Dr. Smoger Brings Agent Orange Case to United State Supreme Court


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Supreme Court Allows Agent Orange Suit Vietnam Veterans With Recently Diagnosed Ailments Can Sue Despite 1985 Settlement

By Charles Lane Washington Post Staff Writer Tuesday, June 10, 2003; Page A06

A deadlocked Supreme Court yesterday permitted Vietnam veterans who believe their recently discovered illnesses were caused by the herbicide Agent Orange to take the compound's manufacturers to court despite a 1985 out-of-court settlement between the companies and veterans.

The court's vote was 4 to 4, with Justice John Paul Stevens sitting the case out. He gave no reason for his recusal, but Stevens's son, John Joseph, a Vietnam veteran, died of cancer in 1996 at 47. Under the court's rules, a tie vote results in the automatic affirmation of the lower court's ruling -- in this case a decision by the New York-based U.S. Court of Appeals for the 2nd Circuit. It gave veteran Daniel Stephenson, who discovered in 1998 that he had a deadly form of cancer, a chance to argue that he was not adequately represented in the 1985 settlement negotiations.

At the same time, the court ordered the 2nd Circuit to reconsider the claim of another veteran, Joe Isaacson of New Jersey.

The 1985 settlement was intended to wrap up a host of lawsuits by veterans who blamed Agent Orange for ailments ranging from cancer to birth defects in their children. It created a $180 million fund, financed by the chemical companies, to pay veterans who said they got diseases from Agent Orange, a defoliant sprayed by U.S. forces on Vietnamese forests to deprive communist guerrillas of cover. By 1997, all the money had been paid out.

Stephenson and Isaacson said the settlement was unfair to them because it did not protect the interests of veterans whose illnesses became evident only after the settlement funds were already gone.

"We are thrilled with today's decision," attorney Gerson Smoger, who represented the veterans, said in a statement. "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."

The justices issued no opinion, so the result creates no Supreme Court precedent with respect to the key legal issue: under what circumstances people who say they were unaware of a class action settlement covering their claims can argue later that they were not properly represented.

Business and insurance companies had filed friend-of-the-court briefs urging the court not to open the door to relitigation of class action settlements, which is the way most such cases are resolved.

"The court will have to consider [the legal issues] again in a case where all justices can participate," said John Beisner, a lawyer for the Product Liability Advisory Council, which supported the chemical companies. Still, he said, the 2nd Circuit, which includes New York, Connecticut and Vermont, may now become the venue of choice for plaintiffs seeking to "break open" settlements, so "this will be an ongoing issue."

The case isDow Chemical Co. v. Stephenson, No. 02-271.

2003The Washington Post Company

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