Agent Orange, the Next Generation

Doan Bao Chau for The New York Times

Nguyen Van Quy, left, was a Vietnamese soldier. He has cancer and his two children have birth defects. "We have to endure,'' said his wife, Vu Thi Loan, center.

Published: August 8, 2004 (Metro Section, Page 1)

Agent Orange, the Next Generation

By WILLIAM GLABERSON

In 1984, after years of battles over science and damage tabulations, seven American chemical companies settled a huge class-action suit by Vietnam veterans who claimed that the defoliant Agent Orange caused cancer, birth defects and a nightmarish brew of other health problems.

The companies paid out $180 million. By 1997, after the last payments had been made, 291,000 people had received benefits. The settlement was reached after a federal judge persuaded the companies to buy themselves out of protracted litigation. It was called a landmark legal peace on a brutally contentious issue, and it was supposed to be the final word from the courts on Agent Orange, a defoliant containing the deadly substance dioxin.

But today, a new cast of plaintiffs, this time Vietnamese as well as American, has returned to the same American court seeking justice and dollars. One suit filed on behalf of as many as four million Vietnamese says their land and people were so poisoned by Agent Orange that supplying it to the military amounted to war crimes by the chemical companies.

In other suits, American veterans say they have only now come to learn of their devastating health problems, with the money gone.

The claims are more than empty reminders of an old fight. Judge Jack B. Weinstein, whose aggressive handling of the Agent Orange case in Federal District Court in Brooklyn in the 1980's brought him wide attention and considerable anger, has said that the Vietnamese suit raises serious issues. The United States Supreme Court has said that the new cases by American veterans cannot be automatically barred.

The chemical companies say fairness dictates that the time for the legal battle they thought they had ended a generation ago has come and gone. They claim the science still does not prove that Agent Orange was responsible for any of the medical horrors its name has long brought to mind.

Whatever the fate of the suits, the revival of the Agent Orange battle means that these days, there are ghosts in the Brooklyn federal courthouse - of a divisive war, of modern battle tools, of hard feelings by people in two countries who were caught up in combat long ago.

"Doesn't it ever end? When will Agent Orange become history?'' said Kenneth R. Feinberg, a Washington lawyer who was a special master in the Agent Orange case 20 years ago and recently ran the 9/11 Victim Compensation Fund.

Lawyers for Dow Chemical, Monsanto, Hercules and more than a dozen other chemical companies named in the legal battle say that the claims of war crimes by the companies are unsupportable. They note that the companies were ordered by the Pentagon to make Agent Orange and say that if there is to be any compensation to Vietnam, it should be a result of negotiations between the two governments.

The lawyers also say that the new suits are as baseless as the old. A lawyer for Dow, Andrew L. Frey, said in an interview that people suffering life's random hardships sued because "it's human nature to look for something to blame.''

But in recent interviews in Vietnam and the United States, people who say they are victims of Agent Orange echoed one another in the strength of their conviction that a wrong is yet to be fully righted.

In a sparsely furnished Hanoi apartment, one of the Vietnamese plaintiffs, a doctor, described working since the war with people she believed were victims of Agent Orange. Many were spurned for years, said the doctor, Phan Thi Phi Phi, because of a belief in Vietnam that people who had malformed children were paying the price of their ancestors' immoral lives.

Dr. Phi Phi, a small woman who spoke softly, said she was a victim herself. During the war she worked in a mobile hospital in an area of South Vietnam that was a target of American spraying. She had four miscarriages, she said, and nearly died. Agent Orange, she said, "destroys human life for many generations.'' Joe Isaacson, a school administrator and Vietnam veteran from Toms River, N.J., has been fighting cancer since the 1990's. His simmering anger about Agent Orange sounded much like Dr. Phi Phi's. "We didn't know,'' he said, "that it was more dangerous than the enemy.''

In a modest house on a quiet street in Haiphong, east of Hanoi, a frail former soldier for North Vietnam, Nguyen Van Quy, remembered the acrid odor when it rained along the Ho Chi Minh trail. That smell, he said, was a sign that Agent Orange had killed all life, down to the roots of plants that hungry soldiers ate in the wide, dead areas along the trail.

Mr. Quy, 49, has cancer and two children born with birth defects. Someone, he said, should be held accountable. "Somehow,'' he said, "our misery, our hardship can be lessened.''

By telephone from Cape Coral, Fla., not long after Mr. Quy had spoken in Haiphong, Daniel R. Stephenson remembered the foul smell too, and the black hillsides. He is a Vietnam veteran who struggles with the pain of multiple myeloma that he believes came from exposure to Agent Orange. "It'll kill vegetables, but it'll also kill other things, too,'' he said.

Judge Weinstein, now 82, has said over many years that he does not believe lawyers can prove that Agent Orange causes specific diseases, other than a minor skin irritation. He repeated that recently in a tentative ruling on the claims of Mr. Isaacson and Mr. Stephenson.

But lawyers for the plaintiffs argue that there is new scientific evidence about the dangers of Agent Orange that was not available in the 1980's. Gerson H. Smoger, a lawyer for Mr. Stephenson and Mr. Isaacson, said Judge Weinstein's understanding of the scientific information was outdated.

William H. Goodman, a New York lawyer handling the suit for the Vietnamese, said his clients deserved to present their case against Agent Orange. "We have generation after generation suffering from its consequences,'' he said.

The scientific issue remains one of the most debated over Agent Orange. In recent years, the Institute of Medicine of the National Academy of Sciences has said there is an "association" between exposure to Agent Orange and some diseases, including soft-tissue sarcoma and non-Hodgkin's lymphoma.

Guided partly by the institute's list of diseases, the Department of Veterans Affairs gives Vietnam veterans compensation for many illnesses that it presumes were caused by exposure to Agent Orange. But the chemical companies say the "association" finding provides nothing like the clear proof required to establish in court that Agent Orange is the cause of any serious disease.

The Institute of Medicine also says there is inadequate evidence to determine an Agent Orange association with many of the diseases cited by veterans, including many types of cancer and most birth defects.

But some public health experts say it would be wrong for the courts to assume that the level of scientific knowledge has remained static. Since the 1984 settlement, said Jeanne Mager Stellman, a Columbia University public health professor, "There is much more evidence about dioxin-contaminated herbicides.''

Dr. Stellman, who was a consultant to the special master in the Agent Orange case years ago, added that most experts agree that Agent Orange is one of the planet's most deadly substances. As they did in the 1980's, the chemical companies argue that the courts need not decide the issue of what the health effects of Agent Orange may be. They say the companies cannot be held liable because they were ordered by the Pentagon to make Agent Orange. Under sovereign immunity, the American government cannot be sued; government contractors are often shielded from suits as well.

In February, Judge Weinstein said he planned to rule for the companies. He said his decision would take effect in October unless he was persuaded to change his mind. He said the companies were contractors who were ordered to supply herbicide that met specifications set by the military. Plaintiffs' lawyers have long said the chemical companies knew more than the government about the dangers of Agent Orange and should not qualify for protection.

Judge Weinstein said he planned to rule that the veterans could not proceed with their case against the chemical companies because of the government-contractor shield. He added that he thought it doubtful that the Supreme Court, which permitted the veterans' case to go forward by a 4-to-4 vote, "has fully considered the significance of reopening these Vietnam War issues."

But Judge Weinstein also said from the bench this spring that he was not sure whether, when considering the war-crime claim, the "I was told to do it" argument could protect the chemical companies.

The companies' lawyers answered that chemical executives could not possibly have intended to commit war crimes when they supplied Agent Orange in the 1960's since, even now, there is debate about whether it is as harmful as the suits claim.

Judge Weinstein said he expected to make his final rulings in October and they would likely set the stage for appeals in both the veterans' and the Vietnamese cases.

The veterans' suits before Judge Weinstein involve only Mr. Stephenson and Mr. Isaacson. But there are at least nine other cases in Federal District Court in Brooklyn filed by other veterans who say they became ill after the settlement fund was depleted. Judge Weinstein said hundreds of other cases could follow.

The companies say that reopening the case will reduce the chances of settlements in other cases. Businesses offer settlements in mass injury cases, they say, to ensure total peace - and the end of litigation. "If future claimants are not bound by settlements, companies will be more likely to litigate than settle,'' said William A. Krohley, a lawyer for Hercules. In the Brooklyn courthouse, the cases are moving at the slow pace of the law. In other places, people who say Agent Orange devastated their lives are trying to make sense of the legal battle that is a remnant of a long-ago war.

Mr. Isaacson, 56, the New Jersey school administrator, has non-Hodgkin's lymphoma. He was grateful, he said, that his 17-year-old daughter was healthy. He was an Air Force crew chief who worked on the planes that sprayed Agent Orange to clear away the jungle. "I am sure,'' he said, "there could have been other methods that wouldn't have hurt the veterans."

In Haiphong, Mr. Quy, the former North Vietnamese soldier, seemed weak as he mentioned the acrid spray from the American planes.

Listening as he spoke was his teenage son, whose face moved in spasms, and his daughter, who could not speak. His wife, Vu Thi Loan, cried quietly. "We were unlucky,'' she said. "We have to endure our hardship and there is no other way.''

Doan Bao Chau contributed reporting from Vietnam for this article.