Supreme Court Says Veterans Can Sue for Agent Orange Caused Illness
(Beyond Pesticides, Jun 11, 2003) In a deadlocked 4-4 decision June 9, 2003, Dow Chemical Co. v. Stephenson, No. 02-271, the Supreme Court affirmed a lower court decision to hear a case brought by Vietnam Veterans suffering the effects of Agent Orange exposure, who believe they were not adequately represented by a class action lawsuit settlement in 1985. Agent Orange was a 50-50 mixture of the herbicides 2,4-D and 2,4,5-T, used to defoliate the Vietnam jungle canopy. 2,4,5-T was banned for use in the U.S., but 2,4-D continues to be widely used on home lawns and in agriculture. The tie-vote, which automatically upholds a lower court ruling of the U.S. Court of Appeals for the 2nd Circuit (New York), gives veteran Daniel Stephenson the right to argue against the manufacturer Dow Chemical Company that compensation for his fatal form of cancer, diagnosed in 1998, should not be limited by a 1985 settlement agreement between veterans and the manufacturers. The court also ordered the lower court to hear a case brought by another veteran.

The 1985 settlement agreement established a $180 million chemical company fund that was intended to pay veteran claims for effects that ranged from birth defects to cancer. Funds were exhausted in 1997, after the plaintiffs' disease was identified.

The veterans' attorney, Gerson Smoger, said, "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 insurance and business lobby in Friend of the Court briefs urged the court not to open class action settlements to further litigation, which could have major impact on an acceptable litigation tool that is viewed as containing defendant liability. Justice Paul Stevens recused himself from the case without explanation. According to The Washington Post, Justice Stevens' son, a Vietnam Veteran, died of cancer in 1996 at the age of 47.