Court Deadlocks On Agent Orange

US soldier's face, drawing, lettering AGENT ORANGE, 3-14-96
The Supreme Court deadlocked Monday on whether it's too late for sick Vietnam veterans to sue chemical companies over Agent Orange exposure, but allowed vets to continue lawsuits claiming they were wrongly shut out of a decades-old national settlement.

Business groups had feared a ruling that would threaten to reopen many class-action settlements at a cost of millions or possibly billions of dollars.

Instead, justices were divided 4-4. A ninth justice, Justice John Paul Stevens, did not participate in the case. He did not give a reason for his recusal, but his only son was a Vietnam veteran who apparently suffered from cancer before his death in 1996 at age 47.

The case raised an interesting question of how courts should handle claims from war veterans who got cancer and other diseases after the $180 million Agent Orange settlement was spent. Two veterans argued their constitutional due process rights were violated in the 1984 settlement, which included no payments to people who became ill after 1994.

In an unsigned opinion, the court ordered more consideration of the claims of Joe Isaacson, a vice principal in Irvington, N.J. The court, on a tie vote, left undisturbed a decision that allowed the lawsuit of Daniel Stephenson, a retired helicopter pilot living in Florida. Both men claim their cancers are related to Agent Orange, used in the 1960s and 1970s to clear dense jungle foliage that provided cover for enemy forces.

Although the Vietnam War ended 30 years ago, some war-related illnesses are just being discovered, the court had been told.

Companies that made the herbicide Agent Orange thought their liability ended with the 1984 class-action settlement. Dow Chemical Co., Monsanto Co. and other companies, tried to reach veterans with ads in local and national newspapers and magazines.

In this case, the court was asked two questions. First, whether people who are unaware of their involvement in a class action suit are allowed to argue later that they were not property represented. And second, what standard should be used if those lawsuits are allowed.

Justices, in issuing a two-paragraph unsigned opinion, did not deal with either question. The effect of the tie vote, extremely rare at the court, is to affirm the 2nd U.S. Circuit Court of Appeals judgment and allow litigation to proceed in lower court.

"A lot of veterans have been waiting for 10 years to hear this, their rights are vindicated," said Gerson Smoger of Oakland, Calif., the attorney for Isaacson and Stephenson.

During arguments in the case in February, some justices seemed concerned that the settlement shut out veterans.

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

Also Monday, the court:

  • Made it easier for people to sue their employers for discrimination, ruling 9-0 in favor of a woman who claimed her sex cost her a job on an all-male casino crew. The Bush administration had urged the court to side with her employer, Caesars Palace in Las Vegas. Instead, justices said that Catharina Costa did not have to produce "direct evidence" of discrimination under a federal anti-discrimination law.
  • Ruled 9-0 that Iowa did not overstep its authority in imposing higher taxes on racetracks than riverboats. The court overturned a decision by the Iowa Supreme Court that it was unconstitutional to put higher taxes on companies that operate slot machines at dog and horse tracks than those that run riverboat casinos. The case is Fitzgerald v. Racing Association of Central Iowa, 02-695.

    By Gina Holland