Tuesday, March 4, 2008

Wither Agent Orange

BNA reports that the Second Circuit is driving the nails in the coffin of the Agent Orange litigation.  It held on February 22 that the government contractor defense precludes claims by U.S. military veterans who allege injuries from exposure to the toxic herbicide Agent Orange used as a defoliant during the Vietnam WarTwinam v. Dow Chemical Co. (In re "Agent Orange" Product Liability Litigation), 2d Cir., No. 05-1760-cv, 2/22/08.

The government contractor defense is now coming into play in another area, the use of military contractors in Iraq.  There is an excellent blog entry on this issue by Laura Dickinson (UConn Law) on Balkinization, and more is forthcoming in her book Outsourcing War and Peace, which should be out next year.  (My very limited post on the subject is here).  I predict litigation against government contractors, which crosses lots of boundaries (national, international, contract, tort, etc.) will be significant in the next few years and will present courts and Congress with serious legal and policy challenges.  Maybe an Agent Orange litigation for our times.



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