U.S. Supreme Court Affirms
Vietnam Veterans’ Right to Sue for Injuries Caused by Agent Orange
TLPJ Successfully Urged Court to Uphold
Victims’ Right to Day in Court
U.S. Air Force C-123
Provider spreads toxic defoliant over the jungles of Vietnam
in January 1967.
In a landmark victory for Vietnam
veterans’ injured by exposure to Agent Orange, the U.S. Supreme
Court affirmed on June 9, 2003 in Stephenson v. Dow Chemical that the
1984 class action settlement of Vietnam veterans’ claims against
the manufacturers of the toxic defoliant Agent Orange does not bar a
suit by veterans who would not obtain any relief under the
settlement. TLPJ had filed an amicus
successfully urging the Supreme Court to affirm the decision
of the U.S. Court of Appeals for the Second Circuit, which
recognized the veterans’ right to sue for their injuries.
Gerson H. Smoger
"This is a huge victory for
Vietnam veterans injured in the line of duty," said TLPJ
Foundation Board Member Gerson Smoger of Smoger
& Associates in Dallas, who argued on behalf of the veterans
in the Supreme Court on February 26, 2003. "Veterans exposed to
Agent Orange will finally get their day in court."
An equally divided Supreme Court
affirmed the lower court’s ruling in a per
opinion by a vote of 4-4. Justice John Paul Stevens recused
himself from considering and deciding the case.
"The Supreme Court's Stephenson
decision preserves an important victory in the fight against abusive
class action settlements," said Brent M. Rosenthal of Baron
& Budd in Dallas, the primary author of TLPJ’s amicus
brief. "Manufacturers simply cannot use class actions to block
‘future’ personal injury victims from obtaining access to
The Supreme Court’s opinion in Stephenson
is the latest chapter in the saga of victims’ attempts to obtain
recovery for injuries associated with exposure to Agent Orange. In
1984, U.S. District Court Judge Jack B. Weinstein of the Eastern
District of New York approved a global class action settlement of
all present and future Agent Orange victims’ claims. The
settlement provided nominal recoveries regardless of causation for
all exposed veterans before the age of 60. But it cut off all
compensation for class members after 1994.
Agent-Orange-related illnesses in the late 1990s, long after the
Agent Orange settlement fund had run dry. He filed a lawsuit against
the chemical manufacturers seeking recovery for his injuries, but
Judge Weinstein ruled that he was bound by the 1984 settlement.
In a unanimous
decision, the Second Circuit reversed. The court held that the
settlement’s failure to provide any recovery for class members
whose injuries occurred after 1994 revealed a fatal conflict between
victims like Stephenson and the class representatives. In light of
this conflict, the court concluded that Stephenson and victims like
him had not received adequate representation in the class action and
could not be bound by the settlement. TLPJ had filed an amicus
brief urging the Second Circuit to rule as it did.
TLPJ’s amicus briefs in Stephenson
– available at www.tlpj.org
– were filed as part of its Class
Action Abuse Prevention Project, a nationwide campaign dedicated
to monitoring, exposing, and fighting class action abuse nationwide.
In addition to Rosenthal, TLPJ’s legal team included Steve
Baughman Jensen of Baron & Budd and TLPJ’s Leslie A. Brueckner
and Arthur H. Bryant.
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