On June 9, the U.S. Supreme Court, in a short, two-paragraph opinion, handed a major victory to Vietnam veterans suffering from diseases caused by Agent Orange. Dow Chemical Co. v. Stephenson, No. 02-271.

Plaintiff Joe Isaacson was diagnosed with non-Hodgkin’s lymphoma in 1996; Dan Stephenson with multiple myeloma in 1998. The federal district court dismissed both their product liability actions against the manufacturers of Agent Orange, ruling that they were bound by a class action settlement approved by District Judge Jack B. Weinstein. The fund established by the settlement was exhausted, as planned, in 1994. The Second Circuit reversed, holding that future victims were not adequately represented in the class action.

In the U.S. Supreme Court, defendants contended that allowing collateral attack would make it impossible to achieve broad class action settlements. AAJ member Gerson Smoger argued that his clients were entitled to their day in court. AAJ filed an amicus curiae brief, prepared by the Center for Constitutional Litigation, in support of the veterans.

The Court divided 4-4 on Stephenson’s case, permitting the Second Circuit’s opinion to stand. Justice John Paul Stevens, whose son served in Vietnam and died of cancer in 1996, recused himself. The Court remanded Isaacson’s case, indicating that it was improperly removed to federal court under the All Writs Act.

AAJ's Amicus Curiae Brief: Dow Chemical Co. v. Stephenson