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U.S. Supreme Court Considers
Veterans' Agent Orange Claims
Forbes, February 25, 2003
This C-123 "Provider" aircraft sprayed
Agent Orange over the jungles of Vietnam. Photo from U.S.A.F.
Nearly 30 years after the end of the
Vietnam War, the U.S. government is still dealing with the
unforeseen consequences. On Feb. 26, the U.S. Supreme Court will
hear yet another round of arguments about liability for
manufacturers of Agent Orange, the herbicide sprayed by the U.S. Air
Force in the 1960s and 1970s. Those who breathed in the material
risked diseases like cancer, and after years of litigation,
manufacturers shelled out $180 million for a global class action
settlement, effectively shutting the door to all future claims.
But now, in a case that is being carefully watched by plaintiff
lawyers and corporate counsel alike, the high court will have to
decide if that door should be reopened. For victims, this could mean
an opportunity to file claims against companies even well after a
global settlement has been reached. Depending on the court's ruling,
companies such as Dow Chemical, Monsanto and Hercules could also
face hundreds if not thousands more Agent Orange claims. Securities,
mass tort and antitrust class action settlements once thought to be
closed for good, may be reopened, possibly leading to thousands more
claims in suits that have already been adjudicated or settled.
Moreover, the high court's decision could discourage businesses from
entering class settlements, potentially raising the cost of
litigation from a record high of $224 billion in 2002, according to
consulting firm Tillinghast-Towers Perrin.
This case dates back to 1984, when Jack B. Weinstein, a federal
court judge in New York, approved a global class action settlement
of present and future Agent Orange claims. The settlement created a
$180 million fund, and the class eventually consisted of 2.4 million
Vietnam veterans, of whom 240,000 were estimated to have had some
exposure to defoliants such as Agent Orange. The cutoff date for the
claims was the end of 1994. But in the late 1990s, two Vietnam
veterans, Daniel Stephenson and Joe Isaacson, claimed they
contracted Agent Orange-related illnesses, and filed suit against
Dow, Monsanto and a slew of other chemical companies.
The suits were consolidated and heard by Weinstein, who ruled that
both victims were bound by the 1984 settlement even though it
provided no compensation for their injuries. The two men claimed in
their appeal they had not been adequately represented at the time
the class was certified and should not be bound by the settlement.
In November 2001, an appeals court reversed Weinstein's decision,
ruling the settlement revealed a conflict between current victims
and the class because it failed to provide for those whose injuries
occurred after the 1994 cutoff date.
Plaintiff lawyers hailed the decision, now in front of the Supreme
M. Rosenthal, a lawyer at Dallas plaintiff powerhouse Baron
& Budd, says he was pleased the court recognized that personal
injury victims cannot be bound by a settlement that does not provide
them with any recovery. In an amicus
brief on behalf of Trial Lawyers for Public Justice, he argued
the two plaintiffs were healthy and unaware they had any reason to
make a claim at the time of the settlement. To prohibit them from
making a claim now that they are sick, he wrote, is
"intolerably unfair, and constitutionally impermissible."
The stakes are enormous for companies that frequently find
themselves as defendants. Scott Solberg, a Chicago lawyer who
represents petrochemical companies, says the whole purpose of the
class action is to provide an effective and efficient way to deal
with claims, allowing companies to assess their financial risk and
go on with business. If the court allows individuals to attack
settlements that have already been approved and finalized, he says
it could open the floodgates to litigation.
Andrew Frey, a lawyer for Dow Chemical at Mayer Brown Rowe &
Maw, argues that once these settlements have been resolved, you
cannot simply reopen them. To do so would create massive uncertainty
for companies in the midst of a class action settlement, and risk an
onslaught of litigation even decades down the road. "I think if
you were an officer at one of these companies you'd be concerned
about this," Frey says.