In re “Agent Orange” Product Liability Litigation

During the Vietnam War, the United States Air Force sprayed the herbicide Agent Orange in regions of South Vietnam to defoliate the jungle and destroy enemy food supplies. Agent Orange contained the toxic byproduct dioxin, a carcinogen that persisted for long periods of time in the environment and was linked to cancers and having children with birth defects. Veterans exposed to Agent Orange while serving in Vietnam and their families (plaintiffs) brought numerous lawsuits as a result. Veteran Paul Reutershan filed the first lawsuit in New York state court against several chemical companies that allegedly manufactured Agent Orange. The case was removed to federal court and transferred to the Eastern District of New York. After Reutershan died, his estate amended the complaint to seek relief on behalf of a class of veterans and their families. Meanwhile, other veterans filed several similar class actions against both the chemical manufacturers and the United States government (defendants). The attorneys for Reutershan’s estate and for Dow Chemical Company petitioned to consolidate the lawsuits into one multidistrict-litigation (MDL) proceeding. The Judicial Panel on Multidistrict Litigation established In re “Agent Orange” Product Liability, MDL No. 381, in the Eastern District of New York. Other courts transferred nearly 600 cases representing 240,000 claimants to the MDL proceeding. Some claimants opted out of the class action, but their cases remained in the Eastern District of New York because of the multidistrict referral. Just before trial, the parties reached a $180 million settlement agreement. However, given the number of claimants and the seriousness of the injuries and birth defects, $240,000 essentially paid only nuisance value. The court ultimately approved the settlement, and numerous veterans appealed on multiple grounds, including lack of personal jurisdiction over class members who resided elsewhere and lacked contacts with New York.