WASHINGTON -- The U.S. government's 17-year record of defeating all legal claims for damages arising out of chemical warfare waged in Vietnam with the jungle-clearing Agent Orange is now at risk in the Supreme Court.
But it will not be Vietnam veterans or their families who could gain from the case the court agreed yesterday to review. Rather, it would be two companies that made Agent Orange under government contracts during the Vietnam War. Agent Orange was used mainly to defoliate jungle battle areas and to kill food crops destined for enemy troops.
The two companies are demanding that the government reimburse them for the money they had put into a fund for Vietnam veterans and their families -- a $180 million fund created to settle lawsuits that might have led to verdicts running into billions of dollars. They settled rather than run that financial risk, thinking they might lose.
The companies, Hercules Inc. and Wm. T. Thompson Co., also are seeking to be reimbursed for money they paid their lawyers and for other costs incurred while fending off lawsuits by veterans and their relatives.
In 1984, as a lawsuit by veterans and their relatives against the seven makers of Agent Orange was ready to go to trial, the companies agreed to settle. Generally, veterans who could prove total disability, or survivors of veterans who had died, could get up to $3,500 from the fund provided by the companies.
Hercules put up $18.8 million; Thompson's share was $3.1 million. The two companies are seeking reimbursement of those amounts from the government, plus legal costs of about $6 million for Hercules and $3 million for Thompson.
They claim that the government required them to produce Agent Orange according to its specifications, but that the government broke its contracts with them by using their product in a dangerous way in Vietnam, resulting in legal claims by veterans against the companies.
Lower courts rejected those arguments. They said the companies could have defeated the veterans in court, and that their participation in the settlement was thus voluntary, not forced by the government. Lower courts said there was no proof that Agent Orange caused disease or death for anyone who served in Vietnam.
The Justice Department urged the Supreme Court to bypass the companies' appeal, but the justices ignored that advice and agreed to hear it. A decision is expected next year.
Legal disputes over Agent Orange have been in federal and state courts since 1978. Several of those cases had gone to the Supreme Court, only to be turned aside. The government has never been held legally to blame in any of those lawsuits, and the court has never agreed to consider an appeal by veterans.
Veterans or their relatives have won none of the cases. They have failed, for example, to overcome the government's legal immunity to being sued; the veterans had tried to collect damages from the government on the theory that officials ordered Agent Orange to be made, even while knowing that it contained dioxin and that it therefore would kill or maim tens of thousands who served in the U.S. and allied military forces during that war.
The veterans' string of legal defeats since the first lawsuit was filed has helped make the name Agent Orange a symbol of frustration about the nation's reaction to service in Vietnam.
Although some veterans still have cases pending in lower courts, most who served in Vietnam now have two means to get compensation for Agent Orange problems: first, a disability benefit paid by the Department of Veterans Affairs under a 1988 law, and, second, their right to make a claim from the fund set up by the chemical companies to settle veterans' lawsuits.