APPEALS COURT SAYS "NO" TO VETS AND FAMILIES,

UPHOLDS DISMISSAL OF AGENT ORANGE LAWSUITS --

Also throws out herbicide case brought by Vietnamese

people saying AO was not a weapon.

Court Upholds Dismissal Of Agent-Orange Suits

By Chad Bray
Of DOW JONES NEWSWIRES



NEW YORK -(Dow Jones)- A federal appeals court Friday upheld the dismissal of more than a dozen lawsuits brought against Dow Chemical Co. (DOW), Monsanto Co. (MON) and other chemical makers over the use of the herbicide Agent Orange during the Vietnam War.

The lawsuits include separate cases brought on behalf of veterans and their families and millions of Vietnamese allegedly injured by exposure to the chemical defoliant.

In the cases brought by the veterans, the 2nd Circuit Court of Appeals agreed with a prior ruling by U.S. District Judge Jack Weinstein in Brooklyn in 2004 that the chemical companies could assert a government-contractor defense, which protects government contractors from state-tort liability under certain circumstances when they provide defective products to the government.

"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, and that the product should continue to be manufactured and supplied to it," U.S. Circuit Judge Robert D. Sack wrote in one of three opinions in the cases.

A global settlement of Agent Orange claims by veterans was reached in 1984. About 291,000 class members filed claims prior to a 1994 cutoff date in the settlement.

At least two sets of plaintiffs in the veterans cases before the circuit were members of the original plaintiff class in the settlement whose injuries manifested themselves after the original opt-out period. They filed class-action claims on behalf of themselves and other similarly situated veterans.

The three-judge appellate panel also affirmed a 2005 ruling by Judge Weinstein that the case on behalf of the Vietnamese failed to allege a violation of international law because Agent Orange was used to protect U.S. troops against ambush and not as a weapon against the native population and that their domestic tort-law claims were barred by the government-contractor defense.

"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," U.S. Circuit Judge Roger J. Miner wrote in another opinion.

Jonathan C. Moore, who represented the Vietnamese plaintiffs, said they disagree with the circuit's decision and plan to appeal.

"We think the decision by the 2nd Circuit today is wrong both morally and legally," Moore said. "It's our full intention to appeal this decision to the U.S. Supreme Court."

Chris Huntley, a Dow spokesman, said the chemical company is pleased with the decision.

"We have said for a while that issues related to wartime activity in Vietnam should be addressed by the U.S. and Vietnamese governments," Huntley said. " Clearly, the court has agreed with our position."

By Chad Bray, Dow Jones Newswires; 212-227-2017; chad.bray@dowjones.com
Email: deltamike4id@hotmail.com