hankyoreh

By Yeo Hyun-ho, senior staff writer

South Korean veterans exposed to defoliants during the Vietnam War lost most of their claims for damages in a case against the US manufacturers for resulting illnesses.

The third division of the Supreme Court, under Justice Lee In-bok, ruled on July 12 to overturn the original verdicts in most of the claims and remand the case to Seoul High Court with instructions to rule in favor of the defendants, the US chemical companies Dow Chemical and Monsanto, which manufactured the defoliants.

The original appeals court ruled in favor of the plaintiffs, a 71-year-old named Kim and 16,578 other Vietnam veterans, who it concluded had “suffered diseases and other aftereffects from exposure to dioxin in the defoliant.”

But the Supreme Court concluded that no causal relationship could be established between the defoliant and most of the diseases suffered by the plaintiffs. It also dismissed claims that cases of peripheral neuropathy in some of the veterans’ children were the result of exposure, citing a lack of evidence.

However, a causal relationship was recognized for sufferers of chloracne, and the original verdict ordering payment of over 6 million won (US$5,300) in damages each to each of the 39 plaintiffs was upheld. The plaintiffs suffering from this condition, for which the statute of limitations has not yet elapsed, were among the 5,227 who won claims in the earlier trial.

In its ruling, the court said it recognized the causality because chloracne is “a characteristic ailment that arises only when [a patient is] exposed to the dioxin in defoliant.”

In contrast, it said no direct conclusions could be drawn about non-characteristic ailments claimed by other veterans, including diabetes, lung cancer, laryngeal cancer, tracheal cancer, prostate cancer, non-Hodgkin lymphoma, soft tissue sarcoma, porphyria cutanea tarda, Hodgkin’s lymphoma, and multiple myeloma.

“For these ailments, the causes and mechanisms are complex, with an array of congenital and acquired factors involved, and it is therefore impossible to conclude that they were caused by defoliant,” the court said. “There is also none of the additional evidence required to recognize causality.”

The court also commented on the US National Academy of Sciences report used as a basis for recognizing a causal relationship in the original trial.

“The report itself denies a causal connection because of the lack of sufficient epidemiological studies, saying it could not conclude how much the risk of these non-characteristic ailments increased as a result of defoliant exposure,” the court said.

But the court did acknowledge problems with the defoliant products.

“There was a mistake in the defoliant manufacturers not conducting sufficient research and investigation of the potential harmfulness of dioxin to the body or taking appropriate risk protection measures,” it said.

The Supreme Court said this was the first time in the world a verdict against a chemical manufacturer had been upheld - if only partially - recognizing a causal connection between defoliant exposure and disease. Previously, Vietnam veterans from Australia and New Zealand received a settlement of US$240 million just before sentencing in a 1984 case filed in a US court.

The plaintiffs, who include members of the group Korean Victims of Agent Orange Veterans’ Association (KAOVA), originally filed suit in 1999, but lost the first trial. In 2006, the court in the second trial acknowledged an epidemiological connection with 11 diseases and ordered payment of a total of 63 billion won (US$56 million) to 6,795 of the plaintiffs.

KAOVA secretary-general Kim Sung-wook said he felt “perplexed and distressed” after the ruling.

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