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Re: Agent Orange Update



  • HadIt.com Elder







(972) 243-5297

FAX (972) 243-2666





(510) 531-4529

FAX (510) 531-4377

June 24, 2008

Re: Agent Orange Update

As you know, in 2003 the United States Supreme Court affirmed our victory and permitted Vietnam veterans to sue the manufacturers of Agent Orange if they became sick after the original settlement’s 1994 deadline. However, after we were successful, the Supreme Court returned all Agent Orange cases back to Judge Jack Weinstein, the same judge who had originally dismissed the cases and caused us to go to the Supreme Court.

The herbicide manufacturers then asked Judge Weinstein to dismiss all of the cases on a different basis. In order to explain that basis, you need to know that in 1988, in a case not involving Agent Orange, the Supreme Court held that when a company contracts with the U.S. Government, it is immune from suit if: 1) the terms of the contracts were precise; 2) the company followed those terms; and 3) the company made the government aware of all of the dangers of a product that were known to the company.

In order to prove that the herbicide manufacturers did not deserve immunity, we submitted hundreds of pages of briefing, thousands of documents, and extensive reports from experts. In this material, we are quite confident that we demonstrated the following things to be true:

1) the chemical that has caused most of the health problems

from the herbicides sprayed in Vietnam is known as “dioxin”;

2) not a single contract between the herbicide manufacturers and the

government even mentions the word “dioxin”;

Agent Orange Update

June 24, 2008

Page 2

3) the herbicide manufacturers produced their herbicides at

extremely high temperatures in order to produce them more quickly and thereby make more money;

4) the problem with producing herbicides at high temperatures was

that the higher the temperature that was used, the more “dioxin” that would be created;

5) the herbicide manufacturers knew that manufacturing herbicides at

higher temperatures created more dioxin, but they hid this fact from the government;

6) in fact, the manufacturers secretly tested their products for the

amount of “dioxin” the products contained while knowing that the government didn’t even own the equipment necessary to test for “dioxin”;

7) the herbicide manufacturers deliberately hid the medical dangers

they knew about from the government, including the fact that “dioxin” was the most toxic chemical they had ever tested;

8) once secret internal documents demonstrate that the herbicide

manufacturers hid all of this information, because they were afraid of regulation and the loss of their lucrative contracts.

Unfortunately, Judge Weinstein wrote his decision without reading any of our briefing, without reviewing any of the documents we submitted, and without reviewing our expert reports. We know this because we were given a deadline of late Friday night to submit our original papers, reports and exhibits, and his lengthy written decision was issued at 8:00 a.m. the following Monday without any mention whatsoever of the papers we filed.

Subsequently, we appealed to the Second Circuit, the federal appellate court above Judge Weinstein. Again we presented almost 300 pages of briefing and thousands of documents. Significantly, the Second Circuit agreed with us that we had sufficient evidence regarding the above facts to allow us to have a jury trial! At this point we should have won. However, the Second Circuit further held that even though we had evidence to support all of the issues listed above, none of that mattered.

Agent Orange Update

June 24, 2008

Page 3

Instead, the Second Circuit held that regardless of anything the manufacturers did or all that they had hidden, the government would still have used the same herbicides in Vietnam. In coming to this decision on an issue we were never asked to brief, the Second Circuit actually admitted that they were not using the Supreme Court’s test at all – instead, they were substituting a test of their own. Furthermore, how the Second Circuit could reach this conclusion is difficult for us to comprehend. Many government witnesses did testify that they would not have used Agent Orange if they knew it was harmful to humans.

If you wish to review our briefing describing the problems in the Second Circuit’s decisions, please go to:


Our only alternative now is to ask the U.S. Supreme Court to review this case, which is referred to as petitioning for certiorari. We fear that the Court has recently indicated that it is inclined to immunize corporations when any government activity is involved. For example, in the case of Riegel v. Medtronic, the Court recently immunized all makers of medical devices from lawsuits any time the FDA initially approves a device. Additionally, the Supreme Court recently accepted cases for review that could immunize from lawsuits all pharmaceutical companies, Wyeth vs. Levine, and all tobacco companies, Altria vs. Good. Because of this, we reasonably worry whether the Supreme Court will agree to review the Second Circuit’s decision even though we are positive that we are absolutely correct on both the law and the facts.

Unfortunately, if the Supreme Court does not accept review, we will be at the end of our road. I know that you have waited a long time to get redress for what you have suffered from the herbicide manufacturers’ Agent Orange. At the original request of Admiral Zumwalt I have been working on this matter for fifteen years. I appreciate your patience and understanding.

Agent Orange Update

June 24, 2008

Page 4

Hopefully, many amici curiae (“friends of the court”) will step up to help us right this wrong and tell the Court this is a case that needs to be reviewed. Hopefully, the U.S. Supreme Court will accept our case for review. We can only hope.




By: Gerson H. Smoger, J.D., Ph.D.

P.S. For more information about the case, please visit our website at www.agentorangelaw.net.

__._,_.___ "Keep on, Keepin' on"

Dan Cedusky, Champaign IL "Colonel Dan"

See my web site at:


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