December 5, 2001

Jonathan Hutson, 202-797-8600 x 246
Leslie A. Brueckner, 202-797-8600 x 222
Arthur H. Bryant, 510-622-8202

On November 30, 2001, the U.S. Court of Appeals for the Second Circuit issued a decision in Stephenson, et al., v. Dow Chemical, et al., that preserves the right of two Vietnam veterans to sue for compensation for injuries allegedly caused by exposure to the toxic defoliant Agent Orange. The trial court had dismissed the lawsuits of Daniel Stephenson and Joe Isaacson on the ground that their claims are barred by a 1984 class action settlement that gave them no recovery for their injuries. Trial Lawyers for Public Justice ("TLPJ") filed an amicus curiae brief in the case arguing that Agent Orange victims cannot constitutionally be bound by a class action settlement that provided them with no relief. The Second Circuit agreed, holding that both Stephenson and Isaacson are entitled to their day in court.

"The Second Circuit properly recognized that, as a matter of due process and fairness, personal injury victims cannot be bound by a class action settlement that does not provide them with any recovery," said Brent M. Rosenthal of Baron & Budd in Dallas, the primary author of TLPJ’s amicus brief. "This decision stands as a warning that the class action device cannot be used by the manufacturers of dangerous products to prevent ‘future’ personal injury victims from obtaining relief for their claims."

This case is the latest chapter in the long saga of victims’ attempts to obtain recovery for injuries associated with exposure to the toxic defoliant Agent Orange. In 1984, U.S. District Court Judge Jack B. Weinstein of the Eastern District of New York approved a global class action settlement of all present and future Agent Orange victims’ claims. The settlement, which was enormously controversial and the subject of numerous objections, created a fund that permitted nominal recoveries regardless of causation for all exposed veterans before the age of 60. However, the settlement explicitly cut off compensation for class members after 1994.

Both Isaacson and Stephenson contracted Agent-Orange-related illnesses in the late 1990’s, long after the Agent Orange settlement fund had run dry. (Isaacson was diagnosed with non-Hodgkins lymphoma; Stephenson was diagnosed with bone marrow cancer.) They each filed individual lawsuits against the chemical manufacturers, seeking recovery for their injuries. The two lawsuits were consolidated before Judge Weinstein in New York, who ruled that both victims were bound by the 1984 settlement even though it provided them no compensation for their injuries.

In a unanimous panel decision reversing Judge Weinstein’s ruling, the Second Circuit held that Isaacson and Stephenson cannot constitutionally be bound by the 1984 class action settlement. The Court emphasized that "they both learned of their allegedly Agent Orange-related injuries only after the 1984 settlement fund had expired in 1994." The fact that the settlement failed to provide any recovery for class members whose injuries occurred after 1994 revealed a fatal conflict between victims like Stephenson and Isaacson and the class representatives, the Court ruled. In light of this conflict, the Court concluded that neither victim had received adequate representation in the prior Agent Orange litigation and could not be bound by the earlier settlement.

"This case highlights the unfairness that can result from inclusion of ‘future’ personal injury victims in class action settlements," said TLPJ Staff Attorney Leslie Brueckner, who assisted with the brief. "Both of the plaintiffs were entirely unaware of the class action settlement and did not even contract their diseases until years after termination of the settlement fund. We are pleased and relieved that the Second Circuit has recognized that this result is both illegal and unfair."

Agent Orange is the popular name for an herbicide sprayed by the U.S. Air Force (USAF) over more than 6,000 square miles of South Vietnam’s rice paddies, riverbanks, roadsides and jungles in the 1960s and 1970s. The USAF sprayed some 18 million gallons over about 3.6 million acres – an area about the size of the State of Connecticut – to destroy crops and defoliate hiding places used by opposing Viet Cong forces. Agent Orange contains dioxin, a poisonous chemical that is considered one of the world’s most toxic substances. Dioxin has been linked to dozens of diseases, including diabetes, birth defects and various forms of cancer, some of which take years to become evident.

TLPJ’s amicus brief in Stephenson – available at www.publicjustice.net – was filed as part of its Class Action Abuse Prevention Project, a nationwide campaign dedicated to monitoring, exposing, and fighting class action abuse nationwide. In addition to Rosenthal and Brueckner, TLPJ’s legal team included Steve Jensen of Baron & Budd in Dallas Texas and Arthur H. Bryant of TLPJ.

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Trial Lawyers for Public Justice is the only national public interest law firm dedicated to using trial lawyers’ skills and resources to advance the public good. Founded in 1982, TLPJ utilizes a nationwide network of more than 2,500 outstanding trial lawyers to pursue precedent-setting and socially significant litigation. It has a wide-ranging litigation docket in the areas of consumer rights, environmental protection, toxic torts, worker safety, civil rights and liberties, and access to the courts. TLPJ is the principal project of The TLPJ Foundation, a not-for-profit membership organization. It has offices in Washington, DC, and Oakland, CA.