Toxic Tort Attorney Margie Searcy Alford On The Isaacson v. Dow Chemical Co. Agent Orange Ruling

Toxic Tort Attorney Margie Searcy Alford On The Isaacson v. Dow Chemical Co. Agent Orange Ruling

The Second Circuit U.S. Court of Appeals affirmed a decision from the U.S. District Court for the Eastern District of New York, holding that Agent Orange cases were properly in federal court under 42 U.S.C.A. §1442. In this Emerging Issues Analysis, toxic tort litigator and author Margie Searcy Alford reviews and comments on the court’s decision.

Agent Orange is an herbicide that was used to defoliate jungles during the Vietnam War. In the late 1970s, military veterans filed numerous individual suits and class actions against Agent Orange manufacturers. Eventually, these cases were consolidated in the U.S. District Court for the Eastern District of New York, under Judge Jack Weinstein. In 1984, before trial, Judge Weinstein facilitated and approved a settlement for $180 million, which was to include all potential future Agent Orange claims. The fund was exhausted by 1994.

Since the settlement, veterans claiming development of Agent Orange related injuries after the settlement or after exhaustion of the fund have attempted to file other suits. With some exceptions, most of those suits have been dismissed by trial courts.

“In this case, plaintiffs filed seven state court actions in Illinois, Missouri, New Jersey, New York, and Texas, alleging violations of their respective state laws,” Ms. Alford writes. “These actions were mostly for Agent Orange related illnesses and injuries that manifested themselves after the settlement of the prior class action suit. The cases were removed to federal courts in their respective states. The Judicial Panel on Multidistrict Litigation transferred the cases to the United States District Court for the Eastern District of New York (where the first Agent Orange class action had been settled).

“The district court first dismissed the cases because it determined that they were attacking the 1984 settlement. On appeal, the United States Court of Appeals for the Second Circuit vacated the order of dismissal and remanded, finding that the plaintiffs were not bound by the prior settlement. The Second Circuit also held that the district court properly had subject matter jurisdiction over the cases.

“The United States Supreme Court affirmed the judgment vacating the order of dismissal, but vacated and remanded on the issue of federal jurisdiction. The Second Circuit then remanded the case back to the district court for analysis of federal jurisdiction.

With the case back at district court, the defendants moved for summary judgment and the plaintiffs moved to remand the actions to state court. The court granted defendants' motion for summary judgment and denied plaintiff Isaacson's motion to remand. The court found that federal jurisdiction for Isaacson was proper under the federal officer removal statute, 28 U.S.C. § 1442. Later, the court denied all remaining plaintiff motions to remand.

Plaintiffs appealed the district court's order finding removal jurisdiction and order denying motions to remand.”

The Second Circuit held that in accordance with Jefferson County v. Acker (527 U.S. 423, 431, 119 S. Ct. 2069, 144 L. Ed. 2d 408 [1991]), it would have to apply a three-pronged test to defendants to determine if removal was proper under 28 U.S.C. § 1442.

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