View Full Version : agent orange & the supreme court

02-22-03, 07:41 PM
Sorry for the length of this:

Agent Orange Case Headed to Supreme Court

February 22, 2003 02:52 PM EST

NEW ORLEANS - During an appendectomy in 1996, surgeons discovered that Vietnam veteran Joseph Isaacson had a form of cancer associated with exposure to the defoliant Agent Orange.

But when he tried to claim payment from a settlement fund set up by Agent Orange manufacturers, he was told he was too late and, besides, the $180 million kitty had been exhausted.

On Wednesday, the U.S. Supreme Court will hear arguments on whether Isaacson, a vice principal at a middle school in Irvington, N.J., and Daniel Stephenson, a retired helicopter pilot living in Florida, can sue the chemical companies that made Agent Orange.

"We want to see if we can reopen the case for all Agent Orange veterans who came down ill," Isaacson said. "This is what this case is about."

The chemical companies argue that a class-action settlement has ended their liability, and a corporate advocacy group says the case could threaten the finality of all class-action judgments.

A federal judge agreed, ruling that the men's damage claims were been pre-empted by a 1984 class-action settlement agreed to by Dow Chemical Co., Monsanto and other companies that supplied Agent Orange to the military. The chemical was used in Vietnam to strip away the dense jungle foliage that provided cover for enemy forces.

The 2nd U.S. Circuit Court of Appeal reversed that ruling, setting up the Supreme Court hearing.

In 1984, neither Isaacson nor Stephenson was ill and could not claim to have been injured by Agent Orange.

"We weren't aware of the suit," Isaacson said. "We hadn't come down ill and we would have had no interest in the suit."

An attorney representing Stephenson, Stephen Murray Jr., said the Supreme Court has held in previous cases that class-action settlements - designed to handle huge numbers of similar damage claims - do not preclude people from claiming damages for injuries that surface later.

"An individual who has yet to manifest any injury does not know if he has a valid claim," said Murray.

Isaacson, 54, volunteered for the Air Force and served as a crew chief for an F-100 fighter jet in 1968 and 1969. Isaacson's base was a depot for Agent Orange and the flight line where he worked also was used by aircraft that sprayed the chemical, according to court records.

The appendectomy in 1996 revealed he had non-Hodgkins lymphoma, a form of cancer that has been connected with Agent Orange exposure. Following chemotherapy, his cancer is now in remission.

"During the operation, they found an abscess and sent it out for a biopsy," Isaacson said. "All in all, it was a blessing in disguise. They caught it at an early stage."

Stephenson served in Vietnam from 1965 to 1970 on the ground and as an Army helicopter pilot. In 1998, he was diagnosed with multiple myeloma, a bone marrow cancer, and underwent a bone marrow transplant.

Stephenson, like Isaacson, enjoyed good health before his cancer diagnosis and had a career as a civilian helicopter pilot in Louisiana, said attorney Gerson Smoger.

"The legal issue from our side is whether a class-action far away can dismiss somebody's entire rights," Smoger said.

The companies set aside $180 million to compensate anyone injured by the end of 1994 and to pay for programs to benefit all veterans. Their attorneys argue that veterans who got sick after 1994 benefited from the programs that the settlement funded.

The Product Liability Advisory Council, a corporate advocacy group, has argued in court briefs that the 2nd Circuit's ruling "could, in principle, threaten to upset the finality of every class-action settlement or judgment ever rendered."

The American Insurance Association, a trade group representing insurance companies that often cover much of the cost of class-action settlements, has asked the Supreme Court to bar Isaacson and Stephenson from suing.

"A class-action settlement has to reach finality in order for legitimate claims to be paid," said Lynda Mounts, AIA senior counsel. "Defendants and insurers will have very little incentive to settle class-action lawsuits and avoid expensive trials if a settlement is never truly final."

02-25-03, 05:12 PM
Agent Orange class action lawsuit to be argued Wed Feb 26 at the US Supreme Court:


Agent Orange class action lawsuit to be argued Wed Feb 26 at the US Supreme

No.02 -271.Dow Chemical Company,et al.v.Daniel
Raymond Stephenson,et al.
Certiorari to the C.A.2nd Circuit.
For petitioners:Seth P.Waxman,Washington,D.C.
For respondents:Gerson H.Smoger,Oakland,Cal.
(1 hour for argument.)

some info is at this attorney's info web site

attorney's email is GersonSmoger@compuserve.com
For more information please call Dr. Smoger in the California office at
1-510-531-4LAW (529).



02-26-03, 07:10 PM
Supreme Court Debates Agent Orange Case


Wednesday, February 26, 2003 Last updated 9:34 a.m. PT

Supreme Court Debates Agent Orange Case


WASHINGTON -- The Supreme Court debated Wednesday the pitfalls of letting
ill Vietnam veterans sue chemical companies over Agent Orange exposure
despite a long-resolved settlement.

Companies that made the herbicide thought their liability ended with a 1984
class-action settlement.

Justices will decide before July whether people who got cancer or other
diseases long after 1984, and didn't even know about the $180 million
settlement, get a chance to challenge the deal.

Justice Ruth Bader Ginsburg said she was concerned that the newspaper
advertisements that ran at the time didn't reach people who could have been
entitled to money. "Who represented them?" she asked.

But Chief Justice William H. Rehnquist, and others, seemed worried about
reopening the settlement. "How about people who get sick in 2018?" he asked.

Justice Stephen Breyer said large class-action lawsuits would no longer be
settled, because of uncertainty.

An appeals court ruled that two cancer-stricken vets were not adequately
represented when the settlement was reached. By the time the men found out
they were sick, the cash was gone.

Business groups contend the case could threaten the finality of all
class-action judgments, discouraging companies from settling other lawsuits

Groups like the Veterans of Foreign Wars and the American Legion urged the
court to fix what they call an injustice against people "who survived the
bullets and bombs of the enemy" but are now dying of cancer.

Joe Isaacson, a vice principal in Irvington, N.J., and Daniel Stephenson, a
retired helicopter pilot living in Florida, argue that their cancers are
related to Agent Orange, used in the 1960s and 1970s to clear dense jungle
growth in Vietnam.

Isaacson served as a crew chief in the Air Force for an F-100 fighter jet in
1968 and 1969. He has non-Hodgkin's lymphoma, which is in remission.
Stephenson served in Vietnam from 1965 to 1970 on the ground and as an Army
helicopter pilot. He received a bone marrow transplant after being diagnosed
with multiple myeloma.

John McNeill, a VFW officer, said while the justices may be sympathetic to
the men's plights, "sometimes the legality part of it can be hard and cold."

One of the nine court members is not participating in the case: Justice John
Paul Stevens, whose only son was a Vietnam veteran who apparently suffered
from cancer before his 1996 death. John Joseph Stevens was 47. Justice
Stevens, a veteran of World War II, said his practice is not to disclose
reasons for recusals.

Andrew Frey, an attorney for Dow Chemical Co., Monsanto Co. and others, said
companies that were sued decades ago thought they had finality with a
settlement that provided money for individual vets and for programs to help
all veterans.

"It's not fair to the defendants to say, `Now that we've got your money,
let's start over again,'" Frey said.

The U.S. Chamber of Commerce and other business groups said that if people
are allowed to bypass court-approved deals, "class-action settlements could
hardly be called settlements at all."

Ronald Simon, one of the lawyers for the veterans, said the 1984 settlement
was premature.

"The industry got everybody settled and is sitting back now laughing and
saying, `You guys have dead-winner cases, too bad you can't even come to
bat,'" he said.

The case is Dow Chemical Co. v. Stephenson, 02-271.



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