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Class Action Lawsuit

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Class Action Lawsuit

Class Action Lawsuit

What is it?

In re "Agent Orange" Product Liability Litigation is the name of the class action lawsuit brought by Vietnam veterans and their families against seven chemical manufacturing companies for injuries the veterans and their families believe were caused by exposure to Agent Orange and other herbicides used in Vietnam. More than 2000,000 veterans joined the class action claiming a large number of diseases they believe are related to Agent Orange, some of which was made by the companies named in the suit. On May 7, 1984, a tentative out-of-court settlement was announced. Under the terms of the settlement the chemical companies agreed to pay $180 million, reportedly the largest settlement of its kind at that time. A Settlement Fund was created to disperse the money received.

Who is eligible for payments from the settlement fund?

Applications for the Agent Orange Veteran Payment Program, established by the settlement, had to be submitted prior to December 31, 1994. To be eligible for benefits under the Payment Program, Vietnam veterans and their survivors had to establish that the veteran served in Vietnam as member of the Armed Forces between 1961 and 1972, that the applicant was either a totally disabled Vietnam veteran or the survivor of a deceased Vietnam veteran, that the death or disability of the veteran was not caused by a traumatic or accidental occurrence, and that the death or disability occurred before December 31, 1994. Furthermore, the applicant, based upon the circumstances of the veterans service (including location of service and particular experiences during service), the veteran must have met a test of probable exposure to herbicides.

What is the status of this settlement?

After an extension, the deadline for submission of a disability or survivor application was set for January 17, 1995. The plan for distributing the Settlement Fund assets was unprecedented and employed mechanism not previously adapted in class action lawsuits in order to maximize benefits to class members and to respond to the complex needs expressed by the class during a series of "fairness hearings" held in six different locations in the country. For more than four years, various groups challenged the settlement for a variety of reasons. In mid-1988, the U.S. Supreme Court declined to review rulings that dismissed lawsuits brought by veterans and others who challenged the settlement. In early 1989, the first payments were made to the survivors of deceased Vietnam veterans and to totally disabled veterans who were exposed to Agent Orange. By this time, the assets had grown to about $250 million. The Court designated Aetna Life Insurance Company to serve as the claims administrator for the program.

How was the settlement distributed?

The settlement fund was distributed to class members in accordance with a distribution plan established by the United States District Court Judge Jack B. Weinstein, who presided over the litigation and settlement. Because the plaintiff class was so large (an estimated 10 million people), the Fund was distributed to class members in the United States through two separate programs designed to provide maximum benefits to Vietnam veterans and their families most in need of assistance: a Payment Program, that provided cash compensations to totally disabled veterans and survivors of deceased veterans; and a Class Assistance Program, which provided funds for social services organizations and networks for the purpose of establishing and maintaining programs for the benefit of the class as a whole.

The Payment Program operated over a period of 6 1/2 years, beginning, after appeals in 1988 and concluding in 1994. During its operation, the Settlement Fund distributed a total of $ 197 million in cash payments to members of the class in the United States. Of the 105,000 claims received by the Payment Program, approximately 52,000 Vietnam veterans or their survivors received cash payments, which averaged about $3,800 each. September 27, 1997, the District Court ordered the Fund closed, its assets having been fully distributed.

Isn't this unfair to veterans who developed illnesses possibly related to Agent Orange exposure many years after the settlement?

In November 2001, the Second U.S. Circuit Court of Appeals ruled that two Vietnam veterans may sue the companies that produced Agent Orange. The November 30, 2001, ruling would permit veterans who developed cancer after the settlement funds were exhausted to pursue cases against the chemical companies. It may also allow other veterans who became ill in recent years to sue the manufacturers. (The case was known as Stephenson v. Dow Chemical Company, No. 00-9120.)

In making its ruling, the Circuit Court questioned whether a settlement can ever constitutionally restrict class members who, as in many mass tort cases, do not become ill until long after a settlement is approved. It is unclear how many veterans may now sue the chemical companies based on the illness they developed in the past few years. Dow appealed the ruling.

On February 26, 2003, the Supreme Court heard arguments attacking the settlement. On June 9, 2003, the Supreme Court deadlocked 4-4. (Justice Stevens recused himself.) This had the effect of allowing these suits to continue.

Was VA involved in this settlement or recent rulings?

No. The Department of Veterans Affairs was not directly involved in the distribution of the settlement assets. VA did not decide who gets money from the settlement or how much they receive. VA played no role in the recent court action.

Wasn't there a ruling in March 2005 about some Vietnamese trying to get disability payments?

Yes, in March 2005, a federal district court dismissed a lawsuit brought by Vietnamese Nationals against the manufacturers of herbicides used by the US armed Forces in Vietnam. The Vietnamese argued that the manufacturers were liable for damages because they pose harm to humans. The court held that their claim was not valid.

What is the relationship between this lawsuit and compensation available from the VA's disability compensation program?

There is no connection whatsoever. Veterans who wish to be considered for disability compensation from VA must file a claim with VA for that benefit. The application forms, claims processing, eligibility criteria, etc. are totally different and completely unrelated.

How can an individual or group get additional information on this matter?

The attorney for the veterans in the Stephenson case has advised us that we can advise interested veterans to contact his office preferably by email at gerson@texasinjurylaw.com His mailing address is Dr. Gerson Smoger, Smoger & Associates, 3175 Monterey Blvd., Suite 3, Oakland, CA 94602. His telephone number is (510) 531-4529.

Where is additional information on Agent Orange - related issues available?

The following Agent Orange Brief fact sheets (including the one that you are reading) are available at VA medical centers nationwide and on-line at www.va.gov/AgentOrange: A1. Agent Orange General Information; A2.Agent Orange Class Action Lawsuit; B1.Agent Orange Registry; B2.Agent Orange - Health Care Eligibility; B3.Agent Orange and VA Disability Compensation; B4.VA Information Resources on Agent Orange and Related Matters; C1.Agent Orange - The Problem Encountered in Research; C2.Agent Orange and Vietnam Related Research - VA Projects; C3.Agent Orange and Vietnam Related Research - Non-VA Projects; D1.Agent Orange and Birth Defects; D2.Agent Orange and Chloracne; D3.Agent Orange and Non-Hodgkin's Lymphoma; D4.Agent Orange and Soft Tissue Sarcomas; D5.Agent Orange and Peripheral Neuropathy; D6.Agent Orange and Hodgkin's Disease; D7.Agent Orange and Porphyria Cutanea Tarda; D8.Agent Orange and Multiple Myeloma; D9.Agent Orange and Respiratory Cancers; D10.Agent Orange and Prostate Cancer; D11.Agent Orange and Spina Bifida; D12.Agent Orange and Diabetes; and D13.Agent Orange and Chronic Lymphocytic Leukemia.

Also at the same Web site you will find copies of past and current issues of the "Agent Orange Review" newsletter and other items of interest.

This fact sheet was updated in August 2005 and does not include any subsequent developments.