While asbestos may be regarded as the grandfather of mass torts, Agent Orange is not far behind in longevity. In the latest chapter, the U.S. Supreme Court last week declined to review three court orders dismissing damages claims against manufacturers of Agent Orange; plaintiffs had alleged that exposure to defoliants during the Vietnam War caused cancer and other illnesses. See Isaacson v. Dow Chemical Co., U.S., No. 08-460, 3/2/09; Stephenson v. Dow Chemical Co., U.S., No. 08-461, 3/2/09; Vietnam Ass’n for Victims of Agent Orange v. Dow Chemical Co., U.S., No. 08-470, 3/2/09.

The denial of cert leaves intact three decisions last year by the Second Circuit in favor of Dow Chemical, Monsanto Co., and other defendant companies . See Isaacson v. Dow Chemical Co., 517 F.3d 129 (2d Cir. 2008); Stephenson v. Dow Chemical Co., 2008 U.S. App. LEXIS 6201 (2d Cir. 2008); Vietnam Ass’n for Victims of Agent Orange v. Dow Chemical Co., 517 F.3d 104 (2d Cir. 2008). The Second Circuit rulings largely relied on the government contractor defense to protect the government and wartime contractors from being sued civilly for their federal executive function activities. The government contractor defense in essence prevents plaintiffs from doing an end run around a statute that prohibits them from suing federal officials directly. The government contractor defense shields companies from liability if they rely on government specifications, accurately follow those specifications, and inform the government about any problems with the product the government doesn’t know about. Here, the government continued to order Agent Orange and declared its toxicity levels acceptable, the Second Circuit found.

A major settlement was reached in the Agent Orange cases filed decades ago, but another later round of suits was filed by people who alleged they became ill after 1994 as the result of Agent Orange exposure. Defendants, no doubt, are hopeful that this will be the end of the Agent Orange litigation.

In the third case, the claims brought by Vietnamese nationals under the Alien Tort Statute alleged that the spraying of herbicides in South Vietnam between 1962 and 1970 was a violation of international law. The Second Circuit dismissed the appeal by the Vietnamese nationals, finding that because the toxin was used to protect U.S. troops against ambush, and not as a weapon of war against human populations, the plaintiffs had failed to adequately plead a violation of international law. In addition, the court concluded that any domestic tort law claims by Vietnamese citizens were barred by the government contractor defense.