Each F-6 trailer held 4,298 gal or about 78 drums of herbicide. When the herbicide was pumped from the drums into the F-6 trailers about 0.5 to 1.5 gal remained in the drum. Hence the drum was placed on a drain rack and the "drippings" were collected from many drums in a pan-type receptacle and used for spraying base perimeter areas. -74- f i, Jf. ^ r, ,, . 1(SJr IV. DEFENDANTS' JOINT ACTION TO PREVENT GOVERNMENT PRODUCTION OF 2,4,5-T AND 2,4-D __________ ___ The defendants together comprised virtually the entire 2,4-D and 2,4,5-T industry. As we have demonstrated, they acted conspiratorially or in concert to conceal from or .misrepresent to the government the hazards associated with their products. In addition, to guard their dominant market position, they acted jointly to prevent the government from constructing and placing in operation at Weldon Springs, a plant for the production of 2,4,-D and 2,4,5-T. This is evidenced by a document authored by M. F. Wilkerson, D i a m o n d ' s M a r k e t i n g Manager, r e flecting the industry decision taken by the defendants at a m e e t i n g October 4, 1963 of the Task Force c r e a t e d by the N a t i o n a l Agricultural Chemical Association (NACA), attended in person or by representation by defendants, Monsanto, Hercules, Diamond, Dow & Thompson-Hayward. The document reviewed the industry capacity "as secretly submitted", to produce both 2,4-D and 2,4,5-T as opposed to the purchase patterns of the military. Although the production data submitted by each defendant was coded to preserve secrecy, Mr. Wilkerson estimated their respective capacities: 11506 -75- "A bit of upside-down reading gave the following breakdown of the partici pating members' capacities. These were coded but are exact. I have attached Ccmpanv names which may or may not be, with the exception of Diamond, asso ciated correctly with the capacity number. 2,4-D 2,4,5-T 5.0 MM - Hercules 12.0 MM - Diamond 40.0 MM - Dow 24.0 MM - Monsanto _1_4_._0__M_M - Chicman 5.5 M4 3.0 MM 12.0 MM 7.2 MM __4_._5__M_i Hercules Diamond Dow Monsanto T-Hayward TOTALS 95.0 MM 32.2 MM T-Kayward acknowledged they produced no 2,4-D as did Chipman for 2,4,5-T. This group's best estimates for total annual domestic requirements of D and T were: 2,4-D - 55 Mi lbs. 2,4,5-T - 18 MM lbs. Hooker acknowledged they now have TCB capacity to supply all producers, on the basis of these estimates, except for Dow (who produce their own) and T-Hayward (who are presently being supplied TCP by Dow.)" The task force then adopted the following position: "SUMMARY OF POSITION The group of phenoxy herbicide producers at their meeting of October 4, 1968 after estimating the capacity of the domestic industry to produce 2,4-D and 2,4,5-T; after estimating as accurately as possible the domestic civilian consumption of these products and the military requirement based upon the stated needs and current delivery schedules, concluded that there is sufficient domestic production of 2,4-D to fully meet both the civilian and military requirements, and that the production of 2,4,5-T would meet a substantial part of both the civilian and military need. It was concluded that the questions which prompted the Government Officials to make the decision to construct and place in operation a plant at Weldon Springs to produce both 2,4-D and 2,4,5-T have changed, and that the industry should request an opportunity to explore these data with the Government. It was further concluded that even if it is assumed that the military will require the full amount of its needs as heretofore estimated, that there would be a very substantial over-production of both 2,4-D and 2,4,5-T if the Weldon Springs plant is operated at full capacity. This raised questions of serious import to the domestic industry which should be t h o r o u g h l y explored with the Government. 11 507 -76- V. THE M I L I T A R Y W AS NO T AS K N O W L E D G E A B LE AS THE DEFENDANTS ABOUT THE MANUFAC TURING PROCESS, DIOXIN AS A CONTAMINANT, DETECTION METHODS, RISK REDUCTION METHODS AND HEALTH HAZARDS ASSOCIATED WITH EXPOSURE TO DIOXIN The disparity of knowledge between the defendants and the military was enormous. It is a significant factor giving rise to the defendants' duty to warn the military of the hazards accompanying use of their herbicides known to the defendants, and the duty to ihform the military of the means of risk elimi nation or reduction as this C o u r t n o t e d in 534 F. Supp. 1046 , 1055 "A supplier should not be insulated from liability for damages that would never have occurred if the military had been apprised of hazards known to the supplier. A supplier, therefore, has a duty to inform the military of known risks attendant to a particular weapon that it supplies, so as to provide the military with at least an opportunity fairly to balance the weapon's risks and benefits." The good sense of imposing a duty to inform is readily apparent. Such a duty does not interfere with the military's prerogatives by requiring suppliers and courts to second-guess the military's decisions. Indeed, it enhances those pre rogatives by helping to ensure that suppliers will share their knowledge and expertise with governmental decisionmakers. Nor does such a duty cause delays in supplying needed ordnance the suppliers are obligated merely to share knowledge and expertise already in hand. 77 In order for knowledge about hazards to have helped the military "fairly to balance a weapon's risks and benefits," it must have been possessed by individuals who were in positions of sufficient authority and responsibility to act on that k n o w ledge . If the decisions in question were those regarding whether and how to deploy Agent Orange in Southeast Asia and which of the various forms of the Agent to employ, knowledge about hazards must have been possessed by a decisionmaker relatively high up in the chains of command and authority. Moreover, for the knowledge to have informed that relevant decisionmaker, it must have been possessed by him in a cohesive manner so that he would be in a position to integrate it into a meaningful whole. It is not sufficient for military contractors to share inform a t i o n v/ith anyone at all or w i t h individuals so far do w n the relevant chains of command and authority as to render the information useless as a means of increasing the rationality of the policy decisions being reached by the appropriate decision maker at the appropriate level in the chain of authority. Nor is it sufficient if the information consists of isolated bits and pieces of knowledge, scattered both vertically and horizontally throughout the governmental bureaucracies and shared in piecemeal fashion, with one person in government being informed as to another aspect. The first of these threats to rational decisionmaking might be termed the threat of vertical nonintegration. Both defeat the objective of rational XjL^{)9 -78- decisionmaking by preventing knowledge about hazards from being available to those attempting, in the Court's words, "fairly to balance the risks and benefits." In their prior submission, "Plaintiffs' Memorandum Concerning the Government Contract Defense Phase of the 'Agent Orange' Products Liability Litigation: A Management Plan for the D i s c o v e r y Phase", June 8, 1982, p laintiffs a d d r e s s e d the legal implications of the question of who in the government must have known, and noted that under the relevant case law, including that of the product liability field, the following rules apply in determining the issue of knowledge imputation or information transference: 1. I n t e r - A g e n c y imput a t i o n of kn o w l e d g e is whol l y impermissible and intra-agency imputation use narrowly limited (pp. 22-68). 2. I n f o r m a t i o n tra n s f e r e n c e m u s t be t a r g e t e d to the appropriate decisionmaker and focused to alert to danger (pp. 22-31). It is clear from the record that judged by these standards, the defendants have breached their duty to warn and inform the responsible governmental decisionmakers. A p a r t from th e q u e s t i o n of w h o (i e . the h i g h level rational decisionmaker) in the government should have possessed the information defendants had and withheld, is the issue of what information would rational governmental decisionmakers have wanted the chemical companies to share with them in order to be "fairly to balance the risks and benefits -79- g iven1 t1h5e 1 0 implications of"such a massive military deployment of a toxic herbicide, known by the suppliers to be hazardous to human health, but capable of eliminating or reduction such hazards. We submit that there were at least four types of information in the possession of the defendant chemical companies that rational governmental decisionmakers would have wanted those companies to share with them so that the government could undertake its own risk-utility assessment in the context of the entire war effort: First, information relating to factual, historical experiences with dioxin contamination -- eg., occupa tional related injuries to workers following exposure to dioxin contaminated materials in manufacturing facilities -- that would have led a rational person to suspect that exposure to such materials may be harmful to humans; Second, dioxin information, contamination levels and variables determining levels of dioxin in the chemical herbicide manufacturing process; Third, infor mation relating to dioxin contamination levels in the herbicides manufactured for use in Vietnam and the extent to which levels of dioxin contamination could be reduced by the use of appropriate analytical and detection procedures, alternative methods of manu facture or q u a l i t y control and the cost thereof and Fourth, information in the form of judgments and assessments of the risks to health already arrived at by the chemical companies themselves. The first, second and third types of information are essentially factual, the first focusing on the risks of injury and the second focusing on the dioxin forming process and contaminant -80- ? sr 1 4. i i levels, and the third focusing on risk avoidance. The fourth type of information is more judgmental than factual, consisting of the conclusions, however, that the chemical companies had reac regarding the risks presented by Agent Orange. Finally, there is the q u e s t i o n of "when?" -- i e ., t he relevant time frame within which the government must have had knowledge about the hazards associated with Agent Orange? Consistent with the concept of informed and rational decisionmaking, the crucial time for the government to have had knowledge of the hazards was the time during which decisions were made regarding the purchase and deployment of Agent Orange in southeast Asia. The key to understanding the relevant time frame is the objective that the military not be forced unneces sarily to act on inadequate information. Thus, suppliers of the chemical herbicides were obligated to share whatever relevant information they possessed at the time of sale and were obligated to share additional information.as it became available to them throughout the period during which those herbicides were being used by the government. The discovery to date establishes that these chemical companies were in a position, at little or no cost, and indeed had the duty, to draw the hazard and risk avoidance pieces together and timely warn and share them with the responsible government authority who made the decisions that directly and drastically affected the welfare of the plaintiffs. The defendant companies 11512 -81- failed to do this. Defendants'elaborate discovery of hundreds of officials have at most produced bits and pieces of in formation about the hazards of dioxin in general scattered use lessly across the length and breadth of various federal bureaucracies. Thus, defendants have also failed in their duty to warn and inform the responsible governmental decisionmaker as to the specific facts the military needed to know in order to make an informed decision. -8^ VI. UNDER THE PRECEDING FACTS AND CIRCUMSTANCES, EACH DEFENDANT'S BREACH OF ITS SEPARATE DUTY TO WARN MAY BE CONSIDERED THE "CAUSE IN FACT" OF PLAINTIFFS' INJURIES, AND THE PROBLEM OF SEPARATE DEFENDANT IDENTIFICATION THEREFORE DOES NOT EXIST; BUT IN ANY EVENT, THE DEFENDANTS MAY BE HELD JOINTLY AND SEVERALLY LIABLE UNDER THE THEORIES OF CONCERTED ACTION, ENTERPRISE LIABILITY AND ALTERNATIVE LIABILITY Because of the manner in which the defendants sold Agent Orange to the Government, and the manner in which the Government then utilized it so as to expose the plaintiffs to its effects, it is unlikely, no matter how firmly it is established that Agent Orange in fact caused the plaintiffs' injuries, that any plaintiff will be able to identify with certainty which one or more of the defendants actually produced the specific batch of Agent Orange to which he was exposed, to his detriment. Rather, b e c a u s e the defendants p u t no c o m p a n y - i d e n t i f y i n g m a r k s on the' barrels of Agent Orange they sold to the Government, and the Government treated the product generically, the most that plaintiffs will be able to prove is that they were all injured by Agent Orange, virtually all of which was produced by the defendants. To go further than this, and to require each plaintiff to identify the specific defendant or defendants whose Agent Orange caused his injury, would present impossible problems of proof. At one time in the law, perhaps, such problems of proof might have been fatal to a plaintiff's case. The demands of modern society, however, have brought chance to the law of causation and liability. The courts have clearly recognized that if they are to c o n t i n u e to serve the ends of justice in an ev olving society, the r ules of lav; they apply m u s t also evolve. As the Supreme Court of California put it, in con sidering the similar problems of proof of causation and lia bility facing a plaintiff in a products liability action involving the drug DES: "In our contemporary complex industrialized society, advances in science and technology create fungible goods which may harm consumers and which cannot be traced to any specific producer. The response of the courts can be either to adhere rigidly to prior doctrine, denying recovery to these injured by such products, or to fashion remedies to meet these changing needs. Just as Justice Traynor in his landmark concurring opinion in Escola v. Coca Cola B o t t l i n g C o m p a n y (1944) 24 Cal. 2d 453., 467-468, 150 P . 2 d 436, r e c o g n i z e d that in an era of mass production and complex marketing methods the traditional standard of negligence was insufficient to govern the obligations of manufacturer to consumer, so should we acknowledge that some adaptation of the rules of causation and liability may be approflp r i a t e in these r e c u rring c i r c u m s t a n c e s Sindell v. A b b o t t L a b o r a t o r i e s , 607 P .2d 924 , 926 (Cal. 1980) . Or, as Judge Meyer of the New York Court of Appeals more succinctly put it in another products liability action involv ing DES, "Products liability law cannot be expected to stand still where innocent victims face 'inordinately difficult problems of proof.'" B i c h l e r v. Eli L i l l y & C o . , 55 N Y 2 d 576, 580; 450 N Y S 2d 776,779 (N.Y. 1982). 83 Thus, Court as well as commentators have proposed means which permit recovery by plaintiffs under circumstances such as these, where the conduct or product of a specific defendant out of a group of potentially liable defendants cannot be identified as the "cause in fact" of the p l aintiffs' injuries. Such proposals involve application of principles of "concerted action", "enterprise liability", "alternative liability", and, more recently, "market share liability".-- ^ 10/ The C o u r t in S i nde l l v. A b b o t t L a b o r a t o r i e s , 607 P.2d 924 (Cal. 1980) develop e d the mar k e t share liability theory as a specific modification of the alternative liability theory to surmount the rational difficulties in applying the alternative liability theory in cases where not all or substantially all potentially liable parties are named as defendants. Since, as Exhibit 1 to this Memorandum clearly demonstrates, virtually all potentially liable parties are named as defendants here, the problems presented in Sindell, and the specific solution of market share liability devised by the Sindell Court to overcome them, do not apply. Plaintiffs, therefore, do not discuss the market share liability in this memorandum. -84- Plaintiffs believe that the lengthy factual statement fully supports the theories of concerted action, enterprise liability and alternative liability. These arguments will be addressed seriatum. However, there is good reason to examine at the outset the implications of the failure to warn theory as it has d e v e l o p e d in this case. On its own it is disp o s i t i v e of the problem of defendant identification. The plaintiffs have presented facts in this case estab lishing that the defendant chemical companies failed to warn the government about a broad range of risks related to the use of Agent Orange. Plaintiffs submit that the very special nature of the breach of the duty to warn issue as it arises in this case moots the issue of causation as it relates to the identification of which defendant should be deemed responsible for which p l a i n t i f f `s harm. As we s hall demonstrate, each defendant individually in the truest sense of the word was a "cause in fact" of the entirety of the harm. It will be helpful to focus on the nature of the failure to warn claim. Plaintiffs contend that each of the defendants failed to warn of risks which they either knew or should have known about. These break down into various categories. F i r s t , plaintiffs contend that the defendant failed to share with the -85- 1 r IT iL^ 1 ^ 7 United States Government information concerning the possible hazards attendant to the use of dioxin contaminated Agent Orange. What suspicions did they harbor or should they have had that the herbicide caused a broad range of diseases? The defoliation project subjected soldiers to doses and exposure to the herbicide hereto fore unknown to mankind. This was not spraying a bush in one's backyard. Thousands of gallons of the defoliant were to be sprayed from the air to defoliate jungles. Thus, any test results, experiments, suspicions and conclusions however tentative should have been shared with the government with total candor. Plaintiffs have shown that this did not occur. Second, was a long history of industrial accidents that indicated that problems of dioxin contamination were related to the manufacturing process. These accidents took place over a rather long period of time. Some were of considerable severity. They have been noted in the factual introduction to this memorandum. The disastrous results of these industrial accidents caused the defendants to discuss the need for extraordinary precautions in the cleanup to assure that dioxin was avoided or removed from the workplace and to protect the workers in the cleanup process. There was no assurance that the dioxin which was the cause of these industrial catastrophes was avoided or removed from the final product. Plaintiffs have demonstrated -86- that defendants failed to fully inform the government of these industrial accidents, the precautions and methods discussed or used to avoid the formation of or rid the plants of dioxin and most important of the terrible consequences to those injured as a result of exposure to the dioxin. Finally, plaintiffs have shown that defendants had information concerning their ability and non-ability to deter mine the level of dioxin contamination in the final Agent Orange product. Some defendants knew much about their ability to test for dioxin and their ability to control its presence. Others knew that they were unable to test for the presence of the dioxin contaminant and that their quality control techniques were erratic at very best. The evidence establishes that the defendants failed to inform the government about their analytical and testing capabilities and the methods available to them to control the risk by instituting alternate methods of manufacture that would significantly reduce or eliminate the dioxins or their inability to control the risk in that their quality control techni ques were such that they did not know how to evaluate or control the dioxin level that was in their product. -87- 19 At first blush, it would appear that plaintiffs are presenting a classic failure to warn case that would require conformance to normal causation principles. However, on reflection it is clear that there is something very different about this failure to warn case. Warnings serve two purposes. The standard failure to warn case serves the purpose of risk reduction. Most products raise the spectre of some element of danger if the products are not used properly. A warning can reduce the probability of harm (thus effecting the risk- utility balance) by alerting the user to risks that may even tuate should the user not follow the prescribed instructions. Alternately, a warning may inform a user that he belongs to a special class of persons who should not utilize a product at all or utilize it with special precautions. This form of warning is very common in drug cases. Both forms of warnings are designed to achieve a reduction of risk since they permit the user to intelligently respond to risks that attend the use of the suspect product. There is, however, a n o ther category of failure to warn cases. In that type case, the contention is not that the d e f e n dant failed to warn so that risk could be reduced, but that the risk level is constant and there is little that can be done by the user to reduce the probability of harm. The function of the warning in this second genre of product cases is to inform -88- 0 the user of risks attendant to the use of a product so that the user can decide whether he/she wishes to expose himself/herself to an irreducible risk. This class of failure to warn cases is very closely analogous to the informed choice medical malpractice case. The issue in those cases is not.the conduct of the defendant per s e , but rather the failure to give the p a t i e n t s u f f i c i e n t i nfor m a t i o n so that the p a t i e n t can. m a k e an informed and knowledgeable choice as to whether to expose himself to a given therapeutic procedure. See e.g. Canterbury v. S p e n c e , 464 F. 2d 772 (DC Cir) ce r t d e nied 409 US 1064 (1972); Cobb v. G r a n t , 8___ Cal 3d 229 , 104 Cal Rptr. 505, 502 P. 2d 1 (1972) . The product liability analogue to these informed choice medical malpractice cases is exemplified by such well known c a s e s as Davis v. W y e t h L a b o r a t o r i e s , 339 F. 2d 121 (9th Cir. 1968); Reyes v. W y e t h L a b o r a t o r i e s , 498 F. 2d 1264 (5th Cir. 1974) cert denied 419 US 1096. Cunningham v. Charles Pfizer & C o . I n c . , 532 P. 2d 1377 (Okla. 1974). In these cases use of polio vaccine was attended with a small but irreducible risklevel which could not be affected by production. In Davis v. Wyeth Laboratories, Judge Merril recognized that he was faced with this problem: "There are many cases, however, particularly in the area of new drugs, where the risk, although known to exist, c a n n o t be ... n a r r o w l y limited and w h e r e knowledge does not yet explain the reason for the risk or specify those to whom it applies. It thus -89- 2 lf -T applies in some degree to all, or at lease a sig nificant portion, of those who take the drug. This is our case; there seems to be no certain method of isolating those adults who may be affected adversely by taking Type III Sabin vaccine. In such cases, then, the drug is fit and its danger is reasonable only if the balance is struck in favor of its use. Where the risk is otherwise known to the consumer, no problem is presented, since choice is available. Where not known, how ever , the drug can properly be marketed only in such fashion as to permit the striking of the balance; that is, by full disclosure of the existence and extent of the risk involved." 399 F. 2d 121, at 129. The function of the warning in this case the court c o n cluded was not to reduce the risk but instead to provide the plaintiff with the opportunity to decide whether to expose himself to a risk which could not be further reduced by any action on his part. The Court noted: "When, in a particular case, the risk qualitatively (e.g., of death or major disability) as well as quantitatively, on balance with the end sought to be achieved, is such as to call for a true choice judgment, medical or personal, the warning must be given." Id. 399 F. 2d at 129-130 (emphasis added) Also see Model Uniform Product Liability Act. Sec. 104 (c) (3) , T w e r s k i , O l d W i n e in a N e w F l a s k - R e s t r u c t u r i n g A s s u m p tion of Risk in the P r o d u c t s L i a b i l i t y E r a , 60 Iowa L. Rev. 1, 44-46 and Twerski, Weinstein, Donaher and Peehler, The Use and Abuse of Warnings in Products Liability - Design Defect Liti g a t i o n Comes of A g e , 61 C o r n e l l L. R e v 495, 517-521 (1976). The importance of the stated distinction is that it affects the causation issue in a most interesting fashion. If -90- 1 the question is asked how responsible is each defendant for not sharing the totality of all the risk information which it knew or should have known about, the asnwer is clear. The failure of each defendant to warn the government was respon sible for the ignorance of the government and contributed, not only to the use of each defendant's product, but to the very decision to use Agent Orange as a defoliant at all. That decision was not a divisible one. There is thus joint and several liability in the most classic and traditional sense. The reason that this informed choice argument resolves the i d e n t i f i c a t i o n p r o b l e m is that the focus has switched from the nuance of each defendant's product to the defendants' collective and individual responsibility for failing to inform the government so that it could make a decision w i t h all the i n f o rmation before it. Since the decision was non-divisible and was contributed to by everyone's failure to warn, the liability ought to be joint and several as well. As l o n g the failure to deliver the requisite information was a substantial factor leading to the decision to deploy Agent Orange, the plaintiffs have fully discharged their burden on causation. Concurrent tortfeasors do not have the luxury of the but-for argument in this context. See, A n d e r s o n v. M i n n e a p o l i s St. P. & St. -91- M.R.R. C o . , 146-Minn. 430, 179 N.W. 45 (1920), K i n g s t o n v. Chicago & N.W.R. C o . , 191 Wis. 610, 211 N.W. 913 (1927). The facts of this case support the conclusion that the failure to discharge one's own duty to warn must be viewed in the context of the government's decision to utilize Agent Orange as a defoliant. The defendants were not lone rangers in this case, totally unaware of each others activities. The facts point to a heavily concentrated industry with a high degree of special expertise with regard to the manufacture and use of herbicides. This highly concentrated industry dealt with a dizzying array of government agencies. From time to time bits and pieces of knowledge were in the possession of one person or another in one government agency or another. The information that was available to the defendants was or should have been put together by the defendants in a coherent fashion so that the responsible persons in the responsible government agencies were delivered the total risk picture. We shall demonstrate at trial that this was never accomplished. The defendants had full knowledge that the Agent Orange that went to Vietnam was to be loaded in planes to be mixed and sprayed without discrimination as to which defendant's product . was being utilized. The consequences of the dangers if the suspicions and fears about dioxin turned out to be true were staggering. Hundreds of thousands of soldiers would be exposed to the risk. If we hypothesize that a government well aware of the risk would have or well might have decided against the defoliation then it would seem clear that the aforementioned -92- ... \ P .w facts,if proven, strengthen the argument that each bears some responsibility for that final decision. The relationships between the manufacturers and their knowledge of how the product was to be deployed add to the strength of the argument that they cannot easily separate themselves into fragments for the purpose of causation. Whether or not the aforementioned facts do or do not amount to concerted action they are clearly a predicate for the proposition that the breach of the duty to warn cannot be isolated. Finally,and as a separate argument,plaintiffs note that several defendants had specific knowledge not only of the dioxin contamination of their own product but of the rather substan tial problems that other defendants had with the dioxin content in their product. So much so that defendants were called together to discuss the problem. The government was the con spicuous uninvited guest to that meeting. Once the defendants became aware of the problems that existed with regard to the manufacture of dioxin contaminated Agent Orange the question is did they have a duty to warn the government not only about their own product but the problems that were being faced industry wide. An argument could be made , given the long standing relation ships between such defendants as Dow and Hercules with the g o v e r n m e n t , that eren if they had decided not to m a n u f a c t u r e a n d sell Agent Orange to the government they would have had a duty to disclose to the government the information that they had -93- i-I 'O' before the court and social policy questions always underlie the duty issue." Prosser, Wade and Schwartz p. 404 (Sixth Ed. 1976) The court thus must determine whether the conditions in this case support the imposition of such a duty. We believe that given the relationship between the government and the defendants, the high foreseeability that danger to hundreds of thousands of soldiers would result if the information was not shared, the common use of the Agent Orange in Vietnam through indiscriminate mixing, and the highly specialized knowledge that existed within the chemical industry that a duty to inform the government of the other defendant's problems is established beyond peradventure. When one adds to this the "take charge" aspect of Dow and other defendants with regard to the informa tion that was to be disseminated and the attempt to jealously guard it from p ublic view,, the du t y issue simply disappears. Once a defendant has decided not to stand aside but to act affirmatively, the duty to act reasonably under the circumstances is firmly established. Restatement (Second) of Torts Sec. 32; Parvi v. City of K i n g s t o n , 41 N Y 2 d 553, 362 N E 2 d 960 (1977). The implications for the causation issue once a duty has been established to warn the government of the dioxin con tamination that existed in other d e f e n d a n t s ' products is obvious. If the duty to warn is as we have set forth, then there can be no argument that responsibility should be limited to the individual defendant. Ey hypothesis the breach of the -95- 1 v"30 duty to inform the g o v e r n m e n t was. specifically d i r e c t e d to the highly toxic product of a co-defendant. It was that very product which was deployed in Vietnam. There is thus no causation issue left to decide. The very product which caused the harm was allowed to be deployed because the defendants not only failed to warn of the dangers which were indigenous to their product but that which the entire industry was selling. Once the duty issue is resolved causation is resolved as well. Each defendant who did not reveal that which it should have revealed bears direct responsibility for the harm caused by the product of the other defendants which they knew to be more highly toxic then their own. Should the Court require still further grounds for holding the defendants jointly and severally liable, however, ample such grounds exist under any or all of the theories of concerted action, enterprise liability and alternative liability, discussed seriatim below. A. T h e Facts and C i r c u m s t a n c e s Warrant Application of the Concerted Action Theory as a Basis for Defendants' Joint and Several L i a b i l i t y _________ Concerted action among two or more defendants resulting in injury to a plaintiff is a fact situation under which joint and several liability has h i s t o r i c a l l y been imposed. Hall v. E . I . DuPont de Nemours & Co., I n c . , 345 F.Supp. 353, 371 (E.D.N.Y. 1972) -96- U 5 2 7 1 H a r p e r & James, The Lav/ of Torts 10.1 at 697-93 (1956); Prosser, Joint Torts and S e v e r a l Liability, 25 Calif. L.Rev. 413, 429 et seq. (1937); See also In re Beverly Hills Fire Lititgation, Civil Action No. 77-79, Order 215, p.3 (S.D. Ohio, filed N o v e m b e r 14, 1979) (Order attached as Exhi b i t 16 ; hereinafter referred to as "Beverly Hills"). The elements of the concerted action theory are prescribed in Section 876 of The Restatement of Torts, which provides in part as follows: For harm resulting to a third person from the tortious conduct of another, a person is liable if he . . . (b) knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or (c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person. With respect to this theory, Prosser states that: "(T)hose who, in pursuance of a common plan or design to commit a tortious act, actively take part in it, or fur ther it by cooperation or request, or who lend aid or encouragement to the wrongdoer, or ratify and adopt his acts done for their benefit are equally liable with him. (P) Express a g r e e m e n t is not necessary, and all that is required is that there be a tacit understanding . . . " Prosser, Law of Torts 46, p.292 (4th Ed. 1971); See also S i n d e l l v. A b b o t t L a b o r a t o r i e s , 607 P. 2 d at 932 (Quoting Prosser) -97- 3f r .Jr.y, and Hall v. D u P o n t , 345 F.Supp. at 371 (Quoting P r o s s e r ) . Three elements are necessary to prove a case of joint and several liability for concerted action in a products lia bility case. F i r s t ., plaint i f f s m u s t e s t a b l i s h a caus a l re l a t i o n between the plaintiffs' harm and the targeted defendants. S e c o n d , the plaintiffs must prove that defendants in the group participated by cooperative or concerted activities to cause this harm. Third, plaintiffs must show that the defendants in the group have by their actions or omissions contravened a legal standard of care. See Hall v. D u P o n t , 345 F.Supp. at 371; Beverly H i l l s , Order at pp. 8-9. Expanding upon these elements somewhat, and considerm g /,ittne,ims ecalceharinfrtoumrnt,he S i n d e l l and Ha l l cases that p l a i n tiffs are not required as part of their proof of causation to identify the i n j u r y - p r o d u c i n g party. In Hall v. D u P o n t , for example, the Court noted that "the issue of who 'caused' the injury is distinctly secondary to the fact that the group engaged in joint hazardous conduct." 345 F.Supp at 372. Of course, the plaintiffs must still identify the injury producing product, but under the concerted action theory, the tortious event is considered to be the express or tacit agreement among the defend a n t s to c o m m i t a c u l p a b l e act. B e y o n d identifying the injury-producing product, plaintiffs must only show that each defendant was a substantially contributing factor in producing, promoting and placing the defective pro duct into the stream of commerce. Sheiner, DES and a Proposed Theory of E n t e r p r i s e L i a b i l i t y , 46 F o r d h a m L.Rev. 963, 933 (1978). This proof links the harm done to a particular defen dant. Thus, the fact that a specific injury-causing party is unknown does not prevent a plaintiff's recovery. Beverly Hills, Order at pp. 10-11. To establish that defendants are a substantial factor in plaintiffs' injuries, therefore, it is n e c e s s a r y for p l a i n tiffs to show that all defendants in the group manufactured and p r o m o t e d similar d e f e c t i v e products. Id., at p. 11; Hall v. D u P o n t , 345 F.Supp. at 374. By placing a defective product into the stream of commerce and promoting it, the manufa c t u r e r increases the public usage of the product. This, in turn, compounds the chance of injury caused by the product. Thus, each defendant who produced and promoted the defective product in concert with others shares in the r e s p o n s b i l i t y for plaintiffs' injuries. I_d. Under the facts and circumstances of the present case, it is evident that if plaintiffs can identify Agent Orange as the defective and injury-producing product, and further establish c o n c e r t e d a ction among the d e f e n d a n t s w i t h respect to its' production and promotion and to failure to warn the government of the risks attending its production and use, then there will be little if any remaining question regarding causation. No d e f e n d a n t disputes, for example, that it supplied A g e n t O r a n g e to the g o v e r n m e n t during the r e levant period. Vie w i l l turn our discussion, therefore, to the more substantial matter of concerted activities. In addition to satisfying the causation requirement, plaintiffs must also establish that the targeted defendants acted by cooperative or concerted activities before the theory of c o n c e r t e d a ction wil l be imposed. Ha l l v. D u P o n t , 345 F.Supp. at 371; B e v e r l y H i l l s , Order, p. 11. Generally, all this m e a n s is that there m u s t be at least some tacit agreement or understanding among the defendants. Prosser, Law of T o r t s , 46 at 292. In the products liability arena, and in this case, the tacit agreement or understanding among the defendants must be to market and promote a defec tive product, or to fail to warn of undue risks or dangers k n o w n to or fores e e a b l e by them. Bev e r l y H i l l s , O r d e r at p. 13; H a l l v. D u P o n t , 345 F.Supp. at 372. The preceding factual materials, together with the Exhibits attached to this Memorandum, clearly establish the existence, not just of concerted activity or tacit agreement, but of an actual, ongoing and pervasive conspiracy among the defendants to market and promote Agent Orange, a product known -100- by them to be dangerous and defective, and to actively conceal such dangers and defects from both the government and the general public. The evidence further discloses substantial sharing among the defendants of information relating to the risks and dangers attending the production of and exposure to Agent Orange. To briefly recapitulate some of this substantial evidence of conspiracy and cover up, the plaintiffs would direct the Court especially to the long history of industrial accidents involving A g e n t O r a n g e - r e l a t e d m a t e r i a l s ; D o w 's 1963 m i s r e p r e s e n tation to the military that it was unaware of any problems associated with the production or use of Agent Orange; the March 24, 1965 c o n f e r e n c e among the d e f e n d a n t s at D o w h e a d q uarters in Midland, Michigan, at which the defendants were all in attendance or upon which they w e r e b r iefed; the N .A . C - A . task force formed by the defendants to study the production methods and effects of exposure to Agent Orange-related products; the Ad Hoc Committee formed by Dow and H e r c u l e s to, in effect, lobby the government in favor of Agent Orange-related products; the Boehringer agreement; the sharing among the defendants of analytical and dioxin detection knowledge; D o w 's sampling and testing of other defendants' products, and reporting to them of its results; the withholding from the government of effective analytic techniques for testing for toxic contamination of Agent Orange, despite the knowledge that the government's techniques were insufficient; the successful drive by the defendants to 1 -101- block government efforts to build its own Agent Orange produc tion facilities at Weldon Springs; the failure of any of them to disclose to the government the known fact of dioxin con tamination of the Agent Orange produced by them and the con comitant risks of serious injury; and the absolute secrecy and confidentiality from the government and outsiders with which all of the foregoing acts were committed. These, moreover, are just the highlights. The objective factual situation points clearly to the existence of knowledge among the defendants of the existence of undue risks associated with Agent Orange, the failure of any of them to take reason able steps to eliminate such risks through proper testing and production methods or, alternatively, warning the government of such risks, and an absolute conspiracy of silence among the defendants to prevent such risks from becoming known. Under the circumstances, therefore, plaintiffs have alleged a^dsubstantiated an ample basis for permitting them to proceed with their claims upon a theory of concerted acti vity . The third element of the c o n c e r t e d activity theory re quires proof that the defendants in the group have by their acts or omissions breached a standard of care as to these plaintiffs. B e v erly H i l l s , O r d e r at p. 13; Hall v. D u P o n t , 345 F.Supp. at 371. Since this Memorandum deals with the q u e s tion of the defendants' joint and several liability, and not specifically with the substance of plaintiffs' product liability 11533 -102- claims, this element will not be discussed at length here. Plaintiffs would only refer the court here to the somewhat novel aspects of their failure to warn claims, discussed more fully in Section VI of this Memorandum above. In other re spects, their product liability claims parallel those in the more typical products liability case. Suffice it to say that, for present purposes, the matter of the defendants' breach of some a p p l i c a b l e s t a n d a r d care, wh=cher that sta n d a r d be of strict liability, negligence, or conduct warranting imposition of punitive damages, will not be a stumbling block to imposing liability upon the d e f e n d a n t s under the theory 'of concerted acti vity. The plaintiffs have therefore alleged and substantiated an ample basis for invoking the concerted activity liability doctrine against the defendants, and for holding them jointly and severally liable to the plaintiffs. B. The Facts and C i r c u m s t a n c es of this Case also Warrant the Imposition of Liability Upon the Defendants Under the Theory of E n t e r p r i s e L i a b i l i t y_________ The facts and circumstances of the present case also warrants application of the theory of enterprise liability as a means of bridging the gap of causation between the injurycausing product and the particular defendants. -103- f* lb34 Enterprise liability blends the theories of concerted activity, discussed supra, and alternative liability, discussed infra, although it is based primarily on the latter of these. Sheiner, s u p r a . 46 Fordham L.Rev. at 974: "Under enterprise liability, the plaintiff m u s t prove there is a high probability t h a t (his) injury was c a u s e d by the tortious behaviour of some one of the defendants-- a modification of alternative liability. In addition, (the plaintiff) must show thatdefendants concertedly adhered to a dangerous, industrywide safety standard in their manufacture of the injury-produc ing product. Evidence of these two ele ments will shift the burden of proof on causation to the defendants. Enterprise liability would impose joint and several liability in a situation which occurs with increasing frequency in our highly industrialized society. Fungible products with delayed and dangerous effects cause injury, but the instrmentality and agent producing the specific injury are u n i d e n t i f i a b l e .36 i d . The theory of enterprise liability was suggested by the Court in Hall v. DuPont, 451 F.Supp. 353. The theory of enterprise liability proceeds from a determination of fairness: as between an innocent victim and members of an industry who are negligent or who have joint control of the risks, the latter should bear the cost of the injury. Enterprise liability is proposed as an equitable m e t h o d of a l l o c a t i n g these risks in a' m a n n e r bo t h af f o r d i n g the plaintiffs an opportunity to recover and protecting the defendants against unjust loss. -104- In the Fordham Law Review article, Schiener suggests seven requirements for imposition of enterprise liability. These re quirements are as follows: 1. T h e r e exis t e d an i n s ufficient, indus t r y - w i de standard of safety as to the manufacture of the product. 2. P l a i n t i f f is not at fault for the absence of e v i d e n c e identifying the causative agent, but rather, this absence of proof is due to defendant's conduct. 3. A g e n e r i c a l l y simi l a r d e f e c t i v e p r o d u c t was m a n u factured by all the defendants. 4. Plain t i f f ' s injury was c a u s e d by this defect. 5. D e f e n d a n t s owed a duty to the class of w h i c h plaintiff was a member. 6 . There is clear and convincing evidence that p l a i n tiff's injury was caused by a product made by one of the defendants. For example, the joined de fendants accounted for a high percentage of such defective products on the market at the time of plaintiff's injury. 7.. All defend a n t s w e r e tortfeasors. S c h e i n e r , s u p r a , 46 F o r d h a m L.Rev. at 995. Once p l a i n t i f f s p r o v e these things, the burden of proof as to causation shifts to defendants, each of which can exonerate itself only by showing that its product could not have been the one which injured the particular plaintiff. Id. Jf. T 3 ,0 Plaintiffs submit that each of these seven requirements are met here, and thafcimposition of enterprise liability upon the defendants is therefore proper. First, there was no real industry standard of safety for the manufacture, testing and use of Agent Orange-related products. Certainly, knowledge of the danger of dioxin contami nation was there, as was the technological ability to detect and reduce the magnitude of its incidence. But these cannot be considered "standards" in any real sense, for the reason that the defendants largely ignored them. Even those defendants who apparently did make some efforts to monitor and reduce the in cidence of dioxin contamination in their products cannot be considered to have formulated or adhered to an adequate standard of safety, for the evidence suggests that any level of dioxin con tamination can have serious effects when exposure is prolonged or repeated. And for the infantry in Viet Nam, prolonged, repeated exposure was probably the norm. No adequate standard of safety therefore existed. Second, the plaintiffs are not at fault for their inability to pinpoint which defendant, or defendants caused their specific injuries. This in a b i l i t y is due, rather, to the manner in which Agent Orange was distributed to and utilized by the government. Whether or not the defendants are at fault in this regard, as between plaintiffs and defendants, the latter should bear this risk. See, e.g., Sindell v. A b b o t t L a b or a t o r i e s , 607 P .2d at 936. -106- j 71537 Third, the requirement that a generically similar de fective product be manufactured by all the defendants is met in this case. All the defendants manufactured generically similar Agent Orange-related products; all of their products suffered from dioxin contamination to one degree or another; none of the defendants labeled their containers, making it im possible to tell one defendants' product from another's once delivered into the government's possession; and the government in fact treated the products generically, mixing the products indiscriminately. The requirement of a generically similar defective product is therefore met. Fo u r t h , there is substantial evidence both that plain tiffs' injuries were caused by the dioxin contaminated Agent Orange, and that the government utilized this contaminated p r o duct in c o n s e q u e n c e of the defendants' failure to warn. The fourth requi r e m e n t is t h e r efore met. Fifth, as discussed more fully above, the defendants both owed and breached their duty of care to the plaintiffs, those ultimately and foreseeably exposed to Agent Orange, in failing to remedy or warn of the known dangers of dioxin contam ination. The fifth r e q u i r e m e n t of e n t e r p r i s e li a b i l i t y is t h e r e fore satisfied. S i x t h , there is clear and convincing evidence that the plaintiffs' injuries were caused by a product made by one of the defendants. Exhibit 1 to this Memorandum establishes that 107 defendants accounted for over 99% of the Agent Orange market, both in terms of gallons and dollars sold. This case is there fore distinguishable from Sindell, in which the Court declined to apply either enterprise or alternative liability theories because of the absence as parties of significant members of the affected industry, and the sixth requirement of enterprise liability is easily met. Seventh, all defendants are tortfeasors in the present case. All of them manufactured defective products; all of them knew the others' products were similarly defective; all of them knew the government and the public were unaware of the existence of the defects; all of them knew the government relied upon their collective and individual representations as to the product's safety; yet none of them effectively eliminated or warned of the known defects, as a consequence of which the plaintiffs were injured. This, all of the requirements for imposition of enter prise liability outlined by Scheiner have been met in the present case. Considerations of fundamental fairness require that the culpable defendants, having control of the risks, and not the innocent plaintiffs, bear the consequences of plaintiffs' in ability to identify with specificity the defendants which caused their respective injuries. Imposition of enterprise liability upon the defendants fulfills such considerations of fundamental fairness, and application of enterprise liability in this case is therefore warranted. C. T HE FACTS A ND CIRCU M S T A N C ES OF THIS CASE ALSO WARRANT THE IMPOSITION LIABILITY UPON THE DEFENDANTS UNDER THE THEORY OF A L T E R N A T I V E LIABILITY.__________ One final theory of liability advanced by the plaintiffs is that of a l t e r n a t i v e liability. The theory of' alternative liability applies "where negligence on the part of [several] defendants is clear, and it is only the issue of causation which is in doubt, so that the choice must be made between letting the loss due to failure of proof fall upon the innocent plaintiff or the culpable defendants." Prosser, Law of T o rts, 41, p. 243 (4th Ed. 1971). The theory of a l t e r n a t i v e liability is adopted in Section 433 B(3) of the Restatement of Torts, which provides that: W h e r e the c o n d u c t of two or mo r e actors is tortious, and it is proved that harm has been caused to the plaintiff by only one [or more] of them, but there is uncertainty as to which one lor more] has caused it, the burden is upon each such actor to prove that he has not caused the harm. Thus, as under the enterprise liability theory, where the alternative liability theory is applicable, the burden of proving causation shifts to the independently acting defendants. The classic case applying the alternative liability t h e o r y is S u mmers v. T i c e , 33 Cal. 2d 80, 199 P. 2d 1 (1948). In Summers, the plaintiff was injured when two hunters negligently shot in his direction. It could not be determined which of them had fired the shot which actually caused the injury < il 109 to the plaintiff's eye, but both defendants were nevertheless held, jointly and s e v e r a l l y liable for the w h o l e of the damages. The California Court reasoned that both were wrongdoers, both were negligent toward the plaintiff, and that it would be unfair to require plaintiff to isolate the defendant responsible, because if the one pointed out were to escape liability, the other might also, and the plaintiff-victim would be shorn of any remedy. In these circumstances, the Court held, the burden of proof shifted to the defendants, "each to absolve himself if he can." I d . , p. 86, 199 P . 2 d p. 4. The C o u r t stat e d th a t u n d e r t hese or similar circumstances a defendant is ordinarily in a "far better position" to offer evidence to determine whether he or another defendant caused the injury, or, if not, then as between the defendants and the innocent plaintiff, it is the former who should bear the consequences of any lack of evidence concerning causation. Relying principally upon the ruling in Summers, the Plaintiffs in Sindell v. Abbott Laboratories likewise sought to impose a l t e r n a t i v e li a b i l i t y u p o n the d e f e n d a n t s for their manufacture of the defective product DES. The District Court, however, rejected plaintiffs' claims in this regard and refused to apply the theory of alternative liability upon the facts b efore it, d i s t i n g u i s h i n g the h o l d i n g in Sum m e r s from the case before it as follows. In S u m m e r s , all the parties who were or could have been responsible for the harm to the plaintiff were joined as defendants. In contrast, the Plaintiffs in Sindell, -110- 14* named only five of the approximately two hundred manufacturers of DES as defendants. Thus, while on the one hand, there was certainty in Summers that the defendant who actually caused plaintiff's injury was among those to be held jointly liable, and a fifty percent probability that either of the defendants was responsible for plaintiff's injuries, on the other hand, there was no rationa l basis in S i n d e l l u p o n w h i c h to infer that any of the five named defen d a n t s c a u s e d p l a i n t i f f ' s injuries, since any one of the two hundred companies which manufactured DES might have made the product which injured the plaintiff. Accordingly, the Court in Sindell refused to apply the theory of alternative liability. The clear implication of the Court's analysis in Sindell is that if the market in that case had been smaller and m ore cohesive, and if all or practically all potentially liable manufacturers had been joined as defendants, the case would have fallen squarely within the h o l ding in Summers v. Tice and the theory of alternative liability would have applied. In this regard, the present case is far more analogous to the situation in Summers than in Sindell, for here, virtually all potentially liable manufacturers are named as defendants. As in S u m m e r s , the question in this case is simply which of the named defendants caused plaintiff's injuries. Unlike the situation in Sindell, the possibility that the named defendants will be held liable for the acts of those outside the group and not named as defendants -111- 1 is remote to non-existent. For the foregoing reasons, therefore application of the theory of alternative liability is warranted and the defendants may be held jointly and severally liable on such grounds. X CONCLUSION The reasons for defendants' conduct are not yet fully clear. Was their failure to act as they should have due to a desire to maximize profits? What additional costs, if any, were necessary to eliminate the dioxin contaminant from their product? Why didn't defendants who had cost plus contracts with the military, spend whatever sums were necessary to eliminate the dioxin from their products? The discovery that remains to be completed may answer these questions. Wha t is clear, however, is the "cover up" mentality that pervaded defendants' activities during the Vietnam era, and well beyond. We append h e r e t o as E x h i b i t 15 , a letter d a t e d S e p t ember 15, 1977 from the P r e s i d e n t of Dow C h e m i c a l to all D ow U.S.A. supervisors. The letter speaks for itself and provides further evidence of the continuing conspiracy of silence. That letter states the fundamental corporate position with respect to its responsibility to outsiders, to a great portion of whom that company sells products for profit. -113- That position is one of silence. It is one of avoidance with respect to the dissemination of any information which might be subject to an interpretation which is critical either of the products or the policies of the company. The b o t t o m line is "when in doubt, throw it out". Plaintiffs believe that such policy pervaded the attitudes of all of the defendant war-time contractor-manu facturers of Agent Orange and the other phenoxy herbicides supplied during the Vietnam era. We believe that that policy continues today. Under these circumstances, there is much reason and authority for proceeding against these firms under any of the three legal theories discussed. T here is also much justification for the imposition of punitive damages in such cases. We respectfully urge the Court to recognize the applicability of such theories. Dated: December 1, 1983. Respectfully Submitted, Stephen J. Schlegel, Esq. Thomas Henderson, Esq. David J. Dean, Esq. A l b e r t J. Fiorella, Esq. V. Don Russo, Esq. James Henderson, Esq. Aaron D. Twerski, Esq. Kenneth G. Hawley , Esq. -114- CERTIFICATE OF SERVICE On the 1st day of December, 1983, a copy of Plaintiffs' Memorandum On the Applicability of the Legal Theories of Failure to Warn, Concerted Action, Enterprise Liability and Alternative Liability was caused to be served upon all attorneys of record as per the attached list by depositing same in a postpaid properly addressed wrapper in a post office official depository under the exclusive care and custody of the United States post office department within the State of New York. Dated: D e c ember 1, 1983 ') ACSNT ORANGE SERVICE LIST CHohni.e f J aJcukd g eB. W e i n s t e i n , UN2 2enw5i t eCYdaodrmSk ,at na Nt ePeswl a zDYaoi rskt r i 1 c 1 t 2 0 C 1 o u r t TBhaosmk ai ns W&. S He aarnsd,e rPs o. Cn ,. E s q . Attorneys for P lain tiffs Frick Buildi-ng, 10th Floor Pittsburgh, Pennsylvania 15219 BAet nt ot or nn e yM uf sosrl e Pw lhai ti en,t i fEfssq . 609 Fannin, S u ite 517 Houston, Texas 77002 Gregory Stayart, Esq. Sullivan & Associates A18t0t o rMn. e yMs i cfhoirg a nP,l aSi nu ti ti ef f s1700 Chicago, I llin o is 60601 CADD1 eaat Oatvronillddre, n eJCFPy.aolsaluaDcnnefetog,araryn ,NPR&e wEol aRsadqYoi .nsoertki f fs 11 5 1 4 Leonard Rivkin, Esq. Rivkin, L eff, Sherman & Radler ADLOotwOt o rCGnhaereydmseincfaoCl ri Ct yDomePfpeal nanzdyaa n t Garden C L tv, New York 1 1 5 !0 Morton SLlberman, Esq. C l a r k , G u q l L a r d i v. M i l l e r A1 r :i WI nit i- Cn i at Ag so . re rv'y", r,, [fi>oLinn,.i'1ic. for t.ur.art ns, * , Defendant MutrUi 19 C o u r t New York o 1 n s1.5' A 0, *L' .AODN-'.'-uitnvud.aetnvwmodaraWYennaoLl dear11ykJ1BeS, rhS. ,aMft meArorwWerl ceoiotcDYckrekonerf r, s hJarm. , Ce nodr pa onrt k 1;V)9 \ a 5 ETs qa f. t Ln n Hon. Sol Schreiber MONS enpiwelebcYPei areoglnr,knM,sWyaNlsevetiweasrns ,Yi aoBrkPe rl as1hz0aa0d1 9 & S p e c t h r i e Stephen J. Schlegel, Esq. Schlegel & T rafelet, Ltd. A1 tNt o. r nLeaySsa lfl oe r S Pt rl ea ei nt ,t i fSfusi t e 3 9 0 0 Chidago, I llin o is 60602 Newton Schwartz, Esq. A7 2t t3o rMnaeiyn Sf otrr ePe tl a, i Sn ut ii ft ef s 3 2 5 Houston, Texas 77002 VY ai cntnoarc o nJ oe h n YY aa nn nn aa cc oo nn ee ,, JP r. C. ,. APP.at tto0c rh. no egDyursae w, feorNre w1 0P9Yl a o i r n k t iffs 1177 2 Esq. BIR2 r0ae0vbiilynWllgyo. , n M,L LiakNii nkee we, S EY&t rsoqSerk.ec ht ,n1 e 1 7Pi d0. e 2 r0 . Box 218 John C. S a b e tta , Esq. TAotwt on rl ne ye y s& Uf oprd i kDee f e n d a n t Monsanto Company N4Uew5 YL oe rvki n, g tNoenw AYvorekn u e10 0 1 7 Themas B-'ck , Esq. Ar ' l u r , Dry \ Ka Li s h ACin Ii r'oryn- ivIs, fLonro . D->fondar) ! Gi Av^na- a i Mie Ame t i c is Vaf i'kL,1e rM-->wM-uCi ro^rkr l'Clal ; S t'> hn iL l M. wo r Fi th t , z p P a a t s r x i o ck n, , Esq. Ha 1 i s h S Levy At |- o r n y s f o r D e f e n d a n t Hooker Chemie 1 Company 2 6 00 F i l e Li tv B u i l d i n g P h i Lade I c h i a , P e n n s y lv a n ia 19 10) f *03 AGENT ORANGE SERVICE LIST PAGE 2 Michael V. Corrigan, Esq. Simpson, Thatcher & Bartlett Attorneys for Defendant Ansul One Battery Park Plaza New York, New York 1Q004 Arvin Maskin, Esq. United States Department of Justice United States Attorney Safeway Building, Room 904D Washington, D.C. 20530 Howard Lester, Esq. Lester, Schwab, Katz & Dwyer Attorneys for Defendant Hoffman-Taft 120 Broadway New York, New York 10271 ; I . CvsA. tadb-. J SAN ANTONIO AIR LOGISTICS CENTER DIRECTORATE OF ENERGY MANAGEMENT KELLY AIR FORCE BASE, TEXAS USE OF HERBICIDES IN SOUTHEAST ASIA tv History prepared as an active duty assignment by: DOROTHY A. CRAIG Lt Col, USAFR 1 A ugust 1975 I h J o . * - f ^ C A . ftk herbicide Producers All herbicida-'produb es were produced in che United *` States. The products showing tocal amount produced of each by nanufacturers and costa are shown below: (Reference individual contracts) ; Orange i- Monsanto Gallons 3,561,040 Price $23,259,233.74 Average $6.53 5. Hercules c Diamond Alkali 2,400,041 696,605 $15,947,155.01 $ 4,639,671.25 $6.63 $6.73 : ; " c . US Rubber 694,802 $ 4,730,447.60 $6.81 \ , Dow 4,002,534 $23,028,212.16 $ 7 . o o ' :; 8 Agrisect 100.023 $ 653,632.98 .$6.53 ' '[' \ H - Thouipson-Iiayward 1,036,475" ",'r'$'7,317,513.50 .$7.06 *, 7 . 1 Thompson i Hoffman Taff Total 333,685 22.440 12,553,750 Blae Ansul 1, jol,u39 Diamond Snaurock 20, :j?o Tocal 1,607,929 Weite $ 2,347,566.10 $ 159,324.00 $87,132-,806.34 : $ 7,113,907.00 7 7 ,6:.60 $ 7,191,595.60 ' $7.04 1 ' V' .11V 4 $7.10 ^ \ 7$6.78 * b - . ' ? `t: ; '; !" t-; $4.5 /.V, < Vnw .nsno *vi \* ^1. / ' 1. ': $4*..47 *.; .;' "*/ ' * Dow # TOTAL PKCCk-Mi 0 5,704,215 $39,724,653.81 $6.89 . .. . / 7 ' 7 * 1- j . , * ( 20,225,514 $134,049.055.80 % 1 1-1550 $6.63 . .\ S V K ) :6 THE 1965March 19, DOW CHEMICAL 0 0 0 3 /9 COMPANY MIOI_AMO. MICHIQAM L 3 C ^ 0 Immet Kelly, M.D. Medicai Direccor Monsanto Chemical Company 8CO Norrh Lndbergh Boulevard SC. Loul3 6 6 , Missouri Mr. Francis K e n nedy Plant Manager Diamond Alkali Company SO Lister Avenue Newark, New Jersey Dr. J. W i l k e n f e i d Technical Superintendent Kcoker Chemical Corporation Niagara Falls, Mew York Mr. Paymond Verhoece Hooker Chemical Corporation Niagara Falls, New York Dr. Ed Chandler Technical Service Diamond Alkali Company 3 0 0 'union C o m m e r c e B u i l d i n g Cleveland, Ohio Dr. John ?. F r a w l e y Chief Toxicologist Hercules Powder Company Delaware Trust Building Wilmington 99, Delaware Gentlemen : I an writing this same letter to each of you. I have talked wish some of you and you have indicated the other persons within your own organizations who should be present. As p e r these t e l e p h o n e d c o n v e r s a t i o n s , I am i n v i t i n g e a c h of. you to come to Midland to discuss the toxicological problems caused by the presence of certain highly toxic impurities in c e r t a i n samp l e s of 2 , d ,5 - t r l c h l o r o p h e n o l and r e l a t e d m a t e r i a l s As I told all of 70U with whom I have talked, we have been doing analytical and toxicological research on this problem and wish to share our findings to date with ail the p r o d u c e r s of 2 , a ,5 - t r l c h l o r o p h e n o l fo r the sole p u r p o s e of l e s s e n i n g any hazards to health that might be attributed to this and related products. Cur discussions will deal only with the toxico logicai and analytical aspects of the problem. We will not discuss m a n u facturing know-how, sales, or anything else net dealing with the pro clems of health. .L** -- GOT* :)r.zz Gr-rcu^r. g ^ I g -eeilr.;, we w i l l a c q u i r e a better understanding of tne problem and that each company 11551 2 March 1 9 , 1565 will then p r o c e e d Indep e n d e n t ly a3 it see3 fit to inst i t u t e such self-imposed controls on its production a3 are neces s a r y ' to insure the safety of its products. Enclosed is a co p y of an analytical method our A n a l y t i c a l Laboratory has developed.- Perhaps you would like to have your analysts look it over before coming here. Cur a n a l y s t will he available to discuss the method with you. I have reserved a room for each of you at the Midland Country Club for the night of March 23, 1 9 6 5 When you a rrive at the airport serving Midland, Bay City and Saginaw, get the Midland limousine and it will take you directly to the Country Club. I suggest that we all meet in the lobby at 7:30 A.M. for b r e a k fast a n d then we w i l l come to o u r labora t o r y for ou r d i s c u s s i o n I believe we can complete our discussions by lunch time so that reservations for your return trips can be made for any time after lunch. If any of you have any questions, please call me. Sincerely yours, o l t Z '/ C c u , ' V. X. Howe Biochemical Research 1701 Building Phene ME 6-2376 - Area Code 517 Laboratory VXR/Jd 11552 TH K D O W C H E M IC A L MIDLAND, M ichigan fe r c h 2 9, 1965 af B17l0o1Ko.hBe tuiillcdRaiolnwgReesearch L ab o rato ry 001 FRWCFL...... CNB0HP...... HFSROAmaiurallastieelcnteyeuhtyytezn reu th er 0. X. Lynn JVDVDN...... XD0XLH...... 0WCPIF1reoll1letral1etbthcrsisenhoenr BCHKRV3JJHJKB............. BXERCWWCICCDJ ............. HHBODMSHPH3THateuooacaootaadCllnceyrflreanerfddkoslrkeheaeyeieensnunlrris,senrgN.D. ro CO CO cn co REPORT ON THE CHLORACHE PROBLEM MEETING ON 3/2A /65 P re s e n t! DMrr.. JR.ayVmolnlkdeVn feerlhdoeazned, H ooker C hem ical C o rp o ra tio n MD rr.. EFdraCn chiasndKleenr,neDdyiamanodnd A lk a li Company KDrr.. CJo.hnL. FD. uFnnrawanldey, H ercu les Powder Company VDaReogfetnhxou.rxeadoperrsituassKserneapttua.ehdacnrnecnekrahqehdncdblucooeIoeawrnoLtuspohntIttaiph-initbopesaietodanh-crtrdhneslIanleptetbhosgueoeegtrpnxeouynekncrpdDoznnesloorioc.epeweewesdtrsg.salnsTasotlsobir.xhtdyHtseuleaienrrrnaemTWe.mgvtmoepiiwsaxoelHtd(eiewnhDcetseroeoeowIalrrtonheenlts)hgnoedffmeyeew-terpreeeeerranslvmrenantdeqiudcddnsudeepnteynEootrsocostfnttoieoidvotattfuiuhhnrbsfcoaeeoyseltnentmrsidmpfe.omrrvttoenoohpiemnbd.rettleroaaeiinnrtdlcmhcHsauweeelcetsr , CDC.CN,FEIDDB. A.T'Ju.M - S'J2JcDCOTVI/O, ;?EAw.A"G!CR?EIEOMNENT 9-79 * JOHH COST, J R . C -g JfiS A C ifg - DCW S g H B Q cc i T. 3-^. r. - JT. Eisg K. T. Wiltorson ^ 5 . L . CrLUiDLS71 n'evarlc plant / a> V 25/r? : .1:lriir Cp. March 2ii, Mika iencsdy and I set vith two people free Hooker Chsssical Co. T two fro Hercules, end with the Dov group to discuss tha tea i.cological Impariti associated vith 2,li,5 irichlarophenol and related aatariala. o f 5ov CaomcLcal cpnsd th e a e s tin g by s ta tin g th a t th e y had o p e ra te d -' 9 approach vas a quill tat ira one rt first. Tlivy vaatad to find tha.causative sartsrial, learn hov to identify it, and try to avoid continual trouble vith tha uahne-m. They tested rarlous asxtartals from tar fraction* and fro, as thay pot it, ,r~rV~", etc. 7h*y found that there are a number ol suspect .oaterials, prchahljr 26 or 21] but tha ?s&Jcr ''bad actor" that they Identified and vhich seamed to cousistsxtly causemt- hiieiwmpriombmi,.ass vus 2 ,3,? ,8-Ta^radiLcro<i>anzo p --Dicxis. (a, s--atrical). T' |T v! I 7 - A ; J1 1\ \ 1/ ^ 3 ? " 6 m ~T p.. f} C r~. C $ 0 0 iS =. Ni p ~ D i 0 ?'/a/ . C S y jyi s*i 7 "/? / h 7h--* i n c i d e n t a l l y was p r e v io u s ly l i s t e d us a a u c p o c t s e t e r i a ! b y Cy P a r k in s o f c u r co m p a n y . A. s i m i l a r s a t cariai is t h a 'n s y w e a e t r ic a l 1 ,3>7,8 -7 C I2 D ( a ls o a c s m rtia e a l i s t e d as 2 , 3 f 7 , p - T C f S v . The Dov people used th e v h ite g lo rg and fovmd th is contaninent on tool bsodlj usaeata, end ether fesaitas. cutest anl"v**!.s ._th*y_coi?1d l o o c i^ s a r U ^ ^ & n s a --t h a - r y c p t c c s to appear. Dr. Holder 01 _ Dov, eoa of their .me. o f the v a rio u s n iti ie difficulty starts 'Vith uawnoiottihkl- Slltinle b 1 iMh; h i aviexr-y_heakssT_Tt o -gtxa n<oo*~u-rsma c_n t h K s_ =_fnagc nft e ar_..g i l rrie y c tic s t r u ctu re s v h ic h n sie the p a tie n t d ise a n a developa s l'c v ly , n e t a p pe a rin g o u t a p p e a rin g in fiv e to seven days ---- -> &ie bench chemist his been under troctaeot fer tvo years and his fans Is :ing.to. ahev .sirna of.^clajaiDg. Dr. Holder xays that he believes this e c u 's )Lasa will be solved in another sir aerrtha. Dr. vho does their AtLcro- ^ socpic verr in connection vith their a l liberator/, shcved photc o crographs q __ cf the cysts as they formed in the ears of rabbits. those found on the faces of tha a , i : :: :o::i c s r The cysts correlated vith C^. >7 o c: y !... 1963 DS 0 0 0 2 4 6 3 9 1 1 5 5 4 ^ o 5, 15:? ' Basically, thscra Is a. r rotiocdd opoait li th* ba.tr follicles od oil duotc In the f*c. 7hs evert,ually go fro the biackhscd ctSG to fera *. closed, ha-cyy ocr depocit. Tb oheacLcal -cannot b found in the f.'-ciai tisauss or in the corte but the p r o b i still persist* after expesura. The best d^&criptica cf tha actrta - is that the facial ttssus reaexbla ids exaggerated surface toxturs of an ora raihsr tad sarbly vtth the ancloaed hard core deposits. A eryooodarj- eyTEptoa, vhich does not correlate directly with the taouot of facial darxatitis, is a fattgua reaction vhara. the axplcyoe is coxplsi-sly listi*, tired .,,out j |and oaarly_jjc-n.rao itateli 1 co opIste biopsy of liner, 'cidsney, etc, t eher no degTeaarct5ctT*of raijcs* arg? _2. 1 aocplsta clinicd txxxLpatica of the patient sheved no acasurabls affect on he art, blood pressure, roepiration rate, blood'sogar etc. The fatigued patiffct-o nn-euaid to be helped by h*avy d o e w of ritoxins, perbene related, in s o e way t-o th* carotene rsetoholisi^ of the body (involving viiasrLn 1, ri Ac oral dose of 17 xLcrcgraus isaedljt iy tilled the tect auiosla. The lew ` people did nert levar this dosage to obtain an LD-^q but decided that, vhn thry <*n detect this coripcond, it should not be in the product. TheyJfouDd--thst-J*^aftsr-' exposure rto ,,th g satrial, washing v i t ^ P ^ l S ^ i n u t es .-did rnot help- a. grsat^daal.,, bet did" itlew down the" bSeed^ aty uhlch^tha .-Syx^dbcar.appearad. * Washing aliar caa hour vus of' abfrojtrtely ~~nc help what*osy-er_ln .reducing ^tattl'd m a t it1b crjspessd_of appeararc of th* __react ceoT*- Hoder at e._scrubb in;-vit h- cat argendlich s 'c h t^ r& sx rr a this "set''rill, 1,r1t7r1e-wtrliyn hhlahrrdo et<huar\ciiab. H]f^c-an.accoro?liah ih _tas_k_c r tho us3 cf "s o 'lr s c t s r o c h few has dTBlcpcd_i_njev..analytical r.arthod in 'wrier. they hara cerfioarc in !I ! their sensitivity., to 1 pp*. They can ccly stat in levels'belov thi !U be present below the 1 ppr. They stated that they hevs net 'used si: aethods, and the alSctrca c.apture tests the*, they ran ends only a very slight iaprcvwect in sensitivity sith this ccKpound. Thair analytical ciexirt stated tha.the electron call saturates because cf the preeence of ether onterials in high ocooecrtration oocsparsci to the dioxin- This aaterlal has *o=a otrsege properties. It has a fairly high n 'oer pressure but na'vszlhelass In quite persistent as a contaminant. It can bo separate iron beniSQe by boiling if it la not carried devu tc -- /nsss, The 3nv pr^-rple are extrg^ly_earnful^in^all--^f^hwiirvTirkjvithJ-this^ccxocrrnd. They use PTC thruu - o g y gloreg_,^c ^ ^ i I l ^garxplaa^are^urns>d^n^-speciiQ;hiirncce^'nich oegratea et 8CX j . Ihes e^saxplos ^xre >jwaLttd.sbi They use bioassay methods cn rabbits far qualitxtire checking..ooly.. The 2cw pocple state that they intend to act a U n i t of sero vith aenjsitTit'i of plus or rinun 1 ppa ca this sat erial. They hare analysed act-srials frea ether ccspaniftc, including our cespary, and hare found zaountg as riigh is ID ppa in 2,1,5-- T acid id 20 to 30_jppa_^in_ phenatas. *=s=- i.' They hare ksha a singls application to the ears of mast rsbbits sad fo'and that 20 ppn vili Dot give folliculitis. Tcrty ppa does gira a slight offct, and 100 ppa is sever. They have nahe impest ipplicaticns of froa ID to IDO ppb, and 25 of those tr*- ;s do not cause a rcr a; hcverer, 1000 (l ppa) gives a , aT igtrfc regpcnaja_vith_nine- a m licatlcpa^gad^~a'~86T eJ.-e^reagtics~vith-ll applicati cans . p rob i*.T. hey[0ttcnorn' clnuTMrd"e", therefore, that 1 pqx with sxr-v rgp^at" axpoou1r11e can c"r e aITMt1"p!l"h1r*eal _ 1 1 5 5 5 c '2 .L .5 -T D; o2w.1's1^p5o*^c?p]ls oodc tlpihnzeEdodaa. aetIhtodiirfreorireax tr*a cchtilncgrofcn a i-uexantrinagct siosrnp, lefosUct^2r'ed by - z _ 2$, 126S it in the os , 1 nog vith arvj s r-sdixrt ion. by t_o They h-fr j i r a thf La *= t e rL a l. h^-for-a petting pay aarth od t o itijco Kennedy h a j ths& o sat* c o d i n t e n d s t o p u r s n a t h a l a b o r a t o r y v e r ic a s a x y t o a a o a r t i d n * fcisre z e d h ew -- Lf e= T , o f t h i s irsrtn * p p r * in. o a r 2 * 1 1 ,5 -1 p r o c e s s . The purpose of this aoetlng vaa ob-ricrtLsly dastjned to balp us *o 1tb this preblea beicr outsiders coc.fas a the i-san* xnd ciua us no eod of 'rief. Dew isending th* t t rwealts oo oar stKriAl to a s , incidentally; and this vill forgvank cmr t-*chciqas, eta. / I. L. Chjssdlar I '^ i U DS 00024641 si O CD - TO: FROM: File C. L. Dunn ` /^- 0 ,V " ., y -- v .>. Detailed Notes on Dow Visit 3/24/65 (Toxic M aterials in 2 ,4 ,5 -T C P ) Personnel at Meeting * ..V\ x: M1 Dow: Mr. V. K. Rowe - A sst. D irector, Biochem ical R esearch Laboratory Mr. Larry Silverstein - Industrial Hygienist Mr. Jack Peterson - Industrial Hygienist (Chem. Engr. ) Dr. S. Sadek - B iochem ical Lab. Dr. Benjamin Holder - Dow Medical Dept. Mr. Harold Gill - Anal. Chem. , Dow Operating Dept.. Mr. Harold Gordon - (lunch only) Dr. Edward Adams (lunch only) - Biochem. R es. Lab. , Dir. Hooker Chemical Co. : D r . J'. W ilk e n f e ld - T e c h . - S u p e r i n t e n d e n t , N i a g r a F a l l s , N . Y . Mr. Raymond Verhooze - Tech. Mgr. Eastern Div. , Niagra Falls, N. Y. Diamond Alkali: Dr. Ed. Chandler - Mgr. , Tech. Service, Cleveland, Ohio Mr. Francis (Mike) Kennedy - Plant Mgr. , Newark, N. J. Hercules Powder: Dr. J. p. Fraw ley - Chief Toxicologist M r . C. L '. D unn - Syn. D e p t. 3 Jj J- 1M .- If-*' *- HO 1 3-0x50 .D 7 1 V. K. Rowe P resen te d a brief h istory of their exp erience at Dow. Stated that they had no chloroacne problem s at Dow for a period of 25 years. R ecently (no details given) d isco vered that their plant was contam inated with c h lo ro a cn e g e n s--to o ls, w alls, piping, all surfaces. -About 60-70 --cases of c h lo ro a cn e r e su lte d . Of th e s e , 5-10 w ere s e v e r e , 10 m o d e r a t e , remainder mild. Exam ination of fractions from 2, 4, 5-trichlorophenol (2 ,4 ,5 -T C P ) bv rabbit ear bioassay identified certain portions as chloroacnegens. .Analysis later confirmed the identity of some of these. Tars w ere analyzed by gas chrom atography, and yielded at least 26 peaks; there is som e evidence that these are also chloroacnegens. The plant was exam ined by taking "wipe sam ples". A clean canvas glove was worn, a surface was wiped with a finger, and the finger cut-from the glove. The finger was extracted and the extract bioassayed (rabbit ear). The plant was found to be com pletely blanketed with chloroacnegens. 2, 4, 5 -T m ade from Dow 2, 4, 5 -T C P was tested by b en zen e extraction and bioassay and chem ical analysis. Their'Tesults for chloro acnegens were positive. Rowe expressed concern that carry-through of toxic m aterials into final formulated herbicide products may occur unless -2 Dr. Benjamin Holder Presented a description of the chloroacne cases, including photographs. Cystic sebaceous involvement. Sooty appearance of skin on face due to blanketing of skin with myriad of blackheads. A lso larger swellings due to occluded cysts. Complaints of excessive fatigue also noted in some c a ses. Evidence that the ccloroaccegen s may be system ic. "Cycling" noted throughout the 2-1/2 year period of the dis eas e - - naor e intensive at certain periods, less at others. Very thorough battery of clinical chemistry tests and physical examination to see if any other im pairm ent of body function. Even liver b io p sy '.n a few c a s e s . No ^e~.ffect other than skin c o u ld be found. P i m p l e sq ueezin gs w ere collected and subjected to analysis, but could find no ch lcro a cn eg en s by gas chrom atography. Dow is now operating their plant, and have encountered no new - 0- electrical Insulation. Pucie s or dust produced the d isea se, and the b i l a t e r a'lj . r e s p o n s e s s u g g e s t that the to x ic m a t e r i a l s m a y be s y s t e m i c . ' Severe exposure gives an inflammatory response within seven days. L e s s e r exposure- gives a resp o n se period o: 2-3 w eek s. Photomicro graphs of sections cl skin from rabbit ears at various stages of chicroacne were shewn, as well as some liver sections. Hyper Keratosis in cattle and swine due to feed contaminated w;ith ch lorcrap htha lenes from, l u b r i c a t i n g oil was e x p e r i e n c e d in the U. S, about 10 years ago. he predilection site for cattle is the neck; for swine, the buttocks. Vitamin A mav be involved in the sequence of eve nts involved in the course of the disease, or may be an index or me icater. Topical application to rabbit ears is the bioassay procedure. A f t e r to pi c al a p p l i c a t i o n , w a s h i n g f r o m 15 m i n u t e s to 4 h o u r s l a t e r d o e s no good. Dr. Sacek noted that rabbits whose ears nad been washed (t h o r o u g h ly w a s h e d or s c r u b b e d with d e t e r g e n t ear w a t e r ) had s e v e r e l y damaged livers ("grade 4"). This suggests washing may have caused greater absorption. Plan t c l e a n - u p at D o w was done by th oro ug h s c r u b b i n g -with d e t e r g e n t and w a t e r , and in s o m e a r e a s w a s n i n g with s o l v e n t (C'nlo r o t h e n e , 1, 1 -trichloroethane) was performed. 11580 The acute oral L D iq to rabbits o: 2 , 3 , 7 , 2 - te t ra chi o rod ib e n ro - p- di ox ia was favino to be only 17 m i c r o g r m s per k i l o g r a m body wet gat. e x t r e m e l y toxic. Harold Gill - Analytical Techniques Gas chrom atography (see attn 1n c mvtr.oc). - ney nave not u sed mi c ro - c oulemetr ic detector. Electro: capture detector does not give the. e x p e c t e d s u p e r - s e n s itivity . Has d sad v an ta g e that othe r c h l o r i n a t e d m a t e r i a l s do h av e s t r o n g e l e r t r o n - a b s :ro\. 1c n , anc. nave a s w am o -m g , or overwhelming effect on detector which is troublesome. Detection limits as follows: nons apon.iiia.bl e oils from 2 -, 5 - 1 :? - 10 0 .0 . 2, 4, 5 - T C P - 1 p. p. m. 2,4, 5-T acid - 1 p.p.m. 2, 4, 5 - T P acid (Siivex) - i Believe that bioassay is more sensitive than gas chromatography. 2, 4, 5 -T C P converted to sodium phenate, and this extracted with ch lo ro fo rm . Twenty g r a m s 2, 4, 5 -T C P ~ NaOH, extracted with 20 ml CHCI3 . 2, 4, 5- T and 2, 4, 5 -T P free a c i c s - - shake 20 gram s of sa m p le with 40 ml CKCI3 for one hour. Filter, wash CHCI3 solution with an equal volume of 0.1 N aqueous NaOH. Evaporatively concentrate to one-tenth volume iT l , -p,**or\ l .V cn CO I O 1 o r' m Use extreme care in handling. Disposable gbves. All refuse c o l l e c t e d La s p e c i a l c o n t a i n e r s , d i s p o s a l by bu rning in s p e c i a l h i g h efficiency incinerator (ok'd for burning radioactive trash). At 800C. in an open tube, d eco m p o sition of the 2, 3, 7, 8 -com pound was 99. 6% com plete. Dow lab ha3 decontaminated glassw are by putting in glass shop annealing oven overnight. P l a n t w a s t e _at^Dpwri s pre s e n t l y e n c a p s u l a t e d ( d r u m s ) and b u r i e d . X ^ y ^ c u n c t b m n w - i - 8_oiirbaxrte'rin"de c o m po s epthe--c'nlo r oa-cne gens-.. Comoetitor croducts - Dow has examined all manuiacturers 2 ,4 ,5 -T products. Some have "surprisingly nigb" amounts of chloroacnege: T h i s d e f in e d as 10 p. p. m. in 2, 4, 5 - T a c i d , and up to 30 p. p. m . in 2, 4, 5-tr ichlcrcohenate. Jack Peterson - Identities and Statistics 60-i U) 2,3,1, 8-tetrachlorodiber.no--dicx: n, Cl C IS Cl O S '' ' Cl 1,3,7, 8-tetrachiorodibenco-_p-dioxin (misnamed 2, 3, 7, 9- tetra chi orodine m o --di ox m) c; ! 1' c i ^ ______ l ' / . ' c i -h '-/*0b JEtaBKiZSS.ar'S- -0- B ioassav technicue 2 , 3, 7, 8 - tetra chlcrodiber.ro - o-dioxL has been applied La s i n g l e ana m u l t i p l e dc-sages ran gin g f r o m 2 p. p. yh.. to 0. 1% La b e n z e n e s o l u t i o n . A p p l i c a t i o n is 0.1 ml of s o lu ti o n, s p r e a d o v e r the 1 -1/2 inch upper portion of the ear (Inner surface). Multiple applications a * c ide^ . a v one a c a y , 5 d a y s e a c h w e e k . Single Aoolication {no washing): 20 o . o . na 40 p. m 10 0 p.""p. un. no reaction ' HgES S s ei11:vserrte' rf eofilollilci u c litif uliti s Multinie Aoolication (no washing) A v e r a g e i n d u c t i o n p e r i o d 10 d a y s . U n t o 25 a p p l i c a t i o n s of IOC p. p. V. g a v e no r e s p o n s e (folliculitis ) rr* * L i v e r R eS D o n s e - do not rei k no w w h a t the n o - e f f e c t l e v e l is for liver resocnse. O'0 vJ O'*l-i 0 O i l r" ** n*O0 c r.-5~ :.c a - . 00038 25V - -- 96: -- - _ r r- : c : ; c r . e Vr-cr.cGcsy, M a r ch 2 ~ . 1 9 6 5 , R Ver R e e v e . m e Lie :; ri e-cr v: t* 1 ' i c . Z m '.`i 3 u i C.kfcte O j, ri c :u u *1 2 1 ~ r C C. v.) C S i. - O >--j.. j . .! CG ... r*. d c:: o u t l i n e d ir. t h e a t t a c h e d l e t t e r . I n r o r r e a t i c r . v e t p r e s e : r a c p l e ; r c e D e v : vRmJS.o~>;e, ^ A G 3 i s t . y . t - D i r e c t e r - 5 i o c h e m i c a l . D r J ' . c i c e r , . p i y s i c i a r i . v ' r . o - a m a ; n i r e d , _ . t h _ c f f e c l e a -4r e c o i e ; Dr DLecher.! cal R e se a rch D crartaer.t s e r i f veo c i s c u s s e c i=vreris Dr.roId G i l l o f t h e a n a l y t i c a l s e c t i c r . vho c c v e i c r e c ; re . va: rneticc; Larry S i l v e r s t e i n , L neratriai h y g ie n is t concerned c a t i o n s ; ar.d J a c k P e t e r s e n v h o i s c o n d u c t i n g f l i c s t a t i s t i c eseCi. cn o e r e i t e s n t i a cik , a e e r i e r of the r.e d a n irna 1 p a c h o l o v y ; r - I iquid_. ch roracograrh i c iti. in pi an t ir .v e stit e"nln s t i o n . C u r r e n t l y Os o f e e l s t h a t t h e b i c - a s s a y t e s t is the s o r e s e n s a n c a r e '--cr u i n g o n c o r r e l a t i n g t h e t v o . T h e y r e a l i s e b i c - e s p r o c e d u r e for r o u t i n e u s e b u t a r e c o n t i n u i n g to us e tt f o r f ve 3i. ?.c:pcr.oe a v e r a g e d 10 ca y s . w i t h 25 ap pl rcstior.s at 10 n o r e r r c r . s e u a s f o u n d . A t 1 port a s l i g h t r e s p o n s e v a n and severe r e s p o n s e a f t e r 11. ppb , 25 ppb, a n d ICO ppr noted after 9 applicctis h r fo'-ae t o l d u s t h a t o u r p r o d u c t eras n statement uas race that sene sarples c of the m t tn et ri ca l dioooane and sene of active (see phenetes test h a 2 , h ,5 a a c ttschsc note) and the d _ a s h i g h _as 10__?cr.. ger c aC CIG RVH ML? Nr ?02 CIO ? f frrt i-iwO T Tnonn Jloot h. euhlocmej/floeearcn Laboratory 170HFu?*lng ooi RFCLF..... HBR00 ..... ROHAairmullaetlsncaytthuyteanrauth er MQ.. BF.. FLaylnsne/ HWDJH0...... NIB0L0...... 0CUMfI1aro1itlaraal1tbtnroiisnhioanr i^/rs REPORT OH THE CHLORACKE mOBLEM F ra a a n ti DHrr.. JR.ayUmolnlkdtnVfeilrUho aatnad, HooWar C h an lcal C o rp o ra tio n HD rr.. FBdraCn ohlaandKlaenr,nadDyiamanodnd A lkali t Company HDrr.. CJo. hLn . PD. uFnnrswanldey, H arculaa Powder Company VaReotfng.xtaeeuohdrpxstroKreraelsueaa.tnauhpetdrcanaracenhkenahqddnclbouIooaoneLewtrpouhosiaptntttI-hibeinipsoeodiatB-hrrnldtIaehstHnlptheaboaeeuetrogougnxypnepkDdocrnrnlooelnrooewoacepsdarwaegt.a.leTsnaolatbisrhoxt.ydHtuelasinaraanrrTaMem.mtgmovieapoxwiaetHlidn(heewctDeorsoeoeoIlwrroetneItehsn)ghnoffedyetmae-warprereeeearamlnvrnenatqediuaddcndudetenpaoyEntoerofsntcottoiolevdtotftaluhuhnrabfoaaoaeayolnttnemreipmdefo.rrnvttaoonpoehinbmd.tretlreoaealindolmntrhHcusaeeowlo ta, er cDoCn-i.*i-d0d-jA:X.m< -<7"_;I2|JDicOiV/i,o:t?A :ciiom /.GjIlyAtNI 0 7 7p L i n e a h a r v U i n s l u c n p h a o o l . ? a c i d , o r a c i d c a t a r o . I s t ^ i t add t h a t w* r c o n t i r r u l n g o u r r e s e a r c h e d on t d l # p a r t i c u l a r p r o b i * f r a tri* t a n d p o i n t o f s t u d y i n g c h e ot.*%r I m p u r i t i e s ' n i c h t u 7 n a v e e h * c a p a c i t y t o p r o d u c o ' M s ' T P * o f r e a c t i o n . aj. u o , m i r i c ; a o p c . i n ^ t o u u a n c i t j t s erte e f f e c t s O f t h * lu iovn oc:'.*n#oe wn*n audl to Sae s t o r t a l a . T h is >ont lo prograa-U nn li, but it * l i l b* s e v e r a l oontba b efo re * have a coap leted acory. I w ould u r j i a g a in th a t I f 700 r b ig cuoco-aera ouch i a Co-Op and .'taugAtuufc b a v e p a r t i c u l a r T j n a t ' . o m a t o u t t n i s p r o b i * :u1 4t h a t y o u i n v i t e t n e t o c o o * t o lar.o n ere - * i l i o* Ari t o d i a c u a o l a a t t e r i n ' J e ' o l i - t n z . t 3 tvj Jno- Zh*- r.4w h a t * n a v e \ e o r r r d . < r n o e '. n a n y a y a L t n p i 1 t o b i d e o u r p r o b i u n d e r a ne-, p o ' :ix ks . b u t : r r t i l * 1 / d o t o t ven t to have any s it u a t i o n * /irla* nitri v i l i : iu jh th* re g u la to r y a g e n cies to beco* re* t r ie t I t* . Cur p r l a j n c s - J e c tlv * la to avoid th is . I t r u a c t h a t p u i l l b . v - r T ,'u il: L o u 3 In tout- u s . o f t a l i n f o r s a c i o n . l b -.o u I ; o. t u i i c o o m n i o s L f ' . i > r a a u In terp reted or alau oed. V3.iOcKh.*3fttOcwaei .'ieseerrn b o r a t o r y H187C61-253U7LbC .H 5 TTCPyjd co 1 L. - i l v e r s t e l n 7C . C t i o G r a d .'V) l d e s J n T . .`o a c u c : Q . Go* rg*jn wH.. Jploiy3ia*y V7.17X..*-"Io?w-e0(2--) Corre spum lrnce ,rU n d e r no ; 1 r r u n t o nc r s o-j y r '.lc r o- a h o u n , o r 2 * n t t o .wr/or.e o u t ; '.it produccd, ''v'.\rt-urt'-f'w&Zi -- s "'.h^ k: mm Hf--V~.-26g - m ..j s rs& ' Ei?f -e- GD <iuu s c INTRODUCTIOMAf^"BACKGROUND C h e i i I-s t r y a ::d A k a l y t rC A L K e t i -i o o c l c Teratology George E, Lvr:r; Etcyl H. G l a i r Do:,' D, N c C o L L i s T E r 5RT0Q <r. 'Sin-';t-f*yitj jiL. i SWEA-HHT Exhibit No. JUL 13 1232 Heywood Waga CU _ ^ 11 a r c h 1970 "'D'ORAilOijfl FOR: Director nf Research Laboratories SUBJECT: Report of Trip to AC3F0R, `.ashi nr;ton, 0. C,,, 6 M arch 1970 1. Purpose of Travel': To attend a brlsflno bv Dew Chemical C.ervpanv reorosertatlves for r'neral m i a n - Stone on 2,4,5 tric.hlcroohancxY-acstlc acid (2,4,5T), 2. Discussion of PreMoc.: The Dow Chemical Coroanv representatives cresented the followin'! 1r,forr.at1 rn 2,4,5T S i n c e 1950 1t h a s h er n known t h a t Z , 3 , 7 , 3 t e t r ? c h l e r p d i h ' ' n z o ~ - ~ d 1 o x f n 1 *. an i e - u r i t v a s s o c i a t e d w i th 2 , 4 , 5 c H c . h l o r o s n o 1 ( T ? ) . Tha l e t t e r -ate-!;1 tesuos plant which narufactured 2,4,51 duo to widespread acne amonc M a n t -or'<*rs. Dioxin and other Jj-- -uritles vere found in the 2,4,5T. Tvo plant v3S clc-'-'eS and the manufacturin'.-; process was chanced to eli'-inote the dioxin and ntl'cr impurities. The Ocv/ 2,4,5T now contains less than C.5 pen of dioxin. d o n e t i c s reported that daily doses of 4.5 u n / h of 2,4,77 urine the 10 15th of ecstatlon caused cleft palates and other a s n o m l 1ties 1r fetal rats. The " lonn tics* sample of 2,4,5T was manufactured hy Qiarond Alkali Co., and contained 27 pro of dioxin, Do* Chemical Co, recently tested "dloxir.-free" 2,4,5T 1n n t s at 1, 3, f>, 12, atH 24 re/V.i> and in r ^ M t s at 1, 29, 4) r"/v-i, durino formative devs n r oestation. The purified 2,4,5T did not cause fetal anomalies. Dioxin in -;esj< cf 0,93, 9.125, 3.3, 2.9 tod 3.0 jn/Vp in rats durip.-t th 6-15 da-/ of oestatlnr did cause fetal aencr'al i ties tut not c l o f't 'slates as v'.are noted in the f'larvatics' tests, T:-e nn toxicologist felt that tsc difference seen in t'-s) tests nin.ht he rvferv-.u: 1e to S""intics of reportin''. !::;wver, it is also possible teat i-:--jrities other than dioxin '".lent have caused the cleft palates in the? Dioneti r.s1 tests. S^jEA-P.?fT ME10RAJIOUM FOR: Director of Research Laboratories 11 arch 1970 It arrears that 2,A,5T Itself does not cause teratogenic effects fn the doses studied, j The acid and butyl-esters (used in *9range") are manufactured by Dow Chemical Co,, Monsanto Chemical Co.,. Hercules Povder Co,, Howard Taft Cherni Co., and' Diamond Alkali Co. The latter discontinued oroducinn these nroduc in 1369, The l`S Arm/ purchased 2,4,5T esters from all of the above entlonf Companies, Teratogenicity of the butyl esters has not been tested. 3. List of Attendees: Or. George E, Lynn, Regulatory Operations; Dr. Etcvl H. Blair, Chemist; Or. Keith Uarrons, Herbicide Specialist; and Mr. Oon HcCollister, Toxicoloqi Dor Chemical Ccnrany. General William W. Store, COL George y. Connell, COL John J. Osici, and "AJ Manuel L, Sanches, ACSFOR. Or. Benjamin L. Harris, DSD, 0DR5E. A Dr. Charles Mlnarik, and Dr. Robert Oarrown, Ft. Detrick, id. Dr. yayne YandeVenter, Analytical Chemist, Kelley aFQ, Texas Or. 8. Jandorf, Gr. 0. P. Mciiam-ara, and `-'r. S. Sass, Psch Labs, Edgevood Arsenal, Maryland. BERTARQ P. cii-VtftPA, Ph.D. Chief, Toxlcclon^ Department Medical nesearc.h Laboratory C H* GC CD Chief, Chemical Research Laboratory 115 70  // //*v* DIOXIN " 2,4,5-T 1.1'i 1 1" ' i .' .'Mi. \11\\l. 1>k>L . U 5 Q A S P U L L l G R A i i S PEI! ICG B O D Y W E I G H T RAT GUIIIEA PIG 0,022 - 0,045" 0,0005 - w 500.. 380, 2,4-D 375, G G 5 .* 1.000. SILVEX PICLORAM 500, 8,200. 850. i 3,000, DDT 150. 800, * 400 P A R A T M IOH 1,7 - 30? 9,3 " d i o x i n " = 2 / 3 , 7 , 0 - T E T R A C ! ILORO' 'D H i!ZO P _ IO X IN V A R I E S A C C O R D ! H G T O V E H I C L E IJ: ~D A N D / O R SEX, -3/ 601857 THc DOW C ! M C A l C'V.r'ANY MIDLAND, .`.MCA1C-AN .tJl j1l U ? V 1956 1956 1964 1964 1964 1965 (Ma r c h - Na y ) 1966 1969 1970 ' ' 1 > v i 1 i . ! i . i > ill-' . ,i i i ; ii.\; :i 11 ai m i l , '? , 4 , *' t i : I ( ! ;i ( mm :i :<m (N 4 ! , 1' 11' '* . Isoi.ATi-1) 2 , 5 , 7 ? - 1 i . i i:a c i !I.o n o i m p-niNo-i' - d i o x i n a n d C H L O R O D [ nr ; t ! V.;M-Ui: A ' !S F N o n T A n 3 , m. I h p u r i t i czs r r o m D o w 2 , 4 , 5 - T P i n a c t i v f . b y r a b b i t e a r t T a r s f r o m D-<w 2 , 4 , 5 - T P \\ c e s s a c t i v e -- f a r m i n g g i v f ; ; B U T MO C M L O R A C N E I N E M P L O Y E E S . Dow 2 / 4 , 5 - 1 ? t a r s v e r y a c t i v e i n r a b b i t t e s t , CHLORACME AMONG E M P L O Y E E G . Pla n t c l o s e d , c lea n ed and r e b u ild in g b e g a n . Ca g e s o f Dow 2 , 4 , 5 - T m o n i t o r e d b y r a b b i t t e s t . Mo d i o n i n f o u r Dow D E V E L O P E D METHOD FOR ' H L Q N O P ! ON IN S E N S I T I V E TO l p p m , E s t a b l i s h e d s p e c i e i c a t i o n s o f <1 p p m 2 , 3 , 7 , 8 - i e t r a c h l o r o d i b n n z o - p - d i c n y : i n 2 , 4 , 5 - T P a n*d 2 , 4 , 5 - T , p u r c h a s e d c n m a n u f a c t u r e :. Dew p l a n t b a c k o n s t r e a m , Mo t e t r - e h l o r o d i d e n z o - p - d ; d e t e c t a b l e i n Dow 2 , 4 , 5 - 1 7 OR 2 , 4 , 5 - T . I m p r o v e d t e c h n i q u e s s h o w ro w 2 , 4 , 5 - T a s s a y i n g 0 . 5 ' p p m OR LESS 2 , 3 , 7 , u - T E T R A C H L O " OD I B G i ! I O " P - D I OX I M, t :: d o w c n t .n c v l c : ?,\v y m i d l a n d , k .yzw.z- GCC H* OS' 0C1D 4 *: yr l l L it), 27 8 m i 2,3,7,8 tiltraciilqkodii;tri7. o x i m Ac t i v e in r a b b i t e a r t e s t , ~ Co n d u c t e d t e r a t o l o g y t e s t s w i t h Do w 2 ,4,5-T Co n d u c t e d t e r a t o l o g y t e s t w i t h 2,3,7,8-t e t r a c !!l o r o DIBENZO-P'-DIOXLN. Cooperated fully with F D A , D I M , USD/W O S T in SUPPLYING: SAMPLES ANALYTICAL METHODS CHEMISTRY \ 601859 -Mg?< > g TYPICAL COMPOSITION Z, 5 r r u o u . o n c P M f : >r *ja. i ' '.CID C O M P O :v J 2 , 4 , 5 -t k i c i l o p o p t :t ;:c :c t j :c t t :c .t :p d j s {2 r .5 cotic ocio D i C i J.OnO . m ^ 1 H^*; 1.P'i-^tvU-V .. . .-- -r 2 , 5 - D 1C H L O i > C P I I I S N O M Y / CZIT.' C S. C I D 2 ,4 - D 1C I L O R 0 P H Z N Q I C W , C E T . . C /. C I O 2 , 3 , 6 - T R i a i L o n G T \ r c M O / : r s . c z 3v c .-.cio 2 ,4 , U T R I C U L O R F ; r S N O L 2 , 3 , 7 ,V - T irrn.-s c i i l o ;o d ib hocco - d :o ::?h PEPCE7*T 95,0 0, 53,2 0,5 0,2 0,1 A <0. 5 o r- 098T09 r~* 1I. l.'n I J I I II. 1,1 !u'.; [ia\ i .i.V.. i, I i t IJ 1 , PIEK O X Y A OE T C ACID BY-PRODUCTS r iR IY Z D F Z l i PMI j L C !;.7 il;i!T E 3 I M .2 / `J/5-TPvI C L O n o rn E iX l . U F U 171- o lUio-'... /M ,,v .: s , - -r- - -- IV 1i 1' - * 1 . . * . . 2 o - I .* , V J...0 . /> ~ ~ i_ :.... if 2 / 3 , `!-Tnic::LG..^ 2/5/o-Tr.ic:;i..^;,c lh 5 - d i c k l g p .o - 2 - ; ; t ::x :v D2y 5- ic:Le r.o-f! ;2T>:c ::v 2 , 4 - d i ci ;l o ;:o - 5 - ; :2t ;:o xy \ / 7 J.* . *<-* . * . .. c: w i+* 3,5 T99T0 .f1fi.D** /b  /*a IT**J7 A JVLi .L OQ oV.or* Vf.v\ .***.* /Ou f / , ot'; - fJ.. i . ^r r.*,,j\ }v * - .. trj\:.*. ;7 y * . ..f y ;* ( G A S - L T q U U CKip:/LV.L C G K A - '~-j ;-!-J Coni': o n 2 r.l D i m e t h y l Etiisri 9. Soin c l i-Ionoiii-Llr I n r 0 A 5 - rn-r!:^Vi*rv ' r-.~.. (7I OP ^ fV...rMr-.:-VVv .i ln-.C ->v-I-'. ' O' *_-- l 1.voyl>1, <u*- .i*-.Jir::*u1,:.;_c f;rf)7 ri 7 1. X* r*;inn O -.7 f*-*'V 7 -*. -Of!a iC*>:i'"-yO *vr n r -' rj* -.'vA <t?"`J9 Vrfr 70 fi fUr!a>*. 0. 01 MfiTOS * t 1K <0 >iy rji ) \ L ANALYTICAL DATA FON CUT.0^0 FOIL. 1NC0LUli LE IMPUNITY IN.DISTILLATICI-' l.' i.TiDUL Analysis Carton, . ' Hydro"un, ^ Chlorine, % hires No. Ivlol. T.Vl.I.roUir.?: Poi;-.l Ini r r re.*:. Er:n:iiinrAio-i roui::: /u r-J.o/ 2 , T, v-u^ refere-? * V*.. t /'v' r'*. .. .* .V.- "\-OS1 3 ^Vw* 801863 4 115 78 .t t, S'YNTIIKSIS . OF 2 t 3 r7 ,8 -TETRACULKO/Ji: \ U Z Q - P - D ! 5 : a u u * 4. j\ m J i v i i l k ' \ : i i . PUFIV IV Carbon, -- ____. ... r. Iiyclrossn,- Z Chlorrao* Z M a ss No* MoL \7t* MeKing Poini Infraiv i c.vimination : -1* '?-* 'ir.*7. 020. " vni~U*> w -lOo Sandermaim, Y7., et ri, Cileni :tirai `p:.7 1*25 44.0 320. 322. 295295-3C0 ' 320-325 , G ( )2 r . 8 0 8 0 1 9 5 7 11579 !>98T0S 3 S O L U B I L I T Y O F 2 , 3 , 7 , y - T F I T > A C : i . .oiionip.:: 7.0 - p - D I O X I i l IN V A R I O O S S O L V E T S A T 2 5 C -- So l v e n t O - D l CHLOROBENZENE Ch l o r o b e n z e n e Pe r c h l o r o e t h y l e n e Ch l o r o f o r m Benzene Ac e t o n e D i m e t h y l s u l f o x i d e (c;j Methanol Water S O L U B ILI TY C r . / I O Q ML. o,ia WT. PERCENT 0 .1 'i 0,080 .. 0 ,0 7 2 0,000 0.058 0,055 0 ,0 5 7 0..G.57 0.009 0 ,0 5 7 o.on <0,0.1 . <0,01 0 ,0 0 1 * .0,001 <0.0005 <0.0005 ( a ) DMSO c a u s e d d ;ETECTOR FOULING AND A BETTE R VBLUE COULD NOT b e o b t a i n e d , HOWEVER/ SOLUBfLITY DOES NOT EXCEED 0 , 0 1 PERCENT ML-ALS 57-575 December'8 , 1 9 6 5 THE DOW CHEMICAL COMPANY .MIDLAND, MICHIGAN 801865 .1580 iij.n.:. i m . j , x . 1 i i X A ' m i i X Y o iMlliiJJYY (Fim "Report 01 ni;. .Slcrltary'g (X;:.;iog i t * : : on .....................................j X Pi.' Their Relationship .to Environmental Health " USDEl R e c e h t e r ILLY) ORAL DUSE. LEVELS EQUrVALEMT kg 2 , , 5 - T " /kg b o d y (a p p r o x ) J J G " DI O X Im V KG Vil/DAY*"' B O D Y v.t / d a y 0 4.6 10,0 0- 0 ,1 4 - 0. j ^6. M l.M EFFECTS Fetal Mo r t a l i t y Ab n o r m a l Fe t u s e s '* ' u p t o 50/ AT UGHLST < DOSAGE -- 'THREE-FOLD OVER COH<.T E O L S ^ EVE AT LOWEST * _DOSE D O W A S S A Y = 2 7 - 8 r ? H 2 , 3 , 7 , 8 t h t RAC: ILORQR lDEi'Z O " P " D IOX IH D O S E D F O R 6 D A Y S , 1 0 T H R O U G H 1 5 D: YS OF GEO, T A T IOH, VEHICLE = HONEY / 98T0 9 2 IW . c - : A . 7 .' S E T T h e .Dow Ch e m It c ca L Cc,; w , ARY 107:3 GRAL DOSE LEVEL O 1, " -T-JJ. Eq u iv a len t ,G " D U P I N '" / / kg BODY > :Lii. :.'T/rAY " kG BODY V/T / D A Y nw 0 4 0.0005 * 0 , 0 0 1 5 rr\ 0 , 0 0 3 -o L 0,005 ry , 'n 01012 ' r!o. of L lTTR 18 2k 23 23 2k . 25 A v g , ;-!o . OF L IV E PUPS V f F LITTER 1? J___1_ 12 ^ r\ Lit ~ r\ t 12 Total De a d i" L- ?3 r, n n 0 n n j Avg, Mo, Re s o r p t io n s per L itter 0 ,3 7 1 .CM 0 ,7 k 1,17 0 .7 1 0 . GM 601868 V is c e r a l and Sk e l e t a l ABNORMALITIES x'. GO LQ { ;!o s i g n i f i c a n t DIFFERENCES OBSERVED BETV.'EEN CONTROL GROUP AND HIGHEST DOSAGE GROUP * Dov: 2 A , 5 - T c o n t a i n e d 0 , 5 PPM y,Di o x i n " ( 2 , 3 , 7 , 8 - t e t i R A C H L O R C D I 3 E N Z 0 I'C S E D FOR 1 0 DAYS/ 6 THROUGH 1 5 DAYS OF CEST-MlcN, VEH.I f^LE 0 , 2 5 7 HYDROXYPROPYL N.ETHYLCELLULOSE AAi> r E T U 3 E S - E X A M I N E D P E R G R O U D l V I S C E R A L = 2 0 0 , S K E L E T A L - 1 0 0 : 3: d e r m e n t a l d e s i g n Wo r k e d o u t w i t h N l H - N C I a n d K i E E S o f U S D H E I i . * ESUITS OBSERVED BY Dr , H. L , RICHARDSON, FDA OF HSDnEW TKn now c::aa; Il <$r ^ / V ,. /r<? / 0 y / r %-- fo / "V". n ,,. s . / / , '* * * > /> " '4-, ' - /' Z' K2 K i0 y '' ;:^ /* c 0/.- S 1! */) 0 S A 'V/. V?, r > C',,'/. ^v ` . " ' G 3* 0p ' .? 0: ' <?>, 7 0:,. 0J0.0, / r*-. r' ^ LC/'/ ` O: C ?-oy, ' " >*',;./' CoJ, C < 9 V/*7, %> f * ..CSE L l V E L -.CM..' / \G v.-t / b a y * .1 J iL 0,125 9,5' Tw 1s1j 0,0 RAT TERATOLOGY STUDY 2 / 3 / 7 / o - T 7 R A C K L O r ; C D , fLE.',: Z O - p - D I O X l N The Dow Ch e m i c a l Co m p a n y 5 March 1970 i U 0, OF L itters Ave-, i\ o * of Live Purs per L itter < Total o , Purs A v g . fo. |\ES07:PTI0WS r*c a Litter 21 10 9 11 TO ' 8. 10 12 12 r '6 ' NFE CD 0 0 3 0 .0 NFE 5 - j 2 bi 12 W. 801S70 Gross Abnormalities TAIL JN T S U B - Q AND HEM EDEMA TAIL LIMB 12 00 00 17 0 31 0 12 NF NFE 00 00 L0 0 `0 0A N f e NFE. Do s e d for 10 d a y s , 6 t h r o u g h 15 days of g e s t a t i o n ; v e h i c l e a c e t o n e /c o r n oil s o l u t i o n = .HO EVIDENCE OF FETAL TISSUE PRESENT, = INTESTINAL HEMORRHAGE,2 = SUBCUTANEOUS EDEMA, * = RUDIMENTARY TAIL,'1' = ROTATION. OF LIMBS, SHORTENING OF DIGITS, TAIL CURVED *H L,Lir.LS O B S E R V E D BY D?., . Richardson, FD A ; Dr. T. King, N I H , % K o L l T . l L I IY o r OlwV.TI T h i s e o u i v a l e n \ n> 7 0 i t !i Ai O i r c 10 n r . p i i ^ i. I.:. n;u 2,'l,i>- I / 8 ppm 2/4,5-T acid 45 ICG W O M A N DR INIC IMG 2 L I T E R S ( 2 KG) W A T E R P E R DAY / 8 p p m 2 / 4 , 5 - T IN 2 KG = 1 6 m g / d a y T h i s i s e q u i v a l e n t t o i n g e s t i n g 0 . 4 m g / k g d o d y -..t / d a y ? In g e s t i o n r a t e of 2 ,4 ,5 -T (m g / k g / d a y ) 0 ,4 In g e s t i o n r a t e o f " n r o n i n " (jjg/ k g / d a y ) w h e n p p m " d i o x i n " i n 2 / 4 / 5 - T IS: .0 ,5 0,0002 1 0.0004 5 0,002 50 0 ,0 1 2 r o m SAFETY 2T A C T O R o v e r 1 5 0 7 5 1 5 0.05 jjg/ k o / d a y T E N T A T I V E D O S E L E V E L SNOWING N O - E F F E C T ON F E T U S E S 0,0002" T k .0 1 = 1 5 0 - ("d IOX'IN" = 2 / 5 / 7 / o - T E T R A C H L C H O D IB E N l O - p ~D IOX III) THE OOV/ CHEMICAL COMPANY MIDLAND, MICHIGAN TARTOS 30f 1 .jL J*. THE DOW CHEMICAL COMPANY A5TOW BLMUJNC 2020 DOW CfNTCA VULANO, MtCHlCAN 48640 J u n e 15, 19 7 0 W 424G33 T h e H o n o r a b l e M e l v i n R. L a i r d Secretary of Defense The Pentagon W a s h i n g t o n , D. C. Sir: Subject: Defoliants for the Department of Defense Several weeks ago the Department of Defense announced the t e m p o r a r y s u s p e n s i o n o f the u s e of A g e n t O r a n g e (a m i x t u r e of the n-butyl esters of 2,4-dichlorophenoxyecetic acid and 2 , 4 , 5 - t r i c h l o r o p h e n o x y a c e t i c acid; as a de fo li an t in Southeast Asia. Tt has now come to our attention that the use of Agent Orange cay be reinstituted. T h e r e is a b u n d a n t e v i d e n c e t h a t 2, 3 , 7 ,S -t e t r a c h l o r c c i b e n z o p-c'icxin o c c u r r i n g as a n i m p u r i t y in 2 , ^ , 5 - T is h i g h l y toxic. 2,4,5-T can be produced that contains only minute quantities of this impurity (less than one part per million), ar.c s u c h a p r o d u c t is a v a i l a b l e t o t h e g o v e r n m e n t f r o m v a r i o u s so u r c e s . W e at D o w are c o n v i n c e d chat 2,<1,5-1 c o n t a i n i n g less than one part per million of 2,3,7,8-tetrachlcrcdibento-pd i o x i n can be used safe ly . C e r t a i n l y such a p r o d u c t is s a f e r in use than one containing larger quantities. The Dow C h e m i c a l Company a g a i n recommends s t r o n g l y t h a t t h e governm ent s e t a p p r o p r ia t e s p e c i f i c a t i o n s and c o n t r o l s to i n s u r e t h a t no 2 , ^ , 5 - T be used i f i t c o n t a i n s more than one p a r t p e r m i l l i o n 2 , 3 , 7 ,S - t e e r a c h l o r o d i b e r . z o - p - d i o x i n . More s p e c i f i c a l l y , we wo uld make c h i s re co m m en da ti o n w i t h r e s p e c t to the use o f 2 , ^, 5- T as a component o f Agent Orange i f i t i s to be used as a d e f o l i a n t in Vietnam. Such s p e c i f i c a t i o n sh o u ld a p p ly t o s t o c k s on hand as w e l l as new procurem ent. l'C9^2P MOO l 'K iX LS _x^2 J-- > T h e H o n o r a b l e M e l v i n R. La ir d Page 2 Because of our strong feelings in this matter, we are s e nd ing copi es of this l e tt er to chose listed below. Dr. Lee A. DuBridge S c i e n c e A d v i s e r to the P r e s i d e n t Th e H o n o r a b l e C l i f f o r d M. H a r d i n Secretary of Agriculture The Honorable Elliot Richardson Secretary of Health, Education, and Welfare T h e H o n o r a b l e W a i t e r J. H i c k e l Secretary of the Interior. Yours very tr u ly , G. U . W i l l i a m s Vice President G J W :In 11538 m .viA-i'C ? ' - - lji->-lif.-j IMONSANTO C O R P O R A T I O N #4ISCHROriCE " \v ROLL El 15 22 2 C 'i fr# niKCTLOS < `'Tv .v ^*iiiiiirfn *" : ; -.y'"t v ;* ' * r mm "N M V - -r;'f&r- ;1 i:*1Cc4lC1/11>iTjXCC:J>1(IXi^.U-dOPfM*&4Ui.MsVMf4ci1,o j c* ,:-HC o>5 .H p3 d C o O * *> <C .*G l. * * - 3 0 a, p ; C( M o X*) >Ci C u w m r.,;b y-jWt.* * tioO mcxj,i i:n 3mC1 w W * ak oc \J C-*uJ. 1 Wn to ox>x m o? o on .i.;I >vUuo.1 SC ! M o oC*>C U *i IILi,Pc*PM *o sac**X>* *21T1,8O-T3 c CUUc r(<r.J.)H*c1u t> c4 o *> A O O * >c ri 1 H H < > r< U ^* Q fc0l o . OO Q 4 *-i *-o OO 4 hH4 * j*:41Ip.X1*w'<Vu*OcxOX: .:ii ,.*m4<vMo,-t<lup-u<liCoohi/4OdMuC>i UoMOxiHcUo f- - r t U 0QS3.1IO A t r i coltu r i R a te a r ch . St, Loai W. ? . DUNLAP .. iep tam b ar I J . A, STEPHENS D. B. SHARP ~ \ "' t / A r / . :'' - / ' > / I,uu<- -. ' *^'Th* r c c u lt * o / eur a a a ly a l* o to a r a u to c la v e b a teh a a a r a inmrnjmi in th* >tmb4 - J m p h a (TVgur*a 1 - 4 ) . I beLlanr th* coda la ae l- e x p l n e t e r y wdth th* p oaalh le ^:'ntCap*ioa o D m r O . T U i r o ta r a te th* era a l o t Cha d im * th o x y d ich lo reb * n * a * a *nA j\"th* m a th o x y d lc h lo r e p h a a o l* , T h a tatrach L orod i'b eaaod ioxaa (TDD) coocaoCrarLoa la VT . ` - i a a d oo th a r lg b t a b i d i u , T h a T D D e a a c a a t r i il a a i a r a b a a a d a tha to ta l o tha ' ,' -<?' p r o d u c a (X C ? , T C A , EIM CO)*ad th a T C B . V a h e v e p r a v io u a ly ab o v a th a l . /> ^ : th a caacan tyarip n ^ o f T D D la t*hv a- T*C'"-7* i1*- a--p--o--r--o--r 'im a a i--r---a--q--u--e1l to tha---c--o--t-x--^--t-c-t-f--a--rl---o a . ?'?~ J. I > ? h { TDQ la d i i p ro d a c a d f r o m th a t" "STTth ta i oaca jro u & u .c rta la ooeciaurlow* f ] c a a ba d raw n by a cero p a m e o n o P if a r e * 1 --* and a k n o w led g e o tha p a st V ---------- * * ' `"1'~ ^ ..TDD 5 rodadla* ( rifux 5). S o m a o th a a * c o n d u a lo n * are* ,,( : y.=! .' D u r ia j A p r il, 1965, p rod uc tio n o T D D r o a * to u a l l - d m * high and haa r m uch higher than tha prrrlou* norm -curr*m ~dO p p m ., norm al^ 4 0 ppm. ' " Th* fo rm a tio n o i TDD taka* p la ce t l m o it urtraly during th* hold period. ,'r'rr - ~ |pfce A s th* a d o i th a h o ld p a r lo d tha T C A c o o la n t a c c o u n t* to r 2 . 0 - 2 . 5% o i tha y ie ld . AiS-or?1 .A bout V, o i thla la rem oved by aaaotxop lc distllL atloa in tha m ethanol etlll and racy cl*d w ith tha m ethanol. T ha T C 3 1b a a a a n tia lly g o a a a t about o n e h o u r into tha hold p erio d . ' '. Be ' I n t e n d in g tha h o ld p e r io d r a tu lt* in in c r a a a a d T D D to r m a d o n (B atch 701). -* . T h * c a n a * o i th * r e c a n t lu c r e * * in TDD fo r m a tio n 1 not o b v io u s ito r o th* data, r E c u r f M , aiac* TDD form ation haa b*n r a la d v e ly low U th* p**t w* J *l that a d etallad la b o ra to ry atudy o i th* autoclave rea ctio n ha* a reason ab ly good chance ? t o r a u c c a a a . S u ch a atudy 1* now la tha p la n n ing (ta g * . W.W. Rn . fUTdde.ll)l 00156^ / P m ? E S S U P P U ^ ^ ^ ; mV- ~* i 'V ^ ' m it m mjlvt rteio*xi M rra o * >YO y C ^ r V - w j ' . -.' '' t - ~~ ` WWJH3....DaA^tA:....GDMHLwoycirdslGtoc*duc?-i.*r^isen-n Kir V!..... 7O? .. A. ItLAX..... BDCAEDebeouobolttUdsrdoelonewgrnaas.oiieo L/CWLT*.\:-.A.iVaj.ra-1-P-uUi-ty'md.-;Sa>U-oi-,.i.- iS*- " V J .. JDCJR-,w....AOX|ZZ-,.,...ud,BHI"CtpwwaroTlitpewgnyc*brha;aktai*rra.oddi*-r'".^M-'fa.IDJ.>A.y..1..XC2V:y.1.f.**S.m^LvamJja,vma-niaro*"d.gJ..vv-..te..r-a*uaro;--h*-i*.a-r"i'.'a.>JV'.r.-'< ^sZS: , tin t \ '"--->-J.7.-T r .* * " - * . C.. .-*x _ ^ ,'a 4 * - " * .'_ . . J. C, s a 7.I. Helaer<r)> '-y.'. _ < ~ ; v r > . ''<.-"* REDUCTIO? TDD TVNaTC? - lOTLPCTG .' -\ J lneedruacaea*focromnavtieornsicotaf ToDf DTCIn3 t2o.4N.5aT-TC?p.lant NaTC? autoclave, and'-- ArRtrxeeexbdssyWurueeilceaattaf)ri/co*pfhonrlfoasminatnunt*<dTtA0ryCigAapirlnpi(cdrnruuiecln(ata1ucth9traai6atoa3ilnRabaIejernceseptnedeaumrcriccoaathnmidociNpneal)ateIaTtnt)eoCdf?coSoIranm-nutaat7aonlnicpnialpaaftmrvtooae.mfswpTit1Ditu%t`hDtdoytao(.aacutcorpTabcpiclceoo#urr.trartcai--aet IT3pamchr.eceOpsoSrstorrudvpiraiependlogrc.ruhatnowaTrshagmheninoaaLwgltyoeewrssdiyieassralttoechrfmheadatn.hrugreceeTxteiCpocAernoecnwptItenrredeosTslDeTrbneDDedtDacucatcoicuveonsdenteetibneornatofttaictrhLho0aeeo.Ssbn.3e1elX0wi.eSvatoeupdtp0om.dc1lu9ateovXeto, Ade3m0o-cnaayuaptliacnr.t. trial run will begin on feiruary 2 to complete the -- ICS/ial < 7 C , ^tf0l4G / J. C. Strum /rtfc COMPANY CCNriCrNTlAL *irrvrr*'vs 11593 1*oH . J r r l* -I- lUraft 77, 1343 1 * probi* laca mi n ia l* i* tu Jcirm ry 1*** a f t t e Journal o Vi ta a rlo a n te d ia c i i a i o a l a t l s a on--r^ln c a dianone *00*1 te rp n y rla Cu m i Tarda. TMa a r t l a l a , oom rcry io a n n a f tte M d lo a l te ta n la * l a i t e p * l, ha sa i ln a taa d o f ttd a te la a tli-r- -- V i' l a te e n ro n lta l* , l t any W aaq airad &7 t t e in r a r tla * a f o n rtaln cnlonateaanna piodoeta and (M a r a d i l a r ii la ra ^ a rla d JUfl aaaaa of tM a dia* filai acaarrod l a Tardar bau th a papnlattn ara iin aftaat to p la n t t t e t bad bona t r i n i 4 alti a f e n d a la * , no tah ly H o m cn lo ro ten sa n a. Inalanti of p la a ti a f t t e afta at, n aat f b a i ll o a Va l t , and Un i aa ca rro d tM a o a lb m m V ta h l a a a tla n ta d t o terra tao andad 3,000 aaaaa, ltaouft orOjr JL3 par ima 11j t baaraa d aaaan v ara neon by J th.oao a t t e r a . T ata aaaaa la a iti ma a of Ite bload fondea altan uta o f t t e tedi* In 0*1 sii i t e M a n flsb tn a f t t e rad bload o t i l a la tem an do and m a rn i 1*12y e ia plaan, l l v a r and blrinaya a ra a f f m ta d ta a t r i l l a r o r la a a a r a x ta trt, -`opandlhr apon t t e in r a r l l c a a f mah a c h ia ri m ta d banan i* . I ta <*t*rd a a n lf n o ta tiana ara t t e a a hi a ra p ro ro lm t In tte p la rt la I r a n n<t m anolad ite chiaraa v i d i * t e l a te a m ocr g ad r.'r fa r a prr<od o f ti n o , l t la c ia o a ll tram i th a t bora la cn ln tT .ila .a l uno*; U h i 11ty ta te a daaalapaant a f Ih la dlaaaaa and un ar a f f a r ia d aso-n 701 a rra th m aaaaa. VJ Om a f 3l *1|tT. f lo m t and *ay ta te to d larn o aa tM a di ataa o f l r r teaa tha m in m a n ta* . Lo tba a n d in a a f t t e te m a n la a ila d porv~/Mna In t t e urina a d Ih la la ao aily oaaeapUatmd by lona Ine a l a' 2m*i ? tliaan of arlna wMr a l t r a r l a i a t laap TMa t e a t e m c a rrird * by Or. E l a l t e r r , and ha foamt t*1 a f t t e fonr m a te t e n uff arad t t e I t e r a l i f r- n I te ftlaraaoa, t a a f tte had a paorl t l i a portrirtn raaotlon la t t e i r r itu . Alaa, Itera m a orIdonea of o .la In ttej cr. - *1611 l a na* a r a n n i f i ad i r ; , l a a l l fu o r In d iriA ia l# and tuo of tte * nd w o n o f c h iu s i . I t la * r Im ra o alo n th a t tira ar i----- * f *--* U s i l i . -- . hldi Or. 311te ry p o ta to i cnt to aa a ra p-obably nnffarlrv tram t u di ma, lo rp ry rla Cotanm Tarda. Tt ta a n l l dcubifbl la iv *lad th a t 11 e a a a i of an lo ra m a ara in r a a llty tM a dlaaao, hot prcbably 111 sa aaraly Iter a n d oraoruT-a f i a t la aaan 1 la d lr ld o a la w n l a r v i t e th lo r l catad hanta n a- p ro te sta . Ky i t a tana* t bara l a te a a d apon aa p p o n itlan , Voi ra ram a ta f o l l y a Y> heo r p a n a t i a f th a o d im i l i t a r a : t r a d an llay I te thate ta* ani tiat ha ba*r knami cre ai tem i In <-te p n at. aetotomnetfdai5atO*llalroatl.lnpUIISannooraifmMVaaawfnatlrden.al*atrltMmJienD.fWmUrlSSvinoolllt*nndtaaadltraoaonnpefftannmtfooleaafba%tlmaoaTHapnnfel,.taaJCeaanl-ltOrsainertrnatrr.ellyyanaar.llniflaaaKintaIDrylti,rreit.ieoraOa#ntni3Mi*1imlporaaa*i,,aalfldat,i#dttmfe<folttan#plaalr*ahtttn.aaaelnC^ryo3drrda.mllwlaanttifaaednaodadiaOfihaallatlaafieataetXrainoaap*paDm*taaaelarnh,tUmnnlmlwaaurfitniaalt*ttlrataram*ia!#*i DSaj ui q2a iStp ^SV.te r.I & * X.,. JiSW'i MI .j T 96 m 2 & * Xrv K ik V. J-trria -J >Ur*h Tt, 19 j l a a c a n d iti oa t l i s ia la 1 tb a piami 4 a W illia m 1 pwaorvU. Ina pr l i s a a f om* p l* n tt ad taaay 1 b a ro bavn n a t lf la d V a* awe n lA p*tlaa v i l i ba a rrla d oat b f 1 nasci v ra k , ob lv at a f oara, u y w r approvai Z aiild b v a r tl l? minarne o l i a Or. R a ib a r f and o f f r e th a opinion I r a i Diamond l i k a l i Cenpoity oaa otti? i r o f l t by h i v i a l i and woold aa i n aonand a l Ha ba H a *4 l a m * 1 U I b a lla v a tn a t ba probably i l i liti t a an-Wrt*ko oro oatonalvo b a a p iU l tam ii* o r IndlT idaala tban I pa r aoaal V baU aa i naeaaaarjr, and wf rta o n a a r t tlo a in tb ia ra< ard , a l Wa p raa an t, woald ba lo h o a p lta llm only V a iv a aarwl aaaaa and bara a tbarourb n filmi xasirw vloa, afoaialljr ratardm tba bload lam ia aiam ata Via tdbvy* and tha l l t a r a of tb a sa In d lT id aa la . X d i n a i fami t b r t T oeld raaom and tb a i a a ro tb a n liti b a dona s t th a proman i lin a . Z bava baan i a f om ad * w t tb a etapany* fa ta r p lan a lra la d a a ro h a b llita tio n o f ib a ald ar b a ild 'n * iti r a la ia r a f tb a ro a f, ra> v la lo n o f tb a tara- and aodntl*M l>n a f a a v ip m n t alane i t i adw oola w n t l l i t l o n , a r t Z carn ai aapbaalav tua airo n e !? to jwj tb a i a t t l l tJtla proTW* l a oa r r la d a l , tba problan et tba d a r a a i i t l a o n d /o r parphyria in tN r l a n t i l i ro rn m * , T. a f c o a r ta , a a a o t oonvaraant a i tb a r i n ba 1in a ia v a avai Labi# noe tba f a a a la lllt y o f e a rry ib f forvi tb i pr/T ri Ho m p , 1 A b allav o tb a i Ibi La tb a a o ly r a a l ao lA lo n Va tbv problan rtab iato in th I n Jvrocy J la n t, In n a a r r thn, Blanend lib a li baa a p laat la lane** H irln t 7? o tv v rs, navi of tua bava baan a ll tv ' cd llb a m in dlvva and a iltfl n*r prova to ba vrva rorv daofrrrwa to hoolib thao Ulta in i t a ir a n t oboi'an i baa baan awara o f tb lo proala* f a r o rn ila and tba n td ia a l V rv tn a n t ba o a r ta ia ly baan a i - i # i la u d ari a1 r a a i l t y . 5 tU ra ra v a tlo n et tba e U p o e tic a o f th ia p ia o t 1 o a rrla d o a t , Z n a r r i in tb la prcb!_ tu ooetlaa* to v aiai. K- -v^A PVIebiama osa He. C. Me*ed v a i a r. Irjvaond 1. 1 . O cldi Richard V. H ebam ty, H .3. qQ 1 w- W OS 3UU 1952^ "1- u*: -iOr,* ^ < , ... ./.iSbiSi] `s.>..;< r1. -'flfl .t . ^U>:" irvfl-tfta - ;'v.;.-S'H-'PPC.vi '-LV'X-;-ic-Va`Vui-"i.'-'fW;t5ft.&',iV,.^EfigKb&P$iy%a*3"! ' ' ^SarJt ~ '*' *- r'^'7** 11;`Vr>vj 1 ___________ . j -r M /o-j y'-r^ r'SO ), I r'~. a . i, Gtdjdl - Timarle Plant St*. , I Qvarrflar f - b _ fii; y rr Tbo q u o rtic a eg'V^ I c r o -a m o .ban Dot b a e a r a a o lra d l a th e co rx ld eratlo a o f tv o l h b le eo rta* e-a. B U I Chajylon of tlv e r d a la C bccdcal cay s hat ha p r ta b e t t e r g ta reo latio ca TT-rinc e th e r a a p p llc re 1b a r j i d d o a , and ba l u c i r t e t h a t ba a chlar -*cae p ro b le i vT-ii bo a*ee Pla- 4 la you r e c a l l , th e *Jjakar C ity Tree p ara aen a l ptnro re ly aggectad by t h l a d a r* L tc lo g le a l p ra b lo , < d c tia lte ly lo o t tba* aa a curVcaer, ,,, JcInicmatrbTlcaitnlgtoaovteoa aid r*a1. tloib atboa rpeopnl-yrlbglermn vycoce,a idarooat eygetahrlapefrreacieloele tic131 co i H. 3* Vela* x. l. auxBua J Si 1398 imps ,*fnci COtsifrONPlNCl IC74-04 D ia m o n d A lk ali C o m p a n y ii.'V 1er Creamer, J r , iUFJICI CLOMaC.'dT* probi** to tbe u a e rs o f 3 ,4 -9 and 3 , 4 , -T producta in Colombia* IS terch iv64 COUMblA Daring ay recent v i s i t to Colomola, **uimor ltdaiDACO a ita ta ) put w* aPraaat of the reported serio u s problema re su ltin g to workara ha bava osad Diamond A lkali producta hieb c a n ta la 3,4-D and 3,4,3-X acida* At tba tima o f ay v i s i t hieb aa during the la s t o f N b . , thara bad alraady baan eorraapandanea bataaan Diamond and Qulmor diacuaalng problems hieb aroaa la tba ucaraaanga area* At th a t tia a tha la a t b it of corraapoodaaca had came fro n Diamond oa tha 37th of November 1*43 Ainea th a t data Qilmor reportad th a t thara had btaa van aora pa opla and animala affaetad ho had baaa in contact 1th tha product* and in othar araaa alto . SICAAMANSA--- A p p ro aiaataly 3 pa op la bava baan a ffe c te d --Most bava baaa b o a p ita lix a d f o r ontha with very l i t t l e aigha o f cu rin g them selves. la some cimi tha victima bava bado iDcreiainfily v o rs . Aoraaa uaad ia a p p lic a tio n o f the prodocta ara a l i o badly a f f a c ta d ,lo a a o f h a ir , a k ia l a i s o a s , and in ooa caaa d e a th . C a ttle bave a la o baaa a ff a e ta d no g ra te d the tr e a te d araaa* re a ?: le v e r a i c laim a have come l a from tha oucaram agga/requaating c o n sid e ra tio n fo r tha hoopit a l , id oct o r b i l l a , p lu aau b a iatd n ca f o r the lo a s o f work tima by th a workara* CAI ! - l a t e In 19t3 a couple of viettma were reported in tbe C ali a r ta , however vary l i t t l a conotion was nade about the fact* MOULIN--- R ecently caaa a a rc re p o rte d ia th e " e d e m a a re a o f Cloeoocoe w ith h o a p ita lia a tio o . At t h i s p o in t th a government ia a ta ping l a b7 baviog tba public Health Society lnvastigata tha matter* "as reported th a t tha Society w ill eventually take sim ples of the product with analyaia follow ing. QOimor's b u sin e ss has baaa jtp o ^ is e d by tb a adverse p u b lic ity . P arsers ia Colombia a re frla g h te a e d o f tha peoduct and are ta m in g to th e com petitors* Qulmor f a a la th a t the product wna ia dha f a u l t a f t a r la v a a tig a tln g a l l f a c ta o f Oaa* They f e e l th a t th e p ro d u ct s ig h t have com from a bad b a tc h o r two* Qulmor e t l l l has sto c k o f tha aa** sh ip n eo t and do not want to s a i l u * anywore o f the m aterial* try Diamond* Tha a u p je e t m a te ria l was shipped to Qilmor i-tda in Colombia/ upon re c e iv in g the m a te ria l Qulwor p a in te d the Diamond drums and p lace d th e ir ovn "CLEC* la b e l. QSOflOI 1893 11599 3/25/0? ' JCKX C O ST, J R . S , L. CHAJ-iDLSil CrLDEOACiE - DCW X S S n s Q t cat T. 3.--.JCermstr. - ?igr,, ncvaric plant / y JKT. O. T. VEiilringasrson ---r-5^ .' -.*.- .! ,'i-. Cq. Kirch 2k, Kika .Lsniisdy and I s e t w ith two p eo p ia fr e u Hocker C r.aaical Co. T -' < two frees H ercu les, end v lt h th e Dow group a sso c ia te d w ith 2 ,k ,5 trlch la ro p h eo o l and to disuruss relatexd a a tha tari z tl ae a. i.eo l o g i c a l ir p n r itia * -.2 -zL'jf& t Eh*. ? o i o f Dow CruncLcal cpnsd th a o e e tin s by s t a t in s th a t they had operated-' fo r 2 5 y*c3 e,nhleaarrotepnpario a c a ftu r/ s * t r a l, I s a m how t o i d e n t i f y i t , and t r y to a v o id c o n tin u a l tr o u b le w ith th e . L /fy i unkno-w a. T hey t e c t e d . v a r io u s a g r ts r la la f r o t a r T r a c t io c e and f r o , ax t h e y 3i t , , c e n / ' , etc. T h e y found t h a t t h e r e a r > a n u m b e r o f s u s p e c t ; = . t r i a L s , 2 6 3o r 2 7 ; b e t t h a ti&Jc t ''b a d --r t c r t h a t t h e y i d e n t i f i e d a n d w h i c h a e s a e d t o 2 3c a u s e t h e p r d b l e a v u s , , ^ , B - T a ^ r a c h l r r o c j j > a n z o p --D icocis: ( s y pet - r"i-e V w.. 1 \\ 7 ^ ft C H i_ C $ 0 D I 3"*"=. ."*"*^** p ~ D 1 0 /*1^ . C S y ~r /Z.j C.fit-). ;-u: T h is i n c i d e n t a l l y wao p r e v io u s ly l i s t e d a s a B u cp o ct m a t e r ia l by Cy P a r k in s LEOc c r a p a n y . a s i w i l a r m a t e r i a l La t h e r n s y s e a s i r i c . a L 1 , 3 , 7 ,5 -T C D 3 D t sesaartises l i s t e d a s 2 , 3 , 7 ,5 -T C D B D . T he Dow p e o p le u s e d t h e w h it e g lc m j a p p r o a c h and fo u n d t h i s c c a t a a in a n t m t o o l b u s o d l , b e n c h e s , L n s t m s a f c a t s , c a d o t h e r f o m l t c s . I r r t e s t a r iir v tle . _ t h * y -_ c o v ,,M a o o s i s x e c r t l y --c a u s a --t h e - x y e p t e m s t o a p p e a r . D r . H o l i e r c f _ S o w , c n a c f t h e i r *cuLt s t a r t sg lid e s o f the v a r io u s , p a t le n t a , ttC 7 1 1 1w i t h z a l t i n l e b t r 'rrruxd^ y r o s u l t i n z , l n _ c l e a s c j r y c c s t m e t u r e s w h ic h n a k e t h e p a t i e n t 3 3 8 '-1l p c i : ^ l i cB?^be . n e e d s . i o _ - ' . ~ a s h - h i s ^ l C .- Trie d i s e a s e d o r e Ic p e T o w l y , n o t a p p e a r i n g u n ^ i l --a i r - w e e l a ^ t o , .i^ - :wjcrt h x - u f t u r . _ c i l d e c r x s u r e h u t a p p e a r i n g i n f i r t o s e v e n d a y s heerr o p e x u r t w One bench chem ist has bewu under tr e e tu e c t fo r tvo years and h is fa c e is s t a rtin g , to anew .sirca .o f^ c la s r lr g . Dr. Kcldar says that he b e lie v e s th is ran 1- pmblzxas w i l l be s o lv e d in another s i r sxxrtha. Dr. Sader, who does th e ir r i.c n :- sc o p ic work in c o n n e c tio n w ith t h e ir n-t-aaT Labo r a to r y , shoved photo aicrc^rsp-hs o f th e cy s ts as th e y fo rm e d in. th e exim o f r a b b its . The c y s ts LdutiU m^.u;a o th o s a fo u n d o n t h e f a c e s o f t h a a.rm...... _ ... ^ ^--0 r w _ _ . . . w w . *-- C^: cf c: 3S 00021639 CD L... 'A Irf3 -- *~i A, 11800 c<snx-rttth d eBfp*aocssaii.ct .a lTlyb,sth'aervaerrius uaa.llcyirscortLfrcoci=d. thd sep ebxlaalctkhiena The chcro-cal esnnert b found in th e dui sho*c tl aahaai o.trt itsof-os uflclsris-c&loe*r.s cinl*oasxtiehdeo.,i cl bcor-wrr but th e p rx lsa g t i .l l p e r s is t* a fte r cq jcsu ra . The b ea t c ^ a crip tica c f th e acuta g ls h a g l a t h a t t h e f a c i a l t i s s u e s r e a c u b i e t h e x a g g e r a t e d s u r f a c e t e x t u r e c f an. ce r a th sr u e d cad x a r b ly w ith th e e n c lo se d hard co re d e p o s its . A ,.g g o co d x rX ;cy g p tca , w h ich doea n e t c o r r e la t e H r e c t l y w ith th e taoixri o f 1f a c i a l d a r x s t i t l s , I s a f a t i g u e r e a c t i c s v h a r o . t h e e c p l c y a e I s c c e p l f f t s l y l i s t i * - ' t i r _ d . _ oe r t ^ * d p a a r l y _ In m a p -sc b a t e d . JL c e s e p L c t e b i o p s y o f l i v e r , f c i d a e y , e t c . , so d e oe r c ific n ^ o f a j a r er g ; j . A c c c p ls ta e l i d e d ex a sd n a tica o f th p itie e r ts shcvw d do a w a m rrsb le a f f e c t or. h e a r t , b lo o d p r e s s u r e , r o e p ir s t io n . r i t e , b i c o d 's c ; 03f n ) e t c . T h e f a t i g u e d p a t l c c t - f l to be h elp ed by h eavy d ee o f v it n s , p sm a r e la t e d in s e c a way t o th * c a r o te n e .-sstx b o llsK o f th e b od y ( in v o lv in g v i t a s l n A, y An o r a l d o s e o f 1 7 a l e r g r u se iu o sd iu .': * i y j e l l ie d t h e t e s t anis e a l s . The Dc p e o p l e d i d n o t I ovrst t h i s d o s a g e t o o b t a i n a n uO^q b u t d e c i d e d t h a t , v h n tnr ca d e t e c t t h i s c c r ip c s n d , i t s h o u ld n o t b e i n "the p r o d u c t . T heyifo\iD d''tbart-,-=-*ftenv Sctt'eaeil y hard s c r i^bihg 1, ITI-trdlll'CT-th&a.' 1cw h a s d e v e l o p e d a n>cvr_a n a l y t i c a l n srth o d i n `v h i c h t h e y haTv e c o n f i d a n e t h d r s e n s i t i v i t y , t o ppsa. T h ey c a n o n ly a t a c e in ia v eG ls^ b elo w t h i s 1b e ' p r e s e n t b e l o w t h e p p z . T h e y s t a t e d t h a t t h e y h a v e n e t u s e d c i c r o - c o a e t h o d r , a n d t h e a l S S t r b a c a p t u r e t e s t s t h a t t h e y r a n c a d e o n l y a v a r y sT < -ov-ysesrt in s e n s i t i v i t y w ith t h i s com pound. T h a ir a n a l y t i c a l ch th e le c tr o n c a l l saturtrtfts b eca u se c f th e p re e ec c e o f e th e r m a te r ia ls high o cco ecrtra tlo n ooco a rec to th e d io x in . 8 0=3T h i s s t e r i * ! h a s - o t r a e g e p r o p e r t i e s . I t has a f a i r l y h ig h vn*pcr p r e ssu r e b u t narvsrthel& ss Is q u ite p a r a iste r rt as a co n ta m in a n t. I t can be *epar. i r o n b e n n sQ O b y b o i l i n g i f i t i s n e t c a r r i e d ow n t c d r y n e s s . Th? D e v p r<vp~! e x t r o u ^ l y ^ c n r p f u i ^ J n --g l l ^ f ^ h w j r ,n < u rk -Tv i t h ~ t h l s . h c : = p o u n d . T h e y u s e FTP t h r e w - u 2g l o r c a ,_ c r d ^ a l l ^ g a r r r l a s =- a r e ^ ,i n n i * d - ^ n ^ ~ a r p e c i A l f u r r x : c e ^ w h l c h o p e r a t e s e h Z C C P j . ^ c s e ^ s a l e s . ^ * r e - . * a l j * d . b e f o r - e x g o l n g - - t o t h e - - t n j r n B r . T h e y u s e b i o a a s a y m e t h o d s <. r a b b i t s f a r q u a l i t a t i v e c h e c k l n g . ^ o c l y . ___ T b s Vers p o c p l a s t a t a t h a t t h s y i n t s o d to s e t a l i a i t o f z o r o w i t h a crus iti' o f p l u s o r s i n " 1 p a c a t h i s t a r l a i . T h e y h a v e s n a l y x e d acterials f r e e ; e t h e r c c ^ p a o la c , in c lu d in g c u r c e s p a x y , and b a v a fo u n d aa o u n ts xs h ig h i s ID o p a in 2 _n1jt- 2 0, , $ - T a c i d a n d _ ^ _ j D j ? p * i ^ i n _ p p a c u t e s ~ = = r = = r = = = = = = = = ^ - They h a w ad a g in g ia a p p lic a tio n to tho e a r s c f t e a t r a b b its sad fo m d th a t 20 ppa v i l i Dot g iv o f o l l i c u l i t i s . F o rty ppa d o es g iv a a s lig h t o f f s e t , an. 1 0 0 ppa i s s e v e r e . T h ey h a v e x a d e r e p e a t a p p lic a t io n s o f f r o a ID t o 1 0 0 p p b , an. 2 5 o f t h e s e t r e a t m e n t * d o n o t ca u s e a r e r p e r-s a ; h c v e v e r , 1 0 0 3 ppb ( l p p a ) g i v e s . 8 1s l i g h t r e s p e x v a s . . w i t h , n i n o - acrol i e a t l a D a - g n d ^ ~ s v e r e r r e o s t i c s ~ v i t i i - l l a p p i c a t i o n : c: 2 wow' s p o c p ls o u tlin e d a a e ih o d fo r e x tr a c tin g and r unnin g sam p les c i .L .< -T ; 2 .1 ^ -d T 7 j and p h a sed * . I t ir r c lv e a t c h lc r o fc r a e x t r a c t ic c , f o ll r e d b i t ia ' us, *1 cod ir te r d a to purvaa th e Iztxzrstarx v crx 2 11L f c r y , c d t h i s i r r r in a p p e a r s i a crer , , 5 - * to processa. a sc e r ta in ^iara zed bow & T b p o r p o s e o f t h i s e a t i n g ,'*'=-a o b -Y x r a iix a s tu n e c t o h e l p u s s o i r s t h i s p r o b le a b e fo r e O T rtslcra c a n iu ja th e I s s u e and c iu a us do od a g r i e f . Do* 1*. e o d ir g t h e t * * t r e e r o ltz on o u r suit e r i a l t o u s , i n c id e n t a l ly ; arxi t h i s v i l i f u r t i iKOffci: c r c r t e c t a s i r j u s , t o . \ S 00024641 n I o cd  i i  .... ' l v s K-^ i :>b*>r. ' ... 'm m m - - < > DOW C H E M IC A L U.S.A. September 15, 1977 MIDLAND. MICHIGAN 48G40 ALL DOW U . S . A . SUPERVISORS RECORDS RETENTION Recent events have dramatized the need for reemphasis of guidelines for the creation and reten tion of records. B riefly stated, those records which are useful to our business, factually reported, and which accurately portray a situ ation should be created. Conversely then, records which contain more f e e lin g s or o p in io n s than fa c t, which oc ro nat ar ei n r pe ah dr ai lsye s ,c a pp aa rbal eg r aopf h sm iosri n st eu rbpj re ec tt as t ioofn dsuhboi ouul ds bvea l u e a v o i d e d . T o d a y ' s memo may b e t o m o r r o w ' s h e a d l i n e o n l y b ecau se we have not a n t i c i p a t e d the c o n se q u e n c e s when we og ue nt e or af t ecdo n tthe ex t p bayp e rpwe oo rpkl e. wThooo w farnet q ut oe netml yb, a rwr ao rs sd s u as ,r e e st apkeecni a l l y in a time frame of 10 years or more a f t e r the w r itin g . Reasonableness and d isc r e tio n should accompany our words. The maintenance of records i s a l s o a c o s t l y p r o p o s itio n and today, more than ever,, we cannot a ffo rd the luxury o f r e t a i n i n g u s e l e s s o r o b s o l e t e d a t a i n o u r f i l e s . We face tremendous costs in f ilin g and handling papers. Not long ago, one document r e tr ie v a l e x e r c ise , required by uap c mo uorret ot hradne r 5 0t o, 0 0d0i s cdloocsuem ednot sc u mi ne nvt sa r it oo u sa pc olma pi nantyi f fa,nd t u r n e d p erson al f i l e s . The c o st o f com p lyin g w ith th at order u'as in e x c e s s o f $10 per d o c u m e n t. We h a v e a r e c o r d s r e t e n t i o n p r o g r a m , w i t h a p o l i c y m anu al c o n t a i n i n g s c h e d u l e s f o r r e t e n t i o n and d e s t r u c t i o n . We need to apply them more s t r i c t l y to our a c t i v i t i e s . * Dow b u s i n e s s m a t t e r s b e l o n g i n Dow's o f f i c i a l f i l e s - not in personal file s . Your e f f e c t i v e leadersh ip in t h i s area is needed. I0W IT AWAY ! ! ! CAIU Dow Chemical U.S.A. AN OPERATING UNIT OF TME O O W CHEM ICAL C O M PA N Y CTATSS ea ster n d is t r ic t a t c o v in c t o n 1JT C' of ren t <T u ru iirn D .iirict cf :-cruuo<) .<* ^ . ' ` 1 `- c - ; NOV 14 IS79 ^ *T Covi,,cTG* D A V I S T. UfOHIET CLiJUC. U i DISTWCT COUXT IN ?.E 3EVERLVT HILLS FIRE LITIGATION C i v i l Ko. 77 -7 9 ORDER This a c tio n a r is e s out of a f ir e which occurred a t the Beverly H ills Supper Club in Southcate, Kentucky on S a t u r d a y , May 2 8 , 19 77 . Numerous d e f e n d a n ts have f i l e d m otions f o r summary judgment. In general these motions r e s i s t im position of industry-w ide l i a b i l i t y on targ eted groups of defendants. F o r t h e r e a s o n s s t a t e d b e l o w , we h o l d t h a t u n d e r c e r t a i n lim ited factual situ a tio n s l i a b i l i t y against an e n tire in d u s t r y may be im p o s e d i n t h i s l i t i g a t i o n . I Background Facts and Contentions T h i s i s a p l a i n t i f f s ' c l a s s a c t i o n l a w s u i t . The c l a s s o f p l a i n t i f f s c o n s i s t s o f t h o s e who w ere i n j u r e d i n t h e f i r e a n d r e p r e s e n t a t i v e s o f t h o s e who h a d d i e d . P l a i n t i f f s named more th a n 1000 d e f e n d a n t s in th e ir complaint. These defendants have been divided into v arious groups in o rd e r to f a c i l i t a t e and ex p ed ite t r i a l o f t h i s l a w s u i t . M otions f o r summary judgment a r e p r e s e n t l y under c o n sid e ra tio n from the group o f producers o f e l e c t r i c w ire i n s u l a t i o n (Wire I n s u l a t i o n Group)^ and from t h e manu f a c tu r e r s o f aluminum wire and devices and t h e i r trad e 1 The f o l l o w i n g d e f e n d a n t s a r e i n c l u d e d i n t h i s Group: American In s u la te d Wire C o rp o ra tio n , Anaconda Company, C a d i l l a c C a b l e , C e r r o --Marmon (Marmon G r o u p , I n c . ) , Coleman Cable and Wire Company, Conoco C hem icals, C o n tin e n ta l O il Company, Diamond Shamrock, E ttc o w ire and Cable C o r p o r a t i o n , F i r e s t o n e P l a s t i c s Company (F irestone Tire & Rubber), General Cable C orporation, G e n e r a l E l e c t r i c Company, The B. F. G o o d r i c h Co mp a ny , I . T . T . Suprenant D iv is io n , Monsanto Company, P h elp s Dodge Communication C o . , Plymouth Wire and C able Co. , Reynolds Aluminum, S o ltex Polymer C o rp o ra tio n , S outhw i r e Company, T e n n e c o C h e m i c a l s , T r i a n g l e PWC, I n c . and U.S. S teel C orporation, E le c tr ic a l Cable D ivision. 11605 2 a s s o c ia tio n (Kira and Davies Group)". A b r i a f review of the salien t facts is necessary to understand the bases for these motions. The B ev erly H ills Supper Club was a la rg e f a c i l i t y occupying o v e r an a c r e in a r e a . The Club c o n ta in e d a number o f rooms f o r d in in g , ban q u ets, d in n e r dances and small p a r t i e s . The C lub a l s o c o n t a i n e d a l a r g e showroom, The C a b a r e t Room, w hich f e a t u r e d w ell-k n o w n e n t e r t a i n e r s . At the time of the f ir e there ware approximately 2,400 to 2,800 people in the Club, with approxim ately 1,200 t o 1 , 3 0 0 p e o p l e i n t h e C a b a r e t Room. . - - The causa and l o c a tio n o f the B everly H ills Supper Club f i r e a re s t i l l in d isp u te , although sev eral reports have i n d i c a t e d t h a t th e f i r e was p r o b a b ly e l e c t r i c a l in n a t u r e ^ . When t h e f i r e was d isco v ered ", " e v a c u a t i o n p r o c e e d in g s ' ware i n i t i a t e d . H o w ev e r, many o f t h e --p a t r o n s ,' e s p e c i a l l y -- t h o s e i n t h e C a b a r e t Room, w e r e u n a b l e t o e s c a p e i n t i m e . The b l a z e consumed a l m o s t t h e e n t i r e i n t e r i o r and s t r u c t u r e 4 of the Supper Club . 2 The Aluminum A s s o c i a t e s , I n c . , American E l e c t r i c a l I n d u s t r i e s , I n c . , American I n s u l a t e d Wire C o r p o r a t i o n , The Anaconda Company, B ryant E l e c t r i c Company, C a d i l l a c Cable C o rp o ra tio n , C a p ita l Wire & Cable C o rp o ra tio n , Cerro-Marmon C o r p o r t i o n (Marmon Group, I n c . ) , C o l o n i a l Wire & Cable Company, Columbia Cable and E l e c t r i c C o r p o r a tio n , Eagle M anufacturing Company, Inc. , Essex Group, E ttco Wire and Cable C o rp o ratio n , General Cable C orporation, General Elec t r i c Company, H a t f i e l d Wire, K a is e r Aluminum & Chemical Company, L e v i t e n M a n u fa c tu rin g Company, In c . , John I. P a u l i n g , I n c . , Puss & Seymour, I n c . , Reynolds M etal Company, S i e r r a E l e c t r i c , S l a t e r E l e c t r i c , I n c . , S o u th w ire Company, S q u a r e D. Co m p a ny , B e l l E l e c t r i c Company, R o d a l e M a n u f a c t u r i n g Company, I n c . a n d T r i a n g l e PWC, I n c . 3 See R e p o rt o f th e S p e c ia l P r o s e c u t o r , The B ev erly H i l l s Supper Club F ire , February, 1979; R econstitution of a Tragedy, The B e v e r l y K i l l s S u p p e r Club F i r e , N a t i o n a l F i r e P r o t e c t i o n A s s o c ia tio n and N a tio n a l Bureau o f S ta n d a rd s ; U.S. Consumer Product S a fe ty Commission S ta ff Report on the Beverly H ills S u p p e r C l u b F i r e o f May 2 8 , 1 9 7 7 ; a n d I n v e s t i g a t i v e R e p o r t to the Governor (Kentucky S tate Police) Beverly H ills Supper Club F ire. 4 The f o r e g o in g r e c i t a t i o n i s in te n d e d f o r background only. N othing s t a t e d th e r e i n has been r e l i e d upon by the Court in disposing o f-the pending motions 11606 -3- P l a i n t i i f s cDr.tend th a t as a r e s u l t of the fir e a n d p o s t - f i r e d i s t u r b a n c e s , t h e i d e n t i t y o f sorr.e o f t h e r . a n u f a c t u r o r s ..hose p r o d u c t s n a y h a v e c a u s e d o r c o n t r i b u t e d t o t h e f i r e i s i n d e t e r m i n a b l e . To o v e r c o m e t h i s p r o b l e m i n id e n tific a tio n , p l a in tif f s advance a theory o f industry-wide l i a b i l i t y . This theory seeks to impose j o i n t l i a b i l i t y a g a i n s t an e n t i r e i n d u s t r y when th e p a r t i c u l a r m a n u f a c tu r e r o f the in ju ry -c a u sin g product cannot be id e n tif ie d . P l a i n t i f f s ' claim s a g a in st the Wire and Device Group and th e Wire I n s u l a t i o n Group sound i n n e g lig e n c e , breach of warranty, s t r i c t l i a b i l i t y and so-called e n te r p r i s e l i a b i l i t y . As t o t h e Wi r e I n s u l a t i o n G r o u p , p l a i n t i f f s aver th a t these defendants manufacture polyvinyl chloride ( PVC) w i r e i n s u l a t i o n ; t h a t PVC i n s u l a t i o n d e c o m p o s e s a n d i s c o m b u s t i b l e , g e n e r a t i n g t o x i c f u m e s ; a n d t h a t PVC. i n s u l a t i o n caused the deaths and in ju r ie s su ffered in._the_Beverl.y.H ills Supper Club f ire . As t o t h e Wire a n d D e v ic e G r o u p , p l a i n t i f f s c o n tend th a t th ey produced "old technology" aluminum wiring which c r e a t e s a f i r e h a z a r d when c o n n e c te d to c o p p er w ir in g and devices. P l a i n t i f f s claim th a t a la rg e p o rtio n o f the e l e c t r i c a l w iring in the Supper Club c o n s is te d of "old technology" aluminum w iring. Defendants in both groups have file d motions for summary judgm ent i n o p p o s i t i o n t o p l a i n t i f f s ' c o n t e n t i o n s . Defendants contest p la in tif f s ' claim of industry-wide l i a b i l i t y . Defendants also contend th a t e l e c t r i c a l code v i o l a tio n s found in the Supper Club and a t t r i b u t a b l e to the owners o f the Supper Club c u t o ff defendants from any l i a b i l i t y t h e y may h a v e t o w a r d p l a i n t i f f s . The d e t e r m i n a t i o n o f the pending motions w ill be deemed to co v er a l l d e fe n d a n ts in a group whether a motion by a s p e c if ic defendant has been filed or not. 7it l1 op vn m* I I I . Summary M otions f o r summary ju d g m e n t a r e g o v e r n e d by Rule 56 o f the Federal Rules of C iv il Procedure. Rule 56(c) provides t h a t " [t] he juccr.ent so u g h t s h a l l be ren d ered f o r th w ith i f the pleadings, depositions, answers to in terro g ato ries, and a d m is s io n s on f i l e , t o g e t h e r w ith a f f i d a v i t s , i f any, show t h a t t h e r e i s no g e n u i n e i s s u e a s t o any m a t e r i a l f a c t and t h a t the moving p a rty is e n t i t l e d to a judgment as a m atter o f law. " A D i s t r i c t Court must be circum spect in d ecid in g a m otion f o r summary judgm ent b e c a u s e i t o p e r a t e s to deny a l i t i g a n t h is day in co u rt. Tee-Pak, Inc, v. St. Regis Paper C o . , 491 F. 2d 1193, 1196 ( 6 t h C i r . 1 9 7 4 ). A t r i a l judge must be e s p e c i a l l y c a u t i o u s o f d is p o s in g o f complex l i t i g a t i o n o n a m o t i o n f o r summary j u d g m e n t . S. J . G r o v e s .& S o n s v. Ohio Turnpike Comm., 315 F . 2d 235, 237, c e r t , d e n ie d 375 U . S . 824 ( 1 9 6 3 ) . Se e M a n a g e m e n t I n v e s t o r s , e t a l v . UMWA, No. 7 8 - 1 4 2 8 ( 6 t h C i r . O c t o b e r 2 5 , 1 9 7 9 ) . And i n c o n s i d e r i n g a motion f o r summary judgment th e m o v a n t's p a p e rs a r e to be c lo s e ly s c r u tin iz e d , th o se o f the opponent are to be viewed i n d u l g e n t l y . S m ith , e t a l . v. H udson, 600 F . 2d 60, 63 ( 6 t h Cir. 1979). A d i f f i c u l t question concerns the q u a lity and sufficiency of proof necessary to e sta b lish the presence or absence of a genuine issue of m aterial fact. In th is regard, the United States Court of Appeals for the Sixth C ircu it has d irected th a t the burden o f showing co n clu siv ely the nonexistence o f a genuine issue as to a m aterial fact re sts always with the movant. Id. a t 63, 64. 3 u t p u r s u a n t to Rule 5 6 ( c ) , th e non mo va nt may n o t s i m p l y r e s t on t h e a l l e g a t i o n s i n h i s p l e a d i n g s i n o p p o s in g a m o tio n f o r summary judgm ent. Summary judgment th e re fo re is only proper where the f a c ts a lleg ed in the complaint are d ir e c tly contravened in the a ffid a v its s u p p o r tin g the d e f e n d a n t s ' m otion f o r summary judgm ent, and 'hero t h e p l a i n t i f i s 1 v e r s i o n o f t h e f a c t s i s n o t p r e s e n t e d in a x ' d e p o sitio n , a f f id a v it, o r o th er document on f i l e , e x c e p t th e p le a d in g s . Id. a t 65. I I I . A o o l i c a b l e P r i n c i p l e s o f Law T his d i v e r s i t y a c tio n was b ro u g h t in th e United S ta te s D i s t r i c t Court for the E astern D is tr ic t o f Kentucky. There i s no d i s p u t e b u t t h a t t h e law o f t h e S t a t e o f Kentu cky must a p p l y o n a l l s u b s t a n t i v e i s s u e s . E r i e R. Co. v . T o m p k i n s , 304 O .S . 64 ( 1 9 3 8 ) . The c e n t r a l q u e s t i o n r a i s e d by d e f e n d a n t s ' m otio n s con cerns the ap p licatio n to defendants of a theory of industry wide l i a b i l i t y . T h ere h a s b e e n no d e c i s i o n by t h e Supreme Court of Kentucky on th is issue. Thus, i t is our o b lig a tio n " t o make a c o n s i d e r e d ' e d u c a t e d g u e s s ' " a s t o what c o n c l u s i o n w o u l d m o s t l i k e l y b e r e a c h e d o n t h e i s s u e b y t h e . K e n t u c k y ............. S up r em e C o u r t . I n m a k i n g t h i s d e t e r m i n a t i o n we m u s t c o n s i d e r th e p re se n t s ta te of the Kentucky law as w ell as th a t of o t h e r j u r i s d i c t i o n s . W alls, d / b / a Recmart v. 10-X Mfg. C o ., ____ F . 2d ____, Nos. 7 7 - 1 1 - 4 0 1 1 , ( 6 t h C i r . O c t o b e r 3 0 , 1 9 7 9 ) . S i n c e p l a i n t i f f s a r e r a i s i n g what may be n o v e l t h e o r i e s o f l i a b i l i t y a n d i n many i n s t a n c e s q u e s t i o n s o f f i r s t i m p r e s s i o n , i t would seem ad v isab le to o u t l i n e the p r e s e n t s t a t e of Kentucky law and the burden imposed upon p l a i n t i f f s thereunder. R e g a r d l e s s o f how p l a i n t i f f s ' c l a i m s a r e d e n o m i n a t e d , p l a i n t i f f s must e s ta b lis h under Kentucky products l i a b i l i t y law the presence o f th ree f a c t o r s -- c a u s a tio n , d e f e c t and i n j u r y . S t u r m , R o g e r & Co. , I n c , v . B l o y d , ___ S . W . 2d ___ , No. 7 S - S C- 4 51 - DG (Ky. J u l y 3, 1 9 7 9 ) ; See a l s o W. P r o s s e r , Law o f T o r t s 103 ( 4 t h Ed. 1 9 7 1 ) . The c a u s a t i o n f a c t o r may be f u r t h e r d iv id e d . P l a i n t i f f s must show (1) t h a t a d e f e c t in d e f e n d a n t s ' p ro d u c t was th e "cause in f a c t ' o f t h e i r i n j u r i e s ; a n d (2) t h a t a d e f e c t i n d e f e n d a n t s ' p r o d u c t was the "proximate cause" of t h e i r in ju r ie s . Johnson v. Vauchn, 370 S . W . 2d 591 (Ky. 1 9 6 3 ) ; P i f f e v. B l a c k , 548 S .W .2d 175 (Ky. 1 9 7 7 ) ; T exaco v. S t a n d a r d , 536 S . W . 2d 135 (Ky. 1 9 7 6 ) . S e e , G reen, The Causal R e l a t i o n s I s s u e In N e a lic e n c e Law, 60 M i c h . L. Rev. 5 43 , 5 4 8 - 5 6 9 ( 1 9 6 2 ) ; 2 H a r p e r & J a m e s , I k e Law o f TVorts. 2 0 . 1 - 6 a t 1108-1 161 ( 1 9 5 6 ) . A. C u s e I n F a c t Tha f i r s t s t e p in e s t a b l i s h i n g a d e f e n d a n t ' s l i a b i l i t y is to i d e n t i f y him and co nnect h is conduct w ith th e v i c t i m 's ir.J u r y . I n a p r o d u c t s l i a b i l i t y a c t i o n t h i s p r o b l e m h a s two consonants. F i r s t , p l a i n t i f f s have the burden o f proving the id e n tity o f t h e p r o d u c t c a u s i n g t h e ha rr a^. As p a r t o f t h i s c o m p o n e n t , a " p la in tif f must trace h is in ju ry to a q u a lity or condition o f the p r o d u c t which was u n r e a s o n a b l y d a n g e ro u s e i t h e r f o r a u s e t o w hi c h t h e p r o d u c t w ould o r d i n a r i l y be p u t , o r some s p e c i a l use" which was b r o u g h t to t h e a t t e n t i o n o f th e manufacturer. Janes, General Products -- Should M anufacturers Se L i a b l e W i t h o u t N e g l i g e n c e ? 24 Ten n. L. Rev. 9 2 3 , 927 (1957). Secondly, p la i n t i f f s have the burden o f lin k in g the product to a p a r t i c u l a r defendant**. A r e l a t e d q u e s t i o n i s how much c a u s a l r e l a t i o n m u s t be found between a d e f e n d a n t's conduct and the p l a i n t i f f s ' harm in order to resolve the issue in the p l a i n t i f f 's favor. It i s here th a t the " s u b s ta n tia l fa c to r t e s t " -has been invoked. S e e , Te xa c o v . S t a n d a r d , 536 S . W . 2 d 136 (Ky. 1 9 7 6 ) ^ . 5 See, e . g . R o l l i n s v. A v ery , 295 S.W.2d 214 (Ky. 1956) (d irected v e r d ic t affirm ed fo r defendant where p l a i n t i f f unable to id e n tify gas flo o r furnace manufactured by de fendant as a cause o f ex p lo sio n and f i r e ) ; Holbrook v. Rose , 458 S.W.2d 155 (Ky. 1 9 5 6 ) ( d i r e c t e d v e r d i c t a f f i r m e d f o r d e f e n d a n t w he re p l a i n t i f f u n a b l e t o i d e n t i f y worm medicine m anufactured by defendant as causa o f c h i l d 's d e a t h ) ; American I n s u r a n c e Company v. H o r to n , 401 S.W.2d 758 (Ky. 1 9 6 6 ) ( a f f i r m e d summary j u d g m e n t f o r d e f e n d a n t where p la in tiffs unable to id en tify defendant's ethylene gas as cause of explosion in banana ripening room). 6 See, e . g . W e t z e l v. E a to n C o r p . , 62 F . R . D . 22 (D.C. Minn. 19 7 3 )(summary judgment g ra n te d f o r d e fe n d a n t where p l a i n t i f f unable to i d e n t i f y which o f two s u p p l i e r s s u p p lie d the d efectiv e t r a c t o r p a rt which caused p l a i n t i f f ' s in ju ry ); Kahi B o t t l i n g Co. v . Thomas, 33 S.W.2d 701 (Ky. 1 9 3 0 ) ( d i r e c t e d v e rd ic t for defendant appropriate where p l a i n t i f f unable to id e n tify any connection between the poisoned "ehi-grape which caused p l a i n t i f f ' s in ju ry and d efen d an t). 7 The " s u b s t a n t i a l f a c t o r t e s t " o r i g i n a t e d i n a n a r - t i d e by Je rem iah Sm ith, Legal Cause i n A c tio n s o f T o r t, 25 Karv. L. Rev. 1 0 3 , 2 2 3 , 229 (1 9 7 1 ) a n d p a s s e d t h r o u g h case law i n to th e R estatem ent o f T o r ts 431. -7- la determining whether conduct is a su b sta n tia l factor, the r'oncucky c o u rts have adopted a s o - c a lle d " ru le o f proba b i l i t i e s " . H o lb ro o k v. R o s e , 458 S.W.2d 155, 158 (Ky. 19 7 0 ); R u t h e r f o r d v. M o d e r n 3 a k e r y , 310 S.V7.2d 274 (Ky. 1953); Texaco v. S t a n d a r d , 536 S.W.2d 136 (Ky. 1 9 7 6 ). Thus a v e r d i c t f o r d e fe n d a n t i s to be d i r e c t e d when p l a i n t i f f s have f a ile d to provide s u f f i c i e n t evidence on c a u sa tio n "to t i l t the balance of 'p o s s i b i l i t y 1 to 'p r o b a b ility .'" H olbrook, su p ra a t 158. D e f e n d a n t s ' c o n d u c t n e e d n o t be t h e 1o n l y c a u s e o f t h e harm to s a t i s f y the cause in fa c t requirem ent. Put oth erw ise, a d e f e n d a n t ' s c o n d u c t may be c u l p a b l e where i t c o n t r i b u t e d to the v ic tim 's in ju ry even though there are o th er facto rs t h a t would have c a u se d th e same o r s i m i l a r i n j u r y to th e v i c t i m . B r a d f o r d v . S a g r a v e s , 556 S.W..2d 1 6 6 , 1.68 (Ky_.__--_ 1 9 7 7 ) ; P r o p a n e T r a n s p o r t Co. v . E d e l e n , 400 S .W .2 d 697' (Ky. 1966); See P e a s l e e , M u l t i p l e C a u s a tio n and Damages, 47 Harv. L. Rev. 1127 ( 1 9 3 4 ) . P l a i n t i f f s ' b u r d e n o f p r o o f r e q u i r e s only t h a t the ju ry fin d from a preponderance o f the evidence th a t defendants' conduct contributed to the v ic tim 's in jury. B radford v. S a g r a v e s , s u p r a . See Green, The Causal R e la tio n I s s u e i n N e g l i g e n c e L aw , 60 M i c h . L. Rev. 5 4 3 , 557 ( 1 9 6 2 ) . C a s e s i n w h i c h t h e d e f e n d a n t who m a n u f a c t u r e d t h e d e fe c tiv e p roduct cannot be i d e n t i f i e d c r e a te unique cau sein - f a c t problems. Three th e o rie s have been advanced to overcome th e se problems. They a re : (1) the c o n c e rt o f g a c tio n theory , (2) the a lte r n a tiv e l i a b i l i t y th eo ry , and (3) the e n te r p r is e l i a b i l i t y theory. These th e o r ie s seek to impose j o i n t and s e v e ra l l i a b i l i t y o v e r d e fe n d a n ts whose p a r t i c u l a r products cannot be d i r e c t l y lin k ed to the in ju ry . A pplication o f these th eo ries requires consid eratio n of the above-mentioned prin cip les of causation. 8 Also re fe rre d to as the concerted a c tio n theory, Sindell v. A bbott L a b o r a t o r i e s , 149 Cal. R ptr. 138 (1978) and d is c u s s e d under the c a p tio n " J o in t Control of Risk" in Hall v. DuPont, 345 F.Supp. 371-376 (E.D. N.Y. 1972). 11S11 1. The Concert of Action Theory C o n c e r t o f a c t i o n b e tw e e n two o r more a c t o r s r e s u l t i n g in in ju ry to p l a i n t i f f is a fa c t s i t u a t i o n under which a j o i n t t o r t h a s h i s t o r i c a l l y b e e n i m p o s e d . 1 H a r p e r . J a m e s , The Law o f T o r t s 1 0 . 1 a t 6 9 7 - 9 8 ( 1 9 5 6 ) ; K a i l v. DuPont de Nemours & Co. , I n c . , 345 F .S u p p . 353, 371 (E.D. N.Y. 1972). See a l s o P r o s s e r , J o i n t T o r t s a n d S e v e r a l L i a b i l i t y , 25 C a l i f . L. ? v . 413, 429 e t s e a . ( 1 9 3 7 ) . T h i s d o c t r i n e im p o s e s j o i n t l i a b i l i t y a g a i n s t " [ a ] 11 t h o s e who, i n p u r s u a n c e o f a common p l a n o r d e s i g n t o co mmit a t o r t i o u s a c t , a c t i v e l y t a k e p a r t i n i t . " W. P r o s s e r , s u o r a , 4 7 , a t 2 92 . The d o c t r i n e o f c o n c e r t o f a c t i o n i s w e l l - e s t a b l i s h e d i n K e n t u c k y law . See B o n te v. P o s t e l , 58 S.W. 536 (Xy. 1 9 0 0 ) ; S t e p h e n s v. S c h a a l e r , 207 S.W. 7 0 4 , 705 (Ky. 1 9 1 9 ) ; Murphy v . T a x i c a b s o f L o u i s v i l l e , I n c . , 330 S .W .2d 395 (Ky. 1959); D a v e n p o r t ' s Admix, v. Crummies C reek Coal C o . , 1 8 4 ' S .W .2d 887 (Ky. 1 9 4 5 ) ; M c I n t o s h v. T a u l b e r , 279 S .W .2d 8 (Ky. 1 9 5 5 ) . Se e a l s o B r e w s t e r v . M i l l e r ' s S o n s C O . , 41 S.W. 301 (Ky. 1 8 9 9 ) ; B a k e r v. M e t r o p o l i t a n L. I n s . C o . , 64 S.W. 913 (Ky. 1 9 0 1 ) ; H u r d l e y v . L o u i s v i l l e & N . R . C o . , 48 S.W. 429 (Ky. 1898 ) . The Se cond P . e s t a t e m e n t o f T o r t s a l s o h a s re c o g n iz e d t h i s t h e o r y , p r o v id in g in 876 in p a r t as fo llo w s : For harm r e s u l t i n g to a t h i r d person from the to rtio u s conduct of another, a person i s l i a b l e i f he . . . (b) knows t h a t the o th e r's conduct co n stitu tes a breach of duty and gives s u b s ta n tia l a s s is ta n c e or encouragement to the o th e r so to conduct h im se lf, o r (c) gives s u b s ta n tia l a ssista n c e to the other in accomplishing a to rtio u s re su lt and h i s own c o n d u c t , s e p a r a t e l y c o n s i d e r e d , c o n stitu tes a breach of duty to the third person. There a r e th r e e e le m e n ts which must be s a t i s f i e d by p la in tif f s in order to prove a case of jo in t lia b ility for concerted action in a products lia b ility case. P lain tiffs must e s t a b l i s h a ca u sa l r e l a t i o n between p l a i n t i f f s harm and t h e t a r g e t e d d e f e n d a n t s . As a s e c o n d s t e p p l a i n t i f f s m u s t prove t h a t d e fe n d a n ts in th e group p a r t i c i p a t e d by c o o p e ra tiv e or concurtod a c t i v i t i e s to cause t h i s harm. T hirdly, o l a i n t i f f s must show t h a t the d e f e n d a n ts in th e group have by t h e i r a c tio n s o r om issions contravened a le g a l stan d ard o f c a r e . See Ha 11 v . E. X. Du P o n t c c H o n o u r s & Co. , I n c . , 345 F.Supp. 353, 371 (E.D.N.Y. 1972). a. Causal Relation The g e n e r a l r u l e s o f c a u s a t i o n h ave b e e n p r e v i o u s l y outlined. Application of these rules under the concert of action theory in a products lia b ility case requires p lain t i f f s (1) to i d e n t i f y the p ro d u ct c a u sin g p l a i n t i f f s ' h a m ; and (2) to prove t h a t the a c t s o f each d e fe n d a n t i n m arketing and promoting a d e fe c tiv e product are a s u b s ta n tia l fa c to r i n p l a i n t i f f s ' i n j u r i e s . These r e q u ir e m e n ts w i l l be more fully explained. The c o n c e r t o f a c t i o n t h e o r y im p o s e s j o i n t . l i a b i l i t y .o n . groups whose a c t i o n s v i o l a t e a l e g a l s ta n d a r d , even though o n l y one member o f t h e g r o u p may be d i r e c t l y l i n k e d t o t h e p h y s i c a l cause o f th e i n j u r y . The t y p i c a l c a s e s i n t h i s are a involve drag ra c in g and a s s a u l t . See B i e r c t y a s k i v. R o g e r s , 239 A . 2d 218 (Del. Sup. C t. 1 9 6 8 ) ; Lemons v. K e l l y , 239 Ore. 354, 397 P . 2d 784 ( 1 9 6 4 ) ; H a nrahan v. C o c h r a n , 12 App. Div. 91, 42 W.Y.S. 1031 ( 4 t h D e p ' t 1 8 9 6 ) ; Thompson v. Jo h n so n , 180 F.2d 431 (5th C ir. 1950); S i r John H eyden's C a s e , 77 Engl. Reg. 1150 (1613); Acovina v. Kur.re, 181 C al. A p p . 2d 591, 5 C a l . R p t r . 534 ( D i s t . C t. App. 1 9 6 0 ) ; A nde rson v. E s o i s o t o , 90 N . J . S u p e r . 170, 216 A . 2d 607 ( S u p r . Ct. 1966). In those cases the actu al injury-producing p arty is known. The e f f e c t o f t h e c o n c e r t o f a c t i o n t h e o r y i s t o p l a c e j o i n t l i a b i l i t y on t h o s e who a c t e d i n c o n c e r t w i t h t h e injury-producing party, although they are not d ire c t, causa tive agents. -10- Tr.e c o n c e r t o f a c t i o n t h e o r y ' - a s e p p l i o d t o a p r o d u c t s l i a b i l i t y a c t i o n i n t h e b l a s t i n g c a p ^ a n d DES c a s i s ^ . These cases d i f f e r from the t r a d i t i o n a l cases in th a t the in ju ry -p ro d u c in g p a r ty i s unknown. Thus, the b l a s t i n g cap a n d DES c a s e s w e r e d i r e c t l y c o n f r o n t e d w i t h t h e i s s u e o f causation. As t o t h e c a u s a t i o n r e q u i r e m e n t , t h e c o u r t i n t h e DES case s ta te d th a t "where concerted a c tio n is pled i t is irre le v a n t whether the actual manufacturer of the product is i d e n t i f i e d . " Si r. de 11 v. A b b o t t I n d u s t r i e s , 149 C a l . R p t r . 13 8, 145 ( 1 9 7 8 ) . And i n t h e b l a s t i n g c a p c a s e s , t h e c o u r t n o t e d t h a t " t h e i s s u e o f who ' c a u s e d ' t h e i n j u r y i s d i s tin c tly secondary to the fa c t th at the group engaged in j o i n t h a z a r d o u s c o n d u c t . n H a l l v . E: X. D u P o n t d e Nemour s & C o . , 345 F.Supp. 353, 372 (E.D. N.Y. 1972). Thus the f a c t t h a t the in ju r y - p r o d u c in g p a r t y was unknown d id n o t a f f e c t a p p l i c a t i o n of the theory o f concert of actio n . But in both cases the c o u rt assumed th a t p l a i n t i f f s were capable o f proving the id e n tity of the product which caused the in ju ry . Put otherw ise, the e ffe c t of applying the concert of action theory is only to s a tis f y p l a i n t i f f s ' burden o f lin k in g the product to the defendants; i t does not s a tisfy p la in tif f s ' burden of id e n ti fying the injury-causing product. Under t h e c o n c e r t o f a c t i o n t h e o r y t h e a g r e e m e n t among th e d e fe n d a n ts to commit a c u lp a b le a c t i s the t o r t i o u s e v e n t . To e s t a b l i s h c a u s a t i o n p l a i n t i f f s m u s t p r o v e t h a t t h i s e v e n t was th e cause in f a c t o f p l a i n t i f f s ' i n j u r i e s . In o rd er to prove cause in fa c t under Kentucky law, p l a in tif f s are required to prove that each defendant is a substantial 9 H a ll V . DuPont, 345 F.Supp. 353 (E.D. U.Y. 1972). 10 S i n d e l l v. A bbott L a b o r a t o r i e s , 149 C a l. R p tr . 138 (19 78). factor in the cortices e w n c . Sindell v. A b b o t t I n d u s t r i e s, 149 C a l. Rptr. 138, 145 ( 1 9 7 8 ) ; S h e in e r , DES and A Prop osed Theory o f E n t e r p r is e L i a b i l i t y , 46 Fordham L. Rev. 963, 983 (1978). This proof lin k s the barn done to a p a r tic u la r defendant. Thus, the fa c t th at a s p e c if ic in ju ry -cau sin g p a rty i s unknown does n o t p r e v e n t p l a i n t i f f s ' r e c o v e r y . To e s t a b l i s h t h a t d e f e n d a n t s a re a s u b s t a n t i a l f a c t o r in p la in t if f s ' in ju r ie s, i t is necessary for p la in t if f s to show th a t a l l d efend an ts in the group m anufactured and promoted g en er ic a lly sim ila r d efe ctiv e products. S in d ell v. Abbott I n d u s t r i e s , 149 Cal. Rptr. 138, 145 (1978); H a ll v . E. I . DuPont de Kepours & Co. , 345 F .Su p p. 353, 374 (E.D. NY. 1 9 7 2 ) . By p l a c i n g a d e f e c t i v e p r o d u c t i n t o th e stream o f commerce and promoting i t , th e m anufacturer in c r e a s e s the p u b lic usage o f the p ro d u ct. T h is, in turn, compounds the chance of injury caused by the product. Thus, each defendant who p rod u ced and promoted t h e d e f e c t i v e p r o d u c t i n c o n c e r t with others shares in the r e sp o n sib ility for p la in t if f s ' in ju rie b. Cooperative or Concerted A c tiv itie s In addition to sa tisfy in g the causation requirement, p l a i n t i f f s a lso must e s t a b lis h th at the ta rgeted defendants acted by cooperative or concerted a c t iv it ie s before the theory o f con cert o f a c tio n w i l l be imposed. Sulk eld v . * D a v is , 247 S.W.2d 517, 520 (Ky. 1952); H cln tcsh v . T a u lb e r , 229 S .V .2 d 8, 9 (Ky. 1 9 5 5 ) . See a l s o La F o r t e , R ecen t De velop m en ts in J o i n t & S e v e r a l L i a b i l i t y , 24 S y ra cu se L. Rev. 1319, 1320 (1973). G e n e r a l l y , a l l t h a t i s r e q u i r e d to in v o k e th e th e o r y i s pH t h a t t h e r e be some t a c i t u n d e r s t a n d in g among t h e d e f e n d a n t s . W. P r o s s e r , Law o f T o r ts 46 a t 292. H i s t o r i c a l l y , mere T"H knowledge of what the other party did along with p a r a lle l b eh a v io r was not s u f f i c i e n t to show c o n c e r t o f a c t io n . See P r o s s e r , supra a t 4 1 4 . See a l s o , S h e i n e r , DES and A P rop osed Theory o f E n t e r p r i s e L i a b i l i t y , 46 Fordham L. Rev. 9 6 3 r 933 (197 _ 1 *3 _ In tiie b la s tin g cap cases the c o u rt p o in te d o u t three wavs i n w hi ch c o o p e r a t i v e o r c o n c e r t e d a c t i v i t i e s may be shown-. ( 1 ) e x p l i c i t a g r e e m e n t among t h e d e f e n d a n t s ; (2) c a ra lle l behavior su ffic ie n t to support an inference of t a c i t agreement or cooperation; and (2) adherence to an i n d u s t r y - w i d e s t a n d a r d o r custom. H a ll v. E. I . DuPont 12 de Nemours, 345 F .S u p p . 353, 374 (E.D'. H-Y. 1972) Vihile the f i r s t a l t e r n a t i v e s f a l l w i t h i n th e c l a s s i c requirements for concert of action, the th ird a ltern ativ e of in d e p e n d e n t a d h erence i s unusual. The a l t e r n a t i v e o f i n dependent adherence has been defined as p a ra lle l behavior which does n o t s u p p o r t an in f e r e n c e o f t a c i t a g re e m e n t. See H a ll v. E. I. DuPont de Nemours, 345 F .S u p p . 353, 374 (1972). See a l s o 61. Geo. L. J . 1 3 2 7 , 1 3 5 1 . T h u s , t h i s a l t e r n a t i v e does not meet the h is to ric a l requirements fo r-co n ce rt of action. A lth o u g h th e i n d e p e n d e n t a d h e re n c e a l t e r n a t i v e was d i s c u s s e d by th e c o u r t i n th e b l a s t i n g c a p c a s e , i t was n o t a necessary part of th at co u rt's decision. There, p la in tiffs had chosen to proceed under the f i r s t o f the above three a l t e r n a t i v e s , arguing th a t defendants had e n te re d into an e x p l i c i t agreem ent. H a l l , suora a t 374. No K e n t u c k y c a s e h a s h e l d t h a t e i t h e r p a r a l l e l a c t i v i t y o r mere in d ependent adherence to an in d u s try -w id e s a f e ty s t a n d a r d i s s u f f i c i e n t t o make o u t a c a s e o f c o n c e r t o f a c t i o n . N or a r e we i n c l i n e d a t t h i s t i m e t o e x t e n d t h i s theory o f l i a b i l i t y to include t h i s a l t e r n a t i v e . Onder Kentucky law p l a i n t i f f s must show an e x p r e s s o r t a c i t a g r e e ment among th e d e f e n d a n ts . In th e p r o d u c t s l i a b i l i t y a re n a 12 The c o u r t a l s o n o t e d t h a t i t was n o t n e c e s s a r y t h a t the defendants be engaged in a sp e c ia l b u sin e ss r e l a t i o n ship such as a jo in t venture before jo in t t o r t l i a b i l i t y c o u ld be imposed. H a ll, supra a t 373. mp -13 ro'-'S o r t a c i t a g r e e m e n t among th e d e f e n d a n t s must be to m a r k e t and oromote a d e f e c t i v e p r o d u c t . S in e e 11 v. A bbott I n d u s t r i e s , 149 C al. R p tr. 138, 145 (1978 ) ; H all v. E. I. D u P o n t i e Kemours & Co. , 345 F . S u p p . 3 5 3 , 372 ( E . D. N.Y. 1972). c. 3reach o f Legal Standard The t h i r d e lem ent o f the c o n c e r t o f a c t i o n th e o ry re q u ire s proof th a t defendants in the group have by th e ir actio n o r omission contravened a standard of care as to these p l a i n t i f f s . In products l i a b i l i t y cases Kentucky has a d o p te d S e c t i o n 402A o f th e R e s ta te m e n t o f T o r t s , Second a s t h e l e g a l s t a n d a r d t o be a p p l i e d ^ . D e a l e r s T r a n s p o r t Co. v. B a t t e r y D i s t r i b u t i n g C o . , 402 S .W .2d 441 (Ky. 19 6 6). S e c t i o n 402A imposes l i a b i l i t y on t h e s e l l e r o f a product "in a defective condition unreasonably dangerous". . t o a p e r s o n who s h o u l d be e x p e c t e d t o u s e o r be e x p o s e d .to _ . . i t . B o h n e rt Equip. C o . , In c. v. K e n d a l l , 569 S.W.2d 161, 164 (Ky. 1 9 7 8 ). In a d e s i g n d e f e c t c a se t h i s same s t a n d a r d of conduct is applied regardless if the cause of action. . sounds in negligence o r s t r i c t l i a b i l i t y . Jones v. Hutchinson *-jfq. , I n c . , 502 S . W . 2d 6 6 , 6 9 - 7 0 (Ky. 1 9 7 3 ) . The d i f f e r e n c e is that under s tr ic t lia b ility principles a product is "unreasonably dangerous" i f i t does not meet the reasonable expectations of the ordinary consumer as to i t s safety. O l r i c h v. Kasco A b r a s i v e s C o . , 532 S.W .2d 197 (Ky. 1976). S e c tio n 402 A reads in f u l l as fo llo w s: 402 A. S p e c i a l L i a b i l i t y o f S e l l a r o f P r o d u c t f o r P h y s i c a l Harm t o U s e r o r Consumer ( 1 ) One who s e l l s a n y p r o d u c t i n a d e f e c t i v e c o n d i t i o n unreasonably dangerous to the user or consumer or to his p r o p e r ty i s s u b je c t to l i a b i l i t y f o r p h y s ic a l harm thereby caused to the ultim ate user or consumer, or to his property, if (a) the s e lle r is engaged in the business of se llin g such a product, and (b) i t i s ex p ected to and does reach the u se r o r consumer without s u b sta n tia l change in the condition in which i t is sold. (2) The r u le s t a t e d in S u b s e c tio n (1) a p p l i e s a lth o u g h (a) the s e l l e r has ex ercised a l l p o ssib le care in the preparation and sale of h is product, and (b) the user o r consumer has not bought the product from o r e n te re d i n t o any c o n t r a c t u a l r e l a t i o n w ith the se lle r. 1i. O -14- In c e n t r i s t , under n e g lig e n c e p r i n c i p l e s p l a i n t i f f s must id e n tify and prove a p a r t i c u l a r f a ilu re on the p art of a manufacturer to ex ercise reasonable care in the design of the product. Id. Defendants c o rre c tly a sse rt th at the manufacturer of a product is not an in su re r th at the design of the product is i n c a p a b l e o f c a u s i n g i n j u r y . J o n a s v. H u t c h i n s o n Mfq. , 502 S . W. 2 d 6 6 , 70 (Ky. 1 9 7 3 ) . Nor i s a m a n u f a c t u r e r r e q u i r e d t o d esig n "the b e s t p o s s ib le p ro d u c t, o r one as good as o th e r s make, o r a b e t t e r p ro d u c t th a n the one he h a s, so long as i t i s rea so n a b ly s a f e . " Id. a t 69. See a l s o Sturm, Ruoer & Co. , I n c , v . B l o v d , ___ S . W . 2 d ___ , No. C A - 7 6 - 2 7 1 (Ky. J u l y 3, 1 9 7 9 ) . B u t a m a n u f a c t u r e r may be l i a b l e , - e v e n t h o u g h i n conform ity with p r e v a ilin g in d u stry sta n d a rd s, where the safety p ractices o f the e n tire industry are'below the sta n d a r d o f r e a s o n a b l e c a r e . See J o n e s v. H u t c h i n s o n Mfq. Co. . I n c . , 502 S . W . 2 d 6 6 , 70 (Ky. 1 9 7 3 ) . Se e a l s o , H a r s h Wood P r o d u c t s C o . v . B a b c o c k a n d V7ilcox Co. , 240 N.W. 3 9 2 , 396 ( 1 9 3 2 ) ; The T. J . H o o p e r C o . , 60 F . 2d 7 3 7 , 740 (2d C i r . 1932); K atz, The F u n c t i o n o f T o r t L i a b i l i t y in Technology A s s e s s m e n t , 38 0. C i n n . L. Rev. 5 8 7 , 6 3 1 - 3 6 ( 1 9 6 9 ) . Thus " th e f a c t t h a t o t h e r s make u se o f t h e same d e s i g n i s e v id e n c e for the defendant, although i t is not always conclusive." P r o s s e r , Law o f T o r t s , 696 ( 4 t h E d i t i o n 1 9 7 1 ) . See a l s o K.R.S. 411.310. Under the c o n c e r t o f a c t i o n th e o ry i t i s e s s e n t i a l t h a t p la in tif f s prove th a t each defendant charged with re sp o n sib ility i s p r o c e e d i n g t o r t i o u s l y . A d e f e n d a n t who i n n o c e n t l y , a n d c a r e f u lly , does an a c t which f u r th e r s the to r tio u s purpose i s not a c tin g in c o n c e r t w ith him and c a n n o t be h eld l i a b l e . P r o s s e r , Law o f T o r t s , 46 ( 4 t h e d . 1 9 7 1 ) . P l a i n t i f f s m us t p r o v e t h a t a g e n e r i c a l l y s i m i l a r d e f e c t i v e p r o d u c t was manufactured by a l l defen d an ts in the ta rg e te d group. 3 / To r e c a p i t u l a t e , in o r d e r f o r p l a i n t i f f s t o p r e v a i l under a concert o f action theory they t u s t f i r s t demonstrate an a b s o l u t e i n a b i l i t y to i d e n t i f y t h e p a r t i c u l a r d efe n d a n t whose product caused p l a i n t i f f s ' in ju r y . Second, p l a i n t i f f s trust e s t a b l i s h a ca u sa l r e la t i o n between the defendants and the in ju r y -c a u s in g product by (1) i d e n t i f y i n g the in ju r y - causing product; (2) proving th at each defendant marketed and promoted a g e n e r i c a l l y s i m i l a r p ro d u c t; and (3) e s t a b l i s h i r that the a ct o f each defendant was a s u b s t a n t i a l fa c to r in the a c tio n o f defendants to market and promote th is product. Third, p l a i n t i f f s must prove th a t defendants acted by express or t a c i t agreement to market and promote the d e fe c tiv e product. F in a lly , p la i n t i f f s must e s t a b lis h th at each defendant in the targeted group contravened'a le g a l standard of care. 2. The A lt e r n a t iv e L i a b i l i t y Theory The a l t e r n a t i v e l i a b i l i t y th eo r y i s advanced as a second theory under which j o i n t and s e v e r a l l i a b i l i t y has been imposed over defendants whose p a r tic u la r products cannot be d i r e c t l y lin k e d to th e in j u r y . The th eory o f a lte r n a t iv e l i a b i l i t y a p p lies "where n e g lig e n c e on the part o f both defendants i s c le a r , and i t i s on ly the is s u e o f c a u s a t i o n w hich i s i n d ou b t, so t h a t t h e c h o i c e must be made between l e t t i n g the l o s s due to f a i l u r e o f p ro o f f a l l upon the innocent p la in t if f or the culpable defendants." Prosser, Law o f T o r t s , 41, 243 ( 4 t h E d i t i o n 1 9 7 1 ) . where th e a lte r n a tiv e l i a b i l i t y theory i s a p p lic a b le , the burden of <y. proving causation s h ifts to the independently actin g d efen d an ts^ The a lt e r n a t iv e l i a b i l i t y th eo ry has been r e j e c t e d by ^ a t l e a s t one Kentucky c o u r t in Cox v . C o o p e r , 510 S.W.2d 520 534 (Ky. 1 9 7 4 ). The Cox c o u r t r e q u i r e d p l a i n t i f f s to prove that each defendant in p a r t ic u la r i s c u lp a b le , and refu sed to s h i f t the burden o f c a u s a tio n to d e fe n d a n ts . The Court creviced -hs fo ll ow in g ex a m p l e of K e n t u c k y l a w on chis issue: Though i t nay ba u r .c o n tr o v e r te d t h a t e i t h e r A o r B o r b o t h -..ere n e g l i g e n t and t h a t s u c h n e g l i g e n c e caused C 's i n j u r i e s , a v e r d ic t a g a in s t e i t h e r one must be p r e d ic a te d on th e j u r y ' s b e l i e f from th e e v i d e n c e t h a t he i n p a r t i c u l a r was n e g l i g e n t . The c e r ta in knowledge th a t one o r both were g u ilty cannot sustain the burden against e ith e r in d i vidual. That burden begins with the p l a i n t i f f and remains with the p l a i n t i f f . If he does not succeed in c o n v in cin g th e j u r y t h a t A was g u i l t y , he i s n o t e n t i t l e d to a v e r d i c t . The p r a c t i c a l r e s u l t of the type of in stru c tio n under discussion is to s h i f t the burden to the defendants, and th a t is wrong. The o n u s c a n n o t be t h r u s t up o n t h e j u r y t o decide something the p la in tif f has fa ile d to prove to its satisfactio n . 510 S . W. 2 d a t 534. See a l s o B r a d f o r d v. S a a r a v e s , 556 S.W.2d 166, 169 (Ky. 1977). Since Kentucky does not recognize the a lt e r n a t i v e lia b ility theory, th is claim is subject to dism issal for f a i l u r e to s t a t e a claim upon which r e l i e f can be g ra n te d . 3. The E n t e r p r i s e L i a b i l i t y T h e o r y P la in tif f s also have advanced the theory o f e n te rp ris e l i a b i l i t y as a means o f b r id g in g the gap o f c a u s a tio n between the injury-causing product and the p a r tic u la r defendants. Concededly, t h i s theory o f l i a b i l i t y has not been adopted by the Kentucky c o u r t s . In f a c t , H all v. D u P o n t, 345 F.Supp. 353 (E.D. N.Y. 1972) i s th e o n l y c a s e i n which t h i s t h e o r y h a s r e c e i v e d j u d i c i a l r e c o g n i t i o n 14 . B u t s e e S h e i n e r , DES a n d a P r o p o s e d T h e o r y o f E n t e r p r i s e L i a b i l i t y , 46 F o r a h a m L. Rav. 963 (1978). Enterprise lia b ility blends the theories of concert of a c tio n and a lte r n a tiv e l i a b i l i t y , although i t r e l i e s p rim a rily on the l a t t e r . Id. a t 974. Thus i t i s d o u b tfu l t h a t Kentucky -- which does not recognize a lt e r n a t i v e l i a b i l i t y o r the s h if tin g of the burden o f proof to defendants -- would adopt the theory' of e n te rp ris e l i a b i l i t y . Since e n t e r p r i s e l i a b i l i t y i s n o t r e c o g n iz e d u n d er Ken tucky law, t h i s theory a lso i s dism issed fo r f a ilu r e to s t a t e a claim upon which r e l i e f can be g r a n te d . 14 This m a t t e r was b e f o r e t h e c o u r t on d e f e n d a n t s ' m o tio n to dismiss for failu re to sta te a claim. For purposes of th is action the Court assumed a "n atio n al body of t o r t law". H all v. DuPont, 345 F.Supp. 360 (E.D. N.Y. 1972). A ssu m p tiv e l the acceptance o f t h i s th e o ry by any j u r i s d i c t i o n would depend on the law o f t h a t j u r i s d i c t i o n . 17 D. In addition to proving cause in fa c t, p la in t if f s nust prove proxim ate cause as an in d is p e n s a b le p r e r e q u is it e to r e co v er y in any t o r t a c t i o n . Johnson v . Vaughn. 370 S.W.2d 591 (Ky. 1 9 6 3 ); B rad ford v . S a g r a v e s , 556 S.W.2d 166 (Ky. 1977) . The ambit o f p r o x im a te c a u s e co n cern s q u e s t i o n s of intervening events, remoteness or general policy consid eration s which prevent a fin d in g o f l i a b i l i t y . Under Kentucky law a t o r t io u s a c t i s a proximate cau se o f an in j u r y i f the i n j u r y i s a n a tu r a l and p rob able c o n se q u e n c e o f th e a c t . See S t a c y v . W i l l i a m s , 69 S.W.2d 697 (Ky. 1934); Ohio C a s u a l t y I n s . Co. v . Comm. Dept, o f Highva 479 S.W .2d 603 (Ky. 1 9 7 2 ); M orris v . Combs' Adm'r , 200 S.W.2d 281 (Ky. 19 4 7 ); Home I n s . Co. v . H a m ilto n , 253 F .S u p p . 752 (E.D. Ky. 1 9 6 6 ) . Put d i f f e r e n t l y , " th e p r o x i mate cause i s a cause which would probably, according to the exp erien ce o f mankind, lead to the event which happened . . . ." Sturm, Huger & Co. , I n c , v . B l o y d , ___ S.W.2d ____ , No. 78-SC-451-DG, S lip O pinion a t 8 , (Ky. J u ly 3, 1979), q u o t in g M i l l e r v . W a tts , 436 S.W.2d 515 (Ky. 1 9 6 9 ). Only under c e r ta in circu m stan ces w i l l an in terv en in g act by a third person - even i f n eg lig en t - in su late the o r ig in a l actor from l i a b i l i t y . Bryant v. H ercules, I n c . , 325 F .S u p p . 241, 2 4 7 -4 8 (W.D. Ky. 1 9 7 0 ); H ines v . W e s t e r f i e l d , 254 S . W.2d 728 (Ky. 1 9 5 3 ); H a l l v . Midwest B o t t l e d Gas D i s t r i b u t o r s , I n c . . . 532 S.W .2d 4 4 9 , 453 (Ky. 1 9 7 5 ) . When t h e s e circu m sta n ces occur the i n t e r v e n in g fo r c e i s deemed a s u p e r seding cause of the injury. The t e s t e s s e n t i a l l y i s one o f f o r e s e e a b i l i t y . Thus, an in t e r v e n in g fo r c e becomes a su p e rsed in g cau se - - and r e lie v e s the o rig in a l actor from l i a b i l i t y -- only i f the intervening force is so "unexpected or extraordinary" that i t could not have been a n tic ip a te d by the f i r s t actor in -1S- the e x e rc is e of rcasonable c are. Watson v. Kentucky and I n d i a n a 3 r i d o e a n d R. C o . , 126 S.W. 1 4 6 , 151 (Ky. 1 9 1 0 ) ; louse v. Ke1 1e rma n , 519 S . W .2d 38 0, 382 (Ky. 1974 ). See a l s o R e s t a t e m e n t o f T o r t s S e c o n d , 447 (1965 ). And when s t r i c t l i a b i l i t y principles are ap p lied ,th e range of in te r vening a c ts which w ill sh ie ld the d efen d an ts from l i a b i l i t y w i l l be even n a rro w e r than u n d er n e g lig e n c e p r i n c i p l e s . See Second R estatem ent o f T o rts 402A, comment n (1965); 2 Frum er & F r i e d m a n , P r o d u c t s L i a b i l i t y , S e c t i o n 16A. Cnaer Kentucky law "[t]h e q u e stio n o f whether an undis puted a c t o r c ir c u m sta n c e was o r was n o t a s u p e r s e d in g cause is a legal issue for the court to resolve, and not a factual q u e s t i o n f o r t h e j u r y . " House v. K e H e r m a n , 519 S.W .2d 380, 382 (Ky. 1 9 7 4 ) ; s e e a l s o H a l l y. M id w e s t B o t t l e d Gas D i s t r i b u t o r s , I n c . , 532 S.W .2d 4 4 9 , 452 (Ky. 1 9 7 5 ) . A c c o rd in g to the h o ld in g in House v. K e lle rm a n , the c o u r t i s l e f t with these a lte rn a tiv e s in deciding questions of proximate cause. If the court finds an intervening force to be a superseding cause, i t must d ir e c t a v e rd ic t for defendants. If instead th e c o u r t f i n d s t h a t a c e r t a i n a c t would be a su p e rvening cause, but there is a dispute whether the a c t occurred, the court should submit the question to the jury with the in stru c tio n th a t "unless i t believes from the evidence th a t i t did n o t happen i t s h a l l f i n d f o r t h e d e f e n d a n t . . . . " The fin al a lte rn a tiv e occurs i f the court finds an undisputed a c t not to be a superseding cause as a m a tte r o f law. In t h i s e v e n t, th e ca se should be su b m itte d to th e ju r y , le a v in g i t to counsel to argue "whether the event . . . played such a major r o le as to exclude d e f e n d a n t 's n e g lig e n c e from being a ' s u b s t a n t i a l f a c t o r ' i n c a u s i n g t h e a c c i d e n t . " 519 S.W .2d a t 383. IV. A p p l i c a t i o n o f Law t o P r e s e n t C a s e S everal m otions have been f i l e d by members o f the Wire _ TO - I n s u l a t i o n Group and Wire D evice Group. Each n o tio n w i l l be con sid ered sep a ra tely in view o f the above-mentioned p r in c ip le s. A. W i r e I n s u l a t i o n G roup A d e c i s i o n on the motion o f th e Wire I n s u l a t i o n Group f o r summary judgm ent as to p l a i n t i f f s ' c l a i m under th e concerted action theory is stayed pending ad ditional b r ie fs by the p a r t i e s . This d is p o s i t i o n w i l l be more f u l l y e x p la in e d . 1 . Concert of Action Theory P la in t if f s have s a tis fie d the i n i t ia l hurdle of concert o f a c tio n by a l l e g i n g and p r e se n tin g evid en ce in support o f the p r o p o s it io n th a t th ey are a b s o lu t e ly u n ab le, due to the f u n g i b l e n a t u r e o f PVC i n s u l a t i o n , to i d e n t i f y th e p a r t i c u l a r in j u r y - c a u s in g d efe n d a n t. S e e , e . g . , Diamond Shamrock's Answer to P l a i n t i f f s ' In te r r o g a to r y No. 2; H a tf ie ld W ire's Answer to P l a i n t i f f s ' I n t e r r o g a t o r y No. 17; E ssex Group's Answer to P l a i n t i f f s ' I n te r r o g a to r ie s Nos. 14 and 15. In addition p la in tiff s have presented s u ffic ie n t evidence of ca u sa l r e la t i o n and co o p e r a tiv e or con certed a c t i v i t y . However, the Court i s u n certain as to whether p l a i n t i f f s have p r e s e n t e d s u f f i c i e n t e v i d e n c e t o overcome summary judgment on th e i s s u e o f whether th ese d efend an ts breached a l e g a l standard o f ca re owed to p l a i n t i f f s . 15 Those n o t i o n s a r e : Motion by C e r t a i n Members o f th e Aluminum W i r e /D e v ic e Group f o r Summary Judgment on A l l I s s u e s or i n t h e A l t e r n a t i v e P a r t i a l Summary Judgment as to E n t e r p r i s e L i a b i l i t y ; Motion f o r Summary Judgment on Behalf o f Wire In su la tio n Only Defendants; Motion by S o l- t e x Polymer C o r p o r a tio n f o r Summary Judgment on a l l I s s u e s ; Motion f o r Summary Judgment on B e h a l f o f U n ite d S t a t e s S t e e l C orporation, Motion o f K a iser Aluminum & Chemical f o r Summary Judgment; M otion f o r P a r t i a l Summary Judgment on B ehalf o f G eneral Cable C orporation; S ep a ra te Motion from [ s i c ] Summary Judgment on B e h a l f o f D e fen d a n t Ameri can E l e c t r i c a l I n d u s t r i e s , I n c . , Motion o f The Aluminum A s s o c i a t i o n I n c o r p o r a t e d f o r Summary Judgm ent, Motion f o r Summary Judgment D i s m i s s i n g ITT S u p ren an t D i v i s i o n , Defendant Plymouth Wire and Cable Company's Motion fo r Summary Judgm ent. 1 1 6. 2 3_ -20- a. Causal H alation In o p p o s i t i o n to d e f e n d a n t s ' n o t i o n fo r summary judgm ent, p l a i n t i f f s h a v e s u b m i t t e d t h e a f f i d a v i t o f a p h y s i c i a n who e x a m i n e d some o f t h e v i c t i m s o f t h e f i r e ^ . T h i s a f f i d a v i t in d i c a t e s t h a t a c o r r o s i v e s u b s ta n c e was found on the lungs o f two v i c t i m s w hi c h was o f t h e s a n e t y p e a s c a u s e d by t h e emission o f co rro siv e cases from the thermal degradation o f PVC i n s u l a t i o n . The f a c t t h a t PVC e l e c t r i c a l i n s u l a t i o n was located in the Severly H ills Supper Club is not disputed. Several patrons of the club have indicated th a t they detected a n o d o r w h i c h c o u l d h a v e b e e n e m i t t e d f r o m PVC i n s u l a t i o n . See D e p o s itio n o f Timothy N a p ie r; D e p o s itio n o f Maurice I t t e l . Thus, f o r p u rp o ses o f a summary judgment n o tio n t h i s evidence is s u ffic ie n t to c re a te a m aterial issue of fa c t on the question of causation under the concert of action theory. b. C ooperative o r Concerted A c tiv ity P l a i n t i f f s a lle g e t h a t the Wire In s u la tio n defendants acted in concert by promoting and p erp e tu a tin g the acceptance o f PVC i n s u l a t i o n w i t h t h e N a t i o n a l E l e c t r i c a l C o d e , i n c l u d i n g p l a c e m e n t u p o n P a n e l No. 8 o f t h e NFPA Code C o m m i t t e e . P l a i n t i f f s ' Memorandum C o n t r a E l e c t r i c a l K ir a I n s u l a t i o n D e fe n d a n ts' M otion f o r Summary Judgment a t 19, n. 12. Again, p la in tif f s have presented s u f f ic ie n t support to s a t i s f y a motion f o r summary judgm ent. This s u p p o rt i s c u l l e d f r om t h e a f f i d a v i t o f a n e n g i n e e r who d i s c u s s e d t h e h a z a r d s o f PVC i n s u l a t i o n a t a m e e t i n g o f w i r e i n s u l a t i o n m anufacturers in 1972. D eposition o f Pogar K eith, Chief E n g i n e e r , I n s u l a t e d P r o d u c t s , K a i s e r Al umi num a t _____; See a l s o L e t t e r f ro m J o s e p h S. M c D e r m o t t t o J o h n A. E l a i r d a t e d November 7, 1975. There i s a f a c t u a l d is p u t e as to w hether defendants were j o i n t l y aware o f the a lle g e d ly d e fe c tiv e 16 P l a i n t i f f s S u p p l e m e n t a l A f f i d a v i t o f V i c t o r H. E s c h . 3 nature of the product, but j o i n t l y continued to promote and s e l l th e p r o d u c t as one which was w i t h o u t d e f e c t . c. 3reach of Legal Standard On t h e q u e s t i o n o f w h e t h e r d e f e n d a n t s i n t h i s g r o u p v i o l a t e d a l e g a l s t a n d a r d o f c a r e , p l a i n t i f f s c l a i m t h a t PVC in su latio n is unreasonably dangerous and th a t defendants failed to provide adequate warning of th is defect in design. P l a i n t i f f s ' co n te n tio n s on t h i s issu e are supported by the a ffid a v it of a fire p ro tectio n engineer, an a r t i c l e on the to x ic ity of polyvinyl chloride in fir e s and an a f f id a v it of a p h y s i c i a n f a m i l i a r w i t h t h e p r o p e r t i e s o f PVC i n s u l a t i o n . See P l a i n t i f f s ' A f f i d a v i t o f R o b e r t E. T a y l o r , ( P l a i n t i f f s ' Appendix A t o P l a i n t i f f s ' Memorandum C o n tra t o Summary Ju d g ment); Esch, "Polyvinyl Chloride Toxicity in F ire s", Journal o f t h e A m e ric a n M e d i c a l A s s o c i a t i o n ( 1976) ( P l a i n t i f f s ' Ap p e n d ix B to P l a i n t i f f s ' Memorandum C o n tr a to Summary J u d g m e n t); a n d P l a i n t i f f s ' S u p p l e m e n t a l A f f i d a v i t o f V i c t o r H. E s c h ; D eposition o f Richard Best; D eposition o f David Dennis a t 428-429. Whether under the circum stances o f the Beverly H ills S u p p e r C l u b f i r e t h e u s e o f PVC i n s u l a t i o n was a n u n f o r e s e e a b l e use, as a m atter of law, is an issue which tro u b les the Court. This issue has not been fu lly addressed by the p a r t i e s . T h e re fo re , a d e c i s i o n on th e motion f o r summary judgment o f the Wire I n s u l a t i o n Group i s s ta y e d pending a d d itio n a l b r ie f s on t h i s issu e. 2. S u p e r s e d i n g Cause A genuine issue of m aterial fact does remain on the qu estio n o f superseding cause. In p a r t i c u l a r , th e re is a fa c tu a l d isp u te as to whether the a c ts of o th e r s ware so unexpected o r extraordinary as to cut o ff defendants' l i a b i l i t y a s a m a tte r o f law. T h e re fo re , t h i s i s s u e i s more appropriate for d isp o sitio n on a motion for a d ire c te d v e rd ic t. According to the p re c e d in g d is c u s s io n a d e c i s i o n on summary j u d g m e n t a s t o t h e W i r e I n s u l a t i o n G r o u p i s STAYED u n t i l the p a rtie s have the o p p o rtu n ity to address the one _ 22 - 1 c u t s c u n c i n g i s s u e -.-.-'nich i s o f c o n c e r n to th e C ourt. A b r i e f i n g sc h e d u le on t h i s i s s u e w i l l be s e t by the Court in the near fu tu re. B. Wire and d e v i c e Group The Wire and D e v ic e Group has n o t d em o n stra ted c o n c lu s iv e ly the absence o f any genuine is s u e o f m aterial f a c t co n cern in g p l a i n t i f f s ' th eory o f c o n c e r t o f a c tio n and on th e i s s u e o f s u p e r s e d in g c a u s e . 1. Concert of Action a. Causal Relation P la in t if f s have supplied the a f f id a v it o f Jesse Aronstein on th e q u e s tio n o f c a u s a tio n . P l a i n t i f f s ' Supplemental A f f id a v it o f J e s s e A ronstein Contra D efendants' Motion for Summary Judgm ent. In a d d i t i o n , p l a i n t i f f s h ave s u b m itted ex cerp ts from the d e p o sitio n o f J e sse A r o n ste in . A ro n stein 's a f f id a v it in d ic a te s he conducted t e s t s on cab le samples which came from th e remains o f th e 3 e v e r l y H i l l s Supper Club to determ ine "the e f f e c t th a t g a s s e s and d e p o sits from burning cable in s u la tio n in a conduit have on e l e c t r ic a l disconnect panels attached to that conduit." Aronstein A ffid a v it at 1. Aronstein concluded from th ese te s ts that he had "demonstrated one p o s s ib le mechanism by which the spread o f the f ir e at Beverly H ills could have occurred." T h is may be i n s u f f i c i e n t e v i d e n c e to a v o i d a m o tio n f o r a directed verdict, but i t is s u ffic ie n t for purposes of sunrr.ary judgment on th e i s s u e o f c a u s a t i o n u n d er th e c o n c e r t of action theory. b. Cooperative or Concerted A ctiv ity and ______Burden o f L e g a l S ta n d a r d _____ As to t h e r e q u ir e m e n t t h a t d e f e n d a n t s i n t h i s group have a c te d in c o n c e r t and v i o l a t e d a l e g a l standard o f ca re, 0c T echnology Aluminum Wiring System s" , H earing b e fo r e Sub committee on O versigh t and I n v e s t i g a t i o n s , Committee on I n t e r s t a t e and F oreign Cortr.erce ( 1 9 7 8 ) . S p e c i f i c a l l y , p l a i n t i f f s r e f e r to a l e t t e r by B a t t e l l e Columbus Labora to r ie s dated August 30, 1972 (Hearing a t 5455); the t e s t i mony o f Rainbow (H. 2 2 1 2 4 7 ); Rainbow, "Some Thoughts on E l e c t r i c a l C o n n e c tio n s " (H. 2 2 1 2 4 7 ); th e t e s t i m o n y o f G i l v e r t (H. 2 6 4265, 2 8 4 ); and a l e t t e r by DuPont d a t e d May 8 , 1970 (H. 22627, 3 0 3 3 0 9 ) . T hese documents c r e a t e a gen u in e i s s u e o f m a t e r ia l f a c t as to whether aluminum w ire and d e v ic e s are d e fe c tiv e and whether th ese defendants acted in concert in promoting and s e l l i n g a d e f e c t i v e product w ith o u t adequate warnings. 2. Superseding Cause F in a lly , on the i s s u e o f su p ersed in g cau se, a genuine issu e of m aterial fa c t remains in dispute which is not appropriate for d isp o sitio n at th is time but which w ill be con sidered upon d efendants' motion fo r a d ir e c te d v e r d ic t. A c c o r d i n g l y , th e m o tio n by th e Wire and D e v ic e Group f o r summary judgment i s DENIED. C. S o l t e x Polymer The m otion o f S o lt e x Polymer ( S o l t e x ) i s unique in the m otion s f i l e d by members o f th e Wire I n s u l a t i o n Group. More s p e c if ic a lly , S oltex contends i t does not manufacture the product claim ed by p l a i n t i f f s in th e ir com plaints to have been manufactured by i t . In support of th is contention, S o l t e x su b m its th e a f f i d a v i t o f Dr. E l l i o t t A. V o g e lf a r g e r , Manager o f Research and Development o f the S o lte x Polymer Corporation (Soltex' Exhibit F ). According to the com plaint, p la in t if f s a lleg e that Soltex is a manufacturer or d istr ib u to r of e le c tr ic a l wiring in su la tio n . This is the only claim p la i n t i f f s have against 24 t h i s d e fe n d a n t. The a f f i d a v i t o f Dr. E l l i o t t A. V o g e lf a r g e r sta te s that: "Soltex Polymer has never engineered, designed, manufactured, so ld , d is tr ib u te d or supplied any e l e c t r i c a l power w ir e i n s u l a t i o n . " In a d d i t i o n . Dr. V o g e lf a r g e r ' s a ffid a v it provides that Soltex has never manufactured or d is t r ib u te d any components used in the manufacture o f in s u la tio n or ja c k e tin g m a teria l fo r e l e c t r i c a l power w ire. P l a i n t if f s have been unable to present any support in controversion of the Vogelfarger a ffid a v its . S o ltex has e s t a b lis h e d c o n c lu s iv e ly th a t no genuine is s u e o f m a te r ia l fa c t i s p resen t and th a t defendant S o lte x is e n t i t l e d to a judgment as a matter o f law. A c co rd in g ly , th e motion o f S o lt e x Polymer f o r surtr.ary judgment i s h er e b y GRANTED. D. U n ite d S t a t e s S t e e l C o r p o r a tio n United States S teel Corporation (U.S. S teel) has also f i l e d a m otion f o r summary judgment as w e l l as a Reminder and R ejo in d er and a Supplement to R e jo in d er . U n lik e S o lt e x , U.S. S te e l does not con test the fa c t that i t manufactures aluminum w ire or w ire i n s u l a t i o n . I n ste a d , U. S. S t e e l claims that i t did not manufacture a product located in the B everly H i l l s p rem ises on the day o f th e f i r e . In support of th is contention U.S. S te e l submits the a ff id a v it o f Josep h M. Cooper, S a l e s Manager. T h is a f f i d a v i t i n d i c a t e s that U.S. S te e l i s p rim a rily engaged in supplying m a teria ls for in d u s t r ia l u ses. In a d d itio n , U.S. S tee l has subm itted other a ffid a v its of other employees, a ll indicating that 17 U.S. S t e e l did n ot supply the 3 e v e r ly K i l l s Supper Club- Under the con cert o f a c tio n theory i t i s not a n ecessary element o f p l a i n t i f f s ' proof that they id e n tify a defendant as manufacturing the p a r tic u la r product which caused p la in t if f s harm. I t i s s u f f i c i e n t under t h i s th e o r y i f p l a i n t i f f s show 17 Scci A f o f C r c r ^ o E . tJ- (1) t h a t da fo n d an t rnanufactured a g e n e t i c a l l y s im ila r p ro d u ct to the one i d e n t i f i e d as c au sin g p l a i n t i f f s ' harm and t h a t d e fe n d a n t's a c tio n s in placing in the m arketplace and pro moting the p ro d u ct were a s u b s ta n tia l f a c to r in p l a i n t i f f s ' in j u r i e s ; (2) th a t defendant acted in concert with o th e r members o f th e t a r g e t e d i n d u s t r y in prom oting and s e l l i n g the product; and (3) th a t defendant v io la te d a legal stan dard of care towards these p la in tif f s . Thus, issues of fa c t a r e c o n t e s t e d and summary judgm ent i s n o t t h e p r o p e r avenue for disposition of this matter. Accordingly, the motion of United S tates Steel Corporation f o r summary j u d g m e n t i s DENIED. E. K a i s e r Aluminum & C h e m i c a l Company K a is e r Aluminum & Chemical Company i n i t i a l l y r a i s e s questions of service or process, subject matter jurisdiction a n d s t a t u t e o f l i m i t a t i o n s . As t o s e r v i c e o f p r o c e s s , K a i s e r c o n t e n d s t h a t s e r v i c e i n t h e C o b u r n c a s e , No. 7 7 - 7 9 , was im prop er b u t co ncedes th e p r o p r i e t y o f s e r v i c e in K i s e r , No. 7 8 - 2 9 . K a i s e r a d m i t s t h a t i t h a s r e c e i v e d n o t i f i c a t i o n o f t h i s la w su it along with a copy o f the complaint. Since the K iser and Coburn a c tio n s have been c o n so lid ated , K a ise r's claim on the issue o f serv ice o f process is m a ritle ss. See P r e t r i a l O r d e r No. 115. K a i s e r i s p r o p e r l y a p a r t y t o th is actio n and has received tim ely and adequate notice of the pendency of th is law suit. Thus, K aiser's motion to d i s m i s s f o r i m p r o p e r s e r v i c e o r p r o c e s s i s DENIED. Q uestions o f su b ject m atter j u r i s d i c t i o n have p re v io u s ly been c o n s id e re d by t h i s c o u r t . See P r e t r i a l Order No. 119. At t h a t t i m e t h i s c o u r t d e t e r m i n e d t h a t s u b j e c t n a t t e r j u r i s d i c t i o n was p r e s e n t . K a i s e r ' s m otion to d is m is s f o r l a c k o f s u b j e c t m a t t e r j u r i s d i c t i o n i s t h e r e f o r e DENIED. S tatu te o f lim ita tio n s issu es also have previously been c o n s i d e r e d a n d d i s p o s i t i o n r e n d e r e d . See P r e t r i a l O r d e r No. 182. Since K aiser adopts the memoranda o f th o se defendants 6- v.t i o s g n o t i o n s h a v e a l r e a d y b e e n d i s p o s e d o f o n t h e s t a t u t e o f l i m i t a t i o n s i s s u e , no a d d i t i o n a l c o n s i d e r a t i o n i s n e c e s s a r y . T h i s c l a i m t o o i s DENIED. F i n a l l y , K a is e r c o n te n d s t h a t i t s p r o d u c t was n o t i d e n t i f i e d as being in the Supper Club. In t h i s re s p e c t K a is e r's motion is s im ila r to the motion o f O.S. S te e l and i t i s DENIED. F. G an a ra l Cable C o r p o r a t i o n General Cable C o rp o ratio n (General Cable) moves fo r summary judgment on th e ground t h a t i t s p r o d u c t was n o t i d e n t i f i e d a s a p r o d u c t i n t h e S u p p e r C lub. I n t h i s way General C ab le's motion is s im ila r to the motion o f O.S. S te e l and p o rtio n s o f the motion f i l e d by K a ise r. These defendants have c o lle c tiv e ly been re fe rred to as "Product Out" defendants. General Cable i s a member o f the Wire and Device Group. Several defendants in t h i s group have been i d e n t i f i e d by p l a i n t i f f s as having a product lo cated in the Supper Club. G e n e ra l Cable was n o t among t h e s e d e f e n d a n t s . Although c e r ta in defendants were i d e n t i f i e d as having p r o d u c t s i n th e Supper C lu b , no d e f e n d a n t h as been i d e n t i f i e d as the m anufacturer of the product which caused p l a i n t i f f s ' in ju ry . This case is not sim ila r to Hall v. DuPont, 345 F.Supp. 353 (E.D. N.Y. 1 9 7 2 ) , where t h e p a r t i c u l a r m an u fa c tu rer o f the i n j u r y - c a u s i n g p ro d u c t was i d e n t i f i e d . On t h e c o n t r a r y , t h i s c a s e i s more c l o s e l y a n a l o g o u s t o Chance v. DuPont, 345 F.Supp. 353 (E.D. N.Y. 1972) where th e p a r t i c u l a r m a n u f a c tu r e r o f th e i n j u r y - c a u s i n g p r o d u c t was n o t i d e n t i f i e d and in d u s try -w id e l i a b i l i t y was found to be applicable. T h e r e f o r e , t h e r e i s no sound b a s i s f o r d i s t i n g u i s h i n g the "Product Out" defendants from o th e r members o f the Wire and Device Group. A ccordingly, General C a b le 's motion fo r summary judgment, in lin e w ith the n o tio n s o f U.S. S te e l and K a i s e r , must be DENIED. 11630 G. r-jr.e r 1c ar, e l e c t r i c a l I n d u s t r i e s , I n c . American E l e c t r i c a l I n d u s t r i e s , Inc. (AEI) moves fo r summary j u d g m e n t a s a member o f t h e ''i r e a n d D e v i c e Gr oup. AEI c o n t e n d s t h a t summary j u d g m e n t i s a p p r o p r i a t e b e c a u s e (1) i t d id n o t have a p r o d u c t in th e Supper C lu b ; and (2) i t has n o t m anufactured "old te c h n o lo g y " aluminum -ire or wiring systems. AEI's f i r s t co n ten tio n is denied for the above-mentioned r e a s o n s . As t o i t s s e c o n d c o n t e n t i o n , AEI h a s n o t e s t a b l i s h e d by a f f i d a v i t o r o th e rw is e t h a t i t does not m an u factu re "old technology" aluminum wire o r w iring systems. A d is p u te of m a te r ia l f a c t i s p r e s e n t and summary judgm ent c a n n o t be g r a n t e d . A c c o r d i n g l y , t h e m o t i o n o f AEI f o r summary ju dgm ent i s h e r e b y DENIED. H. Aluminum A s s o c i a t i o n . I n c o r p o r a t e d The Aluminum A s s o c i a t i o n , I n c o r p o r a t e d (AA) i s a t r a d e a sso c ia tio n o f aluminum wire and device m an u factu rers in - e l u d i n g s i x d e f e n d a n t s named i n t h i s a c t i o n 1 8. AA d o e s n o t m a n u f a c t u r e o r d i s t r i b u t e a l u m i n u m p r o d u c t s . AA c o n tends (1) t h a t t h i s c o u r t la c k s p e rso n a l j u r i s d i c t i o n over t h e AA, a n d ( 2 ) t h a t p l a i n t i f f s ' l i a b i l i t y t h e o r i e s a r e n o t a p p l i c a b l e t o t h e AA. The AA o r i g i n a l l y f i l e d i t s m o t i o n t o d i s m i s s f o r l a c k o f personal j u r is d ic tio n on June 21, 1978. In response p la in tif f s requested ad d itio n al time and disco v ery to es t a b l i s h t h a t t h e AA h a d t h e r e q u i s i t e c o n t a c t s w i t h t h e S t a t e o f K e n t u c k y f o r p e r s o n a l j u r i s d i c t i o n . To d a t e p la in tif f s have fa ile d to supply any evidence to suggest t h a t t h e AA h a s a n y c o n t a c t w i t h K e n t u c k y . The AA i s a n o n p r o f i t c o r p o r a t i o n , i n c o r p o r a t e d i n t h e S ta te o f Delaware w ith i t s o n ly o f f i c e i n " a s h i n g t o n , D.C. 18 The A s s o c i a t i o n members a r e American E l e c t r i c a l I n d u s t r i e s , I n c . , The Anaconda Company, R e y n o ld s M e t a l s Company, So u th w ire Company, K a i s e r Aluminum & C h em ical Corporation and General Cable Corporation. 11631 - -o-- As s u c h , t h e i_n oc r s o r . c n i n q u i r y i s w h e t h e r t h e AA h a s h a d a s u b sta n tia l enough co n tact with the S tate of Kentucky to permit th is Court to acquire ju ris d ic tio n over i t pursuant to Kentucky's long-arm rule. In a d iv e r s ity a c tio n , the ju r is d ic tio n of a federal d i s t r i c t c o u r t i s d e te rm in e d by th e law o f th e s t a t e in which f e d e r a l d i s t r i c t c o u r t i s h e l d . S o u t h e r n H a c h in e Co. v. Mohasco I n d u s t r i e s , I n c . , 401 F. 2d 374, 376 n. 2 ( 6 t h C i r . 1 9 68). A f e d e r a l d i s t r i c t c o u r t may e x e r c i s e j u r i s d ic tio n over a n o n -re sid e n t o f the forum s t a t e i f the forum s ta te has a procedure which would p erm it the e x e rc is e of s u c h j u r i s d i c t i o n . F e d . R. C i v . P. 4 ( e ) ; F e d . R. C i v . P. 4 ( d ) (7). Kentucky has such a p ro c e d u re . The p e r t i n e n t p o r tio n s of the s ta tu te are: A c o u r t may e x e r c i s e p e r s o n a l j u r i s d i c t i o n o v e r a p e r s o n who a c t s d i r e c t l y o r b y a n a g e n t , as to a claim a r is in g from the p e rso n 's 1. T r a n s a c t i n g any b u s i n e s s i n t h i s Co mno nwe a 1t h ; 2. C o n t r a c t i n g t o s u p p l y s e r v i c e s o r goods in t h i s Commonwealth; 3. C a u s i n g t o r t i o u s i n j u r y i n t h i s Common w e a l t h b y a n a c t o r o m i s s i o n o u t s i d e t h i s Common w ealth , i f he r e g u la r ly does o r s o l i c i t s b u s in e s s , or engages in any o th e r p e r s is te n t course of con c o c t, o r d eriv es s u b s ta n tia l revenue from goods used o r consumed o r s e rv ic e s rendered in th is Commonwealth, provided t h a t the to r t i o u s in ju ry o c c u rrin g in t h i s Commonwealth a r i s e s out o f the doing or so lic itin g of business or a p e rsiste n t course of conduct or derivation of substantial revenue w ithin the Commonwealth; 5. C ausing i n j u r y i n t h i s Commonwealth to any person by breach o f w arran ty e x p re s s ly o r i m p l i e d l y made i n t h e s a l e o f c o o c s o u t s i d e t h i s Commonwealth when th e s e l l e r knew such p e r son would use, consume, o r be a f f e c te d by, the noods in th is Commonwealth, i f he a lso re g u la rly doos o r s o l i c i t s b u s in e s s , o r engages in any other p ersisten t course of conduct, or derives s u b s t a n t i a l s e r v i c e s r e n d e re d in t h i s Commonwealth (b) Kin's j u r i s d i c t i o n o v e r a p e rs o n i s based :v>U' l y ujv>ii t h i s s e c t i o n , o n l y a c l a i m a r i s i n g t i-inu a i". ;i 1' i n i i a . ' r a t e d i n t h i s s e c t i o n may be a s : :ort i *d a . i a i n s t h i m . Ky. Rev. S t a t . 454. 210 (2 ) (a 11632 ,,...n j u r i s d i c t i o n i s a s s e r t e d u n d e r t h i s s t a t u t e , two c o n d itio n s must be s a t i s f i e d b efore j u r i s d i c t i o n , in f a c t, w i l l a t t a c h . F i r s t , the C o u rt must f i n d t h a t d e f e n d a n t com m itted a p h y sic a l a c t which f a l l s w ithin one o f the fa c t s itu a tio n s of the sta tu te . If i t does, the Court must find, in a d d itio n , t h a t an ex ercise of j u r i s d i c t i o n based upon the d e f e n d a n t ' s a c t would comport w ith F o u r t e e n t h Amendment due process. In support of i ts motion to dism iss for lack of personal j u r i s d i c t i o n , t h e AA h a s s u b m i t t e d t h e a f f i d a v i t o f R o b e r t A. R e i n f r i e d , T r e a s u r e r o f t h e Aluminum A s s o c i a t i o n , I n c o r porated. This a ffid a v it provides in part: [t]h a t the Association does not tra n sa c t business o r co n tract to supply services or goods in the Commonwealth o f Kentucky. The A s s o c i a t i o n does not r e g u l a r l y do o r s o l i c i t b u s i n e s s i n Kentucky and does not engage in any p e rs is te n t course of con d u ct o r derive s u b s ta n tia l revenue from goods used o r consumed o r s e r v i c e s r e n d e r e d i n K entucky. The A s s o c i a t i o n has no o f f i c e , a g e n t s o r e m p lo y e e s i n Kentucky. Again, t h i s a f f i d a v i t is not c o n tro v e rte d by the p l a i n t i f f s . P l a i n t i f f s have fa ile d to provide any fa c tu a l b asis for a s s e r tin g iji pcrsonam j u r i s d i c t i o n over t h i s defendant. B a s e d o n t h e R e i n f r i e d a f f i d a v i t , t h e AA h a s no c o n t a c t s w ith the S t a t e o f Kentucky. The e x e r c i s e o f p e rs o n a l j u r i s d i c t i o n o v e r t h e AA d o e s n o t s a t i s f y t h e s t a t u t o r y r e q u i r e m e n t s under the Kentucky long-arm s ta tu te o r the due process r e q u ire m e n t u n d e r th e F o u rte e n th Amendment. A c c o rd in g ly , th e Aluminum A s s o c i a t i o n ' s m otion to d i s m i s s f o r l a c k o f p e r s o n a l j u r i s d i c t i o n i s GRAN'TBD. S i n c e t h i s Court l a c k s n p c rsor.am j u r i s d i c t i o n o v e r the Aluminum A ssociation i t is unnecessary to examine the o th er grounds f o r summary judgm ent a s s e r t e d by t h e Aluminum A s s o c i a t i o n . I. ITT Sururur.nnt D iv is io n The m o tio n o f ITT S u r p r e n a n t D i v i s i o n (ITT ) i s s i m i l a r to tho motion o{ K olto x Polymer. ITT c la im s t h a t i t does not m m i t . i o t m v l ho p r o d u c t w h ich p l a i n t i f f s c la im i t m a n u f a c t u r e s . A e o o r d i n i i t o t ho c o m p l a i n t , ITT i s s u e d a s a m a n u f a c - i m o r o f PW i m u i l . i t i o n . ITT h a s a t t a c h e d t h e a f f i d a v i t o f W. W i l l i a m B e n n e t t , J r . w h i c h i n d i c a t e s t h a t ITT r . a n u f a c t u r e s n e i t h e r a l u m i n u m w i r e n o r ?VC i n s u l a t i o n . I T T d o e s m a n u f a c t u r e c o p p e r w i r e a n d c a b l e a n d e n t r u c e s ?VC i n s u l a t i o n o n t o i t s c o p p e r w i r e . I T T ' s p r o d u c t was n o t l o c a t e d i n t h e S u p p er Club. P l a i n t i f f s have ad v an ced no t h e o r y by w hich a p u r c h a s e r o f PVC i n s u l a t i o n c a n be b r o u g h t i n t o t h i s a c t i o n , a n d we are relu ctan t to advance a theory of concert of action beyond the lim its already e s ta b lish e d . Thus, p l a in tif f s have fa ile d to s ta te a claim for r e l i e f a g a in s t th is defen d a n t. A c c o rd in g ly , p l a i n t i f f s ' c la im s a g a i n s t ITT are h e r e b y DISMISSED. V. C o n c l u s i o n The f o r e g o i n g s h o u ld n o t be deemed a s a n e x p r e s s i o n by the Court of l i a b i l i t y of any of the defendants herein. P l a i n t i f f s ' a b i l i t y to p re v a il on the m e rits o r to survive motions for d irected verdicts a t the conclusion of th e ir case must await the t r i a l of th is m atter on i t s m erits. The C o u r t h o l d s o n l y t h a t i n a c c o r d a n c e w i t h th e a p p r o p r i a t e standards in th is c irc u it defendants, except as hereinabove n o te d , a re n o t e n t i t l e d to summary judgment. This m atter w ill proceed to t r i a l on the m erits in ac cordance with previous Orders of th is Court. IT IS SO ORDERED. C a r l B. R u b i n , C h i e f J u d g e Cnited S ta te s D i s t r i c t Court. r~ 11634 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK In re : "AGENT ORANGE" Product Liability Litigation X X MDL No. 381 (JBW) (All Cases) I MEMORANDUM OF LAW OF DEFENDANT THE DOW CHEMICAL COMPANY IN SUPPORT OF ITS MOTION TO DISMISS IN LIGHT OF PLAINTIFFS' INABILITY TO ESTABLISH THAT ANY PARTICULAR PLAINTIFF WAS EXPOSED TO ANY AGENT ORANGE MANUFACTURED BY DOW R i v k i n , L e f f , S h e r m a n <& R a d l e r At t o r n e y s a n d C o u n s e l l o r s at Law I O O Ga r d e n C ity P l a z a . G a r d e n C ity, N Y. 1 1 5 3 0 1 a JL n 3 rt b TABLE OF CONTENTS Page INTRODUCTION ....................................................... 1 SUMMARY OF A R G U M E N T ................................................ 4 POINT I PLAINTIFFS HAVE ACKNOWLEDGED THAT THEY ARE UNABLE TO SATISFY THEIR BURDEN OF IDENTIFYING THE MANUFACTURER OF THE PARTICULAR BATCH OF AGENT ORANGE TO WHICH EACH PLAINT I F F WAS E X P O S E D ......................... 14 POINT II NONE OF THE THEORIES OF ALTERNATE LIABILITY ADDRESSED BY THE COURT OR THE PARTIES ARE APPLICABLE IN THIS C A S E ................................................... 17 A. Alternative Liabi l i t y .................................. 18 1. C a u s a t i o n ........................................... 20 2. All Potential T o r t f e a s o r s A r e Not Before the C o u r t ....................................... 30 3. Defendants A re Not R e s p o n s i b l e For Plaintiffs' Inability To Meet Their Burden Of Defendant Identification Nor Are They In A Superior Position To Offer Evidence of Defendant Identificatio n .................................... 39 B. Market Share L i a b i l i t y ..................................... 41 C. Concert of A c t i o n ....................................... 55 1. Dow Did Not Act In Concert Wi t h Other Herbicide Orange Manufacturers To Withhold Information On Chloracne And Dioxin From The G o v e r n m e n t ......................61 lie 37 Page a. Dow Was A w a r e Of O c c u p a t i o n a l H e a l t h Hazards Associated With Extremely High Levels Of Dioxin In The Waste Stream Of The Trichlorophenol Manu facturing Process, But Not Of Health Hazards To Users Of Its 2,4,5-T P r o d u c t s ..........................................62 b. The Groth C o r r e s p o n d e n c e ...................... 68 c. The T r i c h l o r o p h e n o l M a n u f a c t u r e rs M e e e t i n g ..........................................72 d. The Industry Task F o r c e ...................... 82 2. Dow Commu n i c a t e d Its K n o wledge Of Chloracne And Dioxin To The Federal Government, The State Of Michigan, The Chemical Industry, And Interested Health Professionals Around The W o r l d ............................................85 3. The Infor m a t i o n Re g a r d i n g Chloracne And Dioxin Which Dow Allegedly Conspired To Withhold From The Government Was Known To The Government And Was In Fact Publicly Available In The Scientific L i t e r a t u r e ............................................ 97 D. Enterprise L i a b i l i t y ...................................... 127 C O N C L U S I O N ............................................................ 132 -ii- We submit this memorandum of law on behalf of defendant The Dow Chemical Company ("Dow") in support of Dow's motion to dismiss under Rule 12 of the Federal Rules of Civil Procedure all claims asserted against Dow in the In re "Agent Orange" Product Liability L i t i g a t i o n , MDL No. 381 (hereinafter "Agent Orange L i t i g a t i o n " ), on the ground that plaintiffs are unable to iden tify any Agent Orange* manufactured by Dow as the cause of their alleged injuries.** INTRODUCTION One of the most basic tenets of products liability law is that "the imposition of liability depends upon the plaintiff proving that the defendant manufacturer made the product that caused the plaintiff's injury." Starling v. S e aboard Coast Line R. C o . , 533 F. Supp. 183, 187 (S.D. Ga. 1982). In P r e trial Order No. 66, this Court recognized the d i f ficulties that each individual plaintiff would encounter in attempting to prove that a particular defendant made the par ticular batch of Agent Orange to which that plaintiff was exposed. Thus, the Court requested argument on how plaintiffs propose to show that a particular defendant is responsible for any injury to any particular plaintiff. * As used herein, the term "Agent Orange" refers to all her bicides in issue in these proceedings. ** The Court has the right under Rule 12(b), Fed. R. Civ. P., to consider Dow's motion to dismiss as a motion for summary judgment under Rule 56. 11 Qq In that same Order, the Court also expressed its doubt regarding the applicability of any alternate theories of liability in the absence of defendant identification: The case authority I have seen [applying the alternate liability theories] seems distinguishable from the instant case. (Citations omitted.) In response to P r etrial Order No. 66, Do w submitted a m e m o r a n d u m asserting that, in light of the unique circu m s t a n c es surrounding the use of Agent Orange in Vietnam, no individual plaintiff would be able to satisfy his burden of defendant iden tification and that, upon plaintiffs' failure to demonstrate an ability to satisfy this burden, plaintiffs' claims must be dismissed.* We further urged this Court to refrain from relieving plaintiffs of their burden of defendant identification by applying any of the alternate theories of liability to this case. In their response to Pretrial Order No. 66, plaintiffs conceded that they would be unable to meet their well-settled burden of proof of defendant identification: "[T]o require each plaintiff to identify the specific defendant or defendants whose * See Memorandum of Law of The Dow Chemical Company in Opposition to the Utilization of Alternate Theories of Liability in this Litigation and in Support of the Dismissal of Plaintiffs' Claims, dated November 30, 1983 (hereinafter "Dow's Alt. L i a b i l i t y M e m o at______.'*) . -2 11340 Agent Orange caused his injuries, would present impossible bur dens of p r o o f ."* Plaintiffs, in light of their admitted lack of proof, have advanced a number of theories of liability which would relieve them of their burden of defendant identification. See Plaintiffs' Alt. Liability Memo at pp. 96-112; "Sixth Amended V e r i f i e d Complaint," filed in Ry a n v. D o w , Civ. A c t i o n No. 79-C-747 (E.D.N.Y.), a copy which is annexed as E x h i b i t "1". At a pretrial co n f e r e n c e on December 5, 1983, these theories were discussed. After hearing oral argument from plaintiffs' counsel, the Court inquired whether Dow was moving to dismiss this case in light of plaintiffs' inability to meet their burden of defendant identification. Counsel for Dow acknowledged that it was indeed seeking such relief, and the Court requested submission of a formal motion. Tr. at 40-42. Pursuant to the Court's direction, this memorandum and the accompanying exhibits are submitted in support of Dow's motion to dismiss all claims against it in these proceedings on the grounds that plaintiffs are unable to meet their burden of d e f e ndant identification and that there is no legal or factual basis for the alternate theories of liability asserted by plaintiffs. * See Plaintiffs' Memorandum on the Applicability of the Legal Theories of Failure to Warn, Concerted Action, Enterprise Liabi lity and Alternative Liability, dated December 1, 1983 at p. 82 (hereinafter "Plaintiffs' Alt. L i a bility Me m o at____ ."). 4-3- J<LJL A 1-i SUMMARY OF ARGUMENT Under well-settled principles of product liability law, an essential element of a plaintiff's claim is that the m a n u facturer's product was the proximate cause of the harm complained of. Absent proof establishing this causal relationship, plaintiffs' claims must be dismissed. Plaintiffs in the Agent Orange Litigation have conceded their inability to satisfy this element of their case. Respon sibility for plaintiffs' lack of proof and, indeed, their inabi lity to sue the only clearly identifiable potential tortfeasor in the case, the United States, lies with the United States.* Under these circumstances, relieving plaintiffs of their burden of defendant identification is unjustified. In a few rare instances, courts have fashioned remedies which relieve plaintiffs of their burden of identifying the particular defendant which was responsible for producing the product that actually caused plaintiff's harm. Essentially four theories of so-called alternate liability have been articulated: (1) alternative liability, (2) market share liability, (3) c o n cert of action and (4) enterprise liability. It is unclear whether plaintiffs intend to rely upon the market share theory. * The Government has informed the parties that it cannot identify the manufacturer of particular batches of Agent Orange to which plaintiffs may have been exposed. Letter of Arvin Moskin, Esq. to All Counsel, dated J a n u a r y 9, 1984. As explained at p. 17, i n f r a , the Gover n m e n t ' s current inability to do so is a direct consequence of its method of conducting the defoliation program. See p. 16, i n f r a . Nonetheless, we include it in our discussion for the sake of comple t e n e s s and in light of the Court's reference to it, albeit in terms of dubious applicability, in Pretrial Order No. 66. Dow's opposition to the imposition of any of these theories is twofold. First, there are significant policy co n siderations which counsel against relieving plaintiffs of their burden of defendant identification as a matter of law. Indeed, the creation of these remedies and their application in product liability cases is discou r a g e d and viewed as a "radical d e p a r ture" from long-standing and well-established product liability principles. M i z e l l v. Eli Lilly .& C o . , 526 F. Supp. 589, 596 (D.S.C. 1981). Second, aside from these policy considerations, the facts of this case, as developed after almost two years of dis covery, simply do not provide the factual predicate for the impo sition of any of the alternate theories of liability. Alternative Liability Alternative liability, which imposes joint and several liability on all defendants, has been uniformly rejected in every product liability case in which it has been raised. A l t e r n a t i v e liability is only applicable when the cause of the harm c om plained of is undisputed, when all of the possible tortfeasors are before the court and when the defendants are in a superior position to offer evidence of defendant identification or are -51 responsible for plaintiff's inability to identify the specific tortfeasor. The Agent Orange Litigation does not satisfy any of these factors. The cause of the harm complained of by plaintiffs is clearly disputed. Indeed, plaintiffs' claim that the trace amounts of 2,3,7,8 tetrachlorodibenzo-p-dioxin ("TCDD" or "dioxin") in the herbicide Agent Orange caused the incredibly diverse range of maladies they allege is contrary to the o v e r whelming weight of medical and scientific evidence. Addition ally, in light of the staggering number of potential alternate causes for plaintiffs' alleged injuries, it is evident that all of the possible tortfeasors -- most notably the United States -- are not before the Court.* Furthermore, it was the m i l i t a r y ' s method of procuring and using Agent Orange which renders plain tiffs unable to satisfy their burden of defendant identification. Other than supplying the herbicide under government contract, Dow p layed no part in this m i l i t a r y o p e r a t i o n and is in no better position than plaintiffs to identify the specific manufacturer of a batch of Agent Orange to which a particular plaintiff was exposed. Market Share Liability Under market share liability, articulated by a sharplydivided C alifornia Supreme Court in Sindell v. A b b o t t L a b o r a t o r - * While this Court has indicated that the United States may be a d e f e ndant in the upcoming trial with respect to the claims of non-veterans, the governm e n t ' s e x posure is none t h e l e s s severely limited in view of the central role it plays in the underlying facts of this case. -6- ie s , 26 Cal. 3d 588, 607 P.2d 924, cert, d e n i e d , 449 U.S. 912 (1980), a defendant is subject to liability for a percen t a g e of plaintiff's alleged damages equal to that defendant's share of the total market of the product within a given area and time frame. The defendant can escape liability by establishing that it could not have made the product which caused plaintiff's damage. Market share liability constitutes an unprecedented and questionable departure from well-settled product liability prin ciples. Moreover, the social and economic ramifications of this theory require that the legislature rather than the judiciary address the issue in the first instance. The creation of market share liability in Sindell was predicated on the fact that all defendants manufactured an iden tical product with the capacity to cause the alleged harm that was undisputed. Thus, the risk created by each defendant's pro duct was identical. Consequently, a defendant's share of the relevant market bore a direct correlation to the likelihood that its product caused a particular plaintiff's harm. Utilizing this formula, the court concluded that liability without product iden tification could be apportioned fairly. The Agent Orange Litigation presents a far different situation. Each defendant's Agent Orange had widely disparate amounts of TCDD -- the allegedly toxic causative agent -- resulting in a non-fungible product whose prope n s i t y for causing harm, as alleged by plaintiffs, is d i rectly dependent on the c on centration of the TCDD in each manufacturer's Agent Orange. The greater the concentration of TCDD in Agent Orange, the greater the likelihood of the alleged risk; the smaller the concentra tion, the lesser the likelihood of the alleged risk. Therefore, in contrast to the equal risk imposed by each manufacturer's DES product in S i n d e l l , each defendant's Agent Orange posed a dif ferent alleged risk to the ultimate user. Thus, imposing liabi lity based upon market share would bear no correlation at all to the likelihood that a particular defendant's Agent Orange caused a particular plaintiff's harm. Moreover, market share liability, as espoused in Sindell, has no application where, as here, the capacity of the product to cause harm is seriously disputed and the number of other possible causative factors renders one defendant's share of the market of one product meaningless. Concert Of Action The concert of action theory is analogous to a theory of criminal conspiracy. Under this theory, joint and several liabi lity will be imposed on defendants who have either expressly or tacitly agreed to commit a tortious act which is the proximate cause of plaintiffs' injuries. Courts have generally rejected the concert of action theory in product liability cases, citing serious c onceptual problems. These courts have concluded that employing this theory to normal business practices within an industry would take the theory far beyond its intended scope, unfairly rendering the manufacturer of a safe product liable for the allegedly defective product of other industry members. Furthermore, more than two years of discovery has demonstrated that there is simply no factual basis for p l a i n tiffs' concert of action allegations. Briefly stated, plaintiffs contend that defendants conspired to hide from the government the fact that TCDD was a potential by-product in the manufacture of trichlorophenol ("TCP"), a precursor to 2,4,5-T, that some manu facturers had experienced occupational health problems as a result of this and that trace amounts of the TCDD by-product could be present in Agent Orange. However, plaintiffs have offered no direct or even cir cumstantial evidence of an agreement between Dow and any other Agent Orange manufacturer to hide this information. Moreover, the actions of Dow and its competitors do not even remotely suggest a tacit agreement to conspire to conceal information. Indeed, far from creating an issue of fact sufficient for consideration by a jury, the evidence clearly establishes that plaintiffs' allegation of a conspiracy to conceal infor m a t i o n is sheer fantasy. The record before this Court d e m o n s t r a tes that when Dow e x per i e n c e d an occ u p a t i o n a l health p r o b l e m in 1964 among its t r ichlor o p h en o l workers, it endeav o r e d to identify the source of the problem. Upon learning that the chloracne experienced by its plant employees was attributable to high con -9- centrations (up to 10,000 parts per million ["ppm"]) of TCDD in the waste stream of the TCP process, Dow immediately notified its TCP customers and the Michigan Department of Health and insti tuted quality control procedures to eliminate dioxin from its trichlorophenol and 2,4,5-T products. Thereafter, Dow shared its information with occupational health specialists throughout the world, as well as representatives of the United States Army and Public H ealth Service. In addition, in March, 1965, D ow tech nical personnel met with their counterparts at other companies manufacturing TCP to advise them of what Dow had learned. Significantly, neither Dow nor any of the other three TCP manufacturers in attendance at the meeting were selling Agent Orange to the government at that time, and, in fact, Dow did not commence selling Agent Orange to the United States until the following year. Furthermore, in 1967 Dow again notified the Army and the Department of Defense of the above occupational health problems when the military decided to manufacture Agent Orange at a facility in Weldon Springs, Missouri. In addition, the Department of Commerce, which was supervising the sale of Agent Orange to the military, was advised by Dow of the occupational health problems attributable to the potential TCDD by-p r o d u c t s in the manufacture of 2,4,5-T. The widely disparate amounts of TCDD in each defendant's Agent Orange aptly illustrates that Dow and other manufacturers, far from acting in concert, acted independently and differently regarding the potential TCDD contaminant in Agent Orange. While -10- Dow imposed a standard of no dioxin -- at the lowest level at which dioxin could then be reliably detected -- others did not, presumably relying on the long history of widespread and safe domestic use of 2 , 4 f5-T. Plaintiffs' allegations of a sinister and conspiratorial failure to warn are of no legal significance if this failure to warn was not the proximate cause of their injuries. Here, the element of proximate cause is m i s s i n g because the information purportedly withheld by the defendants was known to the govern ment. As this Court concl u d e d in Pretrial Order No. 51, there is uncontradicted evidence that the government and the military were well aware of the presence of trace amounts of dioxin in Agent Orange and of industrial health hazards associated with the manu facture of 2,4,5-T. Evidence uncovered subsequent to Pretrial Order No. 51 further documents that the military possessed both the scientific and technical e x p e r t i s e in these areas, belying plaintiffs' assertion that this information was exclusively known by defendants. Moreover, unbeknownst to defendants at the time, the only study -- albeit of questionable validity -- even suggesting a possible health hazard to humans from the use of 2,4,5-T was the government-sponsored Bionetics Report. It was the political controversy surrounding the release of this confidential govern ment report, along with other well-documented political pressures, which lead to the suspension of the herbicide program. -11- i 1 ^ fi Finally, the relevant information on chloracne and dioxin was common knowledge among interested persons in g o v e r n ment, industry, and academia, and was in fact published in the open scientific literature on many occasions during the 1950s and 1960s. Enterprise Liability The facts of this case also fail to satisfy the factual predicate for enterprise liability. E n t e r p r i s e liability, as conceived by this Court in Hall v. E. I. Du Pont De Nemours & C o . , 345 F. Supp. 353 (E.D.N.Y. 1972), is premised on a factual setting where all defendants share jointly the control of the risk associated with a given product. In this case, there is clearly no joint control of the risk. Each defendant manufac tured Agent Orange in accordance with its own process and, thus, exercised individual control over any risk attributable to the presence of trace amounts of TCDD in their Agent Orange. Furthermore, in H a l l , there was evidence of an industry-wide safety standard adopted by the defendants. Here, contrary to H a l l , there is no evidence of a unif o r m safety standard adopted regarding Agent Orange or TCDD, nor even an explicit or tacit agreement among defendants as to the need for a safety standard. *** In sum, sound policy reasons and the unique facts of this case counsel against departure from the well-settled requirement of defendant identification by resorting to one of -12- ?" r o the alternate theories of liability discussed herein. Accordingly, the Court should grant Dow's motion under Rule 12 of the Federal Rules of Civil Procedure to dismiss all claims against Dow in these proceedings. -13- 5t *f - ^- ,-f 4 POINT I PLAINTIFFS HAVE ACKNOWLEDGED THAT THEY ARE UNABLE TO SATISFY THEIR BURDEN OF IDENTIFYING THE MANUFACTURER OF THE PARTICULAR BATCH OF AGENT ORANGE TO W H I C H EACH P L A INTIFF W AS EXPOSED.______ In their response to Pre t r i a l Order No. 66, plaintiffs have admitted that at trial they will be unable to present proof that one particular defendant's Agent Orange was the proximate cause of the injuries complained of by a specific plaintiff. Plaintiffs' Alt. Liability M e m o at p. 82; Proceedings before Judge Weinstein on December 5, 1983, Tr. at 66. Under traditional products liability law, plaintiff bears the burden of establishing this causal connection and, in the absence of such proof, plaintiff's claims must be dismissed. S e e , e . g . , M o r t o n v. Abbott L a b o r a t o r i e s , 538 F. Supp. 593, 595 (M.D. Fla. 1982); Starling v. Seaboard Coast Line R. C o . , s u p r a , 533 F. Supp. at 197; Prelick v. J o h n s - M a n v i l l e C o r p . , 531 F. Supp. 96, 98 (W.D. Pa. 1982); Tidier v. Eli Lilly & C o . , 95 F.R.D. 332 (D.D.C. 1982); M i z e l l v. Eli Lilly & C o . , s u p r a , 526 F. Supp. at 595; Ryan v. Eli Lilly & C o . , 514 F. Supp. 1004, 1018 (D.S.C. 1981); Payton v. Abbo t t L a b s , 512 F. Supp. 1031 (D. Mass 1981). See also Dow's Alt. Liability Memo at pp. 4-5. Plaintiffs' inability to meet their burden of identify ing a particular manufacturer is the direct result of the m i l i tary's methods of procuring and using Agent Orange. Under the -14- I od2 terras of the governme n t co n t r a c t s and speci f i c a t i on s issued by the military for the sale of Agent Orange, the herbicide was to be delivered to the military in fifty-five gallon drums. These contracts and military specifications required that the drums be identified only by contract number rather than by the manu facturer's name. S e e , e ,g . , A w a r d / C o n t r a c t for H e r b i c i d e Orange, dated May 20, 1968, at p. 4, Exh i b i t "2". Furthermore, the handling and shipping of the drums and the eventual disposition of their contents were all within the complete discretion and control of the military. Dow simply played no part in this and the resultant inability of plaintiffs to meet their burden of proof. Plaintiffs' inability to pursue its claims against the government, which decided to use Agent Orange as part of its integrated weapons system in Vietnam, is the result of the Supreme Court's interpretation of Congressional intent in Feres v. United S t a t e s , 340 U.S. 135 (1950). The S u p r e m e Court held in Feres that Congress did not intend to waive the United States' sovereign immunity from suit for injuries arising incident to military service. As this Court noted at the pre-trial con ference on December 5, 1983: [T]he only reason here that you [the plaintiffs] have that problem is because the G o v e r n m e n t is immune. Normally, if they [the defendants] sold everything to another party who sprayed it, you'd sue the other party, but here you have a spe cial problem. That doesn't seem to make -15- 53U.? your argument any more powerful. The unfairness comes not from the unfairness of the law but because of the unfairness of the Government. Tr. at p. 9 (emphasis added). In short, any unfairness plaintiffs c o mplain of is directly attributable to the actions of the military during a time of war and the g o v e r n m e n t 's immunity from suits arising out of military service. We respectfully submit that these factors do not justify departing from sound principles of product liabi lity law which, in this instance, require dismissal of plaintiffs' claims.* * Indeed, the Agent Orange Litigation presents a compelling example of a situation where departing from traditional tort principles of liability would have serious ramifications. See discussion at pp. 48-49, infra. -16- t f '*>Di-Z QA P OINT II NONE OF THE THEORIES OF ALTERNATE LIABILITY ADDRESSED BY THE COURT O R THE PARTIES ARE APPLICABLE IN T H I S CASE.______ ____ In certain product liability cases, where plaintiffs are unable to identify the manufacturer of the injury-causing pro duct, courts have created theories of recovery which relieve plaintiffs of the burden of identifying a particular defendant and have shifted the burden of proof to defendants. There are four of these so-called "alternate" theories of recovery: alter native liability, market share liability, concert of action and enterprise liability. It appears from plaintiffs' s u b m i s s i o n in response to Pretrial Order No. 66 that they presently rely on three of these theories -- alternative liability, concert of action, and enterprise liability -- but it is somewhat unclear whether they intend to rely upon the fourth theory, market share liability. See Plaintiffs' Alt. Lia b i l i t y M e m o at p. 83 n.10. Plaintiffs' recently filed class action c o m plaint in R y a n v. D o w , Civ. Action No. 79-C-747 (E.D.N.Y.), contains vague and conclusory allega tions which suggest that they may rely on all four theories. See "Sixth Amended V e r if i e d C o m plaint," at 1111 40-41, 45, 47-52, 64, Exhibit "1". In any event, we address the market share theory herein, since the C ourt has spe c i f i c a l l y referred to it in Pretrial Order No. 66, though questioning its application to this litigation. -17- Significantly, the four theories of alternate liability cited above have been applied in an extremely limited number of circumstances. The vast majority of courts that have been asked to consider the application of one or more of these theories have rejected them, viewing them as "radical departure[s]" from tradi tional concepts of product l i a b i l i t y principles, M o r t o n v. Abbo t t L a b o r a t o r i e s , s u p r a , 535 F. Supp. at 599; Mizell v. Eli Lilly & C o . , s u p r a , 526 F. Supp. at 596, and as "repugnant to the most basic tenets of tort law." Ryan v. Eli Lilly & C o . , s u p r a , 514 F. Supp. at 1017.* In Pretrial Order No. 66, and again at the conference on December 5, 1983, this Court e x p ressed serious doubt regarding the application to this litigation of any of the alternate theories of liability. We agree with the Court. As set forth in more detail below, as a matter of policy and in light of the u ni que facts of this case, none of the four theories of alternate liability are applicable to the Agent Orange Litigation. A. A lternative Liability The theory of alte r n a t i v e liability is appro p r i a t e where it is unquestioned that one of two or more defendants, all of whom acted tortiously, caused plaintiff's injuries, but the * It must also be recognized that serious due process questions are raised by imposing liability on a manufacturer absent a showing that it was that m a n u f a c t u r e r ' s product which caused the harm complained of. See D o w ' s M e m o on Alt. L i a b i l i t y at p. 7 n * . -18- I 7 -O'3 r plaintiff is unable to identify which d e f e n d a n t caused his injuries. In that instance, joint and several liability will be imposed on all of the defendants, although only one of them in fact caused plaintiff's injuries. The policy underlying this theory is that it would be unjust to deny recovery to the inno cent plaintiff merely due to his inability to identify the proper defendant. See Restatem e n t (2d) of Torts, 4 4 3 B (3) (1965). The seminal case establishing the principle of alterna tive liability is Summers v. T i c e , 33 Cal. 2d 80, 199 P.2d 1 (1948). There, plaintiff was injured when his two hunting companions each simultaneously fired a shot in his direction, one of the shots striking him in the eye. Plaintiff was unable to prove which of the defendants fired the shot that struck him. The court empha sized that there was no question as to causation. There could be no doubt that one of the defendants fired the errant bullet, and the only failure of proof was as to which one it was. Acc o r d ingly, the court held both defendants jointly liable. Efforts to apply the theory of alternative liability embodied in the Restatement and Summers to product liability cases have been uniformly rejected. Sindell v. A b b o t t L a b s , s u p r a ; Starling v. Seaboard Coast L i n e , s u p r a ; Ryan v. Eli Lilly & C o . , s u p r a ; M o r t o n v. Abbott L a b s , s u p r a .* Indeed, the * In Abel v. Eli Lilly & C o . , 94 Mich. App. 59, 289 N . W.2d 20 (1979), a DES case, a Michigan appellate court held that plaintiff's broad allegations fell within the theory of alter native liability. A close reading of the decision, however, indicates that the court was proceeding under a market share theory of liability, discussed at pp. 41-54, i n f r a . -19- f Jtl. California Supreme Court, the very court which recognized the theory of alternative liability in S u m m e r s , concluded that it was inapplicable in complex products liability litigation. Sindell v. Abbott L a b s , s u p r a , 607 P.2d at 931. In their analysis of whether alternative liability is appropriate in a products liability case, the courts have focused on a number of factors, which can be summarized as follows: (1) whether the cause of the harm compl a i n e d of is undisputed; (2) whether all of the possible tortfeasors are before the court; (3) whether the defendants are in a superior position to offer evidence of identification, or the defendants are responsible for plaintiff's inability to identify the manufacturer. S e e , e . g . , Ryan v. Eli Lilly & C o . , s u p r a , 514 F. Supp. at 1016-17. Applying these factors to the facts of this case, it is apparent that this theory of l i a b i l i t y is inappropriate in the Agent Orange Litigation. 1. C a u s ation The issue of causation in this case is far from settled and is quite d i stinguis h ab l e from S u m m e r s . In S u m m e r s , there was no question as to the cause of plaintiff's injuries. One of the bullets, fired by one of the two defendants, and nothing else, produced plaintiff's injuries. By contrast, the cause of the myriad of injuries claimed by the plaintiff-vetera n s in the Agent Oran g e L i t i g a t i o n is one - 20- --v. U 5 8 ` of the central issues in dispute.* Indeed, the overwhelming weight of medical and scientific o p i n i o n to date, in regard to dioxin and Agent Orange, supports defendants' position that their herbicides caused no harm.** Thus, the circumstances surrounding the causation issue in Agent Orange preclude adoption of the alternative liability theory. Despite the seriousness of the claims leveled against defendants by plaintiffs and the volume and intensity of the media coverage of the Agent Orange and dioxin issues, an objec tive analysis of the present state of the medical and scientific evidence reveals surprisingly little, if any, support for plaintiffs' claims.*** * The list of illnesses and physical disorders claimed by the 15,000 named plaintiffs in this litigation, allegedly attribu table to the plaintiff-veterans' exposure to trace amounts of TCDD in Agent Orange, is staggering. Plaintiffs' recent interro gatories to defendants list approximately eighty different types of disorders purportedly caused by the herbicides used by the military in Southeast Asia, ranging from headaches and into lerance to cold to cancers of every major type and description and of every major organ of the body. See Plaintiffs' Interrogatories to Defendants, dated De c e m b e r 22, 1983, at p. 14. ** For an excellent overview of the present state of medical and scientific evidence and the on-going studies on the toxicity of the TCDD in 2,4,5-T, we respectfully refer the Court to a recent article by Colonel Al v i n Young, who is a w o r l d - r e n o w ne d expert on Agent Orange and who is p r e s e n t l y a ssigned to the White House as an advisor to the President on Agent Orange matters. See Young, A., et al., Chlorinated Dioxins as He r b i c i d e C o n t a m i n a n t s , 17 Environ. Sci. Technol. 530A-540A (1983), annexed as Exhibit "3". *** It is this lack of evidence which has led the V e t e r a n s Administration to disallow claims for compensation based upon (Footnote Continued) -21- l 'r\** Perhaps the most complete and compelling examination of this issue and the unsubstantiated nature of plaintiffs' claims is the recent decision by Just i c e N u n n of the Supreme C ourt of Nova Scotia in Palmer v. Stora Kopparbergs B e r q slags A k t i e b o l a g , S.SN. No. 02555 (September 15, 1983). (A copy of the d e c i s i o n is annexed as Exhibit "5".) In P a l m e r , plaintiffs sought to enjoin defendants from spraying 2,4,5-T and 2,4-D, citing the serious risk to health posed by exposure to these herbicides and the TCDD contaminant.* In his 182-page decision denying plaintiffs' re quest for an injunction, the court confronted head-on the issue of the toxicity of TCDD and, in turn, of 2,4,5-T, which this (Footnote Continued) exposure to Agent Orange, except for two cases of chloracne, an a c n eform dermatitis. See d iscussion at p. 31, n.*, i n f r a . However, even the validity of these chloracne claims is dubious. While theoretically, there could be a causal link between chloracne and Agent Orange containing significantly higher amounts of TCDD than in the Agent Orange supplied by Dow, Betty Fischmann, Chairperson of the Veterans Administration Chloracne Task Force, recently testified before a U.S. Senate Committee that the Task Force's special review of 3200 Vietnam veterans who filed claims with the VA for compensation for Agent Orange injuries failed to produce a single diagnosis of chloracne, past or present. Ms. Fischmann also testified that another pilot study of 906 veterans in the Agent Orange Registry led to the diagnosis of the two cases of chloracne noted above. However, although VA compen sation was allowed in these two cases, Ms. Fischmann made clear that even these two instances of chloracne have not been conclu sively attributed to Agent Orange. A copy of Fischm a n n ' s statement is annexed as E x h i b i t "4". * The court was satisfied that the alleged serious risk to human health, if proven, would constitute irreparable harm and that damages would not be an adequate remedy. Slip op. at 163, Exhibit "5". -22- Court has also been asked to consider. Justice Nunn, was: The issue, as framed by Have the plaintiffs offered sufficient proof that there is a serious risk of health and that such serious risk of health will occur if the spraying of the substances here is p e r m itted to take place? Slip op. at 163, Exhibit "5". In deciding this issue, Justice Nunn noted that he was mindful its magnitude, the world-wide implications of his ruling and the assistance which his findings may provide in understand ing this complex issue: Because of the nature of the issues in dispute, the witnesses produced and the testimony given, the enormous publicity attached to the trial and the public interest involved, the evidence went far beyond the particular substances involved and related to all the phenoxy herbicides and their derivatives. The whole trial had the aura of a scientific inquiry, as to whether the world should be exposed to dioxins. Scientists from all over North America, as well as from Sweden were called and testified. Scientific reports and studies from scientists the world over were filed as part of the evidence. *** While this dispute is between the parties to the action and will depend upon the facts and their relevance as I find them, this case is unique by its nature and the world-wide interest in its result. Apparently, it is the first time that the leading scientists of opposing views reqardinq dioxin have :met in Court where the chemicals involved are at the very center of the dispute. -23- * * JL I As a result, this is one of those very rare cases where, I believe, the Court owes a duty which goes beyond the parties/ to make clear its findings so as to give some assistance, one way or another, which will help the understand ing of those so vita l l y interested in this substance. Slip op. at 164-66 (emphasis added). After hearing extensive testimony from the leading experts on both sides of the d i o xin/2,4,5-T issue and after reviewing the voluminous scientific material introduced into evi dence, the court concluded: To my mind, after hearing all the evi dence and reading all the exhibits, there is no doubt that the weig h t of current responsible scientific opinion does not support the allegations of the plaintiffs. Slip op. at 179 (emphasis a d d e d ) .* The holding in Palmer is consi s t e n t with the conclusion reached by every major organization which has looked into the issue, to wit, that the accumulated medical and scientific evi dence simply does not support the claims of injuries attributable to Agent Orange containing trace amounts of TCDD.** * The court also noted the lack of objectivity evidenced by plaintiffs' experts. Slip op. at 179. ** Plaintiffs' claims are coming under increased scrutiny and criticism. For example, plaintiffs apparently allege a causal link between exposure to Agent Orange and soft tissue sarcoma, based upon research conducted by Swedish scientists. See (Footnote Continued) One example of this is a 1981 report entitled "The Health Effects of 'Agent Orange' and Polychlorinated Dioxin Contaminants," authored by the American Medical Association's Select Panel on Toxic Substances. While the report states that dioxin is toxic at certain dose levels, as demonstrated in testing of certain animal species, it concludes that in spite of claims of numerous adverse health effects on humans attributed to dioxin, there is conclusive evidence of a cause and effect rela tion only with respect to c h l o r a c n e .* (A copy of this report is annexed as E x h ibit "6".) A subsequent report by the L i b r a r y of C o n g r e s s published in June, 1983, surveying the entire body of scientific opinion and its conclusions on the toxicity of T C D D , (Footnote Continued) Hardell, L., Case-Control Study: Soft-Tissue Sarcomas and E x p osure to Phenoxyacetic Acids or C h l o r o p h e n o l s , 39 Brit. J. Cancer 711-17 (1979). Hardell's work purportedly showed an increased risk of developing this form of cancer among persons reporting exposure to phenoxy herbicides. However, more recent case-control studies do not support the hypothesis that exposure to phenoxy herbicides cause soft tissue sarcoma. S e e , e , g ., Smith, A., et al., The New Zealand Soft Tissue Sarcoma Case Control Study; Interviews and Findings Concerning Phenoxyocetic Acid E x p o s u r e , 6 Community Hlth Studies 114-19 (1982); Riihimoki, V . , et al., Mortality and Cancer Morbidity Among Chlorinated Phenox y a c i d Applicators in F i n l a n d , 8 Scand. J. Work Environ. Health 37-42 (1982); Thiess, A., Mortality Study of Persons Exposed to Dioxins in a Trichlorophenol-process Accident on N o v e m b e r 17, 1 9 5 3 , 3 Am. J. Ind. Med. 178-89 (1982). S i g n i f i cantly, Hardell's work was introduced into evidence in Palmer and one of his associates testified. The court rejected the Hardell hypothesis in light of the overwhelming weight of scientific evi dence that is contrary to Ha r d e l l ' s position. Slip op. at 174-75. Exhibit "5". * C h l o racne is a skin reaction to exposure to a wide range of chlorinated hydrocarbons characterized by acneform dermatitis. 25 is in full accord with the 1981 AMA Report.* More recently, an epidemiological birth defect study involving Australian V i e t n a m veterans concluded that " [t]here is no evidence that A r m y service in V i e t n a m has increased the risk of the birth of a child with an anomaly."** Furthermore, the Air Force recently released its base line mortality study of Air Force personnel exposed to Agent Orange. That study demonstrated that the mortality experience of the Ranch Hand group*** -- whose exposure to Agent Orange far surpassed any other group of V i e t n a m veterans -- is identical to that of the comparison group.**** The Ranch Hand unit was * See Dioxin: Environmental Impacts and Potential Human Health E f f e c t s , June 6, 1983, p u b l i s h e d by the C o n g r e s s i o n a l Research Service of the Library of Congress. The AMA and Congressional reports are also consistent with two prior government-sponsored reports addressing the effects of h erbicides in Vietnam. See The Effects of Herbicides in South V i e t n a m , published by the National Academy of Sciences in 1974; and Young, A., et al., The Toxicological, Environmental Fate, and Human Risk of Herbicide Orange and Its Associated D i o x i n , published by the United States Air Force Occupational and Environmental Health Laboratory in 1978. (For the C o u r t 's convenience, a cou r t e s y copy of the lengthy Air Force report will be provided under separate cover with the chambers' copy of this memorandum.) ** Report to the Minister for Veteran's Affiars, Case-Control Study of Congenital Anomalies and Vietnam Service (Birth Defects S t u d y ) , January, 1983, annexed as Exhibit "7". *** "Ranch Hand" was the code name given the defoliation opera tion in Vietnam and the designation of the Air Force unit respon sible for carrying out the aerial spraying operations. **** Surgeon General, USAF, An Epidemiologic Investigation of Health Effects in Air Force Personnel Following Exposure to Agent Orange, Baseline M o r t a l i t y S t u d y R e s u l t s , 30 June 1983, annexed as Exhibit "8". This was a mortality study concerning 1,247 Ranch Handers and 6,171 comparison subjects. -26- r!! n u selected as the subject for this e p idemiological study because of its repeated and sustained exposure to the herbicides used in Vietnam. The Ranch Hand mortality findings are consistent with the preliminary data collected through the Agent Orange Registry. The Agent Orange Registry was established by the Veteran's Administration in 1978 to provide any Vietnam veteran concerned about the possible health effects of Agent Orange with a complete medical examination. As of September, 1983, over 110,000 veterans had been examined at VA facilities. Based on the data collected from this self-selected group, the Veteran's Administration has concluded: [T]he majority of the above symptoms [reported by the veterans examined] bear no correlation to the known toxicology of Herbicide Orange; in addition, no increased incidences of malignancy have been observed in this population which, by virtue of its self-selected nature, may have been expected to exhibit artifi cially higher than baseline rates in the general population. Supporting the above data is the observation by the Armed Forces Institute of Pathology that there is no unusual clustering or inciden ces of tumor types among the over twelve-hundred pathological speci mens from Vietnam veterans examined to date. Conclusions: Thus, the Agent Orange Registry data do not support the thesis that there is any unusual l o n g-term morbidity or mortality associated with Vietnam service or Agent Orange exposure. -27- r A *^ orr./^) Young, A . , and Flicker. M.R., Evaluation of Veterans for Agent Orange Exposure, Extended Preprint Abstract, Presented before the Division of Environmental Chemistry, American Chemical Association, September 1983, at p. 2, Exhibit "9" (emphasis supplied). The two most prevalent types of symptoms reported by this group of veterans veterans are dermatological and psycholo gical in nature. JEd. at p. 2. Significantly, the report notes that "of several thousand veterans complaining of dermatologic problems, only one may possibly turn out to have chloracne." I d . (Emphasis in original.) The reported psychological problems have been diagnosed as delayed stress response syndrome. Studies of human populations exposed to phenoxy her bicides and TCDD as a result of industrial accidents also con tinue to support defendants' position. Long term studies of Monsanto workers -- who sustained acute TCDD intoxication as a result of an explosion at Monsanto's plant in Nitro, West V i r g i n i a in 1949 and of Dow wor k e r s involved in a chloracne experience in 1964 -- have esta b l i s h e d that there is no apparent effect on mortality and no increase in cancer mortality.* * Zack, J .A. and Suskind, R . , The M o r t a l i t y E xperience of Workers Exposed to Tetrachlorodibenzo-p-dioxin in a Trichlorophenol Process A c c i d e n t , 22 J. Occup. Med., 11-14 (1980), annexed as Exhibit "10"; Cook, R . R . , Mortality Experience of Employees Exposed to 2 , 3 , 7 , 8 - T e t r a c h l o r o d i b e n z o - p - d i o x i n , 22 J. Occup. Med. 530-32 (1980), annexed as Exhibit "11". -28- V , i) Similar conclusions have been reached with respect to the most extensive human exposure to TCDD known to date, an explosion at a hexachlorophene plant owned by Givaudan ICMESA in Seveso, Italy in 1976. A reactor producing t r i c h l o r o p h en o l , which is also a precursor ch e m i c a l in the m a n ufacture of h e x a chlorophene, exploded causing release of the TCDD by-product into the local environment. An indication of the severity of the con tamination is that the amount of TC D D released into this small community was equal to the entire amount of TCDD released in the entire continental United States annually.* As a consequence of the explosion, a number of chickens, birds and rabbits in the area died and over 100 chi l d r e n c o n tracted chloracne. Significantly, however, the results of con siderable medical testing of the human inhabitants of the Seveso area who were exposed do not support plaintiffs' claims that the veterans' exposure to Agent Orange containing trace amounts of TCDD produced any of the serious and life-threatening illnesses and disorders alleged.** While the foregoing is ce r t a i n l y not an all inclusive list of the evidence supporting defendants' position, it n o n e t h e less aptly demonstrates that the fear and uncertainty surrounding the A g e n t Orange and dioxin issues is more the product of the * Wagner, S., Clinical Toxicology of Agricultural C h e m i c a l s , at pp. 181-87 (1981), annexed as Exhibit "12". ** Id. -29- media's search for headlines than the product of the present state of medical and scientific knowledge. Indeed, the media's reporting of this entire issue recently led the American Medical Association ("AMA") to issue a resolution condemning the media for conducting a "witch hunt" which has resulted in public hysteria over the dioxin issue. The resolution concludes that "the lives and well-being" of people living in areas where dioxin has been found "have been unnecessarily and ignorantly damaged by this hysterical malr e p o r t i n g ." (Emphasis added.) A copy of a New York Times article discussing the AMA resolution is annexed as Exh i b i t "13". *** Before a drastic remedy such as alternative liability or, as discussed in the following section, market share liabi lity, can be applied, the cause of plaintiff's injuries must be undisputed. Plaintiffs in the Agent Orange Litigation simply cannot satisfy this requirement. 2. All P o t e ntial T o r tfeasors Are Not Before The C o u r t . The second factor to consider in determining whether imposition of alternative liability is appropriate is whether all potential tortfeasors are before the Court. In this case, where the cause of the illnesses and disorders claimed by plain t i f fs is contested, it is inconceivable that all or even s u b s t a n t i a l ly all of the possible tortfeasors are before the Court. Indeed, as this Court observed at the conference on December 5, 1983, the -30- only clearly identifiable potential tortfeasor in the Agent Orange controversy, the United States, is immune from suit by the plaintiff-veterans. Tr. at p. 9. As noted earlier, the approximately 15,000 plaintiffs presently in the case allege an incredibly diverse range of mala dies purportedly attributable to Agent Orange. Significantly, none of these injuries or physical disorders are unique to expo sure to Agent Orange.* Furthermore, the vast array of alternate causative factors in this case forecloses any argument that all of the potential tortfeasors are before the Court. One of plaintiffs' advocates, Dr. Samuel Epstein, has characterized the V i e t n a m e s e environment as a "toxicological cocktail": * M o s t experts believe that chloracne is the "hallmark" of expo sure to TCDD. See Chlorinated Dioxins as Herbicide C o n t a m i n a n t s , s u p r a , at p. 532A, Exhibit "4". However, chloracne symptoms are not unique to TCDD exposure. Chloracne may arise from exposure to a wide variety of chlori nated compounds, particularly chloronaphthalenes, chlorodiphenyls and c h l o r o d i p h e n y l o x i d e s . As Dr. Donald Birmingham, a retired United States Public Health Service officer, noted in a 1966 article on occupational dermatoses: [Chloracne] has occured in machinists working with insoluble oils containing chloracnegens, chemical workers making herbicides, in cable splicers, in metal platers, in paint makers, and in wood preservers, among others. Birmingham, D . , Preventable Occupational Dermatosis, 12 Arch. Envirn. Hlth. at 641 (May 1966), annexed as Exhibit "14". What you had in Vietnam was a toxicologi cal cocktail. I t 's impossible on theore tical grounds to make predictions on exactly what the eventual effects of all the chemicals could be. From an epidemi ologist's point of view, it would be a nightmare. Peracchio, A . , Toxic-Chemical Mix Being Eyed as Cause of Vietnam Vets' I l l s , Newsday, June 8, 1980, at p. 5 (hereinafter "Newsday Article"), annexed as Exhibit "15". Thus, for example, a committee made up of members of Australia's Senate concluded in a report on pesticides and their health effects on Australian Vietnam veterans that the potential for exposure to insecticides -- many of which have reported toxic reactions -- was far more probable than herbicide exposure: The C o m m ittee is of the opinion that the potential for direct exposure to her bicides sprayed by Australian and U.S. forces was low. Direct exposure to insecticides sprayed by both Australian and U.S. forces, was highly probable. The Committee believes that while possible, indirect exposure to herbicides and TCDD through drinking-water and foodstuffs, was unlikely. The Committee is of the opinion that possible exposure to pestic i d e s is only one aspect of the health problems suf fered by Vietnam veterans today. Senate Standing Committee on Science and the Environment, Pesticides and the Health of Australian Veterans First R e p o r t , at p. 65 (November 1982) (hereinafter "Australian Sena t e Report") (Chapter three of the report, which provides an excellent discussion of the veterans' p o t e n t i a l exposure to pesticides, is annexed as Exhibit "16"). -32- t? ^ * - =4 y Moreover, the military's aerial spraying of military 4 facilities in V i e t n a m with insecticides such as DDT, d i eldrin and malathion was conducted by Ranch Hand personnel flying C-123 fixed wing aircraft, the same aircraft used in the herbicide defoliation program. Australian Senate Report at pp. 18-21, annexed as Exhibit "17". Thus, even veterans who believe that they were directly exposed to Agent Orange may in fact have been exposed to insecticides. We list and describe briefly below only some of the man made and natural substances which each plaintiff-veteran was potent i a l l y exposed to during his tour of duty in Vietnam. The list illustrates the broad variety of possible causative agents of plaintiffs' alleged injuries. Munitions Billions of tons of TNT and related explosives were used in Vietnam; animal studies indicate that at least one of these, tetryl, is a direct acting mutagen; an A r m y study of a TNT isomer, 2,4-DNT, concluded that, in sufficient doses over a suf ficient period, it is carcinogenic, with the liver as the target organ; contact dermatitis, anorexia, severe liver injury and other "significant adverse physiological effects" claimed by veterans, have been attributed to occupational exposure to TNT.* * See Whong, W . , Mutagenic Activity of Tetryl, a Nitroaromatic Explosive in Three Micro b i a l Test S y s t e m , 5 Tox. L e t t e r s 11-17 (1980), annexed as Exhibit "18"; Midwest Research Institute, Mammalian Toxicity of Munition Compounds, Progress Report 11 at (Footnote Continued) -33- Antimalarial Drugs Dapsone - an antimalarial drug dispensed daily to United States forces in V i e t n a m beginning in 1966; discontinued after 25 soldiers sustained a bone marrow disorder from which nine even tually died; a National Cancer Institute study found Dapsone to be a c arcinogen in laboratory animals. Symptoms such as peripheral neuropathy, skin rashes, blurred vision, loss of appe tite and insomnia, similar to those claimed by many veterans, have been attributed to Dapsone.* C h l o r o g u i n e - another a n t i m alarial drug used in Vietnam; another suspected carcinogen; after prolonged use may cause weight loss, skin eruptions and ear damage.** Chlorinated Insecticides Chlordane - an insecticide used in Vietnam; "unequi vocally carcinogenic" according to Dr. Epstein; there are reports (Footnote Continued) pp. 15-17 (January, 1980), annexed as Exhibit "19"; U.S. Army Environ. Hyg. Agency, Occupational Health Special Study Newport Army A m m u n i t i o n P l a n t , p. 1 and appendix (April 1974), annexed as Exhibit "20". * See Newsday article; Ognibene, A., Agranulocytosis, 72 Ann. Int. Med. 521-524 (1970), annexed as Exhibit "21". McAleenan, J., Army Drug B r a n d e d a C a r c i n o g e n , Detr o i t News, December 28, 1980, annexed as Exhibit "22". See also Martindale, The Extra P h a r m a c o p o e i a , at p. 1489 (18 ed. 1982) (hereinafter "Martindale"); A u s t r a l i a n Senate Repo r t at p. 73. ** A u s t r a l i a n Senate Report at p. 73. Goodman & Gilman's, The P h a r m a c o l o g ic a l Basis of T h e r a p e u t i c s , at p. 1045-46 (6th ed. 1980); see also Martindale at 395-96. -34- of neuroblastoma and acute leukemia associated with chlordane.* DDT (dicophane) - used extensively in Vietnam; concerns over the long-term effects of DDT led to a report in 1963 by the President's Science Advisory Committee, entitled "Use of Pesticides"; extremely persis t e n t in soil, use is now g e n e r a l l y discouraged. Dieldrin - insecticide used in Vietnam; considered more toxic than DDT and is readily a b sorbed through the skin; reports of adverse skin reactions among wor k e r s and liver tumors in experimental mice.** Organophosphorous Insecticides Malathion - insecticide used in Vietnam; toxic effects include contact dermatosis, muscular twitching, anorexia, depression, neuropathy; evidence that chromosome abnormalities temporarily increased in organophosphorous poisoning victims; poisoning in more than 2,500 field workers led to five deaths attributed to impurity in malathion.*** Illicit Drugs**** Heroin - as many as 15% to 25% (estimated) of American * See, e . g . , P.F. Infante, et al., 4 Scand. J. Wo r k Environ. H l t h . 137 (1978). ** See M artindale at p. 386. *** S e e , Martindale at p. 832; P.F. Infante, et al., 4 Scand. J. Work Environ. Hlth. 137 (1978). **** The number of Vietnam-era veterans hospitalized for alcohol ism and drug depend e n c y is c onsidered significant. Walker, I., The Psychological Problems of Vietnam Veterans, 246 JAMA 781 (Aug. 1981), annexed as E x h i b i t "23". 875-35- -44 combat forces experimented or regularly used heroin while in Vietnam; pulmonary immunological muscle, kidney and liver disor ders attributed to heroin use.* LSD - also used by U.S. servicemen in Vietnam; person ality disorders, psychosis and chromosomal aberrations r e p o r t e d .** Microorganisms/Diseases Endemic to Southeast Asia Aflatoxin - a mold toxin found on native feeds, e.g., rice, in Vietnam; in addition to being naturally occurring, one of the most carcinogenic agents known to man.*** Hepatitis - a hepatitis virus of epidemic proportions was reported by medical o f f icials in Vietnam; this form of h e p a titis virus has been linked in studies with liver cancer.**** Animal Parasites - amoebic parasites known to cause liver abcesses found in ice sold to troops in Vietnam; other a ni mal parasites causing skin diseases and liver damage were reported by the Army's medical unit.***** * Martindale at p. 1008; Consumers Union Report, Licit and Illicit D r u g s , at p. 188 (1972), annexed as Exhibit "24". ** Stanton, M . , Drug Use in V i e t n a m , 26 Arch. Gen. Psych. 279 (1972); Martindale at 924. *** Newsday Article; Casarett & Doll's, Toxicology, at pp. 104-05 (2d ed. 1980). **** Newsday Article. ***** id. See also Internal M e dicine in Vietnam: V o l u m e I Skin Diseases in Vietnam, 1 9 6 5 - 7 2 , at 130-136 (1977), annexed as Exhibit "25". -36- Melioidosis - an infectious and sometimes fatal disease with reported symptoms similar to those complained of by certain plaintiffs; reported latency period of up to 20 years in some instances. There are also reports of a sexual transmission of melioidosis from a veteran to his wife and of a fatal infection in a newborn baby.* Other Microorganisms - other known microorganism diseases such as tropical sprue produced a wide range of illnesses and disorders among servicemen in Vietnam; for example, intestinal abnormalities were found in 22 of 37 servicemen studied after serving in V i e t n a m from 6 weeks to 11 months.** Malaria - U.S. Army reported that malaria was the most important disease in Vietnam, accounting for the greatest number of man-days lost; malaria's effects are both acute and c h r o n i c .*** * Internal M e d i c i n e in Vietnam: V o l u m e II, Gen e r a l Medicine and Infective D i s e a s e s , at pp. 197-214, annexed as Exhibit "26"; Brundage, W . , Four Fatal Cases of Melioidosis in U.S. Soldiers in V i e t n a m , Amer. J. Tro p i c a l Med. & Hyg. 183-190 (1968) annexed as Exhibit "27"; Beck, J., Agent Orange Isn't Only Peril Vietnam V e t e r a n s May M e e t , Columbus Dispatch at p. 10, February 15, 1982, annexed as Exhibit "28". ** See U.S. Army Medical Research Team (WRAIR) Vietnam, Annual Progress Report (1 September 1967-30 June 1 9 6 8 ) . See generally Internal Medicine in Vietnam, Vol. 2 , supra. *** U.S. Army, Malaria, Medical Bulletin (Jan-Feb. 1970), annexed as Exhibit "29". -37- 0 Psychological Overlay It has been estimated that 500,000 to 700,000 Vietnam veterans are in need of emotional help at this time, and some researchers estimate that 1.5 million of the 2.4 million veterans who served in Vietnam may eventually need psychiatric help. Incidences of post-traumatic stress disorder among Vietnam veterans are well-documented.* Furthermore, a recent study of veterans randomly selected from the Agent Orange Reg i s t r y concluded that there is a stong likelihood that at least some of the reported problems are psychosomatic and a reaction to the stressful degree of un certainty arising from allegations -- albeit unsubstantiated -- pertaining to exposure to Agent Orange.** *** Significantly, this is not an inclusive list of every possible Vietnam-related cause for the injuries claimed by plain tiffs nor will every plaintiff-veteran have been exposed to all of the man-made and natural perils which American serviceman were subjected to while serving in Vietnam. The list does, however, * The Psychological Problems of V i e t n a m V e t e r a n s , supra at p. 781, Exhibit "23". See also Exhibit "9" (claims of psychological problems attributable to Agent Orange may in fact be attributable to delayed stress syndrome, see p. 27, s u p r a ) . ** Korgeski, G . , et al., Correlates of Self-Reported and Objectively D etermined Exposure to A g e n t O r a n g e , 140 Amer. J. of Psych. 11 (November 1983), annexed as Exhibit "30". -38- 1 1 S 7 S serve as an indication of the complexity of the alternate causa tion issue. In addition to Vietnam-related alternate causes, each veteran's pre- and post-Vietnam history must be examined.* Moreover, where a birth defect is claimed, the plaintiff's spouse's history and the couple's genealogy are also matters of concern. Accordingly, in view of the numerous potential causative agents responsible for the injuries alleged by plaintiffs, it is apparent that all of the parties potentially responsible for plaintiffs' alleged injuries are not in the case. 3. Defendants Are Not R e s ponsible For Plaintiffs' Inability To Meet Their Burden Of Defendant Identification Nor Are They In A Superior Position To Offer Evidence.Of Defendant Identification. The facts of this case also do not meet the third cri terion for application of alternative liability. Defendants are in no better position than plaint i f f s to identify which defendant's A gent Orange individual p laintiffs were exposed to. Moreover, defendants bear no responsibility for plaintiffs' * The past twenty years has seen explosive growth in the number of substances which Americans are exposed to daily which have identified as toxic to human health. For example, cigarette smoking -- aside from its well publicized link with cancer and health problems in the progeny of smoking mothers -- has also been reported as a potential cause for the production of abnormal sperm. Another study consistent with the foregoing, found an increased rate of perinatal deaths and birth defects among the progeny of men who smoke tobacco. Science News at 247, A p r i l 18, 1981, annexed as Exhibit "31". -39- inability to identify individual manufacturers. As explained in Point I, s u p r a , the m i l it a r y had exclusive control over the entire herbicide operation, including the composition of the pro duct, the markings on the drums and the deployment of the her bicide in Vietnam. Therefore, plaintiffs' inability to meet their burden of defendant ident i f i c a t io n is the direct result of the military's method of procurement and use of the herbicide. Consequently, there is no j u s t i f i c a t i on for shifting the burden of proof to the defendants. *** In sum, the Agent Orange Litigation stands in stark contrast to the simplicity of the underlying facts in Summers v. T i c e , su p r a . In S u m mers, one of two defendants involved in one isolated incident was undeniably responsible for plaintiff's injuries, the cause of which was undisputed. In Agent O range, however, the cause of plaintiffs' alleged injuries is a principal issue in dispute. Moreover, unlike S u m m e r s , not all potential tortfeasors are parties to this case. Finally, defendants are not responsible for plaintiffs' inability to identify the defen dant who caused the alleged harm, nor are defendants in a better position than plaintiffs to identify the allegedly responsible tortfeasor. Accordingly, while the theory of alternative liability may be attractive in a simple case like S u m m e r s , it bears little relevance to a case of the size and complexity of the Agent Orange Litigation. -40- B. Market Share Liability The most novel approach employed by a court to relax plaintiff's burden of identifying the specific defendant which caused his injury is that announced by a sharply divided Supreme Court of California in Sindell v. Abbo t t L a b o r a t o r i e s , s u p r a . The Court in S i n d e l l , a DES case, d e v eloped what it char a c terized as "market share" liability, which is in essence a refinement of the theory of alternative liability. Market share liability, as conceived by the court in S i n d e l l , is based upon two basic points. The first is that all DES, no matter who the manufacturer was, had the same chemical formula, and that all DES was therefore fungible. The second is that the capacity of this product to cause the harm complained of was undisputed. Relying on the generic nature of the products and its capacity to cause harm, the court held that, although plaintiff was unable to identify which defendant's drug had been ingested by her mother, liability would nonetheless be imposed upon each defendant proportionate with its share of the market of DES during the relevant time and in the relevant geographic area.* In developing what has been characterized as a theory of "rough justice," Ryan v. Eli Lilly & C o . , s u p r a , 514 F. Supp. at 1018, the majority in Sindell emphasized that its proposal was * To avoid liability, each defendant had the burden of proving, if it could, that its product did not consti t u t e part of the relevant "market." - 4 1 - 11S79 reasonable and a fair means of apportioning liability and compen sating plaintiff for injuries attributable to a generic product manufactured and sold by all defendants. Its rationale was that because all defendants produced the identical drug, each defendant's product posed the same risk to the ultimate user. Therefore, a defendant's share of the market would with a degree of mathematical precision bear a direct correlation to the like lihood that its product caused a particular plaintiff's harm. [W]e hold it to be reasonable in the present context to measure the likelihood that any of the defendants supplied the product which allegedly injured plaintiff by the percentage which the DES sold by each of them for the purpose of pre venting miscarriage bears to the entire production of the drug sold by all for that purpose. *** Under this approach, each manu facturer's liability would approximate its responsibility for the injuries caused by its own products. . . . 607 P.2d at 937. As discussed further below, applying the Sindell for mula, which equates a manufacturer's market share to the risk posed by that manufact u r e r' s product, is simply impossible in this case. The concept of market share liability has been rejected as a matter of policy in DES cases decided after S i n d e l l . Ryan v. Eli Lilly C o . , s u p r a ; M o r t o n v. Abbott L a b o r a t o r i e s , s u p r a ; M ize ll v. Eli Lilly Co. , s u p r a ; Tiddler v. Eli Lilly & C o . , s u p r a ; P ayton v. Abbott L a b o r a t o r i e s , 386 Mass. 540, 437 N.E.2d 171 (1982).* It has similarly been rejected by the majority of courts that have considered it in asbestos cases on both policy and factual grounds. T h o m p s o n v. Johns - M a n v i ll e Sales C o r p . , 714 F.2d 581 (5th Cir. 1983); H a n n o n v. W a t e r m a n S.S. C o r p . , 567 F. Supp. 90 (E.D. La. 1983); Starling v. Seaboard Coast Line C o . , s u p r a ; In re Related Asb e s t o s C a s e s , s u p r a ; Prelick v. JohnsManville C o r p . , s u p r a ; Diamond v. J o h n s - M a n v i ll e Sales C o r p . , Civil A c t i o n No. 79-2206, slip o p i n i o n (D. Md. December 11, 1981); Garcia v. Johns - M a n v i l l e Sales C o r p . , slip opinion, 1981 Asb. Lit. Rep. 3931 (M.D. Fla. A u g u s t 28, 1981); Aguilar v. Johns-Manville Sales C o r p . , slip opinion, 1981 Asb. Lit. Rep. 3882, 3908 (Cal. Super. Ct. S e p t ember 8, 1981); Gorniak v. Combustion Engineering, slip opinion, 1981 Asb. Lit. Rep. 4141 (N.D. Ohio July 6, 1981).** * A federal district court in South Dakota recently upheld appli cation of the Sindell theory in a DES case under South Dakota law. M c E l h a n e y v. Eli Lilly & C o . , 564 F. Supp. 265 (D.S.D. 1983). In its decision, the court justified shifting to defen dants the burden of showing the source of the DES to which plain tiff was exposed because the defendants maintained extensive and detailed marketing records. The same does not hold true in the Agent Orange case. There are no records, in defendants' p o s s e s sion or otherwise, which could connect a defendant's Agent Orange with each exposure claimed by a plaintiff. ** In two asbestos cases, district courts in Texas permitted plaintiffs to amend their complaints to allege market share liability. Hardy v. J o h n s - M a n v i l l e Sales C o r p . , 509 F. Supp. 1353 (E.D. Tex. 1981), rev'd on other g r o u n d s , 681 F.2d 334 (5th Cir. 1982); Herbeck v. J o h n s - M a n v i l l e Sales C o r p . , slip o p i n i o n (Footnote continued) -43- l . GOS ; Drawing from the holdings of the above line of authority, Dow's objection to adopting the theory of market share liability in this instance is threefold. First, as a matter of public policy, the m ark e t share concept is too great a departure from well-settled principles of tort law. Second, the social and economic ramifications of the m a r k e t share issue dictate that it is an issue for the l e g i s l a t i v e branch to address in the first instance.* Third, assuming the validity of the theory, we agree with this Court's assessment in Pretrial Order No. 66 that the facts of this case do not warrant its application, particularly in view of the serious questions regarding the validity of plaintiffs' causation claims, the presence of a significant number of possible alternate causative factors and, of primary importance, that each defendant's Agent Orange was a non-fungible product which did not pose the identical risk, if any, to the ultimate user. With respect to the first basis for Dow's opposition to the market share theory, as noted earlier, product liability law (Footnote continued) 1981 Asb. Lit. Rep. 4699 (W.D. Tex. 1981). Significantly, these courts did little else but comport with liberal rules governing amendment of pleadings. T h e y provide little, if any, discu s s i o n of the public policy considerations at issue nor the d i s t i n g uishable c h a r a c t e r i s t i c s of the product involved in Sindell, D E S , and asbestos. * These first two issues di s c u s s e d below also are addressed in Dow's Alt. Liability Memo at pp. 23-26. -44- I *i Us^? rests on the fundamental premise that an essential element of causation is establishing a causal c o n n e c t i o n between a d e f e n d a n t 's product and plaintiff's injuries. W. Prosser, Handbook of the Law of T o r t s , 103 (4th ed. 1971). Market share shifts this burden away from plaintiff, requiring a defendant to show that its product was not the cause of the plaintiff's injury. As such, the market share theory constitutes "a radical departure" from the body of product liability law developed by the fifty states. Thus, in the words of one court: Application of this burden shifting theory would violate established public policy and fundamental principles of tort law and procedure in this state in a variety of ways. *** By removing the traditional requirement that the plaintiff identify the respon sible manufacturer, the doctrine destroys the nexus between production of a defec tive product and the plaintiff's injury. As a result, liability is placed on defendants bearing no responsibility for the defective product. M i z e l l v. Eli Lilly & C o . , s u p r a , 526 F. Supp. at 596 (footnote omitted). This view was shared by the dissent in Sindell which noted that the majority's novel concept represents a rejection of "over one hundred years of tort law which required that before tort liability was imposed a 'matching' of defendant's conduct -45- and p l a i n t i f f 's injury was absolutely essential." 607 P .2d at 939 .* The district court's decision in Starling presents a penetrating analysis of the legal ramifications of the theory announced in S i n d e l l . At the outset, the district court noted that market share runs contrary to long-established principles of product liability law, specifically, Georgia's product liability law, because it, in effect, makes a m a n u facturer an insurer of his product. However, as the Starling court concluded, market share liability goes far beyond even that, making a manufacturer an insurer of his competitor's product.** [This approach is] a q u a n t u m leap "toward render[ing] every manufac turer an insurer not only of the safety of its own products, but of all generically similar products made by others." I d . at 190, quoting Ryan v. Eli Lilly & C o . , s u p r a . Accordingly, market share liability constitutes too radical a break from well-established rules of tort liability, * Subsequent decisions which have rejected the market share concept have agreed with the dissent in Sindell that the court's unprecedented "legislation" was violative of public policy. Ryan v. Eli Lilly & C o . , s u p r a ; M o rton v. A b b o t t L a b s , s u p r a ; M i z e l l v. Eli Lilly & C o . , s u p r a ; Starling v. Seaboard Coast L i n e , s u p r a ; Tiddler v. Eli Lilly & C o . , s u p r a . ** Indeed, as one commentator has noted, "elimination of the bur den of proof as to identification would impose a liability which would exceed absolute liability." Coggins, Industry-Wide L i a b i l i t y , 13 Suffolk L. Rev. 980, 998 (1979). -46- such that, as a purely legal matter, its application in this litigation is completely unwarranted. The decision in Starling also provides a useful discussion of the second basis underlying Dow's opposition to market share liability. In its refusal to adopt "market share", the court in Starling noted the possible "Pandora's box of undesirable economic and social effects" attributable to expanding a m anufacturer's l i a b i l i t y by judicial fiat. 533 F. Supp. at 190. In light of the impact of decisions that would so drama tically alter the relationship between manufacturers and con sumers, the district court in St a r l i n g advocated judicial restraint and legislative action. The flexibility to fashion remedies for asbestos victims that take into account economic and social ramifi cations is found in the legislature. 533 F. Supp. at 190. This view was shared by the diss e n t in Sindell. Given the grave and sweeping econo mic, social and medical effects of "market share" liability, the policy decision to introduce and define it should rest, not with us, but with the legislature.... 607 P . 2d. at 943. The Agent Orange Litigation presents a compelling example of a situation where departing from traditional tort principles of liability would have serious ramifications. The -47- I u3 defendants in this case provided, under government contract and pursuant to military specifications, a munition to the military for use in the defense of A m e r i c a n servicemen in a time of war. Unquestionably the Agent Orange deployed by the military in the war effort s a v e d .countless numbers of soldiers' lives. Thus, this is not a routine product liability case where a manufacturer introduces a product into the stream of commerce and a party sub sequently attributes an injury to use of the product. Indeed, a number of courts, including this Court, have held that under the circumstances of this case, defense contractors should not be held liable for injuries attributed to a munition. Agent Orange L i t i g a t i o n , 534 F. Supp. 1046 (1982); see also M c K a y v. Rockwell International C o r p . , 704 F.2d 444 (9th Cir. 1983). In a similar vein, the Massachusetts Supreme Court refused to adopt market share liability in light of the public policy favoring development of new drugs and the potentially devastating effect market share would have on this policy. Public policy favors the development and marketing of new and more efficacious drugs. The Restatement (Second) of Torts recognizes this policy by rejecting strict liability in favor of negligence for drug related injuries. Restatement (Second) of Torts 402A, Comment K (1965). Under the plaintiffs' market share theory, each potential drug marketing defendant would risk being held liable, not only for injuries that re sulted from its own negligence but also for injuries resulting from the negli- -48- 1 -Ti.u7 gence of other marketers and even for injuries caused by drugs marketed nonnegligently by others. Imposition of such broad liability could have a dele terious effect on the development and marketing of new drugs. Payton v. Abbott L a b s , s u p r a , 437 N.E.2d at 179 (emphasis added). The impact of market share liability on defense contrac tors and the ability of the military to secure the best available technology during times of crisis is c e r tainly no less compelling than the need for advancements in the pharmaceutical field. The important policy considerations implicated in this litigation, not the least of which is the relationship between a government during a time of war and its contractors, require that any decision to depart from well-settled principles of manu facturer liability must come from the legislature. Furthermore, as the court in Starling noted, the legislative branch is best suited to deal with the claims of veterans and their families who allege injuries from Agent Orange, which requires balancing the needs of these individuals with other socially or economically desirable goals.* * One factor which the legislature may consider and which would, in our view, counsel against expanding a defense contractor's liability, should causation be established in any instance, is the statutory benefit to which a veteran is entitled for servicerelated injuries. S e e , e . g . , 38 U.S.C. 310-15 (setting forth compensation to veterans and dependents for wartime disabili ties) ; 38 U.S.C. 321^22 (setting forth c o m p e nsation to d e p e n dent survivors of veterans for wartime fatalities); 10 U.S.C. 1071 et s e q . (providing for medical care for members of the uni formed services and their dependents). -49- O. hi ^ y c Aside from these purely policy reasons for urging rejec tion of the market share concept, Dow's third o b j ection is that the facts of the Agent Orange case simply do not lend themselves to the application of market share liability. In particular, the lack of fungibility of Agent Orange as well as the acknowledged questions relating to the element of causation make the applica tion of market share liability completely unwarranted. In S jndell, the product at issue was DES, a drug manu factured under the identical chemical formulation by all manufac turers. Thus, although manufactured under different brand names, all DES was fungible. Every manufacturer's DES, therefore, also had exactly the same toxicity and propensity for causing harm in humans. Consequently, the goal of market share liability, establishing a correlation between sales of the product and the likelihood that a particular defendant's product caused a par ticular plaintiff's harm. As noted in a number of asbestos cases, this concept has no application where each m a n u f a c t u r e r ' s product is unique, and its propensity to cause injury differs. In these cases, it is the presence of asbestos fibers within a defendant's product which is alleged to be the cause of plaintiff's injuries. As one d i s trict court noted in rejecting market share liability: Asbestos fibers are of several varieties, each used in varying quantities by defendants in their products and each differing in its harmful effects. -50- In re; Asbestos C a s e s , s u p r a , 543 F. Supp. at 1156. See also Starling v. S e a b o a r d , s u p r a ; H a n n o n v. W a t e r m a n S t e a m s h i p , s u p r a . Thus, while all DES is fungible, asbestos products with their varying amounts of asbestos fibers are not. Because it is the fibers which cause the harm complained of, the aggregate peril caused by a particular manufacturer's product bears no rational relation to the share of the market held by that manu facturer . Similarly, in the Agent Orange Litigation, the Agent Orange sold by defendants was not fungible. Tests of stockpiled Agent Orange d e m o n s t r a t e d a m a r k e d d i s p a r i t y in the TCDD c on centrations among the various defendants. See Dow's Alt. Liability Memo at pp. 21-22 and annexed exhibits. Indeed, plain tiffs acknowledge that by utilizing different manufacturing pro cesses, the levels of dioxin in Agent Orange varied significantly from manufacturer to manufacturer: " [C]learly, different manu facturing processes resulted in different levels of dioxin contamination." Plaintiffs' Alt. L i a bility Memo at p. 27. In light of the variation in the concentration of TCDD, the underlying premise of market share liability, equal risk attributable to all defendants' products, cannot be satisfied in this case. There are two reasons for the foregoing. First, the greater the c o n c e n t r a t i o n of TC D D in a p a r ticular batch of Agent Orange, the greater the likelihood that a plaintiff would come into physical contact with a molecule of -51- T ^7 V $ 3 TCDD. Thus, the risk of exposure to TCDD from one manufacturer's batch of Agent Orange containing, for example, 10 ppm dioxin necessarily differs from the risk of exposure created by another manufacturer's Agent Orange which contained 1 ppm dioxin. Second, the concentration of TCDD in each defendant's product will direc t l y affect the toxicity, if any, of the product and, in turn, the risk, if any, created by the product.* Thus, Agent Orange is m a r k e d l y d i f ferent from the DES product considered in S i n d e l l . The differing levels of TCDD in each defendant's product makes each manufacturer's Agent Orange unique, and the likelihood that any particular plaintiff was harmed by the Agent Orange sold by Dow would not bear any rela tion whatsoever to Dow's share of the Agent Orange "market". Another limitation of the market share liability theory is that it does not reasonably reflect the degree of risk posed by a defendant's product when there are other possible harmful agents which may be a substantial factor in producing the illness or disorder complained of. This flaw in the market-share concept is no more evident than in this case, w h e r e there are no injuries unique to Agent Orange exposure and there are many potential * S e e , e.g., Murray, Three Generation Reproduction Study of Rats Given 2,3,7,8 Tetrachloro di b e n z o - p - d i o x i n (TCDD) in the D i e t , Tox. and App. Pharma. 50, 241-252 (1979) . This was a three- generation study of rats given TCDD in their diet. The study evidenced an effect on the animals reproductive capacities at higher dose levels of 0.01 ug. TCDD/kg./day but not at a lower dose of 0.001 ug. TCDD/kg./day. -52- t 0 alternate causative agents that will be at issue in the litiga tion. See pp. 30-39, supra. Accordingly, where A g e n t O r ange is only one of a number of purported toxic substances which may have caused plaintiffs' injuries, the Sindell concept of market share which equates the degree of risk posed by one manufacturer's product with his share of the "market" would necessitate creation of a market of all potentially harmful products. Under the Sindell rationale, this would, of course, be impossible because each of these substances would pose a different degree of risk. There is one final d i s t i n g u i s h in g chara c t e r i s ti c between the Agent Orange Litigation and those few instances in which courts have broken from traditional tort principles and adopted market share liability. In those cases, invariably the causation issue, to wit, the propensity of the product to cause the harm complained of, is not in dispute. For example, in the few DES and asbestos cases cited previously in which market share has been recognized, the causal link between certain diseases and these substances is accepted by the medical and legal communities.* There is, however, no such causal c o n n e c t i o n in * Daughters of women who took DES, a man-made estrogen previously used to prevent miscarriages, are suffering from a rare form of cancer, clear-cell adenocarcinoma of the vagina and uterus and adenosis, an abnormality on the cervix or vagina. Before the DES-cancer linked cases, only three cases of clear-cell adenocar cinoma of the vagina had been reported. Subsequently, eighty percent of all such cases had confirmed exposure to DES. (Footnote Continued) this case. Absent an accepted cause and effect relationship, imposition of the d r a s t i c remedy of market share liability is inappropriate. In sum, mark e t share liability is inappropriate on fun damental policy grounds and because it cannot rationally be applied in this case. This theory of liabilty departs dras t i cally and improperly from well-settled tort principles requiring defendant identification. Further, adoption of such a radical theory should be a legislative not a judicial determination. This is particularly true here, where alteration of these tradi tional tort principles would seriously affect the relationship between the government and its defense contractors. Finally, a m a r k e t share theory is simply inappropriate under the facts of this case: Agent O ra n g e is not a fungible product, the cause of plaintiffs' alleged injuries is seriously disputed and numerous potential alternative causative agents for plaintiffs' asserted harm exist. (Footnote Continued) Ulfelder, The S t i l b e s t e r o l- A d e n o s i s - C a r c i n o m a S y n d r o m e , 38 Cancer 426 (1976). See also Comment, DES and a Proposed Theory of A l t e rnate L i a b i l i t y , 46 F o r d h a m L. Rev. 963, 964-66 (1978). Asbestosis, a thickening of the chest walls, and mesothelioma, a form of lung cancer, have been linked unquestionably to occupa tional exposure to asbestos. Borel v. Fibreboard Paper Products C o r p . , 493 F.2d 1076 (5th Cir. 1973), c e r t , d e n i e d , 419 U.S. 869 (1974) . -54- C. Concert of A ction Plaintiffs contend that Dow participated in a "con spiracy of silence" to conceal information on dioxin from the government and is thus liable under the theory of concert of action. See Plaintiffs' Alt. Liability Memo at 100-02. As discussed more fully herein, plaintiffs', c ontention is utterly without merit. First, there was no conspiracy. The undisputed evidence before the Court establishes that Dow acted independently from, not in concert with, the other defendants. Second, there was no silence. Dow informed the govern ment and many others of the hazards of dioxin in 2,4,5-T man u f a c ture -- actions totally inconsistent with a "conspiracy of silence." Third, even if a conspiracy had existed, it would have had no effect, since the government was fully aware of the rele vant information regarding dioxin and Herbicide Orange from the published scientific literature and other sources. The principle of concert of action has been applied in instances in which two or more defendants have acted jointly or pursuant to a common design to proximately cause plaintiff's injury. If plaintiff is unable to show which defen d a n t ' s act was the actual cause of the injury, joint liability may be imposed upon each defendant for their joint conduct. R e s tatement (2d) of Torts, 876 (1979). As described by one court, "the concert of -55- o9 action theory is devised from a criminal law concept, aiding and abetting, and renders jointly and severally liable all who inten tionally partic i p a t e in an unlawful activity." Ryan v. Eli Lilly & C o . , s u p r a , 514 F. Supp. at 1015. To impose liability under this theory, the common endeavor must be in furtherance of an express or tacit agreement and must be tortious in nature. Prosser, W . , Law of Torts 46 (4th ed. 1971). The case in which a bystander is injured by a car involved in an illegal drag race best illustrates application of this theory. Under the concert of action theory, all partici pants in the drag race are held jointly and severally liable to the injured party. The rationale underlying imposition of liability on all participants is that they were all engaged in a common endeavor and it was that endeavor, the drag race itself, that was the cause of the bystander's injuries. The application of this rationale in a complex product liability case is highly questionable. Indeed, the m a j o r i t y of courts that have addressed the application of a concert of action theory of liability in DES cases have rejected it, expressing concern over its adaptation to product liability cases. See Dow's Alt. Liability Memo at pp. 24-25. The California Supreme Court's comments in Sindell are representative: Application of the concept of concert of action to this situation would take the theory far beyond its intended scope and would render virtually any manufacturer liable for the defective products of an -56- f * *4 A entire industry, even if it could be demonstrated that the product which caused the injury was not made by the defendant. Sindell v. A bbott L a b o r a t o r i e s , s u p r a , 607 P.2d at 933. Aside from this conceptual problem with applying the con cert of action theory to a complex product liability case, the analysis utilized by the courts in other product liability liti gation of the facts necessary to establish concert of action makes clear that this theory is inapplicable to the facts of the Agent Orange Litigation. In the DES cases, the courts have concluded, based on an exhaustive analysis of the defendants' actions that: the DES manufacturers simply did not act in concert as that concept is defined in tort law. M o r t o n v. A bbott L a b s , s u p r a , 538 F. Supp. at 596. The facts surrounding the DES cases are generally undisputed. DES was discovered in the 1930's by a group of British scientists. By 1940, over ten pharmaceutical companies had filed New Drug Applications with the FDA. The FDA subsequently requested that the companies pool their clinical data and develop a uniform label. It is also unque stioned that, although m a rketed by trade names, the DES sold by all manufacturers was, by agreement, chemi c a l l y identical. Finally, the record is also clear that no warnings were ever given by the companies regarding carcinogenic or other risks attributable to ingestion of DES. In the view of the vast majority of courts, these facts did not satisfy the criteria of "joint conduct": [T]he history of stilbestrol [DES], far from showing joint conduct, demon strates an independent, competitive response to a widely acclaimed medical discovery, all under the supervision of the FDA. Ryan v. Eli Lilly & C o . , s u p r a , 514 F. Supp. at 1011. The district court in R y a n , citing the holding in S i n d e l l , further concluded that the kind of cooperation engaged in by those m anu facturers was common practice throughout the manufacturing industry and simply not in and of itself tortious. I d . Similarly instructive is Judge Rubin's o p i n i o n in In re: Beverly Hills Fire Litigation, Civil No. 77-79, slip opinion (E.D. Ky. November 14, 1979), the lawsuit arising out of the tragic fire at the Beverly Hills Supper Club in Southgate, Kentucky. Plaintiffs cite this decision as an instance where the concert of action theory has been applied in a product liability case. However, under the cr i t e r i a set forth by the court in B e v e r l y Hills for application of this theory, it is evident that plaintiffs in the Agent O r ange L i t i g a t i o n cannot satisfy their burden of proof. Specifically, the court in B e v e r l y Hills required proof: (1) that each d e f e ndant marketed and promoted a gener i c a l l y similar product; (2) that the defend a n t s acted by express or tacit agreement to market and promote a defective product; and (3) that this agreement to commit a tortious act was the cause in fact of plaintiff's injuries. Slip op. at 9-10. After almost two years of intensive discovery, the record before the Court in the Agent Orange L i t i g a t i o n shows much -58- r oo> less evidence of concerted action than was present in the DES cases -- where no concert of action was found. Furthermore, not one of the factors relied upon in Beverly Hills is present in Agent Orange. First, as set forth at pp. 50-52, s u p r a . A g e n t Orange is not a generic product. Moreover, the wide variation in the levels of dioxin in Agent Orange demonstrates the lack of joint action among the manufacturers. Second, there is no evidence of either a tacit or an explicit agreement between Dow and any other defendant to conceal information regarding dioxin from the government. Even the few documents offered by plaintiffs in support of their theory show Dow acting independently from, rather than jointly with, the other defendants. Moreover, plaintiffs ignore the fact that Dow repeatedly informed military and government officials and health professionals around the world of the chloracne problem asso ciated with dioxin in 2,4,5-T manufacture -- a fact totally inconsistent with plaintiffs' supposed "conspiracy of silence." Finally, the essential information regarding chloracne and dioxin was both readily available in p u b l i s h e d scientific literature and in fact well known to the government. Thus, even if Dow had failed to inform the government -- which it clearly did not -- Dow's failure would not have caused injury to plain tiffs, since the government already possessed the relevant infor mation. -59- 11 h 'A Before addressing plaintiffs' allegations of conspiracy, it must be e mphasized that Judge Pratt previ o u s l y rejected these allegations when considering defendants' motions for summary judgment on the government contract defense. Addressing counsel for Dow at oral argument on May 4, 19.83, the Court stated: Mr. Rivkin, I read your reply brief while I was eating my sandwich at lunch and I went through all the people you notified in this country and elsewhere. ** I wonder really why you ever address yourself to the so-called conspiracy . . . . All the oratory about conspiracy I found to be something of a turn-on [sic, should read "turn-off" ] and I had to fight my way through words in order to get down to what few facts I could find. Proceedings b e fore Judge Pratt on May 4, 1983, Tr. at 4862 (emphasis supplied). Accordingly, plaintiffs' allegations of conspiracy or concert of action as the factual predicate for imposing joint and several liability have already been considered and rejected by the Court as without foundation. We will first set forth the history of Dow's involvement with chloracne, dioxin, and Herbicide Orange. Then, in light of that history, the documents cited by plaintiffs in support of a "conspiracy" will be discussed and shown to establish that D ow in fact acted independently from the other defendants. Numerous -60- T l *y . instances of notice given by Dow during the 1960s to the govern ment and others will be presented. Finally, the government's extensive knowledge regarding chloracne and dioxin, together with the publicly available scientific literature on those subjects, will be summarized. 1. Dow Did Not Act In Concert With Other Herbicide Orange Manufacturers To Withhold Information On Chloracne And Dioxin From The Govern m e n t ______________ The starting point in considering plaintiffs' a l l e g a tions of a "conspiracy of silence" is the realization that p l a i n tiffs offer no direct evidence whatsoever in support of their conspiracy. After searching through hundreds of thousands of documents, many of them confidential internal memoranda, plain tiffs cannot point to a single line where Dow agreed with anyone to hide information on dioxin from the government. Conscious of their lack of any direct evidence, plain tiffs seek to imply a tacit agreement from the actions of Dow and the other defendants. Yet the meetings and documents plaintiffs cite in support of their c onspiracy theory in fact prove p r e c i sely the contrary. Using primarily the evidence presented in Plaintiffs' Alt. Liability Memo, we will demonstrate, first, that Dow knew the government already possessed the information on chloracne and dioxin which Dow was allegedly conspiring to withhold; second, that Dow and the other defendants acted comple tely independently regarding the dioxin contaminant in Herbicide -61- Orange; third, that a 1965 meeting of trichlorophenol manufac turers resulted in no agreement whatsoever among the defendants, was not attended by anyone manufacturing Herbicide Orange, and, in fact, had nothing at all to do with Herbicide Orange; and fourth, that an industry task force on herbicide residues was innocuous and totally irrelevant to dioxin and Herbicide Orange. In order to appreciate fully the independence of Dow's actions from those of the other defendants, it is necessary to understand the background of Dow's involvement with 2,4,5-T. a. Dow Was Aware Of Occ u p a t i o n a l Health Hazards Associated With Extremely High Levels Of Dioxin In The Waste Stream Of The Trichlorophenol Manufacturing Process, But Not Of Health Hazards To Users Of Its 2,4,5-T Products. The undisputed evidence establishes that Dow became acutely aware of occupational health hazards associated with the manufacture of trichlorophenol in 1964, when a number of Dow employees developed chloracne following exposure to the trichlorophenol waste stream. Dow identified dioxin as the causative agent and instituted manufacturing process changes and quality control procedures to protect its workers and insure that its trichlorophenol and 2,4,5-T contained no dioxin. Thorough testing by Dow scientists showed that its trichlorophenol and 2,4,5-T posed no health hazards to users. Dow fully informed the government, the chemical industry and the scientific community of the occupational health hazard -62- H r ... f Li associated with dioxin in the manufacture of trichlorophenol. See pp. 85-97, i n f r a . However, Dow had no reason to warn the government that dioxin in Dow's H e r b i c i d e Orange posed a hazard to troops in Vietnam, since extensive testing at the time showed that Dow's Herbicide Orange contained no dioxin and posed no hazard. The distinction between occupational health hazards of dioxin -- which are severe -- and hazards to users of Dow's 2,4,5-T products -- which are non - e x i s t e n t -- is critical to a proper understanding of Dow's actions during the 1950s and 1960s. Prior to the time that Dow manufactured and sold her bicides to the United States for use in Southeast Asia, Dow learned that an unidentified chloracnegen -- a chemical agent capable of causing chloracne -- could be present in the waste stream during the manufacturing process of TCP, a precursor in the manufacture of 2,4,5-T. Silverstein, "The Chloracne Problem - Biochem's Contribution," March 11, 1965 at pp. 4-6, Exhibit "32". Utilizing the so-called "rabbit ear" test, pioneered by Dow toxicologists,* Dow tested the waste stream, which con sistently produced the characteristic folliculitis on the rabbit ear -- indicating the chloracnegen was present; Dow also tested the finished trichlorophenol product, which consistently produced no response on the rabbit ear -- indicating no chloracnegen. Id. * See Adams, et al., The Response of Rabbit Skin to Compounds Reported to Have Caused A c n e f o r m D e r m a t i t i s , J. Ind. Med. (1941), Exhibit "33". The article is d i s c ussed at pp. 111-112, infra. -63- at p. 2; In the Matter of the Hear i n g of 2,4,5-T and S i l v e x , Direct Testimony of V.K. Rowe at pp. 3-5, Exhibit "34" . In or about February, 1964, workers assigned to D o w 's Midland, Michigan plant engaged in the manufacture of trichlorophenol began to experience symptoms associated with chloracne. M e m o of R. Holmes, re: Manu f a c t u r e of TCP at 199 Bldg., July 30, 1964, Exh i b i t "35". Dow investigated the cause of the symptoms and deter mined that they were attributable to a recent change in Dow's production process for trichlorophenol which resulted in the for mation of high concentrations -- measured at up to 10,000 ppm -- of a chloracnegen jji the waste s t r e a m .* At the time, Do w also determined that the previously unidentified chloracnegen in the waste oils was dioxin. Me m o of R. Holmes, s u p r a . Exh i b i t "35"; Silverstein, Report on the Chloracne Problem Meeting on 3/24/65, Exhibit "37". During the course of its investigation, Dow developed an analytical method, utilizing gas chromatography, which was capable of consistently detecting dioxin in trichlorophenol and 2.4.5- T at concentrations as low as 1 ppm. Gill, "The * Dow's testing in December, 1964 by gas liquid chromatography of the waste stream from the trichlorophenol process showed amounts of dioxin in the waste stream ranging from 0.6 percent to 1.0 percent, which equals 6,000 ppm to 10,000 ppm. Gill, "The Analysis of Caustic Insoluble Oils and Process Samples from the 2.4.5- T Trichlorophenol Process for Compounds Capable of Causing Chloracne, Principally, 2,3,7,8 Tetrachlorodibenzo-p-dioxin," December 22, 1969 at p. 1, Exh i b i t "36". -64- Determination of 2 , 3 , 1 , 8 Tetrachlorodibenzo-p-dioxin in 2,4,5- Trichlorophenol (Gas C h r o m a t o g r a p h i c Method)," July 7, 1965, Exhibit "38"; Gill, "The Determination of 2,3,7,8 Tetrachloro- dibenzo-p-dioxin in 2,4,5-Trichlorophenoxyacetic Acid by Gas-Liquid Chromatography," Ju n e 22, 1965, Exhibit "39". Based upon tests conducted by Dow, it was determined that no chlor- acnegenic response occurred if the dioxin concen t r a t i on was below that level.* Exhibit "32", s u p r a , p. 7; Exhibit "37", s u p r a . Accordingly, Dow established internal specifications for its trichlorophenol and 2,4,5-T products which required that it contain no dioxin whatsoever as measured by its analytical proce dure. Memo on Conferenc e re: 2,4,5-T Acid Product S p e c i f i c a tion, May 4, 1965, Exhibit "40"; Letter fr. Otis to Coulter, April 6, 1965, Exhibit "41". In order to insure compliance with this specification, Dow instituted the following internal procedures: (1) all cars of trichlorophenol were analyzed for dioxin; (2) two samples per * For a brief period of time following the identification of d ioxin in the trichlorophenol waste stream, Dow was uncertain whether dioxin might also be present in the end product -- trichlorophenol. At that time it notified its trichlorophenol customers and other trichlorophenol manufacturers of the chloracne hazard associated with the impurity. By April 1965, however, laboratory testing had established the safety of trichlorophenol with no detectable dioxin according to Dow's analyti cal method. Dow then notified its customers that there was no cause for concern since the problem had been solved. The docu ments indicating some uncertainty regarding Dow's end products all date from early 1965, prior to the completion of laboratory tests -- a period in which Dow sold no herbicides to the govern ment. See pp. 90-92, in f r a . tank car of 2,4,5-T were analyzed for dioxin; and (3) a sample for animal toxicity testing was taken from a filter cake utilized d uring the manuf a c t u r i ng process. Memos re: TCP and 2,4,5-T acid analysis for dioxin, M a y 4, 1965, Exhibit ,,4 2 ,,, and Ma y 8, 1967, Exhibit "43". Dow maintained analytical records reflecting, among other things, the dioxin concentration in Dow's trichlorophenol production. S e e , e .g ., Reco r d s of Shipments of Trichlorophenol, Exhibit "44". No trichlorophenol or 2,4,5-T or Herbicide Orange ever left the D o w plant for any purpose unless it satisfied Dow's internal criteria of zero dioxin. Affidavit of Richard Hoff, Exhibit "45"; Gill T r . at 161-162, Exhibit "46"; Exhibits "41", "42", and "43". In 1966, after these quality control procedures were well in place, Dow for the first time began shipments of Herbicide Orange to the government.* See Dow's Statement Pursuant to Pre-Trial Order No. 33, April 21, 1982. Since * Dow had previously supplied Herbicides Purple, Pink, and Green to the government, the last delivery occurring in 1963. See Statement of The Dow Chemical Company Pursuant to Pretrial Order No. 33, April 21, 1982. Prior to 1964, Dow had cons i s t e n t l y tested samples of trichlorophenol for chloracne activity, using the rabbit ear procedure, and found none. Results of the gas chromatography test were compared with results of the rabbit ear test, previously utilized by Dow, and it was determined that the rabbit ear test indicated no chloracnegenic tendencies when Dow's analytical procedure showed no dioxin. See pp. 64-65, s u p r a . Thus, Herbicides Purple, Pink and Green, which Dow supplied to the government well before its 1964 chloracne problem, were of the same quality with respect to dioxin as Dow's Herbicide Orange. Report on the C h l o r a c n e Meeting, s u p r a , at pp. 3, 5, Exhibit "37". See also Reply Memorandum of the Dow Chemical C o m pany in Support of its Motion for Reargument, June 13, 1983, at 5-7. -66- Herbicide Orange was a 50% blend of 2,4,5-T and 2,4-D, the dioxin content of Herbicide Orange would have been only half that of the 2,4,5-T -- which was already too low to measure.* Exhibits "42" and "43"; Letter fr: R. Woodward to G. Lynn, M arch 10, 1970; Exhibit "47". V.K. Rowe, Dow's chief toxicologist, has stated cate gorically in his affidavit in support of Dow's motion for summary judgment on the government contract defense that he never believed Dow's 2,4,5-T products constituted a health hazard to humans or animals. Affidavit of V.K. Rowe, Exhibit "48". Indeed, the Court has found that "Dow believed [its] standard to be within a reasonable margin of safety so that hazards to people would be eliminated." 565 F. Supp. at 1276. Accordingly, Dow's knowledge of dioxin was that high levels might cause occupational health hazards in connection with the manufacture of t r i c h l o r o p h e n o l . There is no evidence that Dow ever believed or had any reason to believe that its Herbicide Orange -- which contained no dioxin according to Dow's tests -- posed a health hazard to troops in Vietnam. * Since Dow's trichlorophenol always contained less than 1 ppm dioxin -- the lowest amount its analytical procedure could detect -- Dow's H e r b i c i d e Orange always contained less than 1/2. ppm dioxin. More sensitive tests, developed in the 1970s, were per formed on stocks of Agent Orange stored under government control in Gulfport, Mississippi, and confirmed that Dow's Agent Orange contained well under 1/2 ppm of dioxin, i .e . , an average of 0.12 ppm. See Dow's Alt. Liability Memo at pp. 21-22 and annexed exhibits. b. The Groth Correspondence. Plaintiffs argue that certain correspondence related to Dr. David Groth of the Public Health Service shows that Dow conspired to conceal information of its chloracne experience from the government. However, Dow did inform the Public Health Service of its chloracne experience at that time. Thus, plaintiffs' argument fails completely. The Groth correspondence simply demonstrates the extensive knowledge of dioxin and chloracne which the Public Health Service possessed by 1964 and 1965 -- and makes clear that Dow was aware that the government had such extensive knowledge. On December 3, 1964, Dr. David Groth, a p a thologist with the Occupational Health Research & Training Facility of the Public Health Service at Cincinnati, Ohio, which was responsible for investigating occupational health problems, wrote to E. T. Upton of Thompson-Hayward Chemical Co. to request samples of 2,4,5-T and trichlorophenol. Exhibit "49". Dr. Groth identified dioxin as the suspected chloracnegenic contaminant in 2,4,5-T by giving its full chemical name and drawing a structural diagram. He discussed a paper published by Kimmig and Schulz in Dermatologica in 1957 and proposed to test samples of 2,4,5-T and t r i c h l orophenol for dioxin to confirm, if possible, the c o n c l u sion of Kimmig and Schulz that the skin and liver toxicity asso ciated with 2,4,5-T manufacture was caused by very small quan tities of dioxin created as a by-product of the 2,4,5-T manufac- -68- turing process. See Kimmig, J., and Schulz, K . H . , Occupational Chloracne Caused by Aromatic Cyclic Ethers, Dermatologica 115: 540-46 (1957), Exhibit "50". This significant p u b l i c a t i o n is summarized and discussed at pp. 113-114, infra, as one example of the fact that the presence of dioxin in 2,4,5-T was common knowledge among interested scientists and physicians in the 1960s. Since Dow supplied trichlorophenol which ThompsonHayward used to manufacture 2,4,5-T, Thompson-Hayward forwarded a copy of Groth's letter to Dow and asked what levels of dioxin were present in D o w 's trichlorophenol. Letters from DeAt l e y to Dosser, December 11, 1964 and D e cember 28, 1964, Exh i b i t s "51" and "52". A subsequent memo by DeAtley states that Dow replied that it already knew the P u blic H e alth Service was studying dioxin but that Dow's trichlorophenol contained no dioxin, according to a test procedure sensitive to "about 1 ppm." DeAtley memo, January 12, 1965, Exhibit "53". On January 14, 1965, T h o m p s o n - H a yw a r d sent Dr. Groth the samples and manufacturing information he requested. Letter from Upton to Groth, Exhibit "54". Both Dow and Thompson-Hayward samples were provided to Dr. Groth. DeAtley memo, supra , Exhibit "53". At about the same time, Dr. Groth applied for funds to conduct experiments on 2,4,5-T and dioxin. Project Development and Approval form, January 12, 1965, Exhibit "55". Dr. Groth -69- 4 / 0 ?ft planned to apply various components of 2,4,5-T to rabbits and feed dioxin to dogs, then perform a full battery of tests on the animals. He had previously obtained a quantity of dioxin from Dr. Krizek of the University of Chicago.* Exhibit "56". Groth Tr. at 78, His proposal records his knowledge that 2,4,5-T was "widely used in large qu a ntities" and that there had been "many reports of people developing chloracne and liver damage from over-exposure to [2,4,5-T] in industry." Dr. Groth discusses the significance of prior research on 2,4,5-T and dioxin, including unpublished data developed by a co-worker at the Public Health Service, Dr. George Lawton, and includes a list of thirty-two published references on chloracne, 2,4,5-T and dioxin. The government did not fund Dr. Groth's proposed research, and he did not pursue the matter further. Groth Tr. at 102-03, Exhibit "57". Plaintiffs' argument regarding Dr. Groth rests entirely on their unsupported allegation that Dow and Thompson-Hayward, having learned of the Public Health Service's interest in dioxin and chloracne, attempted to conceal the Dow chloracne experience from the Public Health Service. As plaintiffs well know, that allegation is completely false. In fact, Dow informed Dr. * Dr. Krizek was co-author of an important 1962 paper on the acnegenic potency of dioxin. See pp. 118-119, infra. -70- Groth's superior,* Dr. Herbert Stokinger, of the Dow chloracne problem soon after the Groth correspondence. Dr. Stokinger, Chief Toxi c o l o g i s t at the Public Health Service's Cincinnati facility, testified that V.K. Rowe, Dow's chief toxicologist, discussed Dow's chloracne incident with him in 1965 or 1966. Stokinger Tr. at 75-77, Exhi b i t "59". Thus, all of plaintiffs' insinuations regarding the Groth correspon dence come to nothing, since Dow did inform the Public Health Service of its chloracne experience. Furthermore, the information from Dow was hardly a surprise to Dr. Stokinger. Like Dr. Groth, by 1965 he was fami liar with the G e r m a n articles on d i oxin and chloracne in the 2,4,5-T manufacturing process. See Stokinger Tr. at 102-04, Exhibit "60"; 565 F. Supp. at 1267. Moreover, as the Court noted in Pretrial Order No. 51, r e p r e s e ntatives from the Public Health Service had been investigating chloracne episodes among trichlorophenol workers dating back to an incident at a Monsanto plant in Nitro, West V i r g i n i a in 1949. 565 F. Supp. at 1255. See also articles summarized at pp. 120-121, i n f r a . The Groth correspondence actually provides strong evidence against Dow's participation in a "conspiracy of silence" by demonstrating, first, that the Public Health Service was fully * See Groth Tr. at 146-47, Exhibit "58". -71- ^a i aware of dioxin as an extremely toxic by-product of the 2,4,5-T process which could cause chloracne and other more serious problems, and, second, that Dow knew of the Public Health Service's knowledgeability. The implausibility of Dow's planning a "conspiracy of silence" against the govern m e n t in these circumstances is evident. The government already had the information Dow was supposedly conspiring to c o n c e a l -- and Dow knew it. c . The Trichlorophenol Manufacturers Meeting. On March 19, 1965, V.K. Rowe of Dow invited all American producers of trichlorophenol to a meeting to discuss toxicologi cal problems caused by the possible presence of highly toxic impurities in trichlorophenol. Letter fr. Rowe to Kelly, Wilkenfeld, Verhoeze, Kennedy, Chandler, Frawley, Exhibit "61". V.K. Rowe stated that the meeting was called for the sole purpose of lessening any hazards to health that might be attri buted to [trichlorophenol] and related products. Our discussions will deal only with the toxicological and analytical aspects of the problem. We will not discuss manu facturing know-how, sales, or anything else not dealing with the problems of health. It is our hope that through this meeting we will acquire a better understanding of the problem and that each company will then proceed independently as it sees fit to institute such self-imposed controls on its production as are necessary to insure the safety of its products. -72- If Id. (emphasis supplied). A copy of Dow's recently developed analytical method for measuring dioxin in trichlorophenol was forwarded with the letter to all invitees. The meeting of trichlorophenol manufacturers took place on March 24, 1965, attended by representatives of Dow, Hooker Chemical Corp., Diamond Alkali Company, and Hercules Powder Company. None of these companies was selling Herbicide Orange to the government at that time.* See Statement of The Dow Chemical Company Pursuant to Pretrial Order No. 33, dated April 21, 1982; Verified Statement of Defendant Diamond Shamrock Corporation Identifying Herbicide Contracts, Quantities Supplied, and Shipment Dates, April 21, 1982; Contract Documents Submitted by Hercules Incorporated Pursuant to Pretrial Order No. 33, April, 1982. The five memoranda written by attendees of that meeting confirm that the meeting was limited to the matters described in V.K. Rowe's letter. See Silv e r s t e i n memo, March 29, 1965, Exhi bit "62"; Frawley memo, M arch 26, 1965, Exhibit "63"; Dunn memo, March 29, 1965, Exhibit "64"; Chandler memo, M a r c h 25, 1965, Exhibit "65"; Wilkenfeld memo, March 25, 1965, Exhibit " 66". * Dow did not begin shipments of Herbicide Orange to the g o v e r n ment until 1966. See Dow's Statement Pursuant to Pretrial Order No. 33. Hooker never man u f a c t u r e d Herbicide Orange at all. -73- Dr. Benjamin Holder, Dow's medical director, discussed the Dow experience with chloracne. Harold Gill, an analytical chemist, described Dow's a nalytical procedure, stating that it could detect the presence of dioxin in trichlorophenol at levels of one part per million or more. V.K. Rowe recounted Dow's toxi cological research, concluding that trichlorophenol which con tained no dioxin, within the sensitivity of Dow's analytical pro cedure, did not pose a hazard to humans. In response to a question, he stated that Dow had set a specification for its pro ducts of "zero with a confidence of 1 ppm." Silverstein memo, s u p r a , at 4, Exhibit "62". It is undisputed that there was no ment i o n whatsoever at the meeting either of Herbicide Orange or of sales of any product to the government. Indeed, the only discussion of the government was in the Frawley memo, which noted briefly that the Michigan State Department of Health had been consulted and that Dow believed the Federal government was aware of the problem. Frawley memo, su p r a , Exhibit "63". In a brief "postscript" to the Silverstein report on the meeting, V.K. Rowe commented that [a]11 participants seemed to appreciate well the problem and all indicated that they would return home and attempt to convince their management to institute safety specifications (really quality control) . . . . Silver s t e i n memo, s u p r a , at 7, Exhibit "62". -74- V V * ' i. This m e eting of t r i c h l o rophenol manuf a c t u r e rs is the linchpin of plaintiffs' conspiracy allegations -- a meeting at which defendants supposedly met and agreed to conceal the hazards of Herbicide Orange and dioxin from the government. Yet, not only were most of the defendants absent from that meeting, no one present was selling Herbicide Orange to the government at the time. Furthermore, trichlorophenol was used to make many things besides 2,4,5-T, and 2,4,5-T was used to make many things besides Herbicide Orange. The meeting simply did not deal with sales of Herbicide Orange to the government, and plaintiffs have produced no evi dence whatsoever to the contrary. Nor did the meeting result in any agreement to withhold information from the government. On the contrary, Dow reported that it had called in the M i c h i g a n D e p a r t m e n t of P u blic Health and believed that the federal government was aware of the problem.* Furthermore, the attendees were technical and scientific personnel, hot management. At the conclusion of the meeting, "all indicated they would return home and attempt to convince their management to institute safety specifications." (Emphasis supplied.) Silverstein memo, s u p r a , at 7, Exhibit "62". These people did not even have the power within their own companies to * In fact, based on the Groth correspondence, Dow knew for cer tain that the government had full knowledge of the occupational health hazards posed by dioxin. See pp. 68-72, s u p r a . -75- a,) set the specifications on the products with which they worked. To suggest that they had the power to commit their companies to an industry-wide conspiracy of many years duration to defraud the federal government strains common sense to the breaking point. In sum, it is difficult to imagine a more unlikely scenario for a Herbicide Orange conspiracy: the people present at the meeting lacked the power to act, none of the companies represented was manufacturing Herbicide Orange, Herbicide Orange was never discussed, and the supposed goal of the conspiracy was stated to be unattainable. Thus, plaintiffs' contention that the meeting inaugurated a vast conspiracy to unload deadly Herbicide Orange on an unsuspecting government should be seen for what it is -- a product of plaintiffs' imagination. In addition to demonstrating that the defendants did not agree to conceal information on dioxin from the government, the 1965 meeting and its aftermath show that the defendants did not agree on anything at all related to 2,4,5-T and dioxin. In particular, it is important to realize that the meeting did not attempt to set an industry-wide standard for dioxin in trichlorophenol. Dow only mentioned its standard in response to a question: We were asked if we could give levels of dioxin contamination which were permis sible limits. V.K. [Rowe] mentioned that at present we are using zero with a con fidence of 1 ppm . . . . Silver s t e i n memo, s u p r a , at 4, Exh i b i t "62" (emphasis supplied). The other memoranda confirm that Dow merely stated its own stan dard, and did not suggest an industry-wide specification. S e e , e . g . , Chandler memo, s u p r a , Exhibit "65" ("The Dow people state that they intend to set a limit of zero"); Frawley memo, supra. Exhibit "63" ("Dow . . . is checking all p r o d u c t i o n to be certain that it contains less than 1 ppm 2 , 3 , 7 , 8 - T C D D " ); W ilkenfeld memo, supra. Exhibit "66" (Dow's "current in plant working limit is 'no r e s p o n s e '"). Dow called the meeting not to set an industry standard but to encourage other producers of trichlorophenol to test their product for dioxin themselves and institute whatever quality control procedures they deemed appropriate. For its own part, Dow said it allowed zero dioxin in its trichlorophenol, within the limits of its analytical capabilities. But, as V.K. Rowe stated in his letter announcing the meeting, each company was to "proceed independently as it sees fit." Letter fr. Rowe, s u p r a . Exhibit "61". The people present at the meeting simply took Dow's analytical procedure and said they would report to their management Dow's recommendation that they consider instituting some sort of quality control procedures of their own. However, within a few months it had become apparent that the other trichlorophenol manufacturers were not in fact using the analytical procedure which Dow had provided to institute quality control procedures. A memo by John Frawley of Hercules -77- f f itf states that on July 9, 1965 F r a w l e y received a telephone call from Earl Farnham of Dow: [Farnham] stated that on the advice of their toxicologists Dow has gone to great expense to alter their manu facturing c o n d i t i o n s in order to produce 2,4,5-T acid which has less than 1 ppm acnegen. Since several months ago Dow made avail able to all other producers the same data which convinced their toxicologists to set an internal specification of 1 ppm on the acid, they had assumed that the other producers would take similar action. On the basis of their chemical analyses, they are convinced that no one else has done anything to remove the acnegen from their 2,4,5-T and conse quently, they wanted my opinion whether they had been mis-advised by their own toxicologists. I advised Mr. Farnham that I did not think this was a proper question for me and that he should seek outside advice from a pri v a t e c onsultant if he doubted the advice of his own toxicologists. I pointed out that considerable individual professional judgment would be involved in establishing a specification of this type . . . . N o t e to file by J. A. F r a w l e y dated J u l y 12, 1965 (the "Frawley/ Farnham memo"), Exhibit "67" (emphasis supplied). Frawley refused to comment on Dow's internal specification or to say whether Hercules had set an internal specification for dioxin, instead referring F a r n h a m to "someone in ... m a n a g e m e n t . " I d . Obviously, "individual professional judgment" differed widely on the specification issue. In fact, no other manufac turer set a comparable specification for dioxin. Throughout the period in which Herbicide Orange was manufactured and sold to the government for use in Vietnam, no manufacturer but Dow regularly tested its production to insure that its Herbicide Orange con tained no d i o x i n .* This lack of testing and quality control by other Herbicide Orange manufacturers, combined with the fact that various manufacturers used different manufacturing processes, resulted in greatly varying diox i n levels in Herbicide Orange. S e e , e . g ., Dow's Alt. Liability Memo at 21-22 and annexed exhi bits. Thus, Dow's one recommendation to its competitors at the 1965 meeting -- that they should test their trichlorophenol for dioxin regularly and consider instituting their own quality control measures -- was not followed. Furthermore, Frawley's guarded language and refusal to discuss specifications make clear that Dow and Hercules were wary competitors, not cozy co conspirators. Clearly, there was never an industry-wide standard for dioxin. Plaintiffs attempt to impugn Dow's motives in calling the trichlorophenol manufacturers meeting by citing documents * Dow's rigorous quality control procedures are described at pp. 64-67, s u p r a . C o mpare T h o m p s o n - H a y w a r d 's M e m o in Support of Its Motion for Reargument of its Motion for Summary Judgment, May 26, 1983 at p. 5; M e m o of U n iroyal in Support of its Motion for Reargument, May 26, 1983 at pp. 11-12; Memo in Support of Thompson Chemical Corporation's Motion for Summary Judgment, April 20, 1983 at pp. 1-2; M e m o of Hercules in Support of its Motion for Reargument of Plaintiffs' Motion for Reconsideration of Hercules' S u m m a r y Judgment Motion, December 9, 1983 at pp. 10-11; Reply Memo of Dow in Support of its Motion for Reargument, June 13, 1983 at pp. 10-11. -79- referring to Dow's desire to avoid "excessive restrictive legislation" or restrictive "regulatory activities." Frawley/ Farnham memo, s u p r a , Exhibit "67"; Letter fr. Rowe to Mulholland, June 24, 1965 (the "Mulholland letter"), Exhibit " 6 8 ". P l a i n tiffs' insinuations are totally without merit. It is entirely proper for a corp o r a t i o n to wish to avoid excessive legislation or regulation. A corporation can certainly do so without entering into a conspiracy to conceal information. In fact, just the opposite occurred. See pp. 85-97, in f r a . Dow communicated information on chloracne and dioxin to federal and state government officials, the chemical industry, and many indi vidual health professionals. For example, V.K. Rowe urged in the Mulholland letter that large Canadian trichlorophenol customers be invited to Michigan for a full briefing, stating: We are not in any way attempting to hide our problem under a heap of sand, but we certainly do not want to have any situ ations arise which will cause the regu latory agencies to become restrictive. Mulholland letter, supra. Exhibit "6 8 " (emphasis supplied). Actions to avoid restrictive government regulation are part of the normal business practices of most large corporations and do not constitute a conspiracy to defraud the government. Thus, in the DES cases, the fact that several c o r p o r a t i o n s acted similarly when their actions were ordinary business practices within industry, was found not to constitute concert of action. See pp. 57-58, s u p r a ; Sindell v. A b b o t t L a b o r a t o r i e s , s u p r a ; Ryan v. Eli Lilly & C o . , s u p r a . Nothing in the evidence herein indicates anything other than the "independent, competitive response" which, as the Sindell court found in the DES context, precludes any claims of concert of action. Indeed, the facts in Agent Orange are far weaker regarding concert of action than those in the DES cases, since there was no industry s t andard for dioxin in He r b i c i d e Orange, whereas all DES was, by agreement, chemically identical. See p. 57, s u p r a . Dow's actions c o n c e r n i n g the 1965 m e e t i n g were those of an "independent, competitive" corporation acting respon sibly to warn its competitors of a potential occupational health hazard. In any industry today, there is some degree of c o m munication. If the minimal c o m m u n i c a t i o n s present in A gent O r a n g e , communications which in fact show disagreement rather than agreement in the industry, are allowed to support a finding of concert of action, then the prospect decried by the Court in Sindell -- that the concert of action theory would be distorted to "render virtually every manufacturer liable for the defective products of an entire industry" -- will have become a reality. 607 P . 2d at 933. There is nothing in the 1965 meeting, the M u l h o l l a n d letter, or the Frawley/Farnham memo to suggest a desire on Dow's part to conspire to withhold information on dioxin and chloracne from the government -- information which Dow knew the government -81- already possessed. Rather, the record is clear throughout that Dow's concern was with regard to its competitors. That concern in no way led Dow into a useless conspiracy to conceal infor m a t i o n on d ioxin from the government. On the contrary, it underlines the lack of any agreement or concerted action on the part of Dow and its competitors. There were no Herbicide Orange manufacturers at the 1965 meeting, Herbicide Orange was not mentioned, and the people pre sent did not agree -- and did not have the authority to agree -- on anything. No other manufacturer used the analytical procedure which Dow provided at the meeting to establish any sort of speci fication for dioxin in its own product. In contrast, Dow regu larly tested its production to insure that its Herbicide Orange contained no dioxin. Accordingly, the 1965 meeting provides no evidence what soever that Dow acted in concert with other defendants regarding dioxin or Herbicide Orange. d. The Industry Task Force In August, 1966 a number of chemical companies met to form the Industry Task Force on Phen o x y Herbicide T o l e r a n c e s (the "Task Force") under the auspices of the National Agricultural Chemicals Association. A number of defendants in the Agent Orange Litigation, including Dow, together with other chemical companies, were at some time or another members of the Task Force. -82- Plaintiffs assert that the fact that a petition prepared by the Task Force did not mention dioxin constitutes evidence that defendants were conspiring to keep the government from learning about dioxin. See Plaintiffs' Alt. Liability Memo at pp. 60-75. However, that petition related to permissible trace levels of 2,4,5-T in crops, so dioxin -- a trace within a trace -- would have been at utterly insignificant levels. Thus, dioxin was not mentioned in the Task Force's peti tion simply because it was not relevant. In fact, there is no evidence that dioxin was ever discussed at any Task Force meeting. The Task Force was formed to compile toxicological data regarding residues of phenoxy herbicides in crops and submit that data to the Departments of Agriculture and Health, Education, and Welfare, in accordance with government regula tions. The government had issued regulations requiring such sub missions following a report on pesticide residues issued by the National Academy of Sciences ("NAS"). Report on "No Residue" and "Zero Tolerance", 1965, Exhibit "69". The NAS report noted that new and more sensitive analy tical techniques were making possible the detection of minute pesticide residues which had previously been undetectable. Up until that time government regulations had allowed some pestici des to be used only when they left no detectable residue. The -83- X ^ I improving technology thus threatened the continued use of many valuable pesticides if the regulations were not changed. Rather than permit this to happen, the NAS report recommended that pesticides previously registered on a no-residue basis could continue to be used for five years, even though minute residues were now detectable. During that time, industry was to submit data on the effects of those newly detectable resi dues, so that suitable "negligible residue tolerances" could be determined. On December 8 , 1967, the Task Force submitted its "Petition for the Establishment of Tolerances for the Pesticide Chemical 2,4,5-Trichlorophenoxyacetic Acid on Raw Agricultural Commodities" to the FDA. Exhibit "70". The toxicity data sub mitted, gathered from a wide variety of sources within industry, the government, and academia, represented the current state of knowledge of the toxicity of 2,4,5-T as it was then being man u factured and used. Any toxicity attributable to the presence of dioxin in 2,4,5-T would have been m e a s u r e d and reported in that data, because actual commercial samples of 2,4,5-T were tested. The Petition asked that a permissible residue -- a trace amount -- of 2,4,5-T in crops be established. Dioxin -- a trace contaminant within that trace of 2,4,5-T -- could have been pre sent in such a residue only in a s t r o n o m i c a ll y small q u a n t i t i e s of -84- f 1^ 0O parts per quadrillion (1,000,000,000,000,000).* Such levels of dioxin are far below even current limits of detection. There is of course absolutely no evidence that the m e m bers of the Task Force considered such levels to pose any risk whatsoever to anyone or anything. Nor is there any evidence that dioxin was ever discussed at any Task Force meeting. Dioxin was obviously irrelevant to the question of herbicide residues. That -- and not some sinister conspiracy -- was the reason dioxin was not mentioned in the Petition. Accordingly, the actions of the Task Force provide no evidence that defendants acted in concert to conceal hazards of Herbicide Orange from the government. 2. Dow Communica t e d Its Knowledge Of Chloracne And Dioxin To The Federal Government, The State Of Michigan, The Chemical Industry, And Interested Health Professionals Around The World._________________________________________ The most persuasive evidence that Dow was not part of a "conspiracy of silence" is the fact that Dow was not silent. Rather, Dow time and again disclosed to the government, the che mical industry, and numerous interested individuals the infor m a t i o n which it supposedly was trying to suppress. * The FDA envisioned a residue "in the range of 0.1 ppm." Minutes of the Task Force, A p r i l 20, 1967, Exhibit "71". Calculating based on the Gulfport measurement of an average of 0.12 ppm of dioxin in Dow's Herbicide Orange yields a dioxin residue within the maximum possible 2,4,5-T residue of 12 parts per quadrillion (0.000000000000012). See Dow's Alt. Liability M e m o at p. 22. -85- 3fj- Tk. " / V Initially, Dow notified the Michigan State Department of Health in 1965 of the presence of a chloracnegen in the waste stream of the TCP process. In a letter dated M a r c h 2, 1965, Russell G. Scovill* of that Depart m e n t prai s e d D o w for its handling of the problem: It is an unusual substance that requires such stringent precautionary measures and we must state that those finally adopted are far more restrictive than we our selves would have recommended . . . . Exhibit "73". Significantly, in 1965, the state health depart ments, rather than any federal agency, were the appropriate governmental units to notify of industrial health problems; contact with the United States Public Health Service ("USPHS") about such problems was made not by the company but by the state agency. See Birmingham Tr. at 50, Lee Tr. at 17, Exhibit "7 4 ".** Dow also notified Dr. Donald Birmingham, a dermatologist formerly associated with the USPHS and, at the time, a Professor * Russell Scovill, in addition to being District Engineer for the Michigan State Department of Health, had served on the prestigious Threshhold Limit Value Committee of the American Conference of Government and Industrial Hygienists. See "Threshhold Limit Valu e s for 1961," at p. 129, E x h i b i t "72". Dr. Stokinger was also a member of the Threshhold Limit Value Committee. That committee fixed the acceptable level of industrial exposure to 2,4,5-T in 1962, which still remained unchanged in 1981. See p. 110, n.**, i n f r a . ** Nevertheless, V.K. Rowe of Dow discussed the chloracne inci dent with Dr. Herbert Stokinger, Chief Toxicologist at the Occupational Health Research and Tr a i n i n g Facility, USPHS, in 1965 or 1966. Stokinger Tr. at 75-77, Exhibit "59". -86- f f *7 9 it j of Dermatology at the Wayne State University College of Medicine. He was considered an expert in the field of chloracne and his advice and counsel were sought. Dr. Birmingham saw Dow personnel with chloracne and, accompanied by 10 other dermatologists from around the country, he visited the Midland plant for an on-site inspection. Birmingham Tr. at 51-54, Exhibit "75" ; letter from B. B. Holder to G. E. Lynn, M arch 31, 1970, E x h i b i t "76". In addition, Dow contacted the Institute for Industrial Health at the University of Michigan College of Medicine. A seminar on chloracne was held for resident physicians and stu dents, and several clinical cases were presented to University professors and senior members of the staff while visiting in Midland. JEd. Among the doctors c o n s ulted was Dr. Harold Magnuson, formerly chief of the Division of Industrial Health of the USPHS. M a g n u s o n Tr. at 19, 46, E x h i b i t "77". As a result of these contacts with the University of Michigan, the incident was reviewed with physicians representing various branches of the federal government, such as the United States Navy and the Atomic Energy Commission, private industry, such as General Motors and Ford Motor Company, and even the government of Canada, through the Ontario Department of Labor. Exhibit "76". Dow also communicated extensively about the incident with physicians at the University of Texas College of Medicine in Galveston, Texas. I d . -87- Dow discussed the incident with physicians and other health-oriented individuals from all over the world, including the Netherlands, England, South America, and the Institute of Health in Russia. Id. As early as December 1964, Dow provided information about dioxin's hazards for workers manufacturing trichloropheonol, together with several citations to the scientific literature on dioxin, to the Manufacturing Chemists' Association ("MCA"). See Rowe letter of Dec. 13, 1964 to Stephenson, Exhibit "78". A Mr. Drew of Cambridge Research, Inc. had asked MCA for information on safety in the m a n u f a c t u r e of trichlorophenol, and MCA had in turn asked Dow. Rowe's letter concludes: "You are free to pass this information on to [Mr. Drew] as you see fit." Similarly, when Dow received an inquiry from Drs. J. B l e i b e r g and R. H. Brod k i n dated A pril 6 , 1965 (Exhibit "79"), Dow promptly answered, providing technical information on dioxin's chemical properties, the methods and results of Dow's toxicological work on dioxin, and possible therapy for chloracne patients. Letter fr. B. B. Holder to Bleiberg and Bro d k i n dated April 13, 1965, Exhibit "80". Interestingly, Drs. Bleiberg and Brodkin had enclosed a reprint of an article on chloracne, apparently the one they had written and published the preceding year. See Bleiberg, J., et al., Industrially Acquired P o r p h y r i a , Arch. Dermatolog 89: 793-97 (June 1964), Exhibit "81"; see summary at pp. 119-120, i n f r a . Dow -88- 7, 1 * o ^ =4 ` .v 0 could certainly anticipate that they might publish whatever information they received, yet Dow provided its information on dioxin with no restrictions whatsoever. Furthermore, Dow advised Dr. Charles Minarik around 1965 that it had experienced a chloracne p r o b l e m during the m a n u f a c ture of 2,4,5-T. Minarik Tr. at 302-04, Exhibit "82". Dr. Minarik, the chief of the Crops Division of the Army Biological Laboratories at Fort Detrick, was the man who developed Herbicide Orange for the government and recommended it as the herbicide of choice for use in Vietnam. See Memorandum of The Dow Chemical Company in Support of its Motion for Summary Judgment on the Government Contract Defense, at pp. 37-45 (hereinafter " D o w 's Summary Judgment Memo"). Dow also reported its 1964 chloracne incident to its competitors. A letter of March 19, 1965, from Dow to Monsanto, Hooker, Diamond Alkali and Hercules (Exhibit "61") refers to earlier discussions between Dow and the other companies about the chloracne problem. The meeting of trichlorophenol manufacturers held as a result of that letter is di s c u s s e d at pp. 72-82, s u p r a . On February 19, 1965, representatives of ThompsonHayward visited Dow and were briefed on D o w 's chloracne prob l e m and analytical method for dioxin. D e A t l e y memo, Feb r u a r y 23, 1965, Exhibit "83". Dow's presentation was essentially the same as that made to the group of trichlorophenol producers in March -89- 0w 1965.* At the request of Thompson-Hayward, Dr. Charles E. Lewis, chairman of the Department of Preventive Medicine of the University of Kansas Medical Center also visited Dow in regard to the chloracne and dioxin problem. Ic3.; DeAtley memo, April 26, 1965, Exhibit "84". At about the same time, other purchasers of Dow's tri- chlorophenol were being told of the presence of a chloracnegenic impurity in trichlorophenol. Dow warned its customers during the brief interval in early 1965 after Dow learned that trace amounts of dioxin might be present in its trichlorophenol but before completion of the laboratory tests which established the purity and safety of Dow's trichlorophenol products. The following me m o from F. H. Riley of Dow dated February 15, 1965 (Exhibit "85") was sent to "All Chemical Sales Managers or Office Managers, cc: office": One Inside Salesman each The following information should be passed on to each customer of Dowicide 2 and Dowicide B.** In order to be certain that there are no m i s u nderstandings, it is suggested that a letter be sent so the customer has it in writing. * Since Thompson-Hayward manufactured only 2,4,5-T and not tric h l o r o p h e n o l , it was not invited to the March meeting of trichlorophenol manufacturers. ** Dowicide 2 and Dowicide B are trichlorophenol products. -90- V. 1 7 0 O Impurities have been found in Dowicide 2 and Dowicide B which are potentially capable of causing chloracne. The impurities were discovered as a result of more advanced analytical techniques. The levels are probably about the same as always; but lacking analytical confir mation of this, we feel obliged to advise our customers. At this point in time, we do not know if the levels are safe or not. Lab tests on animals are being run to determine safe levels, but will not be completed for three to four weeks. The general feeling is that customers should have no more trouble than in the past. However, they should be careful and should be warned. Our problem is that our knowledge on the safety of the impurities is sufficient to warn our customers, but is not great enough to know the precise safety levels. In view of this, we would advise against applications involving frequently repeated exposures to the skin. In all probability, normal industrial applications would not present any significant hazard. Each Dowicide 2 and Dowicide B customer should be warned prior to further ship ments of either product. We will insist on confirmation of same prior to releasing orders now on hand or those which may be received in the future. The Riley memo in no way suggested that customers keep secret Dow's warning regarding the chloracnegen in trichloro- phenol. One such customer, Van Waters & Rogers, Inc., passed on Dow's warning regarding chloracnegens to Magna C o r p . ; Magna then wrote to Dow asking for further information, which Dow supplied. See letter fr. Dow to V an W a t e r s & Rogers, Inc., M a r c h 4, 1965, -91- x 'Oi 9  0000 Exhibit "86"; letter fr. M a g n a Corp. to Dow, A pril 6, 1965, Exhibit "87"; letter fr. Dow to M agna Corp., April 15, 1965, Exhibit By late April of 1965 Dow's testing had demonstrated that its trichlorophenol posed no chloracne hazard. See p. 65, supra. Dow immediately sought to allay the fears expressed by a few of its customers regarding continued use of trichlorophenol: We have had some indication that a few customers expressed fears of continuing the use of these two products since our warning regarding impurities which could cause an outbreak of chloracne. As was expressed in a letter dated A p r i l 20, 1965, we again wish to advise that a great deal has been learned about this impurity; and we believe that we can give complete assurance that the amounts which might have been present in Dowicide 2 or Dowicide B could not cause chloracne, even with gross over-exposure. The situation which occasioned earlier caution about impurities has now been brought completely under control. All of the product being pr o d u c e d now is ca r e fully monitored to assure its appropriateness for the recommended applications of these products. In the event that further information relative to the impurities is requested, please contact us and we will be very happy to as sist in p r o v i d i n g additional factual information from our Biochemical Research Department to back up your sales story. Memo fr. Haling of Dow to All Ch e m i c a l S a l e s M a nagers or Sales Office Managers, Designed Chemical Salesmen and Office Salesmen dated July 8, 1965, Exhibit "89". -92- f Later, in 1967, Dow learned that the government was to open its own plant in Weldon Springs, Missouri, for the produc tion of Agent Orange. Dow considered bidding on the construction of the Weldon Springs plant. During the negotiations which followed, Dow advised the government on numerous occasions about potential industrial hygiene problems associated with the manu facture of TCP: 1. On F e b ruary 24, 1967, A.P. Beutel, V i c e - P r e s i d e n t and Director of Government Affairs at Dow, wrote to Brig. Gen. J.A. Hebbeler, Director of CBR and Nuclear Operations, concerning the proposed government-owned Herbicide Orange plant. In his letter, Beutel notes Dow's concern over "certain health problems" inherent in the present process. Beutel letter at p. 3, Exhi b i t "90". 2. On April 20, 1967 A.P. B e utel of Dow wrote to H.G. Fredericks, Deputy Director of Procurement and Production, Edgewood Arsenal, Army Chemical Corps, concerning "a serious potential health hazard to production workers . . . involved in the production of 2,4,5-T." Beutel goes on to advise that Dow has told other manufacturers of the danger and "methods to detect." Finally, he advises that "even with this specific hazard eliminated, care must be taken in handling of the products and intermediates involved." Beut e l letter at p. 3, Exh i b i t "91". 3. In August, 1967 A.P. B e u t e l and two other D o w repre sentatives visited Carl Rolle and his assistant Leon Davis of the Office of the Secretary of Defense, Installation and Logistics, to discuss the Weldon Springs project. During the course of the meeting, the Dow representatives suggested to Davis that every caution be exercised in terms of the health hazard associated with the production of 2,4,5-T. Salesmen's Call Report at p. 1, Exhibit "92". 4. On September 26, 1967, A.P. Beut e l advised A n d r e w Anderson of Edgewood that Dow would not be pre senting a bid at that time on the Weldon Springs project. One of the reasons for this decision was that: -93- # A (*As13 1JL The Chlor-Acne problem associated with the manufacture of Trichlorphenol could not be solved without first receiving permission from a European Chemical Manufacturer. The C h l o r - A c n e p r o b l e m is one of Human Health which Dow has had to combat in the design of its own plants at its Midland operations B eutel Letter, at p. 2, Exhibit "93" (emphasis s u p p l i e d ) . A copy of this letter was also sent to Col. C.G. Shead of the Directorate of Air Force Aerospace Fuels and to W.G. Kratz of the Army Corps of Engineers. Exhibit "94". The contract for the Weldon Springs project was even tually awarded to a joint venture between Thompson Chemical C o mpany and S t e a r n s - R o g e r , Inc. While Dow generally believes it appropriate to allow each defendant to set forth for itself the extent to which it commu nicated its knowledge of chloracne and d i o x i n (and thus has not attempted to do so h e r e i n ) , it is worth noting that Thompson C h e m i c a l Company, in the course of meetings with the government in J a n u a r y 1968 to plan the W e l d o n Springs project, fully disclosed the dangers of dioxin and the methods of avoiding its creation in the 2,4,5-T manufacturing process.* Thompson had requested and received such information from Dow only a few months before. Letter fr. Rowe to Buckley, Feb r u a r y 15, 1967, Exhibit "95".** * Those meetings are discussed in more detail at pp. 104-106, infra. ** Two scientific articles on dioxin and chloracne by Bauer, et al., and Bleiberg, et al., which Dow sent to Thompson are discussed at pp. 117-18 and pp. 119-20, infra. -94- JnL . At about the same time, Dow also notified Jane Lewis, a Commodity Industry Analyst, Chemicals Division, Department of Commerce, that Dow had experienced a chloracne pro b l e m in its 2,4,5-T plant -- and that dioxin had been determined to be the cause. Lewis was responsible for insuring that the government had adequate supplies of Herbicide Orange. Lewis was concerned that other manufacturers m ight encounter a chloracne p r o b l e m as Dow had and asked if Dow had notified other H e r b icide Orange manufacturers of dioxin. Dow said that it had done so, and that it had also notified the Department of Health, Education & Welfare.* Lewis believed that no further action was warranted. In any event, Lewis informed her superior in the Department of Commerce, Wes Koster, of Dow's chloracne incident. Lewis Tr. at 64-67, 70, Exhibit "96". Finally, there is the May 25, 1967 letter from Dr. B e n j a m i n Holder, Dow's Medi c a l Director, to A a r o n J. Reiches, M.D., Exhibit "97". In response to a telephone inquiry from Dr. Reiches, Dr. Holder sent him a list of chemicals which can pro duce chloracne. "Tetrachlorobenzodioxane" was "listed first" by Dr. Holder as the "probable main o ffender." Dr. Holder referred to the published scientific literature on dioxin and even pointed out that increased heat or pressure in the manufacturing process could cause the creation of dioxin. * As discussed previously, Dow had notified Dr. Stokinger of HEW in 1965-66. See pp. 70-71, s u p r a . -95- This last information is the crucial element in reducing the amount of dioxin created in the 2,4,5-T manufacturing process-- the element Dow was supposedly conspiring so diligently to hide. In fact, the letter to Reiches, written when Dow's Herbicide Orange sales were at their peak and the "conspiracy" should have been most intense, displays a complete openness regarding information on chloracne and dioxin. All it took for Dr. Reiches to crack the supposed sinister, industry-wide conspiracy was a telephone call. Dow then mailed him its information on dioxin. It is obvious from the Reiches letter that Dow c o n sidered dioxin to be common knowledge. Dr. Holder simply sum marized the basic information and referred Dr. Reiches to the published scientific literature for further details. Certainly, Dow's repeated disclosures of information on chloracne and dioxin to the government and others during the middle 1960s are totally inconsistent with any conspiratorial attempt to hide such information from the government. Plaintiffs do not dispute the evidence presented above. They simply try to ignore it. For the evidence establishes that Dow repeatedly disclosed its chloracne experience and its knowledge of dioxin and could not possibly have been part of any "conspiracy of silence." Accordingly, Dow did not act jointly with the other defendants to conceal information on dioxin from the government -96- and cannot be held liable to plaintiffs on a theory of concert of action. 3. The Information R e g a r d i n g Chloracne And D i o x i n Which Dow Allegedly Conspired To Withhold From the Government Was Known To The Government And Was In Fact Publicly Available In The Scientific Literature _____________________________________________ The evidence of pervasive government knowledge of dioxin in the 1960s and earlier which has been developed through disco very on government contract defe n s e issues is also d i rectly rele vant to -- and dispositive of -- plaintiffs' conspiracy allega tions. The evidence of government knowledge establishes that any "conspiracy of silence," even if one had existed, could not have caused injury to plaintiffs, since the government obtained all the relevant information on dioxin from other sources. After reviewing voluminous submissions from all parties on the extent of government knowledge of dioxin, Judge Pratt sum marized this "uncontradicted and uncontested evidence" in Pre trial Order No. 51, 565 F. Supp. 1263. We have excerpted at length below Judge Pratt's findings regarding the breadth and depth of the government's knowledge. We ask the Court's indulgence for including such a lengthy quotation, since a full exposition of relevant government knowledge supported by cita tions and exhibits would have been many times longer. Even when all doubts are resolved in favor of the plaintiffs, as required by SEC v. Re s e a r c h A u t o m a t i o n C o r p . , 585 F.2d 31, 33 (2d Cir. 1978), the record - 9 7 - il?" 3~ demonstrates that the government and the military had a considerable amount of knowledge about 2,4,5-T, about dioxin, and about the health hazards associated with both. The following general chrono logy, while not all-inclusive, gives some indication of both the extent of govern ment knowledge in this area and of the fact that it was cont i n u a l l y increasing. During World War II, the military disco vered the herbicidal properties of 2.4.5- T and conducted extensive testing of various possible herbicides. This was conducted under the supervision of the Crops Division of the Army Chemical Corps, at Camp Detrick, Maryland. Several years later, in 1949, Dr. Donald Birmingham of the Public Health Service visited Nitro, West Virginia, where there had been an explosion at Monsanto's 2.4.5- T plant. The report of Dr. Birmingham's colleague, Dr. Louis Schwartz, indicated a connection between chloracne and the chemicals pro d u c e d in the plant. There is uncontradicted e vidence in the record that a number of people knew in the 1950s that dioxin was toxic although they may not have connected it with 2.4.5- T. Several factors c o n t r i b u t e d to this awareness. First, in the early 1950s, C.H. Boehringer Sohn Company of Germany had serious cases of chloracne among workers engaged in the production of TCP, a pre cursor chemical used inter alia to manu facture 2,4,5-T. By 1955, the Boehringer company was forced to halt production at two plants. Dr. K.H. Schulz, a skin specialist, investigated the problem and in 1957 together with P r o f essor J. Kimmig, reported his findings in an article entitled Chlorinated Aromatic Cyclic Ethers As the Cause of Chloracne. 44 Die N a t u r w i s s e n s h a f t e n 337 (1957). In this article, the authors stated that they were able to isolate dioxin, which -98- &o D they believed to be the c o n taminant in TCP that was causing the health problems. While it is not established that anyone in the government read the Kimmig & Schulz article at the time it was published, the article was available as part of the scientific literature and it appeared in a note to the report written by Friedrich Hoffmann concerning his trip to Europe in 1959. The "Hoffmann Trip Report" was a second factor contributing to government knowledge during this period. Dr. Hoffmann, who was searching on behalf of the military for potential chemical war fare agents, reported that he had re ceived "startling information" regarding the toxicity of the compound dioxin. In his report, he described the deaths of several workers in a plant that produced wood preservatives containing trace amounts of dioxin. In addition, he reported that the compound could cause severe, indeed liver damage. At least 10 copies of the Hoffmann report were sent to the Army Chemical Corps Chemical Warfare Laboratories at Edgewood Arsenal, the governmental body responsible for investigating toxicity and analyzing che mical agents. Thus, the Hoffmann report on dioxin, coupled with the Kimmig & Schulz article connecting dioxin to TCP, raises a strong possibility that person nel at Edgewood, even before 1960, were aware of the connection between dioxin and TCP as well as the use of TCP to make 2,4,5-T. Deposition testimony of Edgewood research personnel confirms that people at Edgewood knew about the toxicity of dioxin. Dr. Bernard Jandorf, chief of the Army Chemical Research Laboratory, testified that people at Edgewood had been familiar with this fact since the late 1950s. Dr. Richard Horton, a toxicologist, testified that he knew dioxin was toxic in 1959, as did Dr. Thomas Simmons, who worked in the Agents Research Branch. Walter Sultan, a -99- 1 1 7 3^ pharmacologist in the Toxicity Screening Branch, testified that he had read the Hoffmann report. Further evidence of governmental knowledge is found in the article written by Dr. Birmingham of the Public Health Service in 1959, stating that in the manufacture of 2,4,5-T, intermediate hydrocarbons of the chlorine group had caused chloracne in more than 200 chemi cal workers at a manufacturing plant. Birmingham, New Causes of Occupational Dermatosis, 20 Indus t r i a l Health 489, 492 (1950). Dr. Marcus Key of the Public Health Service testified that he had learned of the association between hydro carbons and chloracne and other diseases at the Harvard Scho o l of Public Health in 1953. In the early 1960s, Dr. Bernard McNamara, Chief of the T o x i c o l o g y Division at Edgewood, performed a study at Edgewood Arsenal of the toxicity of Agent Purple, another defoliant containing 2,4,5-T that was used by the military. This testing was conducted at the request of General F. J. Delmore, C o m m a n d i n g General, U.S. Army Chemical Corps, Research & Develop ment Committee. While the testing indi cated that there was some toxicity, the results were not conclusive. At a m e eting held at E d g e w o o d Arsenal in 1963 to discuss and evaluate the toxicity of 2,4,5-T, the overall thrust of those reporting was that both 2,4,5-T and 2,4-D were safe for humans. Other events occurring in 1963 give a ddi tional indications of governmental knowledge. The Institute for Defense Analysis wrote a report for the Advanced Research Project Agency, an agency within the Department of Defense. This report stated that herbicides were safe when used commercially, but that there could be increased hazards in military use because greater concentrations might be applied by less experienced personnel -100- 11738 under the pressures inherent in battle field use. The report noted the connec tion between chloracne and skin and respiratory irritations and their asso ciation with herbicides. Dr. Key of the Public Health Service testified at his d e p o s i t i o n that in 1963 he placed a sample of 2,4,5-T herbicide on his forearm to see if it would induce chloracne. He did this three times a week for three weeks and developed chloracne on his forearm. He also testified that he had read Kimmig & Schulz and learned of dioxin from that article. When questioned concerning a June 1964 article by Dr. Jacob Bleiberg, Industrially A c q u i r e d Porphyria, 89 Archives of Dermatology 793 (1964), which discussed chloracne and porphyria in workers engaged in 2,4,5-T production, Key stated that he had reviewed the article at the time it was written and that it was only a more complete version of what they already knew. The level of government knowledge appears to have increased much more rapidly during the mid-to-late 1960s. Defendants point to numerous instances of governmen tal knowledge which are not disputed by plaintiffs. Dr. Herbert Stokinger, the chief toxicologist of the Division of Occupational Health, testified that he knew dioxin was an impurity in 2,4,5-T sometime around 1965. Colonel Robert A. Shade, who was chief of the Chemical Operation Branch of Military Assistance Command-Vietnam and later on the staff of the chemical branch of the Assistant Chief of Staff Force Development, testified that he learned of the connec tion between dioxin and 2,4,5-T sometime between mid-1966 and summer 1968. In July 1966, the director of the National Academy of Sciences wrote to the chief of the Bureau of Medicine and Surgery for the Navy advising him of the connection between 2,4,5-T and porphyria -101- 1 7 *ji73 3 and chloracne. In August 1966, the National Academy of Sciences, in response to a request for information, wrote to the Army Surgeon General telling him that 2.4.5- T was toxic and that chloracne was associated with it. Recent deposition testimony indicates that people closely associated with the White House were aware of hazards involved in the use of defoliants. Dr. Gordon MacDonald, a member of President Johnson's Science Advisory Committee (PSAC), testified that the issues of her bicides and dioxin in herbicides were informally discussed by a subgroup of PSAC sometime between April and June 1965. Dioxin as an impurity in 2,4,5-T was also discussed. He said there was discussion of the potential toxicity of dioxin, and while it was considered that the evidence was fragmentary and incon clusive, the subject of dioxin con tamination deserved continuing attention. Dr. MacDonald testified that human health effects were discussed, and that he attended a meeting where the effec tiveness of herbicides and the presence of dioxin in 2,4,5-T were discussed. According to MacDonald, Secretary of Defense Robert MacNamara attended this meeting. Dr. Donald Hornig, Special Assistant to President Johnson for Science and Technology and Chairman of PSAC, testified at his deposition that by 1966 PSAC was discussing impurities in 2.4.5- T. He stated that this discus s i o n occurred sometime between 1964 and 1966. He said that when he learned of the impurity, he felt that "one ought to be concerned" about what the magnitudes of the toxicological effects and of the exposures might be. He testified that he understood dioxin was a health hazard to human beings. However, he also testified that he did not relay the information to President Johnson. -102- f A n additional element of knowledge is found in a 1967 Rand report commissioned by the Advanced Research Project Agency of the Department of Defense. This report described "actual experience" of health hazards associated with the use of defoliants in Vietnam. Finally, there is the study commissioned by the National Cancer Institute, Evaluation of Carcinogenic, Teratogenic, and Mutagenic Activities of Selected Pesticides and Industrial Chemicals (Bionetics Report). This study evaluated the carcinogenic, teratogenic, and muta genic effects of various chemicals. The study was commissioned in 1963, and the report is dated A u g u s t 1968. The study did result in a finding of some teratoge nic effects connected with the use of 2,4,5-T. While it is not clear that defendants are correct in their assertion that portions of the study were available to the government earlier than August 1968, it is clear that by 1968 and 1969, the results of the study were available to the government.* 565 F. Supp. at 1266-1268. The government knowledge set forth above, running through the military and numerous federal agencies and ranging as high as the President's Science Advisory Committee and the S e c r etary of Defense, was, as noted above, undisputed. 565 F. Supp. at 1266. The Court concluded that "the government and the military possessed rather extensive knowledge" regarding the health effects of Agent Orange, noting further that "much of the * The significance of the B i o n e t i c s report, as it pertains to the government's level of knowledge, is addressed in detail in the Memorandum of Hercules, Inc. in Support of Its Motion to Dismiss, January 16, 1984. -103- I if-, *f7 *d J7L government's knowledge was classified and not shared with the defendants." 565 F. Supp. at 1268. Several highly significant additional facts have been discovered since Judge Pratt's opinion was written. For example, Jane Lewis, an official of the Department of Commerce responsible for insuring that the government had adequate supplies of Herbicide Orange, has testified that Dow informed her that dioxin was a toxic contaminant present in Herbicide Orange. supra. See p. 95, Also, documents and testimony relating to the proposed government Herbicide Orange plant at Weldon Springs have established that by 1968 the government was familiar with the intimate details of the 2,4,5-T manufacturing process-- including the causes of dioxin contamination, the methods of minimizing the amount of dioxin created, and techniques for detecting the pre sence of dioxin. This new evidence fully disposes of the few, limited concerns regarding the extent of government knowledge which led the Court to deny Dow's motion for summary judgment on the government contract defense. The documents reveal that meetings between chemical industry and government representatives were held during the week of January 15, 1968, to review the manufacturing process for the government-owned Agent Orange production facility at Weldon Springs. An Engineer Status Report summarizes, under the heading -104- "Health Considerations," the discussions which took place regarding dioxin: 1. In the p r o d u c t i o n of TCP, a compound known as dioxen [sic] is formed which causes Chloracene [sic]. The formation of the dioxen is generally controlled by the temperature of the TCP reaction in the autoclave. Montrochem's experience indicates that dioxen is not formed if the temperature is held below 160 C. However, John Angel has experienced the opera tors contracting Chloracene even though the 160 C temperature conditions were maintained. 2. M o n t r o c h e m recommended that T-S-R* contact the C. H. B oehringer Com p a n y of Ingelheim, Germany, for advice in the control of the dioxen. This company had developed a gas chromatograph test procedure for the finding of dioxen in the process streams. Exhibit "98" (emphasis added). Listed as attending this meeting are three United States Army representatives. These individuals were engineers assigned to the Weapons Development and Engineering Laboratory at Edgewood Arsenal and were responsible for overseeing the design and construction of the Weldon Springs production facility. Two of these individuals, Robert Cox and Charles Bushey, have previously testified to an awareness of the presence of dioxin as an impurity in the manufacture of 2,4,5-T and, to a degree, con cerning risk reduction techniques. Dow's Summary Judgment Memo at 62-63; Dow's Reply Memo in Support of its Summ a r y Judgment M otion at p. 31. * "T-S-R" stands for Thompson-Stearns-Roger, a joint venture of Thompson Chemical Company and Stearns-Roger, Inc. -105- (W,. In its decision on Dow's motion for summary judgment, the Court listed the following limited issues of material fact which remained with respect to the level of government and manu facturer knowledge: the discovery that dioxin was the chloracnegen in TCP; the development of a test to determine dioxin levels (gas c h r o m o t o g r a p h y ) ; and the d e v e l o p m e n t of techniques to reduce dioxin levels during the m a n u f a c t u r i n g process. 565 F. Supp. at 1270. It is evident from the above language of the minutes of the 1968 meeting that all these matters were discussed and made known to the government at this meeting, a meeting which took place over two years before the military stopped using Agent Orange. The Weldon Springs documents completely answer Judge Pratt's only reservations regarding the relative knowledge of Dow and the government. The documents set out in no uncertain terms that the m i l itary was aware of (1) the health hazards presented in the manufacture of 2,4,5-T; (2) the source of the hazard; (3) a method for detec t i n g the source; and (4) a m e thod for e l i m i nating the hazard. Thus, the military personnel responsible for the m anufacture of Agent Orange intended for mil i t a r y use in Vietnam clearly had the same degree of sophisticated manufac turing process information as the defendants. Based on the government knowledge outlined by Judge Pratt, the government was aware that dioxin could be formed during the manufacture of 2,4,5-T and could cause chloracne and other more serious injuries in workers in the manufacturing plant -106- since at least the early sixties, and perhaps the late fifties. Furthermore, the Weldon Springs evidence shows that the govern ment was aware of the details of the manufacturing process relating to the detection and prevention of dioxin formation. Dow had no other information on dioxin to give the government. Thus, any failure by Dow to communicate its knowledge to the government -- though no such failure occurred -- would neverthe less have been irrelevant and harmless. The government had the information already.* In addition to the actual knowledge of dioxin outlined above, there is also constructive kn o w l e d g e -- based primarily on public a t i o n s in the open scientific literature. * Even if one assumes, contrary to the foregoing facts, that the government had no knowledge of dioxin during the period that Agent Orange was used in Vietnam, there is substantial evidence to support the conclusion that the absence of such knowledge would not have altered the government's decision to use Agent Orange. The record is replete with a ssertions by Def e n s e D e p a r t ment officials that the use of Agent Orange was an essential part of the war effort, that its use saved the lives of countless ser vicemen, and that its use was only terminated for political reasons, e , g ., to undercut accusations made against the United States regarding its use of chemical warfare, the infliction of ecological damage on Vietnam, to offset the political controversy surrounding the release of the Bionetics report and to insure ratification of the Geneva Protocol by the United States Senate. See Dow's Summary Judgment Memo at pp. 82-87. In any event, it is clear that the absence of knowledge of dioxin would not have altered the government's decision to use Dow's Agent Orange. Dr. Charles Minarik, Chief of the Crops Division of the Army Biological Laboratories at Fort Detrick, was the government's principal expert consultant and advisor on the use of herbicides throughout the defo l i a t i o n program. Id. at 37-45. Dr. Minarik concluded in 1971, after the use of Agent Orange had been terminated, that use of Agent Orange with less than 1 ppm dioxin was safe. Id. Dow's A g e n t Orange, which could not have had more than 1/2. ppm dioxin, and in fact averaged .12 ppm dioxin, met this criterion. See pp. 66-67, s u p r a . -107- * ') The Court has indicated that the parties may be held accountable for what they "should have known" about dioxin during the 1950s and 1960s. Hearings before Judge Weinstein on October 21, 1983, Tr. at 6813. There is no plainer example of infor mation that the parties should have known than the information published in the open scientific literature. For example, highly sophisticated scientists from a number of government agencies, including the United States Public Health Service, Department of Agriculture, Army Chemical Corps, and the Offices of the Surgeon General for the Army, Navy and Air Force, were responsible for, among other things, keeping abreast of the world scientific literature on occupational health and herbicide research and development. Thus, the fact that certain information was openly published in scientific journals should conclusively establish government knowledge of that information. The Court reached precisely that conclusion in its recent discussion of the government contract defense: The Court: Well, was this [the fact that 2,4-D* might cause peripheral neuropathy] in the literature in 1961? *** Mr. Krohley: In the published scien tific community, yes. These reports go back to the 1950' s. * 2,4-dichlorophenoxyacetic acid. -108- The Court: Then you have all you need on the Government contract defense. Proceedings before Judge W e i n s t e i n on December 21, 1983 at 96-97 (emphasis supplied). Obviously, the same standard -- that open publication conclusively establishes government knowledge -- must apply for 2,4,5-T and dioxin as well as 2,4-D.* Thus, the extensive body of early scientific publica tions on chloracne, 2,4,5-T, and dioxin outlined below must all be considered to have been known to the government. Since the early 1900s, cases of chloracne have been reported in industrial health literature, and it was common knowledge that there was a potential risk of chloracne inherent in the manufacturing process of certain chlorinated hydrocarbons, including c h l o r o p h e n o l s .** Accordingly, in 1941 Dow biochemists developed and published the rabbit ear test, which they utilized extensively to monitor Dow's production of chlorinated naphthale nes and crude chlorinated phenols for potential chloracne problems. Exhibit "33". Dr. Herbert Stokinger of the PHS testified that he became aware of the possibility that 2,4,5-T might cause * The fact of publication must be conclusive as to government knowledge, as the Court indicated; otherwise, the denial of any discovery for defendants on 2,4-D would clearly violate defendants' right to a fair trial on the government contract defense for 2,4-D. ** See a 1941 article by Adams, et al., Exhibit "3 3 " , citing reports appearing in the open literature dating back to 1901 on chloracne incidents from exposure to chlorinated hydrocarbons. See p. 63, s u p r a ; pp. 111-12, i n f r a . -109- chloracne in the early 1950s due to an article published by V.K. Rowe of Dow and V. Drill.* Furthermore, he stated that the asso ciation of chloracne with c h l orinated hydrocarbons such as 2,4,5-T was "common knowledge" by the 1950s. Additional illnesses associated with chloracne at that time included liver disease and porphyria. Stokinger Tr. at 61-65, Exhibit "99". Most importantly, Dr. Stokinger testified that the fact that dioxin was the impurity in 2,4,5-T "was getting to be common knowledge when we met in the American Industrial Hygiene Association meetings." He fixed the time period when dioxin became "common knowledge" as "the mid-sixties . . . or maybe . earlier."** Stokinger Tr. at 108-09, Exhibit "101". Many other government scientists from many agencies, including the Public Health Service, the National Cancer Institute, the Air Force, and the Department of Defense, have testified similarly. Key Tr. at 159, 230-31, Exhibit "102"; Lee Tr. at 29-31, Exhibit "103"; Baker Tr. at 63-64, Exhibit "104"; * Dr. Stockinger was chief toxicologist at the Public Health Service Division of Occupational Health. He further testified that V.K. Rowe discussed D o w 's chloracne problem in its trichlorophenol plant with him in 1965 or 1966. See pp. 70-71, supra. ** Dr. Stokinger served as chairman of the prestigious Threshhold Limit Value Committee of the American Conference of Govern ment Industrial Hygienists from 1962 to 1977. That committee set a tentative acceptable level of industrial exposure to 2,4,5-T in 1962, based on the work of V.K. Rowe and Victor Drill. That level was formally adopted a few years later and remained un changed in 1981. Stokinger Tr. at 26-28, Exhibit "100". Thus, the committee did not modify the threshhold limit value for 2,4,5-T in response to information regarding dioxin. -110- Coates Tr. at 134-35, Exhibit "105"; Melvin Tr. at 31-33, Exhibit "106"; Birmingham Tr. at 43-44, 102-03, Exhibit "107"; Lawton Tr. at 16, Exhibit "108"; Magn u s o n Tr. at 53, Exhi b i t "109". In order to make clear the extent of information readily available to government scientists during the 1960s, we have pr e pared the following annotated list of representative scientific publications. In considering that list, the Court should bear in mind that it is far from complete, and that there is extensive evidence that the government was actually aware of the listed articles during the 1960s. See p. 125, n.*, i n f r a . In fact, many of the articles were written by government employees or pur suant to government research grants. 1. Adams, E.M., Irish, D . D . , Spencer, H.C., and Rowe, V.K., The Response of Rabbit Skin to Compounds Reported to Have Caused Acneform Dermatitis, Journal of Industrial Medicine (January 1941), (Exhibit "33"). Twenty-nine articles describing previous industrial experiences of acneform dermatitis and chloracne are cited. Among the causative agents listed are chlorinated diphenyls and crude chlorinated phenols. Experiments were p e r f ormed a pplying various m a t e r i a l s to the skin and ears of rabbits. The response of the rabbit is described in detail. The results grea t l y resembled the response of human skin. Thus, it appeared pro b a b l e that the "rabbit ear test," as it came to be called, could be used to d e tect substan- -111- ces which would cause chloracne and acneform dermatitis in humans. The article was written by Dow scientists. The rabbit ear test has since been extensively employed at Dow and throughout the world to detect the presence of acnegens and other skin irritants. 2. Birmingham, D. J., and Campbell, P. C.: Occupational and Related D e r m a t o s e s , Chloracne, pp. 43-44 (Abstracts from the Literature -- July 1943 to December 1953). (Exhibit "110".) Ten articles on chloracne dated between July 1943 and December 1953 are abstracted. Among the substances associated with chloracne are chlorinated hydrocarbons, chlordiphenyls, chlordiphenyloxide, chlorophenols, and pentachlorophenol. Dr. Birmingham was Senior Surgeon with the Occupational Health Program of the USPHS at the time. 3. Schulz, K.H.: C l i n i c a l and E x p e r i m e n t a l Studies on the Etiology of Chloracne, Arch. Klin. Exp. Dermatol. 206:589-96 (1957). (English translation) (Exhibit "111".) Thirty-one workers engaged in the manufacture of 2,4,5-T from trichlorophenol developed chloracne. The symptoms of chloracne and the 2,4,5-T manufacturing process are described. Animal experiments (predominantly on rabbit ears) revealed that chloracne was caused by a by-product of the manufacturing pro cess, not the trichlorophenol itself. A number of likely by- -112- products were tested. Although proof was incomplete, "tetrachlorodiphenylene dioxide"* (with the positions of the four chlorine atoms "uncertain") was suspected as a causative agent. Further investigations were underway.** 4. Kimmig, J., and Schulz, K. H.: Occupational Chloracne Caused by Aromatic Cyclic E t h e r s , Dermatologies 115: 540-46 (1957). (English translation) (Exhibit "50".) T hirty-one cases of chloracne developed among workers in a trichlorophenol and 2,4,5-T production plant. In three cases, the liver was also affected. Tests on rabbits' ears showed that pure trichlorophenol did not cause chloracne, but technical grade trichlorophenol did. Thus, the chloracnegen was demonstrated to be a toxic by-product formed during the manufacturing process. The process by which tetrachlorobenzene is converted into trichlorophenol and then 2,4,5-T is described. Several compounds which might arise in the produ c t i o n process were tested and found to be chloracnegenic, the most toxic of which was "2,3,6,7-tetrachlorodibenzodioxin [2,3,7,8-TCDD]."*** * Tetra chlo r o di p h e n y l e n e dioxide is another name for tetrachlorodibenzo-p-dioxin. ** See pp. 113-14, i n f r a , where Schulz reports the isolation and identification of 2,3,7,8-tetrachlorodibenzo-p-dioxin ("2,3,7,8-TCDD," " T C D D ," "dioxin"). *** The compound is 2,3,7,8-TCDD, though the German system results in a slightly different numbering. S e e , e . g . , the d i a g r a m in Exhibit "112," another 1957 article by Kimmig and Schulz. -113- Further investigation established that TCDD was present in residues of the trichlorophenol process. The reaction by which TCDD formed during the manufacture of trichlorophenol was demonstrated. Kimmig and Schulz thus concluded that "tetrac h l o r odibenzodioxin is responsible for the observed cases of chloracne if not entirely, c e r t a i n l y to a considerable extent." 5. Kimmig, J., and Schulz, K. H.: C h lorinated Aromatic Cyclic Ethers as a Cause of the So-called C h l o r a c n e , Natu r w i s s e n schaften 44:337-38 (1957). (English translation) (Exhibit " 112".) Personnel engaged in the manufacture and further pro cessing of trichlorophenol developed chloracne and, in some cases, liver damage. The principal intoxicating factor was a by product of the manufacturing process, occasionally present as an impurity in trichlorophenol and its subsequent derivatives: "2,3,6,7-tetrachlorodibenzodioxin (2,3,6,7-tetrachlorodiphenylene dioxide)."* Results of ear and peroral toxicity tests on rab bits demonstrated the "high general toxicity" of TCDD. The che mical reaction by which TCDD is formed in the trich l o r o p h en o l process is described and diagrammed. The fact that high t em perature and pressure contribute to d i o x i n formation is made clear. This article was cited in the H o f f m a n n T r i p Report. See pp. 99, su p r a . * A diagram shows that these names represent 2,3,7,8-TCDD, though the German numbering system differs. -114- 6. Hoffman, H., N e w E x p e r i e n c e s with High l y Toxic Chloro Hydrocarbons, Arch. Exper. Pathol, and Pharm., 232(1): 228-30 (1957). (English translation) (Exhibit "113".) An accident in a t r i c h l o rophenol plant caused a "sudden increase of pressure and temperature." Many workers developed "the classical Perna disease" [chloracne]. Attempts to clean the plant were unsuccessful; rabbits placed in the plant after it was cleaned died. Samples from the contaminated plant proved highly toxic in animals. Many compounds were tested to d e t e rmine the "highly toxic d e c o mposit i on product" in t r i c h l o r o p h en o l which was responsible. Thus, a decomposition product, and not the trichlorophenol itself, was assumed to be responsible for the chloracne problem associated with trichlorophenol production. 7. Sandermann, W . , Stockmann, H., and Casten, R . , Pyrolysis of Pentachlorophenol, Chem. Ber. 90:690-92 (1957). (German original and English translation) (Exhibit "114".) The synthesis of "tetrachlorodiphenylene dioxide" [2,3,7,8 - T C D D ] * from ch l o r ophenol is described. Phy s i c a l c h a r a c teristics of TCDD are recorded. The compound was "very effective" against wood-destroying fungi and insects, but caused chloracne "even in very small quantities." This article was cited in the H o f f m a n n Trip Report. See p. 99, s u p r a . 8. Dugois, P. Marechal, J., and Colomb, L.: Chloracne Caused by 2,4,5-trichlorophenol, Arch. Mai. Prof. 19:626-27 * A diagram clearly identifies the compound as 2,3,7,8 - T C D D . -115- (1958). (English translation) (Exhibit "115".) Seventeen cases of chloracne occurred in a trichlorophe- nol plant. The symptoms of chloracne, which presented the "classical picture," are described. The toxic material was found to be concentrated in the waste tars. Modification of operating procedures to minimize contact with the tars eliminated the problem. 9. Tomita, M., Ueda, S., Narisada, M.: Dibenzo-pdioxin Derivatives, Pharm. Soc. of Japan 79:186 (Japanese) (1959). (Exhibit "116".) In response to another article by Sandermann containing information on dioxin similar to that recorded in the Sandermann article discussed s u p r a , at p. 115, Tomita synthesized a number of dibenzo-p-dioxin (diphenylene dioxide) compounds and deter mined their physical properties, including infrared absorption spectra. One of the compounds synthesized and tested was 2 , 3 , 7 , 8-tetrachlorodiben z o - p - d i o x i n . See p. 118, i n f r a . 10. Birmingham, D. J.: New Causes of Occupational Dermatoses, American Medical Association Arch, of Industrial Health 20:489-92 (Dec. 1959). (Exhibit "117".) Numerous developments i n 'o c c u p a t i o n a l d e r matology are discussed. Chlorinated aromatic hyrocarbons, notably the diphenyls, diphenyloxides and chloronaphthalenes, are well-known chloracnegens . . . . In the manufacture of 2,4,5-T Weed Killer, intermediate aroma- -116- tic hydrocarbons of the chlorinated group were discovered as the cause of chloracne in more than 200 chemical workers in one plant engaged in the manufacture of the weed killer. Dr. Birmingham was Medical Director and Chief Dermatologist of the USPHS Occupational Health Program. The paper was presented at the 18th Annual Congress on Industrial Health in January 1958. 11. Bauer, H., Schulz, K.H., and Spielberg, U.: Occupational Intoxication in the Manufacture of Chlorophenol Compounds, Arch. Gewerbepathol. Gewerbehyg. 18:538-55 (1961). (English translation and German orignial) (Exhibit "118".) Several German chemical companies experienced chloracne outbreaks during the 1950s. The trichlorophenol and 2,4,5-T manufacturing processes involved are discussed and the associated symptoms are reported in detail. Publications and incidents of chloracne world-wide since the late 1800s are summarized. A long series of investigations eventually led to the finding of Kimmig and Schulz that trichlorophenol itself was not the chloracnegen. Rather, chloracne was caused by a by-product of the manufacturing process. The precise conditions in which TCDD forms are descr ibed: alkaline hydrolysis of 1:2:4:5-tetrachloro benzene to 2:4:5-trichloro phenol w hich is carried out t e c hnically under pressure at temperatures of about 180 C in the presence of methanol and sodium hydroxide. -117- The chemical reaction by which T C D D is formed in the trichlorophenol process is also described. TCDD was successfully isolated from process materials. Finally, Schulz applied TCDD to his own forearm and induced chloracne. Thus, the authors con sidered the fact that TCDD caused the chloracne associated with the trichlorophenol process "sufficiently proven." A change of manufacturing process eliminated the chloracne problem. 12. Jones, E. L., and Krizek, H.: A Technic for Testing Acnegenic Potency in Rabbits, Applied to the Pote n t Acnegen, 2,3 , 7 ,8-tetrachlorodibenzo-p-dioxin, Journal of Investigative Dermatology 38:511-17 (1962). (Exhibit "119".) A quantitative method for measuring the acnegenic potency of chemicals by applying them on the rabbit ear is described. TCDD was selected as the test compound to demonstrate the method because it was known to be an e x t r e m e l y potent a c n e gen. TCDD is suitable for use as a standard against which the acnegenicity of other compounds can be measured. The preparation of TCDD by heating the sodium salt of trichlorophenol is described in detail and compared with the v i r tually identical mode of origin of TC D D in the tric h l o r o p h en o l process as described by Kimmig and Schulz. See Exhibit "50", pp. 113-14, supra. The physical characteristics of the prepared TCDD sample were comparable to values p r e v i o u s l y reported for TC D D in three different articles by Tomita et al., supra, Exhibit "116", Sandermann et al., and Narisada. The report concludes that -118- 4. : /? u `J [a]ttention should be called to the great toxicity of [TCDD]." The research was performed at the University of Chicago and supported by grants from the Office of the Surgeon General of the Army and the United States Public Health Service. The paper was presented at the Twenty-third Annual Meeting of the Society for Investigative Dermatology on June 26, 1962. 13. Birmingham, D. J.: O c c u p a t i o n a l D e r m a t o l o g y , Skin 3:38 (1964). (Exhibit "120".) The article surveys the current state of occupational dermatology, identifying two principal problem areas: photosen sitivity reactions and chloracne. Several episodes of chloracne are described, including one in which forty out of sixty produc tion employees in a 2,4,5-T plant were reported to be experienc ing mild to severe chloracne symptoms at the time the article was published. The article concludes that " [tlhe presence of c h l o racneqens in A m e rican industry is c o m m o n " (emphasis in original). 14. Bleiberg, J., Wallen, M . , Brodkin, R . , and Applebaum, I. L.: Industrially A cquired P o r p h y r i a , Arch. Dermatology 89:793-97 (June 1964). (Exhibit "80".) A severe outbreak of chloracne occurred in a plant m anu facturing 2,4-D and 2,4,5-T. Twenty-nine workers with chloracne were examined; eleven of these also showed evidence of porphyria cutanea tarda, a disturbance of porphyrin metabolism with asso- -119- ciated skin manifestations. The outbreak provides evidence that porphyria is not necessarily genetic, but may be acquired following insult to the liver. The article expressed appre ciation for the assistance of Drs. Birmingham, Key, and Olivier of the Public Health Service. Drs. Bleiberg and Brodkin wrote to Dow for information on dioxin shortly after the publication of their article, and Dow provided the information requested. See pp. 88-89, s u p r a . 15. Birmingham, D. J.: P r e v e n t a b l e O c c u p ational Dermatoses, American Medical Association Arch. Environ. Health 12:639-43 (June 1966). (Exhibit "121".) Various types of preventable occupational dermatoses are discussed. A number of cases of industrial chloracne have resulted from exposure to chloronaphthalenes, chlordiphenyls, and c h l o rdip h e n yl o x i d e s . Cases have been reported in chemical workers making herbicides. Recently, Bleiberg* reported chloracne accompanied by porphyria in a number of chemical workers making herbicides. This is a p r e ventable disorder, but only when efficient engineering con trols are installed and maintained. Id. at 641. The paper was presented at the 25th A merican Medical Assocation Congress on Occupational Health. 16. Birmingham, D. J., and Key, M. M . : O c c u p a t i o n a l Chloracne, Proceedings of the International Congress on Occupa tional Health (September 1966). (Exhibit "122".) * See Exhibit "80", p. 119, s u p r a . -120- The history of chloracne incidents and publications dating back to 1899 is b r i e f l y summarized. The P u b l i c Health Service has been "interested in chloracne since the middle 1930's." A table of some of the incidents known to the Public Health Service includes two involving 2,4,5-T. Outbreaks of chloracne in chemical plants manufacturing 2,4,5-T herbicide (Bleiberg et al., 1964; Dugois and Colomb, 1956; Kimmig and Schuz [sic], 1957) and recent reports to the Division of Occupational Health of chloracne among herbicide users, has prompted us to attempt to identify the chloracnegenic contami nant (s) in c o m m e r c i a l 2,4,5-T. Several investigators . . . have ascertained . . . that on a theoretical basis, the contaminant may be a chlorinated dibenzop-dioxin (Kimmig and Schuz, 1957; Jones and Krizek, 1962). Dr. Key worked in the Division of Occupational Health of the USPHS; Dr. Birmingham, author of many of the preceding articles while with the USPHS, is now a professor at W ayne State University. The paper was presented at the International Congress on Occupational Health in Vienna in 1966. 17. Zielinski, w. L . , and Fishbein, L.: Gas Chromato graphic Measurement of Disappearance Rates of 2,4-D and 2,4,5-T Esters in M i c e , J. Agr. Food Chem. 15:841-44 (Sept.-Oct. 1967). (Exhibit "123".) Gas chromatography was used to determine the rate of disappearance of 2,4-D and 2,4,5-T from the bodies of mice. The body residence time of 2,4,5-T was found to be longer than that of 2,4-D. A number of previous studies which used gas chroma -121- tography in the early and mid sixties to measure levels of 2,4-D and 2,4,5-T were cited. The samples used in the study were obtained from Dow, and were "used as received following a purity check by gas chromatography and infrared spectra." Zielinski and Fishbein were affiliated with the Bionetics Research Laboratories. This research was an outgrowth of their work on the ongoing Bionetics study of pesticides, see p. 103, s u p r a , and was supported by the Na t i o n a l Cancer Institute and the Public Health Service. 18. Schulz, K.H.: Cli n i c a l Picture and Etiology of Chloracne, Arbeitsmed. Socialmed. Arbeitshyg. 3(2):25-29 (1968). (English translation) (Exhibit "124".) The history and symptoms of chloracne are described. Outbreaks in chlorophenol plants in the United States, the Netherlands, and Germany are discussed. The trichlorophenol m a n u f a c t u r i ng process is described, and various possible chloracnegens formed during that process are identified -- chief among them being TCDD. TCDD has been synthe sized and, in addition, isolated from residues of the trichlorophenol process. The chemical r e action by which TCDD is formed in the process is diagrammed. T o x i c o l o g i c al data on TCDD showed "an extreme high toxicity." One investigator [Schulz] applied TCDD to his own skin and produced chloracne. Thus, TCDD "played an important role" in the o u t b r e a k s of chloracne a s s o ciated with the manufacture of trichlorophenol. -122- *1760 19. Dugois, P., Amblar, D., Aimard, M . , Deshors, G . , A Collective and Accidental Chloracne of a New T y p e , Bull, de la Societe Clinique de Derm, et Syphil. 75:260-61 (1968). (hand written English translation) (Exhibit "125".) In 1966, there was an accident in a 2 , 4 , 5-T p lant in the Grenoble region of France. "[0]ver-pressure caused the plumbing to burst." Shortly after the accident the workers experienced lesions and edema. Subsequently, they developed chloracne. The rapid development of lesions and edema distinguished this outbreak from previous reported chloracne episodes. The article noted that the causative agent had been isolated: etheroxyde tetrachlore [apparently TCDD]. 20. Innes, J. R. M . , et al., B i o a s s a y of P e s t i c i d e s a Industrial Chemicals for Tumorigenicity in Mice: A Preliminary N o t e , Journal of the National Cancer Institute 42:1101-14 (June 1969) (with attached list of test compound sources) (Exhibit "126"). The tumorigenicity of 120 selected pesticides and industrial compounds was tested by continuous oral administration to mice. Eleven of the compounds induced a significantly ele vated incidence of tumors; twenty compounds were marginal and require further evaluation; eighty-nine gave no significant indi cation of tumorigenicity. Both 2,4-D and 2,4,5-T* showed no * The sample of 2,4,5-T tested was o b tained from Dia m o n d Al-kali in 1964 and contained about 30 ppm dioxin. See p. 124, i n f r a . -123- ( tumorigenicity. The study was performed for the National Cancer Institute by Bionetics Research Laboratories. See pp. 103, 107 n.*, supra. 21. Courtney, K. D., Gaylor, D. W . , Hogart, M. D., Falk, H. L.: Teratogenic E v a l u a t i o n of 2 , 4 , 5 - T , Science 168:864-66 (1970) . (Exhibit " 1 2 7 " .) The herbicide 2,4,5-T was found to be teratogenic in two strains of mice when administered subcutaneously and orally and in one strain of rats with oral administration. The 2,4,5-T used in the study was manufactured by Diamond Alkali. It contained approximately 30 p p m of T C D D , according to analysis p e r f ormed by Dow. Both dioxin and purified 2,4,5-T will be investigated further. The study was performed at Bionetics Research Laboratories under contract from the National Institute of Health. See pp. 103, 107 n.*, su p r a . Dr. H.L. Falk of the National Cancer Institute was a co-author of the study. *** It must be emphasized that the above list is by no means exhaustive. There are many other publications on chloracne and dioxins from the 1960s, 1950s, and earlier. However, the above sampling establishes conclusively that all relevant information on dioxin was publicly available in the o p e n s cientific litera-- -124- ture by the early 1960s.* The articles included the following significant infor- mation regarding dioxin and 2,4,5-T: 1) The chemical structure and properties of dioxin; 2) M e t h o d s of synthesis of dioxin; 3) D i oxin is a by-product of the trichlorophenol process poten t i a l l y present at varying levels in trichlorophenol and 2,4,5-T; 4) D i o x i n at sufficiently high levels can cause chloracne, liver damage, porphyria cutanea tarda, and other serious health problems; 5) D i o x i n can be formed as a by-product during the portion of the 2,4,5-T process in which tetrachlor o be n z e n e is converted to trichlorophenol; 6) The 2,4,5-T manufa c t u r i ng process is d e scribed in detail; 7) High temperature (180 C) and pressure in the manufacturing process can cause increased dioxin formation; * We have refrained from documenting the government's extensive familiarity with the above articles, since to do so would greatly expand the size of this memorandum. However, it is worth noting that the articles by Sandermann and by Kimmig and Schulz, pp. 114-115, s u p r a , were cited in the Hoffmann Trip Report in 1959. See p. 99, s u p r a . The thirty-two references on chloracne and dioxin in Dr. Groth's 1965 research proposal include many of the most significant early articles discussed above. See pp. 68-72, s u p r a . Finally, when Dr. Walter Melvin, Commander of the Air Force Environmental Health Laboratories, reviewed phenoxy her bicides in the 1960s, his review of the scientific literature included the articles by Kimmig and Schulz. Exhibit "106". -125- 8) Suitable modifi c a t i o ns of the manufacturing process result in the production of 2,4,5-T and trichlorophenol without the formation of dioxin at levels which cause chloracne or other health effects; 9) The rabbit ear test was available to d e t e r mine whether 2,4,5-T might cause chloracne; 10) Gas chromatography was capable of detecting low levels of chemical contaminants in the 1960s. The extent of the publicly available information on dioxin as shown by the above list renders absurd plaintiffs' charges that Dow conspired to conceal such information from the government. The information which Dow supposedly conspired to conceal was published in the scient i f i c literature before the "conspiracy" even began. As set forth at pp. 62-67, s u p r a , Dow's knowledge of dioxin was limited to occupational health hazards; Dow had no knowledge of hazards to users of its 2 , 4 , 5-T products. Since the information regarding occupational health hazards associated with d ioxin is fully set forth in the above articles -- information available both to Dow and the government -- the government clearly possessed the same information as Dow. Thus, again, any failure on Dow's part to warn the government could not have caused injury to plaintiffs. * Accordingly, Dow cannot be held liable to plaintiffs on grounds that it acted in concert with other defendants to conceal -126- information on dioxin from the government and thus caused harm to plaintiffs. Dow acted independently from the other defendants on all aspects of the dioxin problem, telling the government, the chemical industry, its customers, and health professionals around the world about chloracne and dioxin and regularly testing its production to insure that its Herbicide Orange contained no dioxin. Moreover, the government was clearly fully informed regarding dioxin's potential hazards, which were discussed in the open scientific literature. The answer to plaintiffs' allegations of a "conspiracy of silence" is simple and a b u n d a n t l y apparent. There was no conspiracy. And there was no silence. Accordingly, the concert of action theory does not justify relieving plaintiffs of their burden to prove that Dow in fact caused them harm before they can hold Dow liable for their alleged damages. D. Enterprise Liability The principle of enterprise liability, sometimes referred to as industry-wide liability, was first announced by this Court in Hall v. E. I. Du Pont de Nemours & C o ., 345 F. Supp. 353 (E.D.N.Y. 1972). There, plaintiffs had sustained injuries when blasting caps, which allegedly had not been accom panied by appropriate warnings as to the dangers inherent in their improper use, were detonated and exploded. Most of the plaintiffs were unable to identify which of the defendants had -127- 11765 manufactured the specific blasting cap which had caused his injury. Among the defendants was a trade association of which each of the defendants was a member. Plaintiffs alleged that the decision not to include appropriate warnings, and indeed to lobby against legislation which would require such warnings, was made by the manufacturers jointly through its trade association. Therefore, rather than attempting to fix liability on a specific defendant, plaintiffs in effect alleged negligence by an entire industry, acting as a unit. The Court, in a landmark decision, sustained the causes of action. Using the accepted doctrine of concert of action as a starting point, the Court reasoned that in this instance joint liability need not necessarily be predicated on a showing of joint action or common design. Rather, when defendants exer cise joint control of the risk and their control proves insuf ficient, joint liability is appropriate. 345 F. Supp. at 374. Thus, under the Hall rationale, whenever an industry-wide stan dard of safety is insufficient to protect product users, that standard "becomes itself the cause of plaintiff's injury, just as d e fendant's joint plan is the cause of injury in the traditional concert of action plea." Comment, DES and a Proposed Theory of Enter p r i s e L i a b i l i t y , 46 F o r d h a m L. Rev. 963, 997 (1978). The Court determined, therefore, that the allegations of the complaint, if proven, would be sufficient to shift the burden -128- of disproving causation to the defendants. The Court did empha size, however, the nature of the control of the risk exercised jointly by the defendants which must be shown: To establish that the explosives industry should be held jointly liable on enterprise liability grounds, plaintiffs, pursuant to their pleading, will have to demonstrate defendants' ... joint cap a c i t y to reduce or affect those risks. 345 F. Supp. at 378 (emphasis a d d e d ) . It is this requirement that the defendants, between them, exercise control of the risk and the ability to reduce it that has led courts to consistently decline to apply the theory of enterprise liability in DES cases. See Dow Alt. Liability Memo at pp. 32-33. As this Court recognized in P r e t r i a l Order No. 66, Hall and the principle of enterprise liability are not applicable in the context of the Agent Orange Litigation. For the reasons expressed in the DES and asbestos cases, the Court's rejection of Hall in this instance is correct. It is clear that, unlike H a l l , there was no industry standard for dioxin in Agent Orange. The widely varying levels of dioxin in the various manufacturers' H e r b i c i d e Orange speak for themselves. The 1965 meeting of trichlorophenol manufacturers also supports the lack of any industry standard.* There was no * The trichlorophenol ma n u f a c t u r e rs m e e t i n g is d i s c ussed in full at pp. 72-82, s u p r a . The lack of an industry standard is dealt with specifically at pp. 75-80, supra. -129- suggestion of such a standard at the meeting. Rather, each manufacturer was to take the information provided by Dow and eva luate and apply it independently. The Frawley/Farnham memo, written several months after that meeting, shows that Dow exercised no control whatsoever over the dioxin levels in its competitors products. Note to file by John Frawley, supra, Exhibit "67". See pp. 77-78, supra. Indeed, Dow's recommendation that the other manufacturers test their products using the analytical procedure which Dow had supplied and set suitable safety specifications at their own discretion was not followed by the other manufacturers. See pp. 76-82, supra. Since Dow demonstrably had no power to affect its com petitors' actions regarding dioxin, whether by imposing an industry standard or otherwise, the "joint capacity to reduce or affect . . . risks" required by Hall for the imposition of enter prise liability simply does not exist in Agent O r a n g e . If there was a "risk" in the manufacture of Agent Orange which created a potential health hazard from exposure to the end product, each manufacturer had individual control over that risk. The record is clear that there was no uni f o r m standard adopted nor even a tacit understanding among defendants as to the need for a safety standard. Furthermore, the government unquestionably controlled the use of Agent Orange in Vietnam. A ny risk att r i b u t a b l e to the -130- use or, more accurately, the misuse of herbicides by the govern ment and the capacity to reduce that risk was within the exclu sive control of the United States government. Accordingly, any effort to impose liability on a defen dant who had neither control over the manufacture of his competitor's Agent Orange or the use of Agent Orange would be unfair and contrary to the standard of industry-wide liability set forth in Hall. -131- CONCLUSION For the reasons set forth herein, Dow's motion to dismiss should be granted. Dated: Garden City, New York January 16, 1984 Respectfully submitted, RIVKIN, LEFF, SHERMAN & RADLER On the Brief: Leonard L. Rivkin Jeffrey Silberfeld Lesli e R. Bennett W i l l i a m F. Cavanaugh, Steven Brock Jr. B y : ___ (A M H e r o r t h e Firm) Attorneys for Defendant The Dow Chemical Company 100 Garden City Plaza Garden City, New York 11530 (516) 746-7500 -132- UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK Fi pn I ' l C'XrK'S ornr In Re "AGENT ORANGE" Products Liability Litigation ) ) MDL No. 381 ) (All Cases) ) ) Plaintiffs Demand Trial by Jury FIFTH AMENDED VERIFIED COMPLAINT NOW COME each of the Plaintiffs hereinafter set forth, by and through the undersigned attorneys, each of them in their individual and representative capacities, and complaining of the various Defendants, both individually and collectively, as' and for their Fifth Amended Verified Complaint, allege as follows: Federal Diversity Jurisdiction 1. Jurisdiction of this Court is invoked under 28 U.S.C. 1332. The amount in controversy herein and the amounts in controversy with respect to each of the individual claims of the representative Plaintiffs herein exceeds the sum or value of TEN THOUSAND AND NO/lOO DOLLARS ($10,000.00), exclusive of interests and costs. 2. In this action brought as a class action, the following Plaintiffs have been selected as representative members of the class. Plaintiffs reserve the right to seek leave of the Court to add additional representative Plaintiffs. a) Plaintiff CHARLOTTE BLACKMON, as surviving spouse and as the personal representative of the veteran ORVILLE E. BLACKMON, deceased, and as mother and next friend of their children, REBECCA, VALERIE, BRENT and KAREN, is a resident of the State-of:# Georgia. 117/F b) Plaintiff CAROLYN OEAMPICN, as surviving spouse and as the personal representative of the veteran THOMAS B. CHAMPION, deceased, and as mother and next friend of their children, THCMAS, JR., JOY and DEDRIC, is a resident of the State of Georgia. c) Plaintiff veteran GEORGE EWALT and his spouse, SHEILA, and as.parents and next friends of ,theircchild, TERA CATHERINE, are .residents of the State of Pennsylvania. d) Plaintiff veteran DANNY L. FORD and his spouse, CHRISTINA, are residents of the State of Michigan; the Dow Chemical Company is not a defendant to these Plaintiffs' claims. e) Plaintiff veteran DAVID G. LAMBICOETE is a resident of the State of Virginia. f) Plaintiff CAROL QUINN, as surviving spouse and as the personal representative of the veteran BRIAN T. QUINN, deceased, and as mother and next friend of their child, KEVIN, is a resident of the State of Illinois. g) Plaintiff veteran DAN G. JORDAN and his spouse, DONNA, individually and as vparents . and next friends their children CHAD and MICHAEL, are residents of the State of Texas. h) Plaintiff veteran EARLIE ROBINSON and his spouse, SHEILA ANN, individually and as parents and next' friends of their child, MICHAEL ANTHONY, are residents of Washington, D.C. i) Plaintiff veteran MICHAEL F. RYAN, and his spouse, MAUREEN, individually and as parents and next friends of -2- 11772 their child, KERRY, are residents, of the State of New York. j) Plaintiff veteran WILLIAM SINGLEY, and his spouse, DIANE, both individually and as the surviving parents of their child, WILLIAM, deceased, are residents of.the State of Pennsylvania. k) Plaintiff veteran STEVE ZARDIS, is a resident of the State of Maryland. 3. Upon information and belief, defendant Dow Chemical Company is a corporation organized and existing pursuant to the laws of the State of Delaware and having its principal office in the State of Michigan. 4. Upon information and belief, defendant Monsanto Corporation is a corporation organized and existing pursuant to the laws of the State of Delaware and having its principal office in the State of Missouri. 5. Upon information and belief, defendant Hercules, Incorporated is a corporation organized and existing pursuant to the laws of the State of Delaware and having its principal office in the State of Delaware. 6. Upon information and belief, defendant T-H Agriculture & Nutrition Company, Inc., is a corporation organized and existing pursuant to the laws of the State of Delaware, and having its principal office in the State of Kansas. 7. Upon information and belief, defendant Diamond Shamrock Corporation is a corporation organized and existing pursuant to the laws -3- of the State of Delaware and having its principal office in the State of Ohio. 8. Upon information and belief, defendant Uniroyal Incorpora ted is a corporation organized and existing pursuant to the laws of the State of New Jersey, and having its principal office in the State of Connecticut. 9. Upon information and belief, defendant Thompson Chemical Corporation, formerly a division of William T. Thompson Company, is a corporation organized and existing pursuant to the laws of the State of Missouri, and having its principal office in the State of Missouri. Federal Question Jurisdiction 10. Jurisdiction of this Court is invoked under 28 U.S.C. 1331. The amount in controversy herein and the amounts in controversy with respect to each of the individual claims of the representative Plaintiffs herein exceeds the sum or value of TEN THOUSAND AND No/100 DOLLARS ($10,000.00) exclusive of interests and costs. These causes of action arise under the Constitution, laws or treaties of the United States, as more fully and at length hereinafter set forth and alleged. 11. Upon information and belief, the "corporate defendants" have violated the cannon law of the United States as hereinafter alleged and/or the statutory laws of the United States of America. 12. The genesis of these causes is the Vietnam War, a federal military undertaking empowered at least in part by Article I, Section 8 of the United States Constitution (The War Powers Act) and such of the federal statutes governing the Armed Forces and defense procurement and production, including, inter alia, the Defense Production Act of 1950, U.S.C. app. sec. '459(b) 2061, et seq. 13. As is more specifically hereinafter set forth, the corporate defendants and each of them comuitted tortious acts alleged herein while engaged in interstate and/or foreign commerce, and/or through the use and violation of federal contractual relationships and through the use in part of the United States mails, federal air waves and federal procurement and distribution channels and facilities in connection with the marketing, manufacture, sale and distribution to the United States Government of herbicides for use in Southeast Asia during the Vietnam War. 14. That federal interests and relationships, multistate and international contracts crossing State or National boundaries on an almost daily basis as the result of Defendants' conduct are predominate in these causes; that the choice of federal common law rules of decision is necessi tated thereby. 15. That on November 24, 1980, the United States Court of Appeals, Second Circuit in 635 F.2d, 987 (cert. den. sub. ncm. Chagrtian v. Dow Chemical Co., 454 U.S. 1128 (1981)) rejected federal common law as the basis for federal question jurisdiction therein,stating that there was as yet no identifiable federal policy at stake in this litigation that warranted the creation of federal common law rules (635 F.2d 987 at 993), and that while the federal government had obvious interests in the welfare of the -5- 1 1 7 7 5 plaintiff/veterans and the defendant/war contractors, the federal govern ment's interest in the outcome of the litigation, i.e., in how the parties' welfares should be balanced, was as yet undetermined (635 F.2d 987 at 995). 16. That subsequently, as the record of these causes has developed, important federal policies and interests have become identifiable. 17. That these include the relationships between the federal government and the suppliers of weapons to the military during war-time, the interpretation of government contracts, the liability of such suppliers for damages due to their tortious conduct and breach of contract and warranty causing injury to military personnel; that this is reflected in the decision of this Court of February 24, 1982 at 534 F.Supp. 1046, 1054, 1055. 18. That among the federal statutes from which causes of action are implied are: a) The Defense Production Act of 1950, 50 U.S.C. app. sec. 459(b), 2061, et seq.; b) The Federal Insecticide, Fungicide and Fedenticide Act (FIFRA), 7 U.S.C. 135-135k, as amended by The Federal Environmental Pesticide Control Act (FEPCA), 7 U.S.C. 136-136y. Venue 19. Venue is laid in the Eastern District of New York based upon the residences of the plaintiffs and upon the prior Orders of the Judicial Panel on Multidistrict Litigation together with this Court's certification of these causes as class actions. n ? 7 66- Class Action Allegations 20. That these actions are maintainable as a "class action" under the provisions of Fed.R.Civ.P. 23(b) (1) (A), 23(b)(1)(B), 23(b)(2) and 23(B)(3). 21. That the class consists of persons who were in the United States, New Zealand or the Australian Armed Forces assigned to Vietnam during the hostilities from 1961 to 1972, who claim injury from exposure to Agent Orange (and other phenoxy herbicides) and their spouses, parents and children b o m before January 1, 1984 (or such later date as may be fixed by this Court) who claim direct or derivative injury as a result of such exposure. 22. That class action certification is appropriate under Rule 23 (b) (3) in that: a) The members of the plaintiffs class as of the date hereof exceed 100,000 persons and may include substantial numbers of additional claimants and are, therefore, so numerous that joinder of all members of the class in this action is impracticable; b) These actions raise numerous questions of law and fact common to the class relating, among other issues, to the facts that: i) the herbicides manufactured by the defendants and sold to the United States Government were toxic and dangerous to health and could and would cause the injuries complained of by plaintiffs; ii) Defendants knew or should have known such facts; I t **y -7- 77 iii) iv) V) Vi) vii) viii) ix) X) xi) xii) xiii) xiv) the Defendants knew or should have known the means of avoiding or reducing such hazards; the Defendants failed to warn the United States Government and the Plaintiffs and the public at large of such hazards and means of risk reduction when the defendants and each of them individually and collectively had the duty to so warn; the Defendants and each of them individually and collectively conspired or acted in concert or as an enterprise to breach their aforesaid duty to warn; the Defendants negligently designed and produced such herbicides; such herbicides produced by the Defendants and sold to the United States Government contained the deadly contaminant known as 2,3,7,8, tetrachlorodibenzo .para dioxin, more commonly referred to as "TCDD" or "dioxin"; exposure to dioxin contaminated herbicides could and would cause the injuries complained of by the Plaintiffs; the Defendants defectively designed and produced such herbicides; the herbicides were defective and unreasonably dangerous; the Defendants breached the duties imposed upon them by the contracts entered into between thon and the United States Government; the Defendants breached their implied warranty of merchantability; the Defendants breached the express warranties required by the Government contracts; and the Defendants misrepresented to the Government their knowledge with respect to the hazards associated with the herbicides that they were supplying to the Government and withheld such information from the Government and the public; c) That the claims of the representative Plaintiffs are typical of the claims of all members of the class except as to the issues of specific proximate causation and individual damages; 11778 -8- d) That the representative parties will fairly and adequately protect the interests of the class; since the inception of this action, the Plaintiffs have been represented by experienced counsel who have shown themselves willing to undertake the consi derable catmitment of time, energy and money necessary for the vigorous prosecution of the claims herein asserted; e) That the class is readily identifiable as the persons described in Paragraph 21, supra; f) That the class representatives are members of the class; g) That class action is the most productive and efficient means of managing the litigation; 23. That class action certification and treatment is also conjunctively and alternatively appropriate and necessary under Pule 23 (b) (1) (B) because Defendants' conduct exposes them to compensatory and punitive damages in excess of the "limited fund" comprised of their net worths, either indivi dually or collectively, giving rise to the risk that if Plaintiff/litigants are allowed to proceed on an individual basis, those who sue first will deplete the fund and leave nothing for subsequently successful Plaintiff/ litigants. 24. That class certification under Rule 2 3 (b)(1)(A) is also appropriate and necessary to avoid inconsistent adjudications establishing incompatible standards of conduct for the Defendants on issues which involve important federal policies and interests and which should be resolved by application of a uniform rule of decision. These federal policies and -9- interests include: a) The need for consistency, in the interests of national security, in negotiating and determining price and terms of performance in and compliance with government military contract procurement processes which would be disrupted or rendered uncertain by the application of differing or non-existent state tort and contract laws, which would lead to disparate results as to potential liabilities involved so that the price and terms of performance in government contracts for the supply of military ordnance would vary depending on what state laws were applied; b) The need for consistency in the administration of veterans' benefits and programs, in determining whether Vietnam veterans' injuries were service connected, hence entitling them to payment for service connected disability and other benefits; that the issue of "service connected" may in large part depend on how the issues of medical causation are resolved, the application of differing state laws on such issues of causation would lead to disparate results as to liability so that some veterans would be deemed to have proven causation and others not; c) The federal interest in securing compliance with government contracts with military suppliers. AS AND FOR A FIRST CAUSE OF ACTION, PLAINTIFFS ALLEGE: Negligence: Breach of Duty to Warn As To Defendants' Products -10- 25. That all of the individual representative Plaintiffs and members of the plaintiffs class were persons who were in the United States, New Zealand or Australian Armed Forces assigned to Vietnam during the hostilities from 1961 to 1972 who claim injury from exposure to Agent Orange (and other phenoxy herbicides), or whose spouses, parents and children b o m before January 1, 1984 claim direct or derivative injuries as a result of such exposure. 26. That during the period of 1961 to 1972 each of the corporate Defendants designed, manufactured and sold to the United States Government pursuant to Government contracts, the phenoxy herbicides (hereinafter collectively described as Agent Orange herbicides), known as Agents Orange, Orange II, Purple, Pink and Green, and whose basic component formulations were: a) Agent Orange was a 50/50 mixture of the n-butyl esters of 2,4-D and 2,4,5-T (2,4,5-trichlorophenoxyacetic acid); b) Agent Orange II was a 50/50 mixture of the isooctyl ester 2,4,5-T and the n-butyl ester of 2,4-D; c) Agent Purple was a 50/30/20 by weight mixture of the n-butyl ester of 2,4-D, n-butyl ester of 2,4,5-T and isobutyl ester of 2,4,5-T; d) Agent Pink was a 60/40 by weight mixture of n-butyl ester of 2,4,5-T and the isobutyl ester of 2,4,5-T; e) Agent Green was a single component formulation consisting of n-butyl ester of 2,4,5-T. 11 27. The Agent Orange herbicides manufactured and sold by the Defendants to the United States Government for use in Vietnam during the aforesaid period contained deadly toxic contaminants known as dioxins which were dangerous to human health and capable of causing severe injuries to persons exposed thereto, one of which dioxins was the most toxic and deadly, that being 2,3,7,8-tetrachlorodibenzo. para dioxin, more commonly referred to as "TCDD" or "dioxin". 28. The Defendants, individually and collectively, knew or should have known of the following: a) That exposure to the herbicides would be harmful to humans by reason of historical experiences involving occupation related injuries to workers following exposure to dioxin-contaminated materials in the Defendants' manufacturing facilities in addition to substantial scientific information in the Defendants' possession, custody and control, evidencing the extreme toxicity of such material; b) That dioxin, its extreme toxicity, its presence in the manufacturing process and the herbicides themselves, and variables determining levels of dioxin in the chemical herbicides' manufacturing processes, and its existence in the herbicides, created a substantial risk to human health; c) That the levels of dioxin contamination in the herbicides manufactured for use in Vietnam could be reduced by the use of appropriate analytical and detection procedures, coupled with alternative and careful methods of manufacture or quality control and the usa thereof, could have eliminated the substantial risk -12- U ? to human health involved in the use of the herbicides in Vietnam; d) That information in the form of judgments and assessments of the risks to health had already been arrived at by the chemical companies themselves; and e) That the deployment and use of the herbicides manufactured by the Defendants in Vietnam could and vrould cause substantial adverse health effects to persons who were exposed to the herbicides. 29. That during the period 1961 to 1972, the United States Government decision-makers responsible for the decision to deploy the Agent Orange herbicides in Vietnam were not knowledgeable about the afore said types of information with respect to Agent Orange herbicides' manufacturing processes, dioxin as a contaminant, detection and risk reduction methods, and health hazards associated with human exposure to such herbicides. 30. That during the period 1961 to 1972, the Defendants were under a duty to, but failed to warn and share with the Government, the aforesaid information which Defendants knew or should have known with respect to the Agent Orange herbicides they were supplying to the United States Government for use in Vietnam. 31. That during the period 1961 to 1972, the Defendants also knew that the dioxin contaminated Agent Orange herbicides which they were supplying to the Government would be contained in drums unmarked -13- with any corporate identification and mixed together with other contaminated Defendants' products before being sprayed in Vietnam. 32. That by reason of Defendants' failure to warn the Govern ment of the health hazards accompanying the use of the dioxin contaminated Agent Orange herbicides "being sold to the Government, and by reason of Defendants' failure to share with the Government all they or any one of than knew or should have known with respect to the Agent Orange manufac turing processes, dioxin as contaminant and detection and risk reduction methods, the resulting ignorance on the Government's part affected not only what was put into or emitted frem the contract specifications, but also the standards applied to determine whether each Defendant's product conformed to the specifications. 33. That by reason of each Defendant's breach of its duty to warn and to share such information with the Government and military, the Government and military were prevented fran: a) making an informed decision not to use a particular Defendant's dioxin contaminated herbicide; b) imposing a contractual duty upon each Defendant to supply Agent Orange herbicides free of dioxin contamination; c) imposing protective safety measures in connection with the use of Agent Orange herbicides in Vietnam; or prescribing their use in a manner that would have protected the risk of exposure to the military servicemen; d) providing exposed soldiers prophylactic medical examinations and treatment to avert or mitigate injuries caused by such exposure; and -14- U ?84 e) deciding not to lose such herbicides in the Vietnam conflict whatsoever, or, alternatively, to sharply curtail their use in a limited fashion designed to prevent human exposure and injury. 34. That each Defendant's failure to warn the responsible Government and military decision-makers and to share its information as above alleged prevented the military and Government from taking the actions described in Paragraph 33, supra. 35. That as a direct and proximate result of each Defendant's breach of its aforesaid duties, each of the Plaintiffs were exposed to Defendants' herbicides and were thereby caused to suffer severe injuries, diseases, physical disorders and irritations, and in some cases, death, for which Plaintiffs are entitled to and seek to recover monetary damages firm the Defendants. 36. That by reason of the foregoing, each Defendant is individually, jointly and severally liable as tortfeasors to pay such damages to the Plaintiffs. AS AND FOR A SECOND CAUSE OF ACTION, PLAINTIFFS ALLEGE: Breach of Duty to Warn As To Other Defendants' Products 37. Plaintiffs adopt, repeat, reiterate and reallege each and every allegation contained in Paragraphs 1 through 36 as though fully set forth herein. 1-15- 38- That each Defendant knew or should have known that the other Defendants were manufacturing and selling to the military dioxin contaminated Agent Orange herbicides for use in Vietnam during the period 1961 to 1972. 39. That each of the defendants knew or should have known that the Agent Orange herbicides being supplied by other Defendants to the military for use in Vietnam was dangerous to human health. 40. That each of the Defendants knew or should have known that the other Defendants failed to warn the Government as to the health hazards associated with the use of their products and that the other Defendants had also failed to share with the Government what they knew or should have known with respect to the Agent Orange manufacturing processes, dioxin as a contaminant and detection and risk reduction methods. 41. That each Defendant knew or should have known that none of the barrels of Agent Orange they sold to the Government contained any company identifying marks, and that the Agent Orange herbicides shipped to Vietnam would be mixed and sprayed without discrimination as to which Defendant's product was being utilized and that Plaintiffs and all members of the class of Plaintiffs would be exposed to such dioxin contaminated herbicides and would suffer the injuries complained of. 42. That each Defendant's breach of its duty to warn and to share with the Government the information with respect to the other Defendants' dioxin contaminated herbicides, the health hazards associated therewith and the means of detection, risk avoidance and -16- X I 78 6 risk reduction, was a substantial factor in preventing the military from taking the action described in Paragraph 33, supra. By reason of the foregoing, each Defendant is individually, jointly and severally liable as the cause in fact of the indivisible injuries suffered by Plaintiffs and is responsible for the payment of damages to the Plaintiffs AS AND FOR A THIRD CAUSE OF ACTION, PLAINTIFFS ALLEGE: Negligent Design and Production 43. Plaintiffs adopt, repeat, reiterate and reallege each and every allegation contained in Paragraphs 1 through 42 as though fully set forth herein. 44. That each corporate Defendant negligently designed and produced the Agent Orange herbicides it supplied to the United States Government for use in Vietnam in that each Defendant: a) failed to design its herbicides so that they were free from the toxic contaminant dioxin; b) failed to follow reasonable manufacturing methods and procedures that would avoid the formation of or eliminate the toxic contaminant dioxin; c) failed to test the Agent Orange herbicides to insure that they were free from the toxic contaminant dioxin. 45. That Defendants owned or controlled virtually all of the Agent Orange herbicide market and product capacity and supplied to the military, the sole source purchaser, over 99% of the herbicides contracted for, and received over 99% of the purchase price paid. i -17- 46. That each of the Defendant's herbicides was toxic and harmful to human health, contaminated with dioxin in varying degrees, and as such, violated their contractual obligations to the military. Each Defendant knew its product was hazardous to human health and contaminated. Each Defendant knew that the other Defendants' herbicides were hazardous and contaminated with dioxin. Each Defendant knew, with varying degrees of expertise, how to eliminate or reduce the dioxin. None of the Defendants ever warned the uninformed, less expert, military, or informed it either of the toxicity of the herbicides or of the dioxin contamination and the means of its avoidance or elimination. 47. That the Defendants instead conspired and acted in concert secretly and persistently to deceive the military and other governmental agencies about the matters hereinbefore alleged through misrepresentations, suppression and withholding of information and other schemes. The Defendants knew that each other's herbicides were dangerous to human health and contaminated with dioxin; that each other's products constituted a breach of duty to warn, and that each was negligent in the design and production of the Agent Orange herbicides being supplied to the Government for use in Vietnam and that exposure to such herbicides could and would cause injuries to many thousands of individuals. 48. That notwithstanding such knowledge, the Defendants, in pursuit of a cannon plan or design to continue the production and sale of herbicides contaminated with dioxin to the military at a substantial profit and pursuant to a common scheme to avoid governmental investigation and restrictive legislation or regulation which would reduce Defendant's profits, conspired and acted in concert to misrepresent the safety of such -18- herbicides to the military arid other Governmental agencies and suppressed and withheld from the military and other Governmental agencies the informa tion described in Paragraph 29, supra, thereby preventing the military frcm undertaking the actions described in Paragraph 33, supra. 49. That during the period fran 1961 to 1972, the chemical industry-wide standard of safety as to the manufacture of Agent Grange herbicides was inadequate to protect the health of the plaintiffs and the Defendants knew or should have known of that fact. 50. That the Agent Orange herbicides manufactured by all the Defendants were produced in accordance with identical military specifi cations set forth in their Government contracts and were generically similar. 51. That the Government contracts, pursuant to which the D e fe n d a n ts m a n u fa ctu re d th e ir A g e n t O range h e rb ic id e s , d id n o t o rd e r, re q u e s t, o r p u t lim ita tio n s on any p e rm is s ib le le v e l o f th e to x ic c o n ta m in a n t d io x in . The h e rb ic id e s p rod u ce d b y th e D e fe n d a n ts w ere g e n e ric a lly s im ila r e x c e p t th a t th e y c o n ta in e d v a ry in g d e g re e s o f th e to x ic c o n ta m in a n t d io x in . The D e fe n d a n ts jo in t ly c o n tro lle d a ll o f th e m a n u fa c tu rin g p ro ce ss e s used in th e p ro d u c tio n o f th e A g e n t O range h e rb ic id e s s u p p lie d to th e m ilit a r y . Each o f th e D e fe n d a n t's p ro d u c ts was d e fe c tiv e and dangerous to human h e a lth , e s p e c ia lly in v ie w o f th e p re s e n c e o f th e to x ic c o n ta m in a n t d io x in . E ach o f th e D e fe n d a n t's d io x in c o n ta m in a te d h e rb ic id e s w as a cause in fa c t o f th e in ju r ie s s u ffe re d by th e P la in tiffs . -19- 52. That as a direct and proximate result of Defendants' conspiracy and concerted action, the Plaintiffs were caused to suffer the injuries ecmplained of hereinabove. 53. That by reason of the foregoing, each Defendant is individually, jointly and severally liable as the proximate cause of the indivisible injuries suffered by plaintiffs and is responsible for and must be required to pay all special, general, compensatory and punitive damages suffered by the Plaintiffs. AS AND FOR A FOURTH CAUSE OF ACTION, PLAINTIFFS ALLEGE: Strict Liability 54. That Plaintiffs adopt, repeat, reiterate and reallege each and every allegation contained in Paragraphs 1 through 53 as though fully set forth herein. 55. That at various times during the period 1961 through 1972, each Defendant was engaged in the business of manufacturing, shipping and delivering Agent Orange herbicides to the military for use in Vietnam. Each Defendant's Agent Orange herbicides, as so supplied to the military for use in Vietnam, contained the toxic contaminant dioxin, were in defective condition, and were unreasonably dangerous to the Plaintiffs. 56. That Plaintiffs' exposure to the Defendants' dioxin contaminated herbicides directly and proximately caused or contributed to the Plaintiffs' injuries and damages hereinabove alleged. 57. That by reason of the foregoing, the Defendants are individually, jointly and severally liable for Plaintiffs' injuries and re s p o n s ib le fo r and m u st be re q u ire d to p a y a ll s p e c ia l, g e n e ra l, com pensatory and p u n itiv e damages s u ffe re d b y th e P la in t if f s . Breach of Implied Warranty 58. That Plaintiffs adopt, repeat, reiterate and reallege each and every allegation contained in Paragraphs 1 through 57 as though fully set forth herein. 59. That each Defendant impliedly warranted the merchanta bility of the Agent Orange herbicides which they supplied to the Govern ment and that such herbicides would be reasonably fit for the ordinary purposes for which they were to be used by the military in Vietnam, and that they were relatively non-toxic to humans and animals. 60. That each Defendant breached its implied warranty of merchantability in that the Agent Orange herbicides it supplied to the Government were not reasonably fit for the purposes for -which they were to be used, especially so because of the presence of the toxic contaminant dioxin. Each Defendant breached its implied warranty that the Plaintiffs exposed to such herbicides would be safe frcm personal injury attributable to such exposure in that such exposure did in fact directly and proximately cause or contribute to the Plaintiffs' serious injuries as hereinbefore alleged. 61. That by reason of Defendants' breach of their implied warranties, the Defendants are individually, jointly and severally liable for the Plaintiffs' injuries and responsible for and must be required, bo pay Plaintiffs' resultant special, general, compensatory and punitive damages. -21- r Breach of Express Warranty Arid Misrepresentation 62. That Plaintiffs adopt, repeat, reiterate and reallege each and every allegation contained in Paragraphs 1 through 61 as though fully set forth herein. 63. That the contracts between the military and the Defendants imposed specific specifications which did not call for or permit the presence of the toxic contaminant dioxin in the Agent Orange herbicides produced pursuant to such contracts. The Defendants breached their duty to comply with such Government contracts and specifications in that the Agent Orange herbicides produced by the Defendants contained dioxin which was dangerous to the health of the Plaintiffs exposed thereto in Vietnam. 64. That the Defendants concurrently, with their conspiracy of concealment and failure to warn the military as hereinbefore alleged, misrepresented the safety of their herbicides to the military and other Government agencies. Despite its extensive knowledge of health hazards, the Defendant, DCW CHEMICAL COMPANY, made the following misrepresentation to the United States military: " (W)e have been manufacturing 2,4-D and 2,4,5-T for over ten years. To the best of our knowledge, none of the workmen in these factories have shown any ill effects as a result of working with these chemicals." Subsequently, during the years 1966 and 1967, at times when all the Defendants were selling dioxin contaminated herbicides to the military, they formed a Joint Industry Task Force, under the auspices of the National Agricultural Chemicals Association, an organization owned, operated, managed and controlled by the chemical industry whose purpose it was to declare the Defendant's Agent Orange herbicides to be t o x i c o - j [ j[ 7\3 ^ -22- lo g ic a lly s a fe . D u rin g th e p e rio d o f i t s e x is te n c e , th e D e fe n d a n ts ' T ask F o rce m is re p re s e n te d to and d e c e iv e d th e G overnm ent c o n c e rn in g th e n a tu re and th e e x te n t o f th e to x ic o lo g ic a l d a ta as to h a za rd s w h ic h was lo c k e d w ith in th e D e fe n da n ts c o n fid e n tia l f ile s . 65. That the Defendants and each of them knew of health hazards associated with exposure to such herbicides and each of them during the period in question either made affirmative statements mis representing material facts concerning such hazards or wilfully failed to disclose such material facts by conscious and willful emission. 66. That by reason of the Defendants' breach of express warranty and such misrepresentations, the military and the Government were lulled into a belief that the Defendants' Agent Orange herbicides were safe to human health, and the military was prevented from taking the actions described in Paragraph 33, supra. 67. That as a direct and proximate result of Defendants' breach of warranty and express misrepresentations, the plaintiffs suffered injuries and are entitled to damages, both special and general, compensatory and punitive. 6 8 . T h a t th e D e fe n d a n ts a re in d iv id u a lly , jo in t ly and s e v e ra lly lia b le fo r th e paym ent o f P la in tiffs damages. AS AND FOR A FIF T H CAUSE OF ACTIO N, P LA IN T IF F S ALLEGE: 69. That Plaintiffs adopt, repeat, reiterate and reallege each and every allegation contained in Paragraphs 1 through 68 as though fully set forth herein. -23- * 70. That Defendants' conduct constituted an intentional and fraudulent concealment of the facts hereinabove alleged frcm the Government and the Plaintiffs, and prevented them iron discovering that the injuries suffered by Plaintiffs were caused by Defendants' wrongful conduct and Plaintiffs' exposure to Defendants' defective and dangerous dioxin contaminated Agent Orange herbicides. As the result of such fraudulent concealment and Defendants' misrepresentations, Plaintiffs' domiciled in states whose statutes of limitations governing claims for damages caused by tortious conduct such as that of the Defendants, begin to run frcm the date of injury, were prevented through Plaintiffs' lack of knowledge of the facts, frcm instituting suit on such claims against Defendants within the tiroes prescribed by such statutes of limitations. 71. That by reason of the foregoing, Defendants are estopped firm asserting such statutes of limitations as a bar to any of Plaintiffs' claims. AS AND FOR A SIXTH CAUSE OF ACTION, PLAINTIFFS ALLEGE: Punitive Damages 72. That Plaintiffs adopt, repeat, reiterate and reallege each and every allegation contained in Paragraph 1 through 71 as though fully set forth herein. 73. That each Defendant knew, or had reason to know that its conduct and the other Defendants' conduct not only created an un- . reasonable risk of harm to Plaintiffs, but also that there was a strong probability that the harm would result. Nevertheless, each Defendant 11794 -24- proceeded with its conduct in reckless or conscious disregard of such consequences to Plaintiffs. 74. That as a direct and proximate result, Plaintiffs suffered the injuries complained of, and are entitled to punitive damages, in addition to special, general and compensatory damages. WHEREFORE, the Plaintiffs, individually and collectively demand judgment of the "corporate Defendants", THE DCW CHEMICAL COMPANY, MONSANTO CO., HERCULES INCORPORATED, T-H AGRICULTURE & NUTRITION COMPANY, DIAMOND SHAMROCK CORPORATION, UNIROYAL, INC., and THOMPSON CHEMICAL CORP., for the following relief: A) Judgment in such sums as this Court and jury shall find in favor of each of the representative Plaintiffs as shall fully, adequately and completely compensate them for all usual and customary elements of damage awardable in cases of personal injury and wrongful death, both general and special, including but not limited to physical pain and mental suffering, both past, present and future, the reasonable and necessary costs of medical and hospital services and treatments, both past, present and future, loss of earnings, disability, disfigurement, loss of society, consortium, services and companionship, pecuniary losses to the widows and next of kin of deceased veterans, including but not limited to losses of support, companionship, services and society, funeral and other familial expenses incurred thereby and all other recognized losses, costs and damages incurred by such representative Plaintiffs, their widows, families and next of kin with direct and derivative claims; -25- B) Judgment in favor of the Plaintiff class members as and for their punitive damages in an amount to be determined by the Court and jury of sufficient magnatude to adequately punish the Defendants and each of them, jointly and severally, by reason of their willful and wrongful conduct and the great magnitude of damages which it has wrought; C) A determination by this Court in the form of its judgment that there is a substantial risk based upon the damages awarded the individual representative Plaintiffs herein and based upon the special verdicts of the jury favorable to the Plaintiffs as to the issues ccmmon to the class of Plaintiffs, that the total damages suffered by the class of Plaintiffs and recoverable frcm the Defendants or Defendants adjlodged liable, are likely to exceed the ability of any such Defendant or Defendants to pay such damages, impressing an equitable trust upon the assets and future earnings of such Defendant or Defendants in order to create a fund for the full or pro rata satisfaction of the present or future damage claims of the members of the class; D) Together with such other and further relief as to this Court shall seem just and proper under the circumstances, plus interest, reasonable counsel fees and the costs and disbursements of this action. DATED: December 14, 1983 Respectfully submitted, -26- Chairman, Law Ccmmittee Stephen J. Schlegel, Esq. SCHLEGEL & TRAFELET, LTD. One North LaSalle Street Suite 3900 Chicago, Illinois 60602 Thomas W. Henderson, Esq. BASKIN & SEARS Frick Building, 10th Floor Pittsburgh, PA 15219 Benton Musslewhite, Esq. John O'Quinn 600 Fannin, Suite 517 Houston, Texas 77002 Stanley M. Chesley, Esq. WAITE, SCHNEIDER, BAYLESS & CHESLEY CO., L.P.A. 1318 Central Trust Tower Fourth & Vine Streets Cincinnati, Ohio 45202 Irving Like, Esq. REILLY, LIKE AND SCHNEIDER 200 West Main Street P.O. Box 218 Babylon, New York 11702 David J. Dean, Esq. DEAN, FALANGA & ROSE 1 Old Country Road Carle Place, New York 11514 Newton B. Schwartz, Esq. NEWTON B. SCHWARTZ, P.C. Houston Bar Center Building 723 Main, Suite 325 Houston, Texas 77002 Phillip E. Brown, Esq. HOBERG, FINGER, BROWN, COX & MOLLINGAN, P.C. C e n tra l Tower 703 Market Street San Francisco, California 94103 -27- 11797 * VE RI F I C AT ION The undersigned, being a duly appointed member of the Plaintiffs' Management Committee and Lead Counsel Group, affirms under penalties of perjury that he has read the above and foregoing Fifth Amended Complaint, by him subscribed, and that the contents are true. CERTIFICATiaSI OF SERVICE The undersigned does hereby certify that she has served a true and correct copy of the foregoing Fifth Amended Complaint on all those shown on the attached Service List by Federal Express Mail, this 14th day of December, 1983. V^ SERVICE LIST BY FEDERAL EXPRESS Hon. Ja c k B. W e i n s t e i n U.S. District Court for the Eastern District of New York 225 Cadman Plaza East Brooklyn, New York 11201 Hon. Sol Schreiber Milber, Weiss, Bershad & Specthrie One Pennsylvania Plaza New York, New York 10019 Arvin Maskin, Esq. United States Dept, of Justice Safeway Building, Room 904D Washington, D.C. 20530 Thomas W. Henderson, Esq. Baskin & Sears Frick Building, 10th FI. Pittsburgh, Pa. 15219 Benton Musslewhite, Esq. 609 Fannin-Suite 517 Houston, Texas 77002 D a v i d J. Dean, Esq. Dean, Falanga & Rose 1 Old Country Road Carle Place, New York 11514 Stanley M. Chesley, Esq. Waite, Schneider, Bayless & Chesley Co., L.P.A. 1318 Central Trust Tower Fourth & Vine Streets Cincinnati, Ohio 45202 Leonard Rivkin, Esq. Rivkin, Leff, Sherman & Radler 100 Garden City Plaza Garden City, New York 11530 Morton Silberman, Esq. Clark, Gagliardi & Miller Inns of Court - 99 Court St. White Plains, New York 10601 Wendall B. Alcorn, Jr., Esq. Cadwalader, Wickersham & Taft One Wall Street New York, New York 10005 John C. Sabetta, Esq. Townley & Updike 405 Lexington Avenue New York, New York 10017 Thomas Beck, Esq. Arthur, Dry & Kalish 1230 Avenue of the Americas New York, New York 10020 W i l l i a m A. Krohley, Esq. Kelley, Drye & Warren 350 Park Avenue New York, New York 10022 D a v i d R. Gross, Esq. Budd, L a m e r , Kent, Gross, Picillo & Rosenbaum 33 Washington Street Newark, New Jersey 07102 J u d i t h L. Spanier, Esq. Shea & Gould 330 Madison Avenue New York, New York 10017 BY REGULAR MAIL Gregory Stayart, Esq. Sullivan & Associates 180 N. M i c h i g a n A v e ., S t e . 1700 Chicago, Illinois 60601 3-18Oo