Monsanto, Other Companies, Win Agent Orange Case

By Rachel Melcer, St. Louis Post-Dispatch

Feb. 23–A federal court on Friday handed a defeat to military veterans, their families and Vietnamese nationals who sued Dow Chemical Co., Monsanto Co. and other chemical makers over the use of Agent Orange during the Vietnam War.

The U.S. Court of Appeals for the Second Circuit in New York issued a trio of opinions affirming lower court dismissals of 16 unconsolidated civil cases brought by veterans and their relatives; and another filed by the Vietnam Association for Victims of Agent Orange/Dioxin.

In opinions filed Friday, the court said that Creve Coeur-based Monsanto and fellow makers of herbicides that comprised Agent Orange were covered by the “military contractor defense” — legal protection from tort liability granted to independent contractors in their fulfillment of government procurement contracts.

The government examined alleged toxicity of Agent Orange during the war but continued to buy and use it, the documents said.

“The government made an express determination, based on the knowledge available to it at the time, that Agent Orange as then being manufactured posed no unacceptable hazard for the wartime uses for which it was intended,” wrote Circuit Judge Robert Sack.

In the case of the Vietnam Association, the court also said the use of Agent Orange was not a violation of international law because it was not sprayed as a weapon against people. Rather, it was used to clear vegetation surrounding U.S. military outposts in order to protect troops from ambush.

Plaintiffs in all of these cases claim that they developed cancers and other ailments as a result of exposure to the chemicals. Agent Orange, a mixture of two herbicides, also contained harmful dioxin, a byproduct.

“We’re gratified by the appeal court’s decision, which was both extensive and comprehensive in upholding the original decision by the lower court,” Monsanto spokesman Glynn Young said in an e-mail response. “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.

The bulk of U.S. veterans and military families who claimed harms from agent orange took part in earlier litigation that was settled in 1984 for $180 million. The families involved in the current cases sued over illnesses that became apparent after 1994, the cutoff date for participation in the 1984 settlement.

rmelcer@post-dispatch.com — 314-340-8394

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