From: Reuters
Published February 25, 2008 01:49 PM

Court upholds dismissal of "agent orange" suit

By Martha Graybow

NEW YORK (Reuters) - A federal appeals court upheld on Friday the dismissal of a civil lawsuit against major U.S. chemical companies brought by Vietnamese plaintiffs over the use of the defoliant "agent orange" during the Vietnam War.

The ruling, handed down by the U.S. Court of Appeals for the Second Circuit, concluded the plaintiffs could not pursue their claims against Dow Chemical Co, Monsanto Co and nearly 30 other companies. The lawsuit contended agent orange caused ailments, including birth defects and cancer.

A U.S. District Court judge in Brooklyn, New York ruled in March 2005 that the plaintiffs failed to show that use of agent orange, a plant killer supplied to the U.S. military in Vietnam, violated a ban on the use of poisonous weapons in war and that the lawsuit did not prove the plaintiffs' health problems were linked to the chemical.

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"Although the herbicide campaign may have been controversial, the record before us supports the conclusion that agent orange was used as a defoliant and not as a poison designed for or targeting human populations," Judge Roger Miner wrote for the three-judge appeals court panel.

The court also upheld two other agent orange rulings, including one in a case that was brought by veterans and their families who said their health problems did not become apparent until after a 1984 class-action settlement was reached with a group of veterans. In that case, the Second Circuit found that, as government contractors, the chemical companies could be shielded from liability.

"These decisions mean that, if these decisions are not reversed by the Supreme Court, the era of agent orange litigation has ended," said Jonathan Moore, an attorney for the Vietnamese plaintiffs.

He said his clients were "deeply disappointed" in the ruling and would appeal.

The Vietnamese plaintiffs contended that the chemical makers were directly accountable for providing the U.S. military with agent orange, which got its name because it was stored in large drums marked with orange bands. U.S. warplanes dropped about 18 million gallons (68.1 million liters) of the defoliant on South Vietnam for most of the 1960s to destroy large areas of vegetation. The defoliant released dioxins that have been blamed for health problems in people exposed to them.

The United States has maintained there is no scientifically proven link between the wartime spraying and the claims of dioxin poisoning by more than 3 million people in Vietnam. The U.S. government, which claimed sovereign immunity, was not sued.

The plaintiffs had sought class-action status for millions of Vietnamese people in a case that, if successful, could have resulted in billions of dollars in damages and the costs of environmental cleanup in Vietnam.

"We are pleased with the court's decision," said Chris Huntley, a spokesman for Dow Chemical. "We have long held the view that issues related to war-time activities should be addressed by the U.S. and Vietnamese governments."

Monsanto said that "as we have always maintained, issues related to the military's use of agent orange during the Vietnam War are best left to the appropriate governments to discuss and resolve."

In 1984, seven chemical companies, including Dow and Monsanto, agreed to a $180 million settlement with U.S. veterans who claimed that agent orange caused health problems.

(Additional reporting by Carey Gillam and Euan Rocha; Editing by Andre Grenon and Leslie Gevirtz)

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