Agent Orange Caselaw: How Lawsuits by Vietnam Veterans, Vietnamese Citizens, and Newark Residents Transformed Toxic Tort Litigation (1960-2008)

Agent Orange Caselaw: Vietnam, Veterans and Newark: diverse lawsuits and their impact on future toxic tort litigation 

 Introduction

Paul Reutershan, a former Vietnam veteran “appeared on the Today Show in 1978. His face was gaunt as he told the American public, ‘I died in Vietnam, but I didn’t even know it’.[1] Reutershan was just one of thousands of US Vietnam veterans who returned home from serving in Vietnam who developed and were dying prematurely of a wide range of cancers. Reutershan never smoked or drank and considered himself a “health nut”,  he was 28 years old and suffering from a rare form of abdominal cancer.[2] He and many other veterans attributed their ailments to exposure to the herbicides used during the Vietnam War more specifically, Agent Orange. The first Agent Orange lawsuit was filed by attorney Edward Gorman on behalf of Paul Reutershan.[3] His lawsuit was the spark that was to grow into an extremely complex class action lawsuit encompassing 2.4 million veterans, their wives and children, born and unborn.

Agent Orange was an herbicide manufactured in the US by nine chemical companies and believed to be the cause of multiple cancers to those exposed and birth defects in their children; as a result, there have been numerous lawsuits arising from the effects of exposure. These lawsuits include, a Veterans’ class action that represented 2.4 million veterans and their families, a Vietnamese citizens’ class action suit, and a Newark workers’ and resident citizens’ class action suit against the chemical companies and the US government. This paper will explore the intersection of these three lawsuits brought by very different groups of injured parties, known in the law as plaintiffs, against the chemical companies and the US government, the defendants. The lawsuits spanned from 1978 to 2008 but most of the injuries that were caused by Agent Orange exposure happened well before. Exposure began from the manufacturing process in factories that were in cities like Newark, New Jersey to usage in Vietnam, from 1962 to 1971, by the US military. The legal decisions made in these cases impacted cases that came after based on our system of common law and they directly affected toxic tort law involving chemical exposure.

The Agent Orange toxic tort lawsuits’ diverse legal approach changed the course of toxic tort litigation in many aspects for example, in terms of the use of class actions in complex chemical exposure litigation (in application, in the identification and notice mechanisms, to inclusion of large classes), in terms of its use against indeterminate defendants (when it is unknown which defendant caused the plaintiffs’ injuries), in terms of extension to indeterminate plaintiffs (unspecific injured persons), in terms of choice of law (whose law applies to the overall case) among others. Questions to be answered are; why these changes occurred, how these changes were influenced by the court, or more specifically the presiding judge, and lastly how the affected parties shaped the outcome of their cases.

Many books and articles have been written about the lawsuits in particular, the Veterans’ case and the Vietnamese citizens’ case where the changes in the law have been highlighted. Peter H. Schuck presented a great, in-depth analysis of the Veterans case in his book Agent Orange on Trial.[4] He discusses the changes that occurred in the case but that book was written in 1986 and toxic tort case law has continued to evolve. The changes in the law that resulted from the Veterans’ case have been discussed in relation to the Vietnamese citizens’ case but other law also impacted the result in the Vietnamese citizens’ case. This paper will be both a legal analysis of the cases and the state of the law as well as a social analysis. Besides changes in the law and their application we will look closely at the plaintiffs affected.  In each of these cases the injured parties were injured by the same product, manufactured by the same chemical companies but the plaintiffs based their lawsuits on different legal arguments under the law and they obtained very different results. It is also relevant to consider who the plaintiffs were and how they were perceived by the courts, the media and how that impacted the outcomes of their cases.

First, we will look at Agent Orange, the culprit and focal point of the cases; where was it made, who made it, how was it used, where was it used, why it was used, who was exposed, and what did exposure mean? Next, an analysis of the Veterans’ case, a review of this very complex case and how the law changed as a result of the rulings in the case. Then, a similar analysis of the Vietnamese citizens’ case will be made, the law applied in that case, the areas of law the plaintiffs wanted applied as well as the impact of the Veterans’ case upon it. Despite the outcome of the Vietnamese Citizens’ case, we will take a look at the clean-up and compensation fund that the US government has set up in Vietnam. Next, we look at the differences in the Newark, New Jersey case both in terms of the law argued and the results obtained as well as the status of the clean-up. Lastly, we will explore subsequent Agent Orange litigation and the current state of toxic tort law. We begin with a look at Agent Orange, the catalyst.

Background

Agent Orange was one of the “Rainbow Herbicides” used to defoliate the forests of Vietnam during the War, there were a variety of them and they were known by their colors but not for their toxicity. The herbicides that were color coded “Agent Orange, Pink, and Purple” were contaminated with dioxin.[5] Agent Blue, for example, specifically killed the rice crop but was not high in dioxin content. Dioxin, is now known to cause cancers and birth defects in the children of parents exposed to it however, it is unclear exactly when that information became widely known. Dioxin is now referred to by the World Health Organization as one of the “dirty dozen” – a group of dangerous chemicals known as persistent organic pollutants” and is a chemical that is heavily monitored by WHO.[6] Agent Orange “…was only produced for the US military”. “To meet the needs of the military…the combustion process was changed increasing the dioxin levels by 3,000 percent.”[7] It is important to understand that only the US military bought and used Agent Orange and that the chemical companies altered the production process to fulfill their military contracts thereby generating more dioxin in the Agent Orange they delivered. “Early in 1965 many scientific organizations, led by Arthur W. Galston …warned the US Government against the military herbicide program”. Over 5000 scientists petitioned the US government to stop the use of chemical and biological weapons”.[8] This had no effect, in fact, 75% of the 20,000,000 gallons were sprayed under the Johnson administration between 1966 and 1969.[9]

Much has been written, some of it very controversial, about what was known of these chemicals and when that information was uncovered and disseminated, the evidence suggests that the chemical companies were aware of the dangers of dioxin during most, if not all, of the time they produced it but “by the late 1960’s, the US government and military became fully aware of the environmental and health consequences of the contaminant dioxin”.[10] Nine of the largest chemical companies in the US produced Agent Orange including Diamond Shamrock in Newark, New Jersey.[11] Even though Dow Chemical and Monsanto Company were the biggest producers, eleven companies in total were named as defendants in the original Veterans’ complaint due to mergers and acquisitions. Knowledge of dioxin toxicity placed the workers and residents that lived near the production facilities of these companies at risk of cancers and birth defects to their children, as was the case in Newark, New Jersey, not to mention the Veterans and the Vietnamese people who were later also exposed.

Operation Ranch Hand was the innocuous name given to the military operation that sprayed the forests of Vietnam, Cambodia and Laos during the Vietnam War “part of herbicidal warfare that was perpetrated against Vietnam”.[12] The use of the defoliants was to denude the forests to force the Viet Cong out in the open and to kill their crops. In so doing the US military sprayed 5.5 million acres, an area the size of New Jersey. The US military unleashed approximately 20,000,000 gallons of herbicides between 1962 and 1971. Agent Orange was sprayed from airplanes, helicopters, boats and backpack canisters. “Over the nine years of the program, Ranch Hand sprayed many areas repeatedly”.  Among the hamlets with population data, 3,181 were sprayed directly and at least 2.1 million but …as many as 4.8 million people would have been present during the spraying”.[13] Of the Veterans believed to have been exposed the Agent Orange litigation covered approximately 2.4 million Veterans, their wives and children, Added to these numbers are the many manufacturing factory workers and residents that live near the plants, like the one in Newark, New Jersey. Diamond Shamrock the company in Newark, in particular, was known for careless production practices that allowed workers to be exposed and allowed contaminants to spill onto the factory floors, onto the surrounding grounds and deliberately poured into the Passaic River.[14]

At the time of their exposure most believed that the chemicals were harmless, the US Veterans were specifically told so,[15] but not long after exposure certain ailments began to strike those that were exposed. Chloracne was one of the first detected, a severe but reversible skin condition. It was a benefits counselor with the Veterans Administration, Maude deVictor who made the connection between premature deaths, debilitating illnesses and children with congenital defects with exposure to Agent Orange.[16] Once her allegations were publicized more veterans came forward and the first lawsuit was filed. It was still unclear how exposure is defined, how much exposure was required to be afflicted with serious ailments, how exposure effected different people, and whether how you were exposed by breathing it or by eating or drinking it impacted the severity of the injury sustained.

Veterans Lawsuit

The impact of the Reutershan case was broadened on January 8, 1979 when an amended complaint was filed by Victor J. Yannacone, as a class action suit, in the US District Court in the Southern District of New York against 5 chemical companies; others would be added later. Eventually, the full list of defendants would include 11 companies and the US government.[17] Even though two prior toxic tort chemical litigation cases, one involving DES and one involving Asbestos, were brought as class actions lawsuits both designations were overturned on appeal and were not allowed to proceed as a class action. The Agent Orange case was different and it did move forward as a class action. Yannacone defined the class as “all those so unfortunate as to have been and now to be situated at risk, not only during this generation but during generations to come”. Yannacone later amended the definition to include “Vietnam veterans, as well as their spouses and afflicted children, born and unborn”,[18] that encompassed approximately 2.4 million plaintiffs or injured parties. Eventually the case would be called the “biggest and most complicated case of its kind ever undertaken.” Secretary of State Henry Kissinger and General William C. Westmoreland, commander of the American forces in Vietnam, were on the witness list.[19]

Product liability law was the basis of the Veterans’ claim against the defendant chemical companies, in a product liability case, a defendant is held responsible for a product that they manufactured.[20] In this case the plaintiffs cause of action was based on the manufacturing of a dangerous product namely, Agent Orange. The defendant chemical companies impleaded or brought into the lawsuit, the US Government under the legal idea that they were working for the US government.

The case against the US government by the Veterans was eventually dismissed based on precedent. Our law, common law or case law, is a law of precedents which means that the holdings of cases that were decided before are followed, previous decisions that resolved a particular issue will govern a new case with similar facts. Once the US government was brought into the case as a defendant the lawyers representing the government moved to dismiss under the Feres Doctrine. In Feres v. United States, 340 U.S. 135 (1950), the Supreme Court held that armed forces members may not bring tort actions against the Government for harms that “arise out of or are in the course of activity incident to service.” So here in the Veterans case Judge Pratt held that the Feres Doctrine applied and the Veterans case against the government was dismissed.[21]

However, when it came to the case against the government by the civilian family members of the Veterans the US government tried to have the claims dismissed against them under an ancillary case known as Stencel Aero Engineering Corp. v. United States, 431 U.S. 666 (1971) which extended the Feres Doctrine. Under Stencel the US government would not be required to indemnify (pay) defendants in a situation where the plaintiffs could not sue the government directly. Meaning that the government would not have any liability to defendant contractors that owed money due to lawsuits by Veterans since the Veterans could not sue the US government directly. The court here under Judge Weinstein upheld the decision with regard to the Veterans and “derivative cases like wrongful death or loss of support or consortium” resulting from the Veterans injury but allowed the case to proceed for direct or independent claims of family members.[22] This was new law, an exception carved out of Feres/Stencel Doctrine, that allowed what would be civilian complainants to sue the government.[23]

The most significant change in toxic tort litigation that arose from this case was the ruling that allowed it to proceed as a class action. Previously class action suits were used exclusively for Securities and Antitrust litigation. Although the attorneys in the Asbestos cases and the DES cases tried to proceed as class actions, both were dismissed as class actions on appeal. This was the first time that a mass tort case was allowed to proceed as a class action in a ruling by the first judge on the case, Judge Pratt. To proceed as a class action under the Federal Rules of Civil Procedure, Rule 23, there are 4 prerequisites that must be met, 1- that the number of plaintiffs is so numerous that joining them is impractical, 2- that there are common questions of law or fact, 3- that the claims of the class representatives are typical of the class and 4- that the class representatives fairly and adequately protect the interests of the class. [24] The class was subsequently certified by Judge Weinstein.[25] The class as defined by Judge Weinstein included “those persons who were in the United States, New Zealand and Australian Armed Forces at any time from 1961 to 1972 who were injured while in or near Vietnam by exposure to Agent Orange or other phenoxy herbicides…The class also includes spouses, parents, and children of the veterans…[26] This type of case, a class action lawsuit, can be a double-edged sword. While is it easier for a large group of injured parties to financially withstand a litigation against one or more major corporation(s) these cases become cases of the attorneys and often the individual plaintiff and their desires are lost in the process. It also means that any future class member that did not opt-out, if opting out was possible, will be bound by the decision of this case. But the benefits are substantial once identified as a member of the class, you become part of a larger group that wields much more power than an individual would in a single plaintiff case. This ruling made it significantly easier for mass tort litigations to proceed as class actions, paving the way for other big cases in the courts.

Treating a chemical toxic tort case, as a class action as it did here, raised some new and interesting questions of law which now needed to be addressed, in particular those of the indeterminate plaintiff and the indeterminate defendant. Torts are civil wrongs where the injured parties are suing for monetary damages as opposed to criminal prosecution where the state represents the injured party in a criminal action against a defendant. In the criminal instance the law is codified and the laws are applied to the facts to render a decision. In tradition tort law A injures B due to negligence or recklessness for example, as in the classic case of a car accident. A hits B, B is injured. In this case both parties are known, and we know that the cause of B’s injuries were A’s actions. Toxic tort cases where plaintiffs’ injuries were caused by exposure or use of a harmful or defective product as in the case of Asbestos, DES or Agent Orange, these cases are very different and much complex. In these cases, A, the plaintiff or B, the defendants may not be well defined and it may be hard to ascertain who A is or who B is and then to prove that A’s injuries were caused by B especially if the results take years to manifest. These were some of legal hurdles that needed to be overcome in this case.

Because of this designation as a class action the court had to consider “Indeterminate plaintiffs”, these are plaintiffs that are not yet known; for example, a veteran that develops cancer after the lawsuit, that person would not be a “known plaintiff” at the time of the lawsuit. To address this, Judge Weinstein allowed the class to include this type of indeterminate plaintiff, this was an expansion of the law. This aspect deals with latency; meaning although someone might not be exhibiting any symptoms currently they may develop one of the ailments in the future since everyone responds differently to exposure. So, it was critical that this aspect of the law be expanded to encompass these contingencies.[27] Also, unlike the DES and Asbestos claims there were no “signature” diseases for Agent Orange, meaning that the court had to broaden the list of possible afflictions from Agent Orange wide enough to cover a multitude of illnesses.  In fact, in the settlement opinion Judge Weinstein leaves it open to cover a  wide array of medical conditions.[28] Eventually, there would be a presumptive list of conditions that identified Agent Orange exposure; that list had new conditions added as recent as 2021.[29]

Another area of the law that was impacted by this decision to proceed as a class action arose from a decision made by the first judge on the case, Judge Pratt, and it has to do with choice of law. In an early ruling, Judge Pratt held that Federal Common Law should apply to the case however, there was no applicable Federal Common Law. The defendants were concerned that the court would essentially be creating the law as they went along so they appealed the decision, an interlocutory appeal, an appeal while the case is going on. The appeal went to the Circuit Court which reversed Judge Pratt’s ruling; the appellate court agreed with the defendants that “there was no federal common law right of action”.[30] That meant that the federal courts would only have jurisdiction based solely on the diversity of the plaintiffs which means that individual state law would apply. In a case with a very large number of plaintiffs that would be a herculean task. So, again Judge Weinstein expanded the law. He solved the problem by saying that it did not matter which state law was followed any state would look towards “national consensus law”.[31] In his book, Schuck says “by a wave of his magic wand, the judicial wizard had vaporized the choice-of-law problem”.[32] Judge Weinstein gave elaborate and nuanced reasons for his decisions but the essence of it was new, class actions of this type would look to a “national consensus” on the law in order to accommodate the various laws from the different jurisdictions included in the class and in this case that was a huge number.

Another area of law that was to change under the ruling that this case could proceed as a class action was the indeterminate defendant rules since the plaintiffs were unable to specify which of the defendant companies’ Agent Orange they were exposed to. In fact, the Agent Orange was mixed together into barrels so the exact producer was unidentifiable. Once again the judge created new law to accommodate this case and circumstance. He created a new rule that combines 2 previous holdings, first, the plaintiffs must show that a defendant manufacturer “knew or should have known about the dangers of Agent Orange as it was to be used in Vietnam and that the manufacturer failed to warn the United States”.[33] If the manufacturer then failed to provide one of the three defenses they would be apportioned a percentage of the responsibility/liability.

On May 7, 1984 the Veterans’ case was settled just hours before it was set to go to trial, it was the largest tort settlement at the time, 180 million dollars plus interest that began to accrue that day. The final settlement was divided among the companies based on the amount of Agent Orange they produced and the dioxin content of that Agent Orange.[34] Interestingly, despite the fact that no Vietnamese citizens were named as plaintiffs, the defendants wanted them included in the settlement.[35] The settlement was not extended to include Vietnamese citizens. Judge Weinstein was instrumental in facilitating this settlement almost to the point of overreaching. The defendants were satisfied with the settlement in fact, a representative from Dow is quoted as saying “the amount they had to pay in the settlement was so small”.[36] As soon as news of the settlement became public many Veterans expressed their dissatisfaction. They were unhappy that neither the defendant chemical companies nor the US government admitted any fault.[37] In the plaintiff hearings that took place between the settlement announcement and Judge Weinstein’s “fairness opinion” which established the fund, many Veterans voiced their dissatisfaction but they were part of the class, and being part of the class meant that they were bound by the settlement. Both the fund and a plan of distribution was established in the “fairness opinion”.[38] The actual settlement agreement can be found in Appendix A of the settlement decision.[39]

The Veterans lawsuit spawned many decisions on a wide range of legal topics. One decision that had negative repercussions dealt with the Veterans that opted-out. This ruling is one of many decisions that came after the class action settlement.[40] The decision rendered in the opt-out cases by Judge Weinstein represents, in my opinion, one of the most unfair decisions in the spectrum of decisions that arose from this case. When plaintiffs are joined in a class action suit they may have the option of “opting out” meaning they can elect not to be part of the class action and instead choose to continue with their case on their own. Of the plaintiffs in the Veterans class action suit there were approximately 1000 “opt-out” plaintiffs. After the case settled Judge Weinstein offered these “opt-out” plaintiffs the opportunity to join in the settlement. The settlement was very large and Judge Weinstein in his “fairness opinion” that accompanied the settlement argued that the holding was just.[41] Of those almost 1000 “opt-out” plaintiffs approximately 350 wanted their cases to continue and not join in the settlement. “After settling with members of the class on May 7, 1984, defendant [chemical companies] moved on July 24, 1984 for summary judgment [immediate ruling in their favor to dismiss] the “opt-out” cases and a number of cases brought by civilians”.[42]

Judge Weinstein heard arguments from both sides about this summary judgment motion. The defendants argued that “Agent Orange did not cause the various ailments that allegedly afflict the Veteran plaintiffs…”[43] They also argued that the evidence produced was late and inconclusive. The court made several rulings with regard to the Legal Standards governing Expert Opinion. Referencing Federal Rule 403 the court claimed that the evidence they were being presented would be excluded by a trial court because of its low probative value. The court then reviewed the laws pertaining to several other points of law as presented by the defendants. Most significantly the court ruled against the plaintiffs on the law of causation. “Plaintiffs are unable to establish that a material issue of fact exists about causation”.[44] In essence, the judge ruled that there was insufficient evidence that the Agent Orange made by the defendants caused the ailments the plaintiffs suffered from. Summary Judgment was granted and the cases of the remaining plaintiffs (those that had “opted out”) along with the claims of the civilians that had survived the Feres/Stencel doctrine were dismissed.

Commentators like Peter Schuck have held that, “Weinstein’s refusal to submit the opt-outs’ causation claims to a jury was probably his single most far-reaching ruling in the Agent Orange case…”.[45] To me, his decision seems extremely unfair, if he believed that there was cause enough to strongarm a settlement by the defendants how could he now rule that the plaintiffs’ causation argument was too weak to even be presented to a jury? What it does seem like is that the judge wanted to close the book on future Agent Orange cases by Veterans and this holding and its affirmation by the 2d Circuit appellate court shut down further litigation by Veterans and their families.[46]

Vietnamese Citizens’ Lawsuit

In 2003, Vietnamese citizens, both individuals and an organization known as VAVAO or VAVO which stands for Vietnamese Association of Victims of Agent Orange, filed a law suit in US Federal District Court alleging claims under both US domestic law and international laws. All claims in the lawsuit were dismissed without adjudication meaning the merits of the plaintiffs’ case were never considered.[47]

Similar to the case brought by the US Veterans, the Vietnamese citizens claimed harm from the US military’s use of herbicides during the War which were manufactured and supplied to the US government by the defendant chemical companies. Under US domestic law the plaintiffs alleged the tort claims of assault and battery, intentional infliction of emotional distress, negligent infliction of emotional distress, negligence, wrongful death and strict product liability. They also alleged public nuisance and unjust enrichment. Judge Weinstein dismissed all of these claims based on the Government Contractor defense. This defense is in essence that “the government told us to do it and knew at least as much as we did about the dangers”.[48] This defense was discussed by Judge Weinstein in many of the rulings from the Veterans’ case in the early 1980’s and was used as a bargaining chip to induce a settlement by the plaintiffs. In a number of those decisions and in the settlement opinion Judge Weinstein clearly stated that the defendants had this defense available to them. In later cases that were adjudicated after the settlement fund was depleted we see the defendants raising it as a defense. For example, the holdings from two cases decided after the Veterans case in,  Stephenson v. Dow Chemical Company and Isaacson v. Dow Chemical Company (304 F.Supp2d 404) (2004) brought by Veterans suffering from illnesses they believed to be the result of exposure to Agent Orange in Vietnam during the War uphold this defense. The lower court originally dismissed the cases as being barred by the settlement in the 1984 Veterans case however, both of these plaintiffs argued that the ailments they suffered from did not manifest themselves until after the depletion of the settlement fund and that they were not represented at the time. The appellate court reversed the lower court’s decision and sent the case back for adjudication. Judge Weinstein again dismissed the claims of the plaintiffs ruling that the Government Contractor defense applied. It seems like Judge Weinstein was not willing to hear more Agent Orange exposure cases from Veterans.

In terms of any subsequent Agent Orange litigations and in its application to other lawsuits involving manufacturers of goods used by the US military this defense was significantly bolstered by this ruling. The Government Contractor defense as applied in Stephenson and Isaacson and again by Judge Weinstein in the Vietnamese citizens’ case sends a clear message that US government contractors will be protected from liability in cases where they manufacture goods for the government. Judge Weinstein does raise one exception and that is when the US government violates international law then he says corporate defendants could be held liable for aiding and abetting.[49] In this case however, since no violation of international law was found the issue is moot.

From an international law perspective, the Vietnamese plaintiffs argued that the use of herbicides violated treaties of international warfare such as the 1907 Hague convention, the 1925 Geneva Protocols and the 1949 Geneva convention, all international treaties governing warfare. The Vietnamese citizens’ case hinged on whether these “herbicides” fit the Vietnamese plaintiffs’ definition of being poison and whether the use of these poisons during the war violated international law. Judge Weinstein begins his ruling by defining Agent Orange as an herbicide and not a poison shutting down their arguments quickly.[50] He continues his ruling referencing the US government’s position “…that no rules of international law barred the use of chemical herbicides”.[51] The 1907 Hague Convention IV, that plaintiffs rely on does prohibit the use of poison or poisoned weapons; however, having already concluded that Agent Orange is not a poison the court finds this claim unsupported.[52] Plaintiffs also rely on the 1925 Geneva Protocol which the United States did not become a party to until April 10, 1975, after the herbicide spraying terminated.[53] Furthermore, “the 1925 Geneva protocol provision was designed to outlaw poison gases such as mustard gas used in World War I. It cannot be interpreted to encompass the use of herbicides which were not then a known weapon and were far different in their purpose and effect” according to Judge Weinstein.[54] Plaintiffs also rely on the 1949 Geneva Conventions that address humanitarian concerns during war, they were applicable to the US since February 2, 1956 however Judge Weinstein found the protections afforded by the 1949 Geneva convention had “no relation to use of herbicides during the Vietnam War”.[55]

The Vietnamese plaintiffs also raised a number of environmental claims however according to Judge Weinstein “they cite no international convention or instrument that solely or specifically addresses environmental law relevant to the legality of herbicide use during the war up to 1975.[56] Again, Judge Weinstein effectively shut down any argument about spraying activity and any damage to the environment.

Judge Weinstein commented further that the US government’s subsequent “Renunciation of Certain Uses in War of Chemical Herbicides and Riot Control Agent” signed into effect by President Gerald Ford on April 8, 1975 under Executive Order 11850 had no bearing on this case since that went into effect after the War and interestingly was signed at almost the same time as the US signed the 1925 Geneva Protocols.[57]

Since the Vietnamese citizens’ case was dismissed in its early stages, some of the case law that arose from the Veteran’s case was never applied for example, the certification of the case as a class action. However, had the case proceeded some of the issues resolved in the Veterans’ case dealing with class action certification, indeterminate plaintiffs and defendants would, no doubt, have been applied. On a positive note, the renunciation of the use of herbicides and other environmental law changes have evolved from the use of Agent Orange, and other herbicide use during the Vietnam War. Even though the results of the case were unfavorable for the Vietnamese citizens, changes did occur.

“Between 1975, when the Vietnam War ended, and 2006, Agent Orange was an extremely sensitive and controversial subject”. In 2006 new attention was brought to Agent Orange when George W. Bush visited Vietnam. In a joint statement with the president of Vietnam, this war legacy was acknowledged and acted upon quickly by both public, the US Congress, and private organizations, the Ford Foundation and other private donors. “As of 2018, the Unites States Congress has appropriated $231.2 million, split between assistance for people with disabilities and dioxin clean-up, and the US government is now the single largest contributor in this effort”.[58]

Newark Workers and Residents Lawsuit

Diamond Alkali a.k.a. Diamond Shamrock located at 80 Lister Avenue in the Ironbound section of Newark, New Jersey was once [one of] the largest producer of Agent Orange in the United States.[59] It is also [one of] the largest Superfund sites in New Jersey. “Diamond Alkali’s corporate policy was particularly notorious even compared to other producers of Agent Orange”.[60] “The company’s reckless attitude was well documented in Diamond Shamrock Chemical Co. vs. Aetna. [61]

Diamond Shamrock was one of the company defendants in the Veterans’ case and was also a defendant in a case brought by New Jersey Department of Environmental Protection and the Administrator of the New Jersey Spill Compensation Fund. Diamond Shamrock was apportioned part of the settlement in the Veterans case and also found monetarily responsible for clean-up based on the case brought by the NJDEP. As a result of outcomes of these cases Diamond Shamrock attempted to claim against their insurers, Aetna Casualty & Surety Company among others. The case Diamond Shamrock Chemical Co. vs. Aetna [62] and the appeal are relevant because they provide testimony about the work conditions and local environmental conditions surrounding the 80-120 Lister Avenue plant. Conditions were so bad that the court “refused to allow Diamond Alkali to recover insurance proceeds for the property damage it caused”.[63]

In the early 1990’s a lawsuit was brought in New Jersey State court against Diamond Shamrock by 72 former employees, their families and local residents. The plaintiffs in this case argued that the defendant was negligent in that they knew the chemicals were harmful and that they “recklessly endangered the health of their workers and knowingly exposed residents and businesses near its plant to the potentially harmful effects of dioxin”.[64] According to plant manager John Burton, in testimony given in the Diamond Shamrock Chemical Co. vs. Aetna[65] he said that in 1959 he received information from a German company that they had discovered that dioxin was the causative agent for chloracne, a skin condition that employees at the plant were experiencing. He was told that decreasing the reaction temperature would reduce the production of dioxin however this information was ignored because it also reduced production of Agent Orange.[66] One employee, Chester Myko, testified that the floor of the old building was the “dirtiest place in the entire plant”. The Agent Orange ingredients were “always on the floor”.[67]

“Diamond Shamrock manufactured Agent Orange in Newark from 1951 to 1969. Dioxin levels as high as 51,000 parts per billion were found in the soil at the site in the spring of 1983. At the time, the United States Environmental Protection Agency had established a limit of one part per billion in soil. The issue of dioxin’s deadliness is now mired in controversy. The Environmental Protection Agency is re-evaluating the public health risk from sources of dioxin found in Newark. If the plaintiffs’ case proceeds as planned, the jury will in effect be asked to decide whether dioxin is the most harmful toxin known to humans, a claim frequently made by environmental officials until the last year or so. Some experts now say that exposure to the chemical is no more risky than a week of tanning”.[68]

After seven weeks of trial, the Newark case surprisingly settled. Plaintiffs received one million dollars to be divided between the 72 plaintiffs and 28 others who had cases on appeal that agreed to drop their cases. “Michael Gordon, one of the lawyers representing the plaintiffs, called the agreement “a decent settlement.” He said the settlement was accepted in part because Judge Yanoff barred lawsuits against Diamond Shamrock by workers who had shared in a $1.6 million settlement against a doctor who had treated them. But Mr. Gordon said he “was disappointed” that Judge Yanoff said that he would bar the jury from considering punitive damages against the company if the plaintiffs had won. Although no link was established between dioxin and the workers’ health problems, Mr. Gordon said that he was able to prove that the “company knew about the dangers of dioxin in 1957 and what it could do to eliminate it from the manufacturing process and it did nothing about it”.[69]

Once again we see a common thread from the Judge Weinstein’s opinion in the Veterans case and in the opt-out cases and here, this is the idea of causation and the inability on the part of the plaintiffs to establish by a preponderance of the evidence that Agent Orange caused their injuries. Judge Yanoff voiced the same concerns in the Newark case. There was a refusal to see the evidence before them that these injuries were sustained by Agent Orange exposure. Without proof of the link of dioxin to the plaintiffs’ injuries there is no causation and most likely that is why the case settled. We also see an unwillingness again on the judge’s part to award punitive damages if the case had gone to the jury, awarding punitive damages, as a form of punishment.

As to the clean-up on Newark, after the site was declared a Superfund site by the EPA in 1983 the EPA and the NJDEP secured the properties, covered the exposed soil and cleaned up dioxin found on nearby properties. The clean-up of the actual site was done by Occidental Chemical Corporation (successor to Diamond) with EPA oversite, it took over a decade to complete.[70] “The chemical plant has [now] been destroyed and contaminated soil incinerated”.[71] However, the EPA consented to onsite burial of dioxin waste at the Lister Avenue site.[72] This decision by the EPA makes the land there indefinitely unusable.

“With EPA oversight, OCC…installed subsurface slurry walls and a flood wall. These barriers block the spread of contaminated groundwater [also] OCC constructed a groundwater collection and treatment system to further stop the spread of contamination. These cleanup actions prevent exposure to contaminated soil and put a stop to further releases into the river”.[73]

The river clean-up is ongoing, after completion of a “…17-mile study, EPA found that the lower 8.3 miles of the river contained the most contaminated sediment. Because this clearly posed the most significant source of risk to people’s health and the environment in the Lower Passaic River, EPA decided to address this portion of the river first. EPA issued the Record of Decision on March 3, 2016 that selected a cleanup plan for the lower 8.3 miles of the Lower Passaic River. In partnership with state and federal agencies, EPA continues to address the site’s cleanup”.[74]

The Plaintiffs and the Judges

The veterans, as plaintiffs, were a very sympathetic group, war Veterans almost ten years after the war ended and longer since many had returned home from Vietnam were suddenly finding themselves plagued with cancers, wives experiencing miscarriages, and children born with birth defects. Although the Veterans Administration initially ignored their claims it was a counselor, Maude DeVictor, from the Veterans Administration that made the connection and who gathered the data about the deaths, cancers, miscarriages and birth defects. In 1978, an hour-long documentary aired called Agent Orange, the Deadly Fog, this documentary represented her findings reported by a local news reporter together with scientific evidence presented about experiments done on animals. After the broadcast DeVictor received hundreds of calls from Veterans who were sick and dying from ailments similar to those afflicting the laboratory animals in the documentary.[75] The documentary spurred the first lawsuit, which spurred the class action suit garnering a lot of media attention for the case and that media attention was used by the Veteran plaintiffs’ attorneys for public awareness and support. There is no doubt that a motivating factor for the defendants accepting a settlement was their concern that an impartial jury would have been hard to find based on the media coverage the case was receiving.

A critical issue in arriving at a settlement is the judge’s involvement in the process, this notion of a judge being integrally involved and perhaps overreaching in aiding the attorneys in settling the cases before them is not a new one. In an excellent article written by Peter H. Schuck he explores this topic in relation to the Agent Orange case and the role that Judge Weinstein played in fashioning a settlement.[76] In a large complicated case as this was Judge Weinstein was very vocal about the case settling, he was empathetic to the Veterans cause but he also knew the weaknesses in the case as he saw them. “He denounced the ‘injustices’ they suffered and believe ‘they and their families should receive recognition, medical treatment and financial support’.[77] It was clear from what has been written that Judge Weinstein did not want to summarily dismiss the case against the Veterans, however, if the defendants presented reasons to substantiate it, he would. Similarly, he was concerned about a jury verdict in favor of the Veterans that he would be forced to put aside or that might be overturned on appeal because it was not sufficiently supported by the law. These were the motivations for him wanting the case settled and settled once. On the weekend before the trial was to begin jury selection he had all of the attorneys at the courthouse for the entire weekend, he’d told them to come with their toothbrushes and to be prepared to negotiate and to have the authority to finalize a settlement. After the settlement was concluded there were complaints from some of the defendant attorney firms that the lack of sleep negatively impacted their decision-making process; it is referred to as the “Exhaustion factor”.[78]

Although the Veterans’ settlement was very large once attorney fees were paid the Veterans themselves did not receive very much money and the fund was depleted in 1997. As we saw in the Stephenson and Isaacson cases even though the fund was closed the court was unwilling to renew Veteran litigation and ruled against them based on the Government Contractor defense.[79] Clearly this defense was an available defense in 1984 when the defendants were being pressured to settle but Judge Weinstein only applied it later in these other cases, demonstrating how important the presiding judge position is in effecting the outcome of cases. Nothing had changed except the court’s unwillingness to reopen this matter.

I believe that from the court’s perspective the Vietnamese people rated low on a sympathetic plaintiff scale. Judge Weinstein commented immediately that some of the plaintiffs listed were former Viet Cong soldiers, enemies that would be excluded immediately. Exclusion wound up being unnecessary because the case itself was dismissed, however he mentions it early on in his ruling. The court probably considered the Vietnamese as collateral damage, we were at war and bad things happen to civilian populations in a war. Additionally, his ruling that Agent Orange was an herbicide and not a poison meant there was nothing to prevent its use and foreclosed any further arguments.

In the Article The Vietnamese plaintiffs: Searching for a Remedy after Agent Orange, the author argues that after the Veterans’ case and knowing the harmfulness of Agent Orange the equitable thing to do would have been to rule in their favor and award damages.[80]  Here I believe there is an element of bias against the Vietnamese plaintiffs. Even though the Veterans were successful in their claim, the chemical companies never admitted liability and Dow Chemical, stated that they settled the case after a “cost benefit analysis”.[81] The fact that the defendants never admitted liability meant that any new plaintiff would need to begin again.

The Veterans’ lawsuit did not include Vietnamese citizens at all, it was limited to Veterans and their families. Not argued in the paper but important to consider is why the class was defined as it was? The Veterans were not the only people exposed to the chemicals in Vietnam in fact, the author in this article states that 3 million Vietnamese were affected by Agent Orange use, other writings have that number closer to 4 million. By keeping the plaintiffs limited to the Veterans, sympathetic plaintiffs, the court was able to resolve the case favorable for them. One possible reason for the exclusion of Vietnamese plaintiffs in the Veterans’ case is that “there were no diplomatic ties with Vietnam in the 1980’s[82] implying that they were outside the US circle but even more so was the racialization of the Vietnamese all through the war so why would it be different now in a court of law?

Legal analysts have argued that the international law argument should not be narrowed to herbicide versus poison. The law prohibited the use of weapons that have a “disabling effects”.[83] The US Veterans case had already been shown that Agent Orange had a “disabling effect” yet it was not considered. Again, it seems that the decision to dismiss the lawsuit of the Vietnamese citizens was more a reason of who was bringing it and not that they had sustained harm and the fair thing to do in light of the holding in the Veterans’ case would have been to proceed with the case and award damages to the Vietnamese.

Another major consideration for the court that Judge Weinstein discusses is if the projection was that as many as 4 million Vietnamese were injured the chemical company defendants could have been exposed to massive financial hardship and it would set a precedent for lawsuits from enemies of other wars past and those to come. I believe again the “who” the plaintiffs were, was a major consideration contributing to the dismissal of their case.

The last group of plaintiffs considered were the plaintiffs in the case from Newark, New Jersey that encompassed a group of factory workers and residents of the Ironbound district. On a sympathy scale I would say that these plaintiffs fall somewhere in between the Veterans and the Vietnamese. They are blue color workers and residents from a low-income neighborhood but they are still residents of the US. The judge ruled early on that he would not allow the jury to consider punitive damages against the defendant chemical company already favoring a corporation over the residents and employees. Additionally, the judge expressed concerns again about the causation issue but nonetheless encouraged a settlement. Their case settled, but the amount was low, one million dollars to be distributed among approximately 100 plaintiffs. Was this settlement a reflection of “who” the plaintiffs were? Based on the amounts awarded this seems to have been a contributing factor to the settlement amount.

Conclusion

Paul Reutershan died on December 14, 1978 at the age of 28 of abdominal cancer caused by Agent Orange exposure during his tour in Vietnam 10 years earlier.[84] He is mentioned in all the literature around Agent Orange caselaw, his lawsuit led the way for many others to receive financial aid and recognition for the injuries they sustained in their service to the US. His case grew from a single plaintiff lawsuit into an extremely complex class action lawsuit that included over 2.4 million plaintiffs and has had lasting effects on the entire body of toxic tort litigation and class action suits overall. The rulings from the case initiated on his behalf have impacted millions of plaintiffs who might otherwise have not been able to sustain a lawsuit against a major corporation.

As a direct result of this case, class actions have become the norm in large toxic tort cases. Some argue that we are in the grips of a class action “crisis” while it affords many, access to lawsuits who might otherwise be foreclosed from bringing them, these cases are primarily driven by economics and the attorneys who bring them.[85] The original wishes of the single plaintiffs get swept up into a large pool as a drop of water into the ocean. But the net results are that more corporations are mindful that this type of lawsuit could be used against them however many also disregard that and consider it a cost of doing business and continue with their offensive practices.

The class action decision in the Veterans’ case had a cascade effect on changes in the law, widely expanding definitions to accommodate the numerous plaintiffs and sometimes numerous defendants in a class action suit. We have explored some of those changes here and as toxic tort law continues to evolve some holdings have now been codified which means those points no longer need to be litigated, they have been resolved for future cases. Critical legal issues were changed as a result of the class action designation in the Veterans’ case like the indeterminate plaintiff rule which keeps a class open to those who might develop ailments in the future or to account for those who suffered damage to their genome which might not manifest itself for years. Similarly, plaintiffs are no longer required, thanks to the indeterminate defendant rule, to specifically identify the defendant that caused their injury, an important change when many companies are manufacturing the same item. There have also been some negative rulings, like the bolstering of the Government Contractor defense which protects companies producing items for the US government from liability,

This paper explored the changes in the law as it evolved around one specific toxic product namely Agent Orange. There are many studies that have explored the evolution of toxic tort law and certainly the Agent Orange Veterans’ case plays a large role in that analysis however I have tried to take the changes from the Veterans’ case and bring them forward in time to other diverse Agent Orange litigations keeping the underlying cause the common thread.

The legacy of Agent Orange is a long and sad story but some good has come from the bad; an expansion in the common law, codification of some of these changes, expansion of US participation in the treaties governing warfare and an expansion in global environmental laws. Unfortunately, it was too late and too little for many, like Paul Reutershan, and others who died or have had to live their lives with severe disabilities.

Endnotes

[1] Paul Reuterschan as quoted by Smith, L. (2017, July 20). The Agent Orange Trial proved that US chemical companies killed our soldiers, but got away with it., Timeonline. https://timeline.com/the-agent-orange-trial-proved-that-chemical-companies-always-win-e7d1d798789d

[2] Paul Reuterschan as quoted by Peter H. Schuck on page 37 in Schuck, P. H. (1987). Agent Orange on Trial: Mass toxic disasters in the Courts. Cambridge, MA: Belknap Press of Harvard University Press, 1987.

[3] Referencing Peter H. Schuck on page 37 in Schuck, P. H. (1987). Agent Orange on Trial: Mass toxic disasters in the Courts. Cambridge, MA: Belknap Press of Harvard University Press, 1987.

[4] Referencing Peter H. Schuck on page 37 in Schuck, P. H. (1987). Agent Orange on Trial: Mass toxic        disasters in the Courts. Cambridge, MA: Belknap Press of Harvard University Press, 1987.

[5] For great background into the various types of herbicides used in Vietnam see From Enemies to Partners chapter 1, Rainbow Herbicides referenced on page 22-23 -Lê Kế Sơn, & Bailey, C. R. (2017). From Enemies to Partners: Vietnam, the U.S. and Agent Orange. G. Anton Publisher, 2017.

[6] Quoting the World Health Organization. (n.d.). Dioxins and their effects on human health. World Health Organization.

https://www.who.int/news-room/fact-sheets/detail/dioxins-and-their-effects-on-human-health

[7] Quoting Olsen, great background in this article about what was known about dioxin. Kenneth R., and Mike Tharp., Erratum for Olson and Tharp, How Did the Passaic River, a Superfund Site near Newark, New Jersey, Become an Agent Orange Dioxin TCDD Hotspot?, Journal of Soil and Water Conservation, vol. 75, no. 3, 2020, pp. 426–426. https://doi.org/10.2489/jswc.75.3.426

[8] Quoting Olsen, great background in this article about what was known about dioxin and the position of        scientists.  Kenneth R., and Mike Tharp., Erratum for Olson and Tharp, How Did the Passaic River, a Superfund Site near Newark, New Jersey, Become an Agent Orange Dioxin TCDD   Hotspot?, Journal of Soil and Water Conservation, vol. 75, no. 3, 2020, pp. 426–426.          https://doi.org/10.2489/jswc.75.3.426

[9] From page 2, Zierler, D. (2011). The Invention of Ecocide: Agent Orange, Vietnam, and the Scientists Who Changed the Way We Think about the Environment. University of Georgia Press, 2011.

[10] Olsen, Kenneth R., and Mike Tharp., Erratum for Olson and Tharp, How Did the Passaic River, a Superfund Site near Newark, New Jersey, Become an Agent Orange Dioxin TCDD Hotspot?, Journal of Soil and Water Conservation, vol. 75, no. 3, 2020, pp. 426–426. https://doi.org/10.2489/jswc.75.3.426

[11] Background information on Agent Orange Wikimedia Foundation. (2022, March 28). Agent Orange. Wikipedia. https://en.wikipedia.org/wiki/Agent_Orange

[12] Chapter 3 provides background into Operation Ranch Hand, Zierler, D. (2011). The Invention of      Ecocide: Agent Orange, Vietnam, and the Scientists Who Changed the Way We Think about the       Environment. University of Georgia Press, 2011

[13] Statistics and charts provided in From Enemies to Partners, see Chapter 1, quoting page 23, Lê Kế Sơn,       & Bailey, C. R. (2017). From Enemies to Partners: Vietnam, the U.S. and Agent Orange. G.          Anton Publisher, 2017

[14] Background of practices provided in Wahrman, Tirza S., Agent Orange in Newark: Time for a NewBeginning, Seton Hall Law Review 29, no. 1 (1998): 89-94

https://heinonline.org/HOL/LandingPage?handle=hein.journals/shlr29&div=14&id=&page= Also, see testimony given in Diamond Shamrock Chemicals v. Aetna, 258 N.J. Super. 167 (1992)

https://scholar.google.com/scholar_case?case=2241945925022391352&q=258+N.J.+Supp.+167&hl=en&as_sdt=6,31

[15] Wilcox provides a very personalized look at the Veterans experience in Waiting for an Army to Die referencing page 4, Wilcox, F. A. (1989). Waiting for an Army to Die: The Tragedy of Agent Orange. Random House, 1989.

[16] Schuck presents good background describing ailments to the Veterans case see chapter 2 Schuck, P. H. (1987). Agent Orange on Trial: Mass toxic disasters in the Courts. Cambridge, MA: Belknap Press of Harvard University Press, 1987. See also Waiting for an Army to Die Chapter 6, Wilcox, F. A. (1989). Waiting for an Army to Die: The Tragedy of Agent Orange. Random House, 1989

[17] First rulings by Judge Pratt to initial claims In re Agent Orange Product Liability Litigation, 506 F.   Supp. 762 (E.D.N.Y. 1980).

https://scholar.google.com/scholar_case?case=10890744592254927388&q=506+F.Supp+762&hl  =en&as_sdt=6,31

[18] Schuck presents plaintiffs as presented by Yannacone page 45,  Schuck, P. H. (1987). Agent Orange on        Trial: Mass toxic disasters in the Courts. Cambridge, MA: Belknap Press of Harvard University        Press, 1987

[19] Discussion of the size of the case and who some of the witnesses who would be called see Smith, L. (2017, July 20). The Agent Orange Trial proved that US chemical companies killed our soldiers, but got away with it., Timeonline.

https://timeline.com/the-agent-orange-trial-proved-that-chemical-companies-always-win-e7d1d798789d

[20] In re Agent Orange Product Liability Litigation, 506 F. Supp. 762, 769 (E.D.N.Y. 1980).

https://scholar.google.com/scholar_case?case=10890744592254927388&q=506+F.Supp+762&hl=en&as_sdt=6,31

[21] In re Agent Orange Product Liability Litigation, 506 F. Supp. 762, 792 (E.D.N.Y. 1980).

https://scholar.google.com/scholar_case?case=10890744592254927388&q=506+F.Supp+762&hl=en&as_sdt=6,31

[22] Governmental immunity as discussed by Peter Schuck, page 131 in  Schuck, P. H. (1987). Agent Orange on Trial: Mass toxic disasters in the Courts. Cambridge, MA: Belknap Press of Harvard University Press, 1987.

[23] In re Agent Orange Product Liability Litigation, 580 F. Supp. 1242 (E.D.N.Y. 1984).

https://scholar.google.com/scholar_case?case=13367678659899578221&q=580+F.Supp+1242&hl=en&as_sdt=6,31

[24] In re Agent Orange Product Liability Litigation, 506 F. Supp. 762, 787-90 (E.D.N.Y. 1980).

https://scholar.google.com/scholar_case?case=10890744592254927388&q=506+F.Supp+762&hl=en&as_sdt=6,31

[25] In re Agent Orange Product Liability Litigation, 100 F.R.D. 718  (E.D.N.Y. 1983)

https://1-next-westlaw-com.proxy.libraries.rutgers.edu/Document/Id077ae35557111d9bf30d7fdf51b6bd4/View/FullText.html?transitionType=UniqueDocItem&contextData=(sc.Default)&userEnteredCitation=100+F.R.D.+718

[26] In re Agent Orange Product Liability Litigation, 100 F.R.D. 718, 729  (E.D.N.Y. 1983)

https://1-next-westlaw-com.proxy.libraries.rutgers.edu/Document/Id077ae35557111d9bf30d7fdf51b6bd4/View/FullText.html?transitionType=UniqueDocItem&contextData=(sc.Default)&userEnteredCitation=100+F.R.D.+718

[27] In re Agent Orange Product Liability Litigation, 597 F. Supp. 740, 833-37 (E.D.N.Y. 1984).

https://scholar.google.com/scholar_case?case=12565844867716800829&q=597+F.Supp.+740+(E.D.N.Y.1984)&hl=en&as_sdt=6,31

[28] In re Agent Orange Product Liability Litigation, 597 F. Supp. 740 (E.D.N.Y. 1984).

https://scholar.google.com/scholar_case?case=12565844867716800829&q=597+F.Supp.+740+(E.D.N.Y.1984)&hl=en&as_sdt=6,31

[29] Veterans, A. (n.d.). Agent orange exposure and VA disability compensation. Veterans Affairs. https://www.va.gov/disability/eligibility/hazardous-materials-exposure/agent-orange/

[30] In re Agent Orange Product Liability Litigation, 635 F.2d 987 (2d Cir. 1987).

https://scholar.google.com/scholar_case?case=17576405206915367398&q=635+F.2d+987+&hl=en&as_sdt=6,31

[31] In re Agent Orange Product Liability Litigation, 580 F. Supp. 690, 696 (E.D.N.Y. 1984).

https://scholar.google.com/scholar_case?case=16664555316441974478&q=580+F.Supp+690&hl=en&as_sdt=6,31

[32] Peter Schuck comments on the actions of Judge Weinstein, page 126. Schuck, P. H. (1987). Agent Orange on Trial: Mass toxic disasters in the Courts. Cambridge, MA: Belknap Press of Harvard University Press, 1987.

[33] In re Agent Orange Product Liability Litigation, 597 F. Supp. 740, 819 (E.D.N.Y. 1984).

https://scholar.google.com/scholar_case?case=12565844867716800829&q=597+F.Supp.+740+(E.D.N.Y.1984)&hl=en&as_sdt=6,31

[34] See Schuck for break-down of defendant financial responsibility at pg.156, Schuck, P. H. (1987). Agent Orange on Trial: Mass toxic disasters in the Courts. Cambridge, MA: Belknap Press of Harvard University Press, 1987.

[35] See Schuck at pg. 153, Schuck, P. H. (1987). Agent Orange on Trial: Mass toxic disasters in the    Courts. Cambridge, MA: Belknap Press of Harvard University Press, 1987.

[36] Comments by the defendants, See Schuck at 166, Schuck, P. H. (1987). Agent Orange on Trial: Mass       toxic disasters in the Courts. Cambridge, MA: Belknap Press of Harvard University Press, 1987.

[37] In re Agent Orange Product Liability Litigation, 597 F. Supp. 740, 768-69 (E.D.N.Y. 1984).

https://scholar.google.com/scholar_case?case=12565844867716800829&q=597+F.Supp.+740+(E.D.N.Y.1984)&hl=en&as_sdt=6,31

[38] In re Agent Orange Product Liability Litigation, 597 F. Supp. 740, 858 (E.D.N.Y. 1984).

https://scholar.google.com/scholar_case?case=12565844867716800829&q=597+F.Supp.+740+(E.D.N.Y.1984)&hl=en&as_sdt=6,31

[39] In re Agent Orange Product Liability Litigation, 597 F. Supp. 740, 862 (E.D.N.Y. 1984).

https://scholar.google.com/scholar_case?case=12565844867716800829&q=597+F.Supp.+740+(E.D.N.Y.1984)&hl=en&as_sdt=6,31

[40] In re Agent Orange Product Liability Litigation, 611 F. Supp. 1223, 1256-63 (E.D.N.Y. 1985).   https://scholar.google.com/scholar_case?case=5735314037178205605&q=In+re+Agent+Orange+Product+Liability+Litigation,+611+F.+Supp.+1296+(E.D.N.Y.+1985).&hl=en&as_sdt=6,31

[41] In re Agent Orange Product Liability Litigation, 597 F. Supp. 740 (E.D.N.Y. 1984).

https://scholar.google.com/scholar_case?case=12565844867716800829&q=597+F.Supp.+740+(E.D.N.Y.1984)&hl=en&as_sdt=6,31

[42] In re Agent Orange Product Liability Litigation, 611 F. Supp. 1223, 1256-63  (E.D.N.Y. 1985).   https://scholar.google.com/scholar_case?case=5735314037178205605&q=In+re+Agent+Orange+Product+Liability+Litigation,+611+F.+Supp.+1296+(E.D.N.Y.+1985).&hl=en&as_sdt=6,31

[43] In re Agent Orange Product Liability Litigation, 611 F. Supp. 1223, 1256-63   (E.D.N.Y. 1985).   https://scholar.google.com/scholar_case?case=5735314037178205605&q=In+re+Agent+Orange+Product+Liability+Litigation,+611+F.+Supp.+1296+(E.D.N.Y.+1985).&hl=en&as_sdt=6,31

[44] In re Agent Orange Product Liability Litigation, 611 F. Supp. 1223, 1256-63  (E.D.N.Y. 1985).   https://scholar.google.com/scholar_case?case=5735314037178205605&q=In+re+Agent+Orange+Product+Liability+Litigation,+611+F.+Supp.+1296+(E.D.N.Y.+1985).&hl=en&as_sdt=6,31

[45] Comments from Peter Schuck, page 234. For more on the opt-out cases see pgs. 234-44, Schuck, P. H. (1987). Agent Orange on Trial: Mass toxic disasters in the Courts. Cambridge, MA: Belknap Press of Harvard University Press, 1987.

[46] In re Agent Orange Product Liability Litigation, 818 F.2d 187 (2d Cir. 1987).

https://scholar.google.com/scholar_case?case=4652771959400015962&q=818+F.2d+187&hl=en&as_sdt=6,31

[47] In Re Agent Orange Product Liability, 373 F. Supp. 2d 7 (2005)

https://scholar.google.com/scholar_case?case=6550068393089592330&q=373+F.+Supp.+2d+7+&hl=en&as_sdt=6,31

[48] In Re Agent Orange Product Liability, 373 F. Supp. 2d 7, 15 (2005)

https://scholar.google.com/scholar_case?case=6550068393089592330&q=373+F.+Supp.+2d+7+&hl=en&as_sdt=6,31

[49] In Re Agent Orange Product Liability, 373 F. Supp. 2d 7, 31 (2005)

https://scholar.google.com/scholar_case?case=6550068393089592330&q=373+F.+Supp.+2d+7+&hl=en&as_sdt=6,31

[50] In Re Agent Orange Product Liability, 373 F. Supp. 2d 7, 31 (2005)

https://scholar.google.com/scholar_case?case=6550068393089592330&q=373+F.+Supp.+2d+7+&hl=en&as_sdt=6,31

[51] In Re Agent Orange Product Liability, 373 F. Supp. 2d 7, 85 (2005)

https://scholar.google.com/scholar_case?case=6550068393089592330&q=373+F.+Supp.+2d+7+&hl=en&as_sdt=6,31

[52] In Re Agent Orange Product Liability, 373 F. Supp. 2d 7, 115 (2005)

https://scholar.google.com/scholar_case?case=6550068393089592330&q=373+F.+Supp.+2d+7+&hl=en&as_sdt=6,31

[53] In Re Agent Orange Product Liability, 373 F. Supp. 2d 7, 118 (2005)

https://scholar.google.com/scholar_case?case=6550068393089592330&q=373+F.+Supp.+2d+7+&hl=en&as_sdt=6,31

[54] In Re Agent Orange Product Liability, 373 F. Supp. 2d 7, 118 (2005)

https://scholar.google.com/scholar_case?case=6550068393089592330&q=373+F.+Supp.+2d+7+&hl=en&as_sdt=6,31

[55] In Re Agent Orange Product Liability, 373 F. Supp. 2d 7, 122 (2005)

https://scholar.google.com/scholar_case?case=6550068393089592330&q=373+F.+Supp.+2d+7+&hl=en&as_sdt=6,31

[56] In Re Agent Orange Product Liability, 373 F. Supp. 2d 7, 127 (2005)

https://scholar.google.com/scholar_case?case=6550068393089592330&q=373+F.+Supp.+2d+7+&hl=en&as_sdt=6,31

[57] In Re Agent Orange Product Liability, 373 F. Supp. 2d 7, 138 (2005)

https://scholar.google.com/scholar_case?case=6550068393089592330&q=373+F.+Supp.+2d+7+&hl=en&as_sdt=6,31

[58] Vietnam clean-up and assistance, pgs.9-10, Lê Kế Sơn, & Bailey, C. R. (2017). From Enemies to Partners: Vietnam, the U.S. and Agent Orange. G. Anton Publisher, 2017.

[59] Quoted from Wahrman, pg. 89, Wahrman, Tirza S., Agent Orange in Newark: Time for a New Beginning, Seton Hall Law Review 29, no. 1 (1998): 89-94

https://heinonline.org/HOL/LandingPage?handle=hein.journals/shlr29&div=14&id=&page=

[60] Quoted from Wahrman, pg. 90, Wahrman, Tirza S., Agent Orange in Newark: Time for a New Beginning, Seton Hall Law Review 29, no. 1 (1998): 89-94

https://heinonline.org/HOL/LandingPage?handle=hein.journals/shlr29&div=14&id=&page=

[61] Diamond Shamrock Chemicals v. Aetna, 258 N.J. Super. 167 (1992)

https://scholar.google.com/scholar_case?case=2241945925022391352&q=258+N.J.+Supp.+167&hl=en&as_sdt=6,31

[62] Diamond Shamrock Chemicals v. Aetna, 258 N.J. Super. 167 (1992)

https://scholar.google.com/scholar_case?case=2241945925022391352&q=258+N.J.+Supp.+167&hl=en&as_sdt=6,31

[63] Quoted from Wahrman, pg. 91, Wahrman, Tirza S., Agent Orange in Newark: Time for a New Beginning, Seton Hall Law Review 29, no. 1 (1998): 89-94

https://heinonline.org/HOL/LandingPage?handle=hein.journals/shlr29&div=14&id=&page=

[64] NY Times article about the Newark trial,  Nieves, Evelyn, Dioxin and Former Maker Go on Trial: A case about not just negligence, but whether there was a hazard to neglect.” New York Special to The New York Times. 1991

https://www.nytimes.com/1991/12/03/nyregion/dioxin-and-former-maker-go-on-trial.html?searchResultPosition=1

[65] Diamond Shamrock Chemicals v. Aetna, 258 N.J. Super. 167, 183 (1992)

https://scholar.google.com/scholar_case?case=2241945925022391352&q=258+N.J.+Supp.+167&hl=en&as_sdt=6,31

[66] Diamond Shamrock Chemicals v. Aetna, 258 N.J. Super. 167, 183 (1992)

https://scholar.google.com/scholar_case?case=2241945925022391352&q=258+N.J.+Supp.+167&hl=en&as_sdt=6,31

[67] Diamond Shamrock Chemicals v. Aetna, 258 N.J. Super. 167, 184 (1992)

https://scholar.google.com/scholar_case?case=2241945925022391352&q=258+N.J.+Supp.+167&hl=en&as_sdt=6,31

[68] New York Times article written in the early 1990’s about the Newark case her comments are reflective of the news of that time with regard to the EPA and exposure by Nieves, Evelyn, Dioxin and Former Maker Go on Trial: A case about not just negligence, but whether there was a hazard to neglect.” New York Special to The New York Times. 1991

https://www.nytimes.com/1991/12/03/nyregion/dioxin-and-former-maker-go-on-trial.html?searchResultPosition=1

[69] Attorney Michael Gordon as quoted in the New York Times article by Sullivan, Joseph F., Company Settles Lawsuit Over Exposure to Dioxin. (1992, January 25). NY Times, p. 29.

https://www.nytimes.com/1992/01/25/nyregion/company-settles-lawsuit-over-exposure-to-dioxin.html?searchResultPosition=1

[70] USEPA. 2016a. superfund site profile Diamond Alkali. accessed on-line … (n.d.). https://19january2021snapshot.epa.gov/sites/static/files/2017-05/documents/usepa_2016a_diamond_alkali_co.pdf

[71] Quoted in Olsen, Kenneth R., and Mike Tharp., Erratum for Olson and Tharp, How Did the Passaic River, a Superfund Site near Newark, New Jersey, Become an Agent Orange Dioxin TCDD Hotspot?, Journal of Soil and Water Conservation, vol. 75, no. 3, 2020, pp. 426–426. https://doi.org/10.2489/jswc.75.3.426

[72] Quoted at pg. 27, Jones, N. Scott, Selected Remedy is the Most Environmentally Protective Solution for the Diamond Alkali Superfund Site. Seton Hall Law Review 29 (1998): 27.

https://heinonline.org/HOL/LandingPage?handle=hein.journals/shlr29&div=10&id=&pa            ge=

[73] USEPA. 2016a. superfund site profile Diamond Alkali. accessed on-line … (n.d.). https://19january2021snapshot.epa.gov/sites/static/files/2017-05/documents/usepa_2016a_diamond_alkali_co.pdf

[74] USEPA. 2016a. superfund site profile Diamond Alkali. accessed on-line … (n.d.). https://19january2021snapshot.epa.gov/sites/static/files/2017-05/documents/usepa_2016a_diamond_alkali_co.pdf

[75] Background about Maude DeVictor and the documentary in Wilcox pg. 80, Wilcox, F. A. (1989). Waiting for an Army to Die: The Tragedy of Agent Orange. Random House, 1989.

[76] Great background information on the settlement process from the Veterans’ case. Schuck, Peter H., The Role of Judges in Settling Complex Cases: The Agent Orange Example, The University of Chicago Law Review 53, no. 2 (1986): 337–65.

https://doi.org/10.2307/1599643

[77] Quoted Judge Weinstein in Schuck, pg.343, Schuck, Peter H., The Role of Judges in Settling Complex Cases: The Agent Orange Example, The University of Chicago Law Review 53, no. 2 (1986): 337–65. https://doi.org/10.2307/1599643

[78] In note 32 on pg. 347, Schuck, Peter H., The Role of Judges in Settling Complex Cases: The Agent Orange Example, The University of Chicago Law Review 53, no. 2 (1986): 337–65.

https://doi.org/10.2307/1599643

[79] Isaacson v. Dow Chemical Company, 517 F. 3d 129 – Court of Appeals, 2nd Circuit, 2008

https://scholar.google.com/scholar_case?case=17982685370221960620&q=Stephenson+v.+Dow+Chemical+Company+and+Isaacson+v.+Dow+Chemical+Company++&hl=en&as_sdt=6,31

[80] Zierler, Aviva E.A., The Vietnamese Plaintiffs: Searching for a Remedy after Agent Orange, Temple International & Comparative Law Journal 21, no. 2 (Fall 2007): 477-524 https://heinonline.org/HOL/LandingPage?handle=hein.journals/shlr29&div=11&id=&page=

[81] Quoting Zierler at page 493, Zierler, Aviva E.A., The Vietnamese Plaintiffs: Searching for a Remedy after Agent Orange, Temple International & Comparative Law Journal 21, no. 2 (Fall 2007): 477-524 https://heinonline.org/HOL/LandingPage?handle=hein.journals/shlr29&div=11&id=&page=

[82] Zierler, Aviva E.A., The Vietnamese Plaintiffs: Searching for a Remedy after Agent Orange, Temple International & Comparative Law Journal 21, no. 2 (Fall 2007): 477-524 https://heinonline.org/HOL/LandingPage?handle=hein.journals/shlr29&div=11&id=&page=

[83] Quoting Zierler at page 495, Zierler, Aviva E.A., The Vietnamese Plaintiffs: Searching for a Remedy after Agent Orange, Temple International & Comparative Law Journal 21, no. 2 (Fall 2007): 477-524 https://heinonline.org/HOL/LandingPage?handle=hein.journals/shlr29&div=11&id=&page=

[84] Quoted from Wilcox, pg. 100, Wilcox, F. A. (1989). Waiting for an Army to Die: The Tragedy of Agent Orange. Random House, 1989.

[85] Bloom, Anne, From Justice to Global Peace: A (Brief) Genealogy of the Class Action Crisis, Loyola of Los Angeles Law Review,  39 Loy. L.A. L. Rev. 719 (2006).
https://digitalcommons.lmu.edu/llr/vol39/iss2/3

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