update on status of Agent Orange Lawsuit

Subject: Update on the Agent Orange case against Dow and Monsanto

Given your emails with updates to me, I thought that I would update you on the status of the Agent Orange claims against the herbicide manufacturers.

As you know, in 2003, I argued in the United States Supreme Court that Vietnam veterans should be permitted to sue the manufacturers of Agent Orange if they became sick after the original settlement's 1994 deadline (since they had no opportunity to be compensated by the original settlement). The remainder of this email will set out what has transpired since the U.S. Supreme Court permitted us to proceed.

After we were successful, the Supreme Court returned all Agent Orange cases back to Judge Jack Weinstein, the same judge who had originally dismissed the cases and caused us to go to the Supreme Court in the first place. The herbicide manufacturers then asked Judge Weinstein to dismiss all of the cases on a different basis -- basically, a "government made us do it defense."

In order to explain that basis, legally described as the government contractor defense, you need to know that in 1988, in a case not involving Agent Orange, the Supreme Court held that when a company contracts with the U.S. Government, it is immune from suit if: 1) the terms of the contracts were precise; 2) the company followed those terms; and 3) the company made the government aware of all of the dangers of a product that were known to the company but not the government.

In order to demonstrate that the herbicide manufacturers did not deserve the immunity accorded by the defense, we submitted hundreds of pages of briefing, thousands of documents, and extensive reports from experts. In this material, we are quite confident that we showed the following things to be true:

1) the chemical that has caused most of the health problems from the herbicides sprayed in Vietnam was "dioxin";

2) not a single contract between the herbicide manufacturers and the government even mentions the word "dioxin" (so the contracts could not be precise as to "dioxin");

3) the herbicide manufacturers produced their herbicides at extremely high temperatures in order to produce them more quickly and thereby make more money;

4) the problem with producing these herbicides at high temperatures is that the higher the temperature used, the more "dioxin" that is created;

5) the herbicide manufacturers knew that manufacturing herbicides at higher temperatures created more dioxin, but they hid this fact from the government;

6) in fact, the manufacturers secretly tested their products for the amount of "dioxin" the products contained while knowing that the government didn't even own the equipment necessary to test for "dioxin";

7) the herbicide manufacturers deliberately hid the medical dangers they knew about from the government, including numerous references in their own documents that "dioxin" was the most toxic chemical they had ever tested;

8) once secret internal documents demonstrate that the herbicide manufacturers hid all of this information, because they were afraid of regulation and the loss of their lucrative contracts.

Unfortunately, Judge Weinstein wrote his decision without reading any of our briefing, without reviewing any of the documents we submitted, and without reviewing our expert reports. We know this because we were given a deadline of late Friday night to submit our original papers, reports and exhibits, and his lengthy written decision was issued at 8:00 a.m. the following Monday without any mention whatsoever of any of the papers, reports, or expert witness affidavits we filed.

Subsequently, we appealed to the Second Circuit, the federal appellate court above Judge Weinstein. Again we presented almost 300 pages of briefing and thousands of documents. Significantly, the Second Circuit AGREED WITH US that we had sufficient evidence regarding the above facts to allow us to have a jury trial! AT THIS POINT WE SHOULD HAVE WON!!


However, the Second Circuit then held that even though we had evidence to support all of the issues listed above, none of that mattered. Instead, the Second Circuit held that regardless of anything the manufacturers did or all that they had hidden, in their opinion the government would still have used the same herbicides in Vietnam. In coming to this decision on an issue we were never asked to brief, the Second Circuit actually admitted that they were not using the Supreme Court's test at all – instead, they were substituting a test of their own. Furthermore, how the Second Circuit could reach this conclusion is difficult for us to comprehend. Many government witnesses did testify that it was not their intent to use any chemicals that were known to be harmful to humans (Of note, the manufacturers told the government that none of their workers were affected during production, even though we have documentation that shows that literally hundreds of workers became sick during the manufacturing process.)


If you wish to review our briefing describing the problems in the Second Circuit's decisions, please go to:

http://www.agentorangelaw.net/Petition_to_Second_Circuit.htm.

Our only alternative now is to ask the U.S. Supreme Court to review this case. Unfortunately, if the Supreme Court does not accept review, we will be at the end of our road. At the original request of Admiral Zumwalt I have been working on this matter for fifteen years. I appreciate your patience and understanding.

If you have any specific questions as to what you can do, please email me back.
Sincerely,
Gerson H. Smoger, J.D., Ph.D.

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