Agent Orange

June 10, 2003

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America's Veterans

  • Agent Orange was a herbicide used during the Vietnam War to help U.S.
  • troops kill vegetation.
  • More than 80 percent of the herbicides used in Vietnam was Agent Orange.
  • By 1971, more than 20 million gallons of herbicide were sprayed.
  • In 1978, the government set up an Agent Orange registry to examine the health of returning vets.
Source: U.S. Department of Veterans Affairs

WASHINGTON (AP) -- The Supreme Court deadlocked Monday on whether it is too late for sick Vietnam veterans to sue chemical companies over Agent Orange exposure, but allowed vets to continue lawsuits claiming they were wrongly shut out of a decades-old national settlement.

Business groups had feared a ruling that would threaten to reopen many class-action settlements at a cost of millions or possibly billions of dollars.

Instead, justices were divided 4-4. A ninth justice, Justice John Paul Stevens, did not participate in the case. He did not give a reason for his recusal, but his only son was a Vietnam veteran who apparently suffered from cancer before his death in 1996 at age 47.

The case raised an interesting question of how courts should handle claims from war veterans who got cancer and other diseases after the $180 million Agent Orange settlement was spent. Two veterans argued their constitutional due process rights were violated in the 1984 settlement, which included no payments to people who became ill after 1994.

In an unsigned opinion, the court ordered more consideration of the claims of Joe Isaacson, a vice principal in Irvington, New Jersey. The court, on a tie vote, left undisturbed a decision that allowed the lawsuit of Daniel Stephenson, a retired helicopter pilot living in Florida. Both men claim their cancers are related to Agent Orange, used in the 1960s and 1970s to clear dense jungle foliage that provided cover for enemy forces.

Although the Vietnam war ended 30 years ago, some war-related illnesses are just being discovered, the court had been told.

Companies that made the herbicide Agent Orange thought their liability ended with the 1984 class-action settlement. Dow Chemical Co., Monsanto Co. and other companies, tried to reach veterans with ads in local and national newspapers and magazines.

In this case, the court was asked two questions. First, whether people who are unaware of their involvement in a class action suit are allowed to argue later that they were not property represented. And second, what standard should be used if those lawsuits are allowed.

Justices, in issuing a two-paragraph unsigned opinion, did not deal with either question. The effect of tie votes, which are extremely rare at the court, is to affirm the 2nd U.S. Circuit Court of Appeals judgment and allow litigation to proceed in the lower court.

"A lot of veterans have been waiting for 10 years to hear this, their rights are vindicated," said Gerson Smoger of Oakland, California, the attorney for Isaacson and Stephenson.

During arguments in the case in February, some justices seemed concerned that the settlement shut out veterans.

Groups such as the Veterans of Foreign Wars and the American Legion urged the court to fix what they called an injustice against people "who survived the bullets and bombs of the enemy" but are now dying of cancer.

The case is Dow Chemical Co. v. Stephenson, case no. 02-271.

Find out more:

America's Veterans

On the Web:

By mail:
America's Veterans
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Marina del Rey, CA 90291

By telephone:

Library of Congress' American Folklife Center Veterans History Project

On the Web: By mail:
Veterans History Project
Library of Congress
American Folklife Center
101 Independence Ave. S.E.
Washington, DC, 20540-4615
By telephone: 1-888-371-5848

Publish Date: May 11, 2003