The Official Voice of Vietnam Veterans of America, Inc. ®
An organization chartered by the U.S. Congress

May/June 2003

Veterans Can Sue Agent Orange Manufacturers


On June 9, the U.S. Supreme Court announced its decision in Dow Chemical Company, et al. v. Stephenson, et al., which involved two Vietnam veterans whose current illnesses did not manifest until after all of the money set aside under the Agent Orange legal settlement had been spent. In 1984, Dow Chemical Co. and Monsanto Chemical Co., the principal manufacturers of Agent Orange, settled a class action lawsuit brought by Vietnam veterans whose illnesses were the result of their exposure to the herbicide. The settlement agreement prohibited the chemical manufacturers from being sued for products liability by any Vietnam veteran whose disability was not discovered prior to 1994.

Since their injuries did not manifest until after the settlement money had been depleted (in early 1995), the two veterans filed their lawsuits against the chemical manufacturers in the late 1990s.  In an April 2000 decision, a U.S. district court judge dismissed both lawsuits, finding that the veterans were legally precluded from suing the manufacturers by the original settlement.

The veterans appealed to the U.S. Court of Appeals for the Second Circuit which, in November 2000, overturned the district court judge's dismissal. In doing so, the Court determined that because the veterans' injuries had manifested after the settlement funds were exhausted, and because veterans in that situation were not adequately represented in the earlier class action, they are not bound by the 1984 settlement. Consequently, the Court held that current Agent Orange-related products liability lawsuits are not barred by that settlement. While the Court expressed no opinion about the ultimate merits of the plaintiffs' claims, its decision allowed them their day in court.

Fearing that allowing lawsuits by affected veterans who did not become ill until after the settlement funds were exhausted would abolish the finality of products liability settlements, the chemical companies filed a petition for a writ of certiroari (a request for the Court to consider their appeal) with the U.S. Supreme Court. The crux of their argument was that if plaintiffs were allowed to sue after a previous settlement, then companies would have no incentive to agree to settle class action cases, since they could still be dragged into court.

The Court granted the petition for review in November 2002. The Products Liability Advisory Council, a consortium of approximately one hundred companies, filed an amicus curiae (friend of the court) brief. VVA joined the appeal as amicus curiae in support of the two veterans. In February 2003, the parties presented their oral arguments to the Court.

On June 9, with one justice abstaining, the Supreme Court returned one of the veteran's cases to the Second Circuit with instructions to reconsider the matter in accordance with a recent Supreme Court opinion. In the other veteran's case, however, the remaining justices voted in a 4-4 split. The effect of the deadlocked vote is that Supreme Court has affirmed the Second Circuit's decision to allow more recently ill Vietnam veterans with Agent Orange-related diseases to exercise their Constitutional right to legal redress.

Obviously, this case will affect more than veterans. The implications for the future of large commercial class action settlements are enormous. But Vietnam veterans who currently suffer the devastating effects of exposure to Agent Orange can now bring suit against the manufacturers of the herbicide.


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