Stephenson v. Dow Chemical Co.

273 F.3d 249 (2nd Cir. 2001)


Ps are two Vietnam War veterans who allege that they were injured by exposure to Agent Orange while serving in the military in Vietnam. Ps filed separate lawsuits against manufacturers of Agent Orange. Twelve years before these suits, virtually identical claims against Ds, brought by a class of military personnel who were exposed to Agent Orange while in Vietnam between 1961 and 1972, were globally settled. Seventy-five percent of the $180 million was to be distributed directly ''to exposed veterans who suffer from long-term total disabilities and to the surviving spouses or children of exposed veterans who have died.'' Payments were to be made for ten years, beginning January 1, 1985, and ending December 31, 1994: No payment will be made for death or disability occurring after December 31, 1994. Payment will be made for compensable deaths occurring both before and after January 1, 1985. Payments will be made for compensable disability to the extent that the period of disability falls within the ten years of the program's operation. Stephenson served in Vietnam from 1965 to 1970, serving both on the ground in Vietnam and as a helicopter pilot in Vietnam. He alleges that he was in regular contact with Agent Orange during that time. On February 19, 1998, he was diagnosed with multiple myeloma, a bone marrow cancer, and has undergone a bone marrow transplant. Joe Isaacson served in Vietnam from 1968 to 1969 as a crew chief in the Air Force and worked at a base for airplanes which sprayed various herbicides, including Agent Orange. In 1996, Isaacson was diagnosed with non-Hodgkins lymphoma. Ds moved to dismiss under Federal Rule of Civil Procedure 12(b)(6)' Ps' claims were barred by the 1984 class action settlement and subsequent final judgment. This motion was granted with the judge rejecting Ps' argument that they were inadequately represented.