(June 9, 2003)  Washington, D.C.   Today the U.S. Supreme Court announced its decision in the Vietnam veterans’ suit, Dow Chemical Co. v Stephenson (02-271), allowing victims of cancers who served in the military during the Vietnam War to continue to pursue their claims against Agent Orange manufacturers despite a 1984 class action settlement.  The Supreme Court let stand the 2nd Circuit’s decision that the due process rights of Vietnam Veterans were violated by the 1984 class action settlement.  The crux of the Vietnam vets’ case — by the time the veterans learned they were sick with cancer, all the money from a $180 million dollar class action settlement was long gone.  The Supreme Court was forced to decide whether the veterans’ cases were ended by that 1984 class action, or whether the vets who first became ill or disabled after all the funds were depleted can still bring suit as a result of their constitutional rights being violated by a settlement they never even knew existed.   The Court rejected the arguments of Dow Chemical Co. and Monsanto that the settlement was final, confirming the 2nd Circuit’s decision that to bind late injured veterans to the settlement would deny their constitutional rights.

According to attorney Gerson Smoger, who first brought the Agent Orange case and argued it before the Supreme Court on behalf of the veterans, ”We are thrilled with today’s decision.  For the past nine years, we have been working to show that the Agent Orange class action settlement cannot stand when the very victims of Agent Orange are entitled to no compensation from it.   Many Vietnam War veterans suffer from devastating illnesses caused by their exposure to Agent Orange and we are gratified that the U.S. Supreme Court has recognized the right of these veterans to sue for the injuries they received when serving our country.”

Smoger, a partner at Smoger & Associates, P.C. (Oakland, CA and Dallas, TX), is available to discuss the importance of this case.  Additionally, Vietnam veterans across the country are available for interviews.  Out of approximately 2.4 million veterans who served in Vietnam, only about 50,000 ever received any compensation from the class action settlements before it ran out of money in 1994.  This decision opens the way for a number of these veterans to bring suit against the manufacturers who caused their illness.

Case Background:  A group of Vietnam veterans brought a class action lawsuit in 1979 against the manufacturers of Agent Orange.  The class action was settled in 1984, supposedly for all 2.4 million veterans who served in Vietnam.  However, at the time of the settlement, most veterans had not yet been diagnosed with the cancers that the National Academy of Sciences would relate to Agent Orange and which often take well over 20 years to develop.  The case of Dow Chemical Co. v Stephenson asks whether veterans who were not diagnosed with any illnesses until after all the settlement money was gone are nevertheless bound by the settlement — even though they can never receive anything from it.  Named plaintiffs Joe Isaacson, former crewman at a base from which Agent Orange missions were flown and now a middle school vice principal in New Jersey and Daniel Stephenson, a retired Air Force helicopter pilot from Louisiana and now living in Florida, were successful in urging the 2nd Circuit that their constitutional rights were violated and that the Supreme Court has now affirmed that decision.

Dr. Smoger Gets 2nd Circuit to Overrule 1984 Agent Orange Class Settlement

Dr. Smoger helps Vietnam veterans

“Agent Orange Suits Alive, U.S. Court Says: New Plaintiffs Can’t Be Held to 1984 Settlement.”
The National Law Journal, Volume 24, Number 16. December 17, 2001
Bob Van Voris, Staff Reporter

Seventeen years after a class action settlement intended to end lawsuits over Agent Orange, the U.S. Court of Appeals for the 2d Circuit has ruled that two Vietnam veterans may sue companies that made the product.

The Nov. 30 decision allows the vets, who developed cancer after the Agent Orange settlement wound down at the end of 1994, to pursue cases against more than a dozen chemical companies, including Dow Chemical Co. And it may open the door for others who got sick in recent years to sue.  Stephenson v. Dow Chemical Co., No. 00-9120.  The case comes at a time when the U.S. Supreme Court and lower federal courts are limiting judges’ ability to fashion broad mass-tort settlements.

Agent Orange Settlement

On the eve of trial in 1984, lawyers for the manufacturers and for a class of American, Australian and New Zealander veterans agreed to a deal in which the manufacturers would pay $180 million to veterans who were exposed to Agent Orange and then died or became ill. Part of the money was set aside for vets who became ill in future years, through 1994.

There would be numerous attempts by veterans to undo the settlement or to sue in spite of it, but none was successful.  “Most other attorneys thought this was set in stone,” said Gerson Smoger, the Dallas lawyer who represents plaintiff Joe Isaacson. “But if something is not right and not fair and not constitutional, a court will be brave enough to overturn it.”

Isaacson served in Vietnam from 1968 to 1969 and was an Air Force crew chief assigned to a base where planes that sprayed Agent Orange were based.  In 1996, he was diagnosed with non-Hodgkins lymphoma.

Daniel Stephenson, whose case was joined with Isaacson’s on the appeal, served from 1965 to 1970, on the ground and as a helicopter pilot. He was diagnosed with bone marrow cancer in 1998.

Both men sued, claiming their war-time exposure to Agent Orange caused them to develop cancer. The Isaacson case, filed in New Jersey state court, and the Stephenson case, filed in Louisiana federal court, were eventually assigned to Brooklyn federal Judge Jack B. Weinstein, who had brokered the original Agent Orange class settlement.

Weinstein dismissed both cases last year, holding that they were barred by the settlement.

The 2nd Circuit disagreed, holding that, because Isaacson and Stephenson were not adequately represented in the 1984 settlement, they could not be bound by it now. The court also questioned whether a settlement can ever constitutionally bind class members who, as in many mass tort cases, become ill years after a settlement is approved.

Neither side knows how many veterans may now try to sue based on diseases they developed in the past few years. Those who do will face the companies’ defense that they merely carried out government specifications for making Agent Orange and that, as government contractors, they are not responsible for any injuries.

Another hurdle for plaintiffs will be to prove that their diseases were actually caused by Agent Orange. Scot Wheeler, a spokesman for Dow Chemical, said the issue is still a controversial one. But Smoger believes that scientific and epidemiological studies of Agent Orange since 1984 make cases much easier to prove now than at the time of the settlement.

Trial Lawyers for Public Justice, a Washington, D.C., group that has criticized many class action settlements, filed an amicus brief supporting the veterans.

“My client is absolutely thrilled” by the ruling, said Smoger.  Wheeler said that Dow is reviewing the decision and has not yet decided whether it will appeal.

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