On January 31, 2004, a
victim's rights group, the Vietnam Association for Victims of Agent Orange/dioxin (VAVA), filed a lawsuit in the
United States District Court for the Eastern District of New York in
Brooklyn, against several U.S. companies for liability in causing personal injury, by developing and producing the chemical. Dow Chemical and Monsanto were the two largest producers of Agent Orange for the U.S. military, and were named in the suit, along with the dozens of other companies (Diamond Shamrock, Uniroyal, Thompson Chemicals, Hercules, etc.). On March 10, 2005, Judge
Jack B. Weinstein of the Eastern District – who had presided over the 1984 US veterans class action lawsuit – dismissed the lawsuit, ruling there was no legal basis for the
plaintiffs' claims. He concluded Agent Orange was not considered a poison under
international law at the time of its use by the U.S.; the U.S. was not prohibited from using it as a herbicide; and the companies which produced the substance were not liable for the method of its use by the government. The U.S. government was not a party in the lawsuit, due to
sovereign immunity, and the court ruled the chemical companies, as contractors of the US government, shared the same immunity. The case was appealed and heard by the
Second Circuit Court of Appeals on June 18, 2007. The Court of Appeals upheld the dismissal of the case, stating the herbicides used during the war were not intended to be used to poison humans and therefore did not violate international law.[SUP]
[72][/SUP] The
US Supreme Court declined to consider the case.
Three judges on the Second Circuit Court of Appeals in Manhattan heard the appeal on June 18, 2007. They upheld Weinstein's ruling to dismiss the case. They ruled that, though the herbicides contained a dioxin (a known poison), they were not intended to be used as a poison on humans. Therefore, they were not considered a chemical weapon and thus not a violation of international law. A further review of the case by the whole panel of judges of the Court of Appeals also confirmed this decision. The lawyers for the Vietnamese filed a petition to the US Supreme Court to hear the case. On March 2, 2009, the Supreme Court denied
certiorari and refused to reconsider the ruling of the Court of Appeals.[SUP]
[73][/SUP]
In a November 2004
Zogby International poll of 987 people, 79% of respondents thought the US chemical companies which produced Agent Orange defoliant should compensate US soldiers who were affected by the toxic chemical used during the war in Vietnam. 51% said they supported compensation for Vietnamese Agent Orange victims.[SUP]
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