In re Agent Orange Product Liability Litigation Lawsuit

In re Agent Orange Product Liability Litigation (MDL 381)

The product and its manufacturers. Agent Orange was a tactical herbicide and defoliant built from an equal-parts mixture of the phenoxy herbicides 2,4-D and 2,4,5-T. The finished product carried trace amounts of the dioxin contaminant 2,3,7,8-tetrachlorodibenzo-p-dioxin (TCDD), a compound the U.S. Environmental Protection Agency classifies as a human carcinogen. U.S. chemical firms had produced Agent Orange since the late 1940s, and during the Vietnam War nine companies — including Dow Chemical and Monsanto — supplied the herbicide to the military for Operation Ranch Hand, the aerial-spraying program that ran from 1962 to 1971.

The alleged harm. Vietnam-era service members had been reassured that the chemical was harmless, and many later developed illnesses they attributed to their exposure. The conditions most commonly associated with Agent Orange in later government and scientific reviews include soft tissue sarcoma, non-Hodgkin lymphoma, Hodgkin disease, chronic B-cell leukemias, certain respiratory and prostate cancers, multiple myeloma, type 2 diabetes, and chloracne. U.S. public health agencies also recorded elevated rates of birth defects among the children of exposed veterans. The causal science has never been settled: the government has documented disease elevations in exposed veterans, the manufacturers denied any link, and the National Academy of Medicine, in its recurring reviews, has graded the strength of evidence for each condition separately.

The litigation. Individual suits against the chemical makers began in 1978. The earliest was brought by a terminally ill army veteran against Dow Chemical; after he died in December 1978, his lawyers added further plaintiffs and refiled the claim as a class action. The related cases were consolidated in 1979 as MDL 381, In re Agent Orange Product Liability Litigation, in the United States District Court for the Southern District of New York before Judge Jack B. Weinstein. At the time of filing the action was described as one of the largest and most complex product-liability matters in the country. The corporate defendants denied that Agent Orange caused the veterans' illnesses and shifted responsibility to the federal government, which had procured and deployed the herbicide. The case advanced toward trial, and on May 7, 1984 — hours before jury selection was scheduled to begin — seven chemical companies resolved the class action out of court without admitting liability. Veterans' organizations and members of the class objected to the deal, and fairness hearings were held in several major cities. Judge Weinstein approved the settlement, and the MDL was terminated on May 7, 1984.

Aftermath. The resolution drew sustained criticism from veterans, who argued that the payout structure was inadequate and that accepting payments could affect eligibility for other benefits. Congress responded in part with the Agent Orange Act of 1991, which gave the Department of Veterans Affairs authority to treat designated conditions as presumptively service-connected and required the National Academy of Sciences to review the underlying science on a recurring schedule. A separate wave of litigation followed in 2004, when the Vietnam Association for Victims of Agent Orange/dioxin (VAVA) sued the same group of U.S. producers in the Eastern District of New York on behalf of Vietnamese victims. Judge Weinstein, who had presided over the 1984 action, dismissed that case in March 2005, concluding that Agent Orange was not a chemical weapon under international law at the time of its use and that the manufacturers were not liable for the government's method of deployment. The Second Circuit Court of Appeals upheld the dismissal in 2007, and the U.S. Supreme Court declined review in March 2009.