Trial Lawyers for Public Justice banner

Trial Lawyers for Public Justice banner

Bobby Worldwide Approved 508

This page is Bobby Worldwide Approved for Section 508.

News header

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 defoliant over the jungles of Vietnam in January 1967. Photo from National Archives, U.S. Air Force records. 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 brief 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.

Trial lawyer Gerson H. Smoger, Ph.D. 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 curiam 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 justice."

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.

Stephenson contracted 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 – 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.