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Seventeen years after a class action settlement intended to end lawsuits over Agent Orange, the 2nd U.S. Circuit Court of Appeals has ruled that two Vietnam veterans may sue companies that made the product. The Nov. 30 decision allows the vets, who developed cancer after the Agent Orange settlement wound down at the end of 1994, to pursue cases against more than a dozen chemical companies, including Dow Chemical Co. And it may open the door for others who got sick in recent years to sue. Stephenson v. Dow Chemical Co., No. 00-9120. The case comes at a time when the U.S. Supreme Court and lower federal courts are limiting judges’ ability to fashion broad mass-tort settlements. AGENT ORANGE SETTLEMENT On the eve of trial in 1984, lawyers for the manufacturers and for a class of American, Australian and New Zealander veterans agreed to a deal in which the manufacturers would pay $180 million to veterans who were exposed to Agent Orange and then died or became ill. Part of the money was set aside for vets who became ill in future years, through 1994. There would be numerous attempts by veterans to undo the settlement or to sue in spite of it, but none was successful. “Most other attorneys thought this was set in stone,” said Gerson Smoger, the Dallas lawyer who represents plaintiff Joe Isaacson. “But if something is not right and not fair and not constitutional, a court will be brave enough to overturn it.” Isaacson served in Vietnam from 1968 to 1969 and was an Air Force crew chief assigned to a base where planes that sprayed Agent Orange were based. In 1996, he was diagnosed with non-Hodgkins lymphoma. Daniel Stephenson, whose case was joined with Isaacson’s on the appeal, served from 1965 to 1970, on the ground and as a helicopter pilot. He was diagnosed with bone marrow cancer in 1998. Both men sued, claiming their wartime exposure to Agent Orange caused them to develop cancer. The Isaacson case, filed in New Jersey state court, and the Stephenson case, filed in Louisiana federal court, were eventually assigned to Brooklyn federal Judge Jack B. Weinstein, who had brokered the original Agent Orange class settlement. Weinstein dismissed both cases last year, holding that they were barred by the settlement. The 2nd Circuit disagreed, holding that, because Isaacson and Stephenson were not adequately represented in the 1984 settlement, they could not be bound by it now. The court also questioned whether a settlement can ever constitutionally bind class members who, as in many mass tort cases, become ill years after a settlement is approved. Neither side knows how many veterans may now try to sue based on diseases they developed in the past few years. Those who do will face the companies’ defense that they merely carried out government specifications for making Agent Orange and that, as government contractors, they are not responsible for any injuries. Another hurdle for plaintiffs will be to prove that their diseases were actually caused by Agent Orange. Scot Wheeler, a spokesman for Dow Chemical, said the issue is still a controversial one. But Smoger believes that scientific and epidemiological studies of Agent Orange since 1984 make cases much easier to prove now than at the time of the settlement. Trial Lawyers for Public Justice, a Washington, D.C., group that has criticized many class action settlements, filed an amicus brief supporting the veterans. “My client is absolutely thrilled” by the ruling, said Smoger. Wheeler said that Dow is reviewing the decision and has not yet decided whether it will appeal.

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