A recent court decision gives many Vietnam veterans a new opportunity to sue chemical companies like Dow and Monsanto for cancers and other latent diseases they believe were caused by exposure to Agent Orange, a herbicide widely used during that war. Before this decision, courts had consistently held that these veterans lost their right to sue the firms in 1984 when a class action suit settled all claims for damages against the companies.
Between 1977 and 1984 several thousand Vietnam vets sued the manufacturers of Agent Orange, including Dow Chemical and Monsanto. Ultimately these lawsuits were consolidated in the court of Federal Judge Jack Weinstein in the Eastern District of New York. In 1984 Weinstein approved a settlement that set up a compensation fund of $180 million for all Vietnam veterans (and their families) who may have been injured by exposure to Agent Orange. Under the terms of the settlement, the fund would pay compensation to injured veterans for ten years, 1984 to 1994, while barring new lawsuits against the companies.
Earning interest, the compensation fund grew a bit and ultimately paid out $196.5 million to 52,000 Agent Orange veterans who suffered total disability or death–an average compensation of just under $3,800 apiece for those who made claims. These funds ran out in early 1995, leaving nothing for vets whose symptoms emerged after that date. The federal courts had consistently ruled that even Vietnam veterans who showed no evidence of injury in 1984 but manifested disease later had lost their right to sue under the 1984 settlement. Veterans have been fighting to reverse this conclusion for more than a decade, pointing out that many of their number knew nothing of the 1984 settlement, especially those who showed no symptoms at the time.
An important characteristic of cancer is the delay between exposure to the causative agent or agents and the onset of active disease. Commonly, the diagnosis of cancer is delayed anywhere from fifteen to forty years. So some veterans exposed in Vietnam to cancer-causing herbicides could be expected to get cancer as late as 2011 or even later. Moreover, it was not until 1993, nine years after the original class action settlement, that the Institute of Medicine–a branch of the National Academy of Sciences–published Veterans and Agent Orange, which concluded that there is a “positive association” between the herbicides sprayed in Vietnam and three kinds of cancers: soft-tissue sarcoma, non-Hodgkin’s lymphoma and Hodgkin’s disease. The report also found “evidence suggestive of an association” between herbicides and respiratory cancers (lung, larynx and trachea), prostate cancer and multiple myeloma, a cancer of the bone marrow.
In the early 1990s, the Supreme Court refused to take up the Agent Orange question, despite the request of veterans’ organizations with a total membership of more than 8 million, who were represented by Oakland, California, attorney Gerson Smoger with the support of Adm. Elmo Zumwalt, former Commander of US Naval Forces in Vietnam. Recently, however, two vets–Joe Isaacson of New Jersey and Daniel Stephenson of Louisiana–prevailed in the Court of Appeals for the Second Circuit, in New York. Isaacson served in Vietnam in 1968 and 1969 as a crew chief in the Air Force, where he worked at a base for airplanes that sprayed Agent Orange and other herbicides. In 1996 he was diagnosed with non-Hodgkin’s lymphoma. Stephenson served in Vietnam from 1965 to 1970 both on the ground and as a helicopter pilot. He was diagnosed with multiple myeloma in 1998.
Judge Weinstein dismissed Isaacson’s and Stephenson’s suits on the grounds that the 1984 class action disallowed any further suits by veterans. On November 30, the Second Circuit reversed Judge Weinstein. Vietnam veterans who believe they were injured by exposure to herbicides in Vietnam and whose injuries appeared after 1994 can now have their day in court.