Federal Judiciary

Three Second Circuit Victories for Agent Orange Manufacturers

By Robert Loblaw

Isaacson v. Dow Chemical Company, 05-1820 (2^nd Cir., Feb. 22, 2008)

Twinam v. Dow Chemical Company, 05-1760 (2^nd Cir., Feb. 22, 2008)

Vietnamese Association for Victims of Agent Orange v. Dow Chemical Company, 05-1953 (2^nd Cir., Feb. 22, 2008)

Today, the same panel of the Second Circuit issued decisions in three different appeals involving litigation over Agent Orange, the defoliant used during the Vietnam War that injured countless civilians and U.S. soldiers. And it is a banner day for the defense, with unanimous victories in all three cases.

Each panelist writes one opinion. Judge Hall?s decision in Isaacson addresses a complicated jurisdictional question arising from U.S. veterans? claims against a dozen or so chemical companies. (The defendants had entered a global settlement of veterans? claims in 1984, but the plaintiffs were nonetheless allowed to proceed with their individual claims.) These suits were initially filed in various state courts, but the defendants removed several of these actions to federal court, and they were consolidated in the Eastern District of New York. After more than a decade of litigation and appeal, the district court granted summary judgment for the defendants. In this appeal, the plaintiffs argue that the district court lacked jurisdiction over the claims in the first instance. But the panel disagrees, concluding that the defendants were acting as federal officers and were therefore entitled to remove the suits to federal court.

Judge Sack?s opinion in Twinam addresses the merits of the district court?s decision to grant summary judgment to the defendants. In an intriguing opinion, the panel concludes that the defendants are entitled to the government contractor defense, which shields government contractors from liability arising from their business with the government. The plaintiffs pointed to various reasons why the defense should not apply, including the allegation that the defendants failed to inform the government of the dangers of Agent Orange. Although the panel has serious doubts that none of the defendants knew of the danger over the eight year period when the military was actively using Agent Orange, there is no evidence in the record to support the plaintiffs? allegations.

Finally, Judge Miner gets to write the decision in Vietnamese Association, an Alien Tort Statute case brought by Vietnamese nationals against the same corporate defendants. The plaintiffs allege that the U.S. government violated international law by spraying toxic herbicides across Vietnam, and that the defendant chemical companies are liable for aiding and abetting this violation. But the district court dismissed these claims, finding that Agent Orange was not used as a weapon of war but rather as a method of protecting U.S. soldiers from ambush. Accordingly, it found that the complaint did not state a claim under the ATS. On appeal, the Second Circuit affirms, but the panel leaves open the important question of whether corporate entities can ever be liable for aiding and abetting government violations.

Full post as published by Decision of the Day on February 22, 2008 (boomark / email).