Agent Orange Settlement
The first Agent Orange class action was filed in 1979, the largest mass tort class action of its time. There were 2.4 million Vietnam veterans that the Agent Orange class action lawsuit sought to represent. Little progress was made with the Agent Orange lawsuit, until October 1983 when Judge Jack Weinstein was assigned to the Agent Orange lawsuit and it was put on a fast track to settlement.
The 1985 out of court Agent Orange settlement made between the companies and the veterans created a $180 million fund that was financed by the chemical companies to pay those veterans that claimed disease and serious illnesses from Agent Orange exposure. For each year between 1971 and 1994 that the Agent Orange class members could demonstrate what was classified as “total disability” a small amount of compensation would be given. Under these rigid guidelines, a high number of the 2.4 million Vietnam veterans were not included in the Agent Orange settlement.
Anyone suffering an illness following 1994, which was very likely considering the illnesses associated to Agent Orange could take 20-30 years to develop in some instances, did not qualify to receive payment under the settlement terms. In addition, a lump sum payment was provided for the Agent Orange families of veterans that died from diseases that may or may not have been related to Agent Orange, and quickly the $180 million fund was depleted by 1994. Just 50,000 Agent Orange members received a small compensation.
When the Agent Orange class notice was mailed out, the opt-out deadline had already expired, leaving the court with barely any time. At the time, the class notice included only those Vietnam veterans that were injured by Agent Orange exposure and the settlement notice stated those Vietnam veterans that have not yet manifested injury would also be released. Despite this, an opt-out period was never provided for the potentially very high number of new Agent Orange class members.
While many Vietnam veterans continued to suffer the deadly diseases beyond 1994 associated to Agent Orange exposure, none could seek damages because the 1985 settlement. Vietnam veterans that were injured during the 1985 Agent Orange settlement window were also left out because they were not made aware of the lawsuit. Due process requires notification of the class suit, however many Vietnam veterans were not aware, including Stephenson and Isaacson.
Dow Chemical v. Stephenson involved Vietnam veteran Daniel Stephenson who developed a deadly form of rare cancer called multiple myeloma in 1998 and was not only unaware of the 1985 Agent Orange settlement but felt he and other veterans were unfairly represented. The June 9, 2003 deadlocked Supreme Court vote resulted in the automatic affirmation of the lower court’s ruling, which had been the New York based U.S. Court of Appeal for the 2nd Circuit. This “loophole” will allow representation for those Vietnam veterans that were unrightfully left out of the Agent Orangesettlement, and the court also ordered the 2nd Circuit to reconsider the claim of Joe Isaacson.
A Supreme Court tie vote is a rare occurrence that was able to occur because the ninth justice, John Paul Stevens, sat the case out. Giving no reason, Stevens has had a personal experience with losing a son to cancer in 1996 that was a former Vietnam veteran. A nationwide precedent was not set with the Supreme Court justice issuing no opinions. Cancer, diabetes, and neurological disorders are just a few of the Agent Orange side effects identified.
The Department of Veterans Affairs announced in 2003 that the link to chronic lymphocytic leukemia to Agent Orange exposed Vietnam veterans is so strong that benefits would automatically be given to any new diagnoses of it. There are as many as 1,000 new patients for chronic lymphocytic leukemia alone expected amongst Vietnam veterans.
Dow, Monsanto, Diamond Shamrock Corporation, Hercules Inc., Uniroyal inc., T-H Agricultural & Nutrition Company, and Thompson Chemical Corporation all produced Agent Orange for military use and were included in the Agent Orange settlement. Upset with the June 9, 2003 Supreme Court outcome, these companies may once again become the target of Agent Orange litigation.
Please contact us to confer with an Agent Orange attorney.