Book Review: Agent Orange on Trial: Mass Toxic Disasters in the Courts
Introduction
In a high-technology society many of us are exposed to toxic substances, often without realizing it. The air in our homes might contain radon. The fish we eat might be contaminated with PCBs. News reports abound with stories of newly discovered latent hazards and frightening industrial accidents, like the tragedies at Bhopal and Chernobyl. While we may worry about it, most of us will never know precisely what we have been exposed to or what, if any, illnesses will be caused by such exposures.
By 1978, some veterans of the Vietnam War began to suspect that what seemed like an unusually high rate of disease and birth defects might be related to their wartime exposure to Agent Orange. After the Veterans Administration refused to recognize most claims based on injuries resulting from Agent Orange, the veterans and their lawyers decided to seek redress from the manufacturers.
Agent Orange on Trial: Mass Toxic Disasters in the Courts presents a timely and disturbing picture of the American judicial system’s ability to cope with a mass toxic disaster. In addition to illustrating the enormous practical and procedural problems involved in litigating tort claims arising out of such a disaster, the Agent Orange case starkly posed a key question in current tort law: Is litigation an appropriate tool for compensating the victims of wide-spread, long-term exposure to toxins when it is difficult or impossible to identify the proper plaintiffs or defendants?
Professor Peter Schuck has given us the first comprehensive description of the Agent Orange case. He vividly describes the development, litigation and putative settlement of the Vietnam veterans’ class action suit against the makers of Agent Orange, a herbicide that was used to defoliate the Vietnamese jungles from 1965 to 1970.
The book is divided into three parts. The first describes the social, political and legal context in which the suit developed. The last presents a theoretical discussion of some of the problems inherent in mass toxic tort litigation and an outline of some alternatives. The middle section, which constitutes this book’s singular contribution, chronologically describes the case. The book is not limited to a theoretical analysis of the legal issues involved. Although Professor Schuck does an admirable job of translating difficult issues in tort law and procedure into lay terminology, in my view, the book’s great strength is that it provides the reader with a rare opportunity to see major litigation develop from the perspective of the lawyers who are making the strategic decisions. Not only does this show how often practical considerations affect or even create the law of a case, but it makes for suspenseful reading as well.
Suggested Reading
Workplace Exposure to Toxic Chemicals: Information Disclosure Versus Trade Secret Protection
Analysis of whether unions have the right to mandatory disclosure of toxic chemicals that employees face in the workplace in the face of trade secrets claims
A Poisoned Field: Farmworkers, Pesticide Exposure, and Tort Recovery in an Era of Regulatory Failure
Overview of the failed administrative regulation of pesticides and resulting tort actions
Attorney's Fees in the Agent Orange Litigation: Modifying the Lodestar Analysis for Mass Tort Cases
Judge Weinstein's creative modifications of the classic lodestar method should be particularly influential and useful in future mass tort litigation.
Popcorn Lung Case Study: A Recipe for Regulation, The
"Popcorn lung" case study suggests media and litigation can spur regulation but that tort reform may not be adequate to ensure compensation for toxic harms.