High Court Deadlocks on Agent Orange Case

GINA HOLLAND / AP 9jun03

[In depth look at causes of Gulf War syndrome]

WASHINGTON - The Supreme Court deadlocked Monday on whether it's 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.

In an unsigned opinion, the court ordered more consideration of the claims of Joe Isaacson, a vice principal in Irvington, N.J. 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.

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

Groups like 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, 02-271.

Supreme Court Splits on Agent Orange Lawsuit 

REUTERS 9jun03

WASHINGTON—The U.S. Supreme Court said on Monday that one Vietnam War veteran diagnosed with cancer can sue Agent Orange's manufacturers over exposure to the defoliant, despite a 1984 global class-action settlement.

But it set aside a ruling that allowed a second veteran to sue, and sent his lawsuit back for further consideration.

The case involved Daniel Stephenson and Joe Isaacson, who alleged their exposure to the herbicide sprayed by the U.S. military during the war caused their illnesses.

Stephenson, a helicopter pilot who served in Vietnam from 1965 to 1970, was diagnosed with bone marrow cancer in 1998. Isaacson, in Vietnam from 1968 to 1969 while working at a base for airplanes that sprayed the chemical, was diagnosed with non-Hodgkins lymphoma in 1996.

An equally divided court, by a 4-4 vote, affirmed a U.S. appeals court ruling that Stephenson can sue. Justice John Paul Stevens did not take part in the case, but gave no reason why he did not participate.

A number of chemical companies, including Dow Chemical Co. and Monsanto Co., the two biggest makers of Agent Orange, had appealed to the Supreme Court.

The companies in the 1984 settlement agreed to pay $180 million to veterans who were exposed to Agent Orange and then died or became ill. The payments were made for 10 years, and the settlement provided no payments for death or disability occurring after Dec. 31, 1994.

A federal judge dismissed the lawsuits by the two plaintiffs on the grounds they were bound by the 1984 settlement.

But the appeals court disagreed and ruled that Stephenson and Isaacson learned of their alleged injuries only after the settlement fund expired in 1994. It said the two plaintiffs could not be constitutionally bound by the 1984 settlement.

A number of business groups supported the companies, saying that reopening settlements in later years will only deter future settlements. The plaintiffs were supported by veterans groups, trial lawyers and six states.

In a two-paragraph ruling, the Supreme Court did not reach the merits of the dispute. It sent the Isaacson case back for further consideration in view of a high court decision in a different case last year and it simply affirmed the appeals court ruling for Stephenson because the justices deadlocked.

• More dirt on Monsanto

Dow, Monsanto Can Be Sued Over 
Agent Orange

BLOOMBERG 9jun03

A Vietnam veteran with cancer can sue Dow Chemical Co. and Monsanto Co., makers of the defoliant Agent Orange, even though a 1984 settlement was supposed to resolve all claims, the U.S. Supreme Court ruled.

The justices' 4-4 decision affirmed a lower court ruling that allowed veteran Daniel Stephenson to sue. In the case of another veteran, the justices told a lower federal court to reconsider whether to let the case go forward in a state court.

Justice John Paul Stevens didn't participate in the case.

DOW CHEMICAL COMPANY, et al., PETITIONERS v. DANIEL RAYMOND STEPHENSON et al.

on writ of certiorari to the united states court of appeals for the second circuit

[June 9, 2003]

--------------------------------------------------------------------------------

Per Curiam.

With respect to respondents Joe Isaacson and Phyllis Lisa Isaacson, the judgment of the Court of Appeals for the Second Circuit is vacated, and the case is remanded for further consideration in light of Syngenta Crop Protection, Inc. v. Henson, 537 U. S. 28 (2002).

With respect to respondents Daniel Raymond Stephenson, Susan Stephenson, Daniel Anthony Stephenson, and Emily Elizabeth Stephenson, the judgment is affirmed by an equally divided Court.

Justice Stevens took no part in the consideration or decision of this case.

source: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=02-271 9jun03

Supreme Court Deadlocks On Agent Orange Case 

Wall Street Journal 9jun03

WASHINGTON—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, didn't participate in the case. He didn't 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.

In an unsigned opinion, the court ordered more consideration of the claims of Joe Isaacson, a vice principal in Irvington, N.J. 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 weren't properly represented; and second, what standard should be used if those lawsuits are allowed.

Justices, in issuing a two-paragraph unsigned opinion, didn't deal with either question. The effect of tie votes, which are extremely rare at the court, is to affirm the Second 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, Calif., the attorney for Messrs. 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.

(Dow Chemical Co. v. Stephenson)

In a separate case Monday, the Supreme Court unanimously upheld an Iowa state law that taxes slot-machine proceeds at racetracks and riverboats at different rates. The ruling means Iowa won't have to refund as much as $100 million in taxes collected on racetrack slot machines, which are taxed at the higher level under the state's law.

"The state's differential tax rate does not violate the federal Equal Protection Clause," said Justice Stephen Breyer, who wrote the high-court opinion.

The ruling overturns an Iowa Supreme Court decision, which had concluded the different tax rates were unconstitutional. The high court sent the case back to the state court for further proceedings in light of the decision. (Fitzgerald v. Racing Association of Central Iowa)

--Dow Jones Newswires reporter Mark Anderson contributed to this article

Bayer Knows Of No 
South African Lawsuits Being Filed 

DOW JONES NEWSWIRES 14apr03

FRANKFURT -- Bayer AG (G.BAY) said Monday it isn't aware of any lawsuits against it in South Africa over its supply of agrochemicals product Agent Orange during apartheid.

Bayer never produced Agent Orange , a Bayer spokesman said.

"Bayer hasn't been contacted by any alleged plaintiffs or the South African authorities," the spokesman added.

Bayer's comments come after a press report said Bayer was one of three companies, including Dupont (DD) and Eli Lilly & Co (LLY) possibly facing lawsuits from supplying the product.

Estimates Of US Defoliant 
Usage In Vietnam Raised 

AP 16apr03

NEW YORK—A study has increased the estimate of how much Agent Orange and other dioxin-tainted defoliants the U.S. military sprayed during the Vietnam War. But it remains unclear whether the increased amount raises the illness risk of those exposed, scientists say.

Re-examining military records, researchers at the Columbia University School of Public Health determined that about 21 million gallons of the herbicides were sprayed from 1961 to 1971 -1.84 million gallons, or 10%, more than previously believed.

About 55% of the defoliant was Agent Orange -nicknamed for the color of the identification band on its storage containers. Scientists said the other herbicides, such as Agent Pink, were closely related to Agent Orange but even more potent.

Two-thirds of the herbicides were contaminated with the most dangerous form of dioxin, TCDD, which is associated with cancers, neurological disorders, miscarriages and birth defects.

Details of the study appear in the current issue of the journal Nature.

Agent Orange toxins persist in soil and water in parts of the southern half of Vietnam. Tree cover has regrown in many locations, but chemicals have migrated into the tissues of fish and fowl that local residents eat.

Studies by U.S. scientists show that blood samples from residents in exposed communities contain dioxin at levels 135 times higher than blood from areas that were not sprayed.

Last year, U.S. and Vietnam conducted their first joint conference on Agent Orange exposure.

In January, the Department of Veterans Affairs extended extra benefits to U.S. veterans suffering from a form of leukemia after researchers found a link to Agent Orange . About 10,000 Vietnam vets receive disability benefits related to the herbicide.

Top Court: 
Agent Orange Suit Vs Dow Chem Can Continue 

MARK H ANDERSON / Dow Jones News Wires 9jun03

WASHINGTON—In a deadlocked decision, the U.S. Supreme Court on Monday allowed Agent Orange cancer claims by a Vietnam veteran to continue against Dow Chemical Co. (DOW) and Monsanto Co. (MON), despite a 1984 global class-action settlement.

The 4-4 split means the high court didn't rule on the underlying issue in the case - whether a global class-action settlement could be reopened years after the fact. Still, the ruling leaves Dow Chemical and Monsanto exposed to new Agent Orange litigation.

The Supreme Court's ruling came as Justice John Paul Stevens recused himself from the case without explanation.

Two veterans had brought suit against the companies. Under the ruling, the first veteran, Daniel Stephenson, can continue pursuing his claims in federal court. The high court sent the lawsuit brought by a second veteran, Joe Isaacson, back to lower courts to decide whether the claim belongs in a state or federal court venue.

The veterans' lawsuits were brought against Dow Chemical, Monsanto Co. and other companies that manufactured Agent Orange . The companies appealed to block the lawsuits to the Supreme Court after the 2nd U.S. Circuit Court of Appeals ruled the two veterans could proceed.

The companies settled a global $180 million class-action lawsuit in 1984 after Agent Orange claims began surfacing in the 1970s. Agent Orange is a defoliant chemical used by the U.S. military during the Vietnam War.

Both Stephenson and Isaacson, the veterans, sued the companies after being diagnosed in the late 1990s with cancer related to exposure to Agent Orange . The diagnosis came long after the class-action settlement, and the two said they weren't aware of it when they filed their suits.

A trial judge sided with the companies and dismissed their claims, saying they were diagnosed after a 1994 deadline for claims contained in the earlier Agent Orange settlement. The 2nd U.S. Circuit Court of Appeals in New York reversed that decision.

Several business groups had urged the Supreme Court to block the lawsuits. The groups warned that allowing the Agent Orange claims to continue could expose companies to litigation of similar issues after a class-action settlement is reached.