Dow Jones Business News
Chemical Firms Ask High Court To Stop Agent Orange Suits
Wednesday February 26, 4:16 pm
By Mark H. Anderson, Of DOW JONES NEWSWIRES

WASHINGTON (Dow Jones)--Attorneys for Dow Chemical Co. (NYSE:DOW - News) , Monsanto Co. (NYSE:MON - News) and other companies urged the U.S. Supreme Court Wednesday to quash a new round of Agent Orange lawsuits brought long after a 1984 global class-action settlement.

Seth Waxman, a Washington attorney, told the high court in oral arguments that allowing the new Agent Orange cases to go forward could trigger "hundreds if not thousands" of additional cases. Agent Orange was a herbicide containing dioxin used to defoliate trees during the Vietnam War.

"There is a long final judgment in the Agent Orange litigation," Waxman said, urging the justices to reverse a lower court ruling that allowed the new suits to continue.

The case before the Supreme Court involves two Vietnam veterans who were diagnosed with Agent Orange-related cancer from 1996 to 1998. The $180 million settlement from 1984 no longer covered their claims.

The two men - Daniel Stephenson and Joe Isaacson - said they didn't know about the earlier settlement and shouldn't be blocked from suing. Though the two men lost at the trial court phase, the 2nd U.S. Circuit Court of Appeals in New York reversed and said the suits could proceed.

The lawyer for the veterans Gerson Smoger, of Oakland, Calif., said the men should be allowed to bring new lawsuits because they weren't "adequately represented" in the 1984 settlement. He added that scientific advances have learned that cancer related to Agent Orange might not appear until long after the global settlement expired in 1994.

Several justices asked questions about whether it was proper to block the men's lawsuits, given that their cancer wasn't apparent until many years later. Both Justices Ruth Bader Ginsburg and David Souter dominated the questioning of Waxman. "How can they be adequately represented when their claim hasn't accrued? " Ginsburg asked Waxman.

Waxman responded that the original settlement applied to all veterans, whether they were sick or not.

Justice Stephen Breyer said he worried about allowing the suits to go forward, because it might mean that no class-action settlement means an end to litigation for the involved companies.

"It's always open for people to come in later," Breyer said. "I'm a little concerned about that, considering asbestos is eating up $200 billion without people even being compensated."

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

-Mark H. Anderson, Dow Jones Newswires; 202-862-9230; mark.anderson@dowjones.com