Could Bayer/Monsanto finally be forced to acknowledge responsibility for the millions of victims of Agent Orange? Jonathan Matthews reports

A new litigation front has opened up for beleaguered Bayer – Agent Orange lawsuits. On January 25 Tran To Nga, a former Franco-Vietnamese journalist and resistance fighter in the Vietnam war, took fourteen American companies involved in the production and sale of Agent Orange to court for causing grievous harm to her and others. The companies include Bayer (formerly Monsanto) and Dow Chemical, the principal manufacturers for the US military of this toxic herbicide.

The move comes just as news breaks that two law firms are suing Bayer for failing to carry out due diligence in its acquisition of Monsanto, with regards to the potential impact of litigation on its investors.

The focus of investor concern is the cancer lawsuits in the US, brought by plaintiffs who believe that their or their loved ones’ cancers were caused by exposure to Bayer’s Roundup weedkiller, based on the chemical glyphosate. Bayer’s shares have fallen by nearly half since it lost its first case. One of the law firms estimates that it could eventually claim over a billion euros in damages from Bayer.

The aggrieved shareholders are joining a growing queue of litigants that Bayer is having to battle with. As well as struggling to settle the tens of thousands of American Roundup claims that look set to cost Bayer well over $11 billion dollars, Roundup lawsuits are also cropping up in other parts of the world, like Ireland, Australia and Canada.

Then there is a quite separate wave of dicamba lawsuits, as well as PCB lawsuits, that Bayer is embroiled in. There are also lawsuits aimed at taking dicamba – the cash cow intended to replace Roundup – off of the market completely.

The French connection

France is emerging as another tricky legal battleground for Bayer. Last autumn the company lost a long legal fight there involving Lasso, another Monsanto herbicide. Bayer is also battling the Grataloup family. In 2007 Théo Grataloup was born with major birth defects after his mother Sabine sprayed Monsanto’s glyphosate-based herbicide on her property during her pregnancy. Théo has since had to undergo over 50 surgical operations. The Grataloups are seeking to create a legal precedent that would assist other families with children that they believe have been harmed by Roundup.

Now the Agent Orange lawsuit threatens to drag Bayer into yet another legal quagmire, and one with millions of aggrieved victims.

Ecocide

During the ten years that Agent Orange was used as part of the US military’s chemical warfare programme in Vietnam, almost 80 million litres (20 million gallons) of the herbicide was sprayed, and the impact was so environmentally devastating that it gave rise to the now all too familiar term “ecocide”.

Agent Orange contaminated some 2,500,000 hectares of land, destroyed over a million hectares of tropical forest along with much of the abundant wildlife it contained, and polluted 400,000 hectares of farmland.

What took longer to become apparent was that the impact wasn’t just environmental. There was also a devastating human cost.

Genocide

In their rush to produce large amounts of Agent Orange, the manufacturers produced a version laced with dioxin, which is lipophilic and teratogenic – it accumulates in fat and causes serious malformations in newborns.

Up to 4.8 million people were directly exposed to Agent Orange and its effects have passed down the generations, with over 3 million Vietnamese still suffering its impacts. Hundreds of thousands have been born malformed – blind, deaf or with missing limbs or external tumours. It has also caused high levels of miscarriages, premature births and still births. It damages people’s immune systems and has caused significant increases in cancer and other diseases.

Tran To Nga: A symbol of resistance

Tran To Nga has suffered from typical Agent Orange effects, including a failing immune system, type 2 diabetes and an extremely rare insulin allergy. Among a litany of other health problems, she also contracted tuberculosis twice, developed breast cancer, and one of her daughters died of a malformation of the heart at 17 months. Her two other children also suffered serious health problems and one of her granddaughters was born with heart problems.

Tran To Nga says, “I’m not fighting for myself, but for my children and the millions of victims.” And that’s important because for 45 years, neither the US government, nor the manufacturers of Agent Orange, like Bayer/Monsanto, have acknowledged their responsibility towards the millions of Vietnamese victims.

Although American veterans of the Vietnam war who developed pathologies won their case against the makers of Agent Orange in 1984, the American courts have repeatedly rejected the claims of the Vietnamese civilians.

But Tran To Nga has become a symbol of resistance. The hope is that if Nga's lawsuit succeeds in France it will lead to wider recognition of corporate liability for all the other Vietnamese victims of Agent Orange, as well as making new case law for all the victims of chemical weapons and pesticides.

And win or lose, Tran To Ng is already making many more people aware of the tragedy of Agent Orange and the terrible suffering of its victims.

Passing the buck

On the opening day of the trial in the southern Paris suburb of Evry, the army of about 20 lawyers acting for the multinationals, like Bayer, argued that Agent Orange was manufactured on the orders of the US state, which required it in large quantities. Their clients, they claimed, could not be held responsible for the use the American military made of their product. They also claimed the case fell outside the jurisdiction of the court.

But Tran To Nga’s three lawyers, acting pro bono, argued that there was a call for tenders by the US government rather than a requisition. Firms like Monsanto chose to become involved because they thought they could make big profits, not because they had to.

They also said the makers of Agent Orange misled the US government as to its true toxicity. The companies were aware of that toxicity but didn’t share their scientific knowledge, in the words of one of Tran To Nga’s lawyers, because “it was necessary at all costs to avoid a health scandal”. And they say they have documentary evidence to back that up.

The claim that Monsanto knew about the seriously damaging effects of what it was producing, but concealed it in order to profit, will sound all too familiar to those who have followed the successful litigation over other of its products, like PCBs, Roundup and dicamba.

The court will give its verdict in the case on 10 May.

Rally in Paris

The Collectif Vietnam Dioxine is planning a rally on Saturday January 30 at 2:30 p.m. at the Place du Trocadéro in Paris in support of justice for Tran To Nga and all the victims of Agent Orange.

Image of Tran To Nga at a protest rally: Collectif Vietnam-Dioxine. Translation/update of the text on the image by GMWatch.