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In 2006, Anh Duc Ngo and colleagues of the University of Texas Health Science Center published a meta-analysis that exposed a large amount of heterogeneity (different findings) between studies, a finding consistent with a lack of consensus on the issue.[64] Despite this, statistical analysis of the studies they examined resulted in data that the increase in birth defects/relative risk (RR) from exposure to agent orange/dioxin "appears" to be on the order of 3 in Vietnamese-funded studies, but 1.29 in the rest of the world. There is data near the threshold of statistical significance suggesting Agent Orange contributes to still-births, cleft palate, and neural tube defects, with spina bifida being the most statistically significant defect.[21] The large discrepancy in RR between Vietnamese studies and those in the rest of the world has been ascribed to bias in the Vietnamese studies.[64]

The Seabee's Naval Construction Battalion Center at Gulfport, Mississippi was the largest storage site in the United States for agent orange.[178] It was about 30 acres (12 ha) in size and was still being cleaned up in 2013.[178][179]

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Agent Orange was a tactical herbicide used by the U.S. military for control of vegetation. It was named for the orange band around the storage barrel. The military sprayed Agent Orange and other tactical herbicides during the Vietnam War. Veterans who may have been exposed to Agent Orange include Veterans who served in different locations, including Vietnam, the Korean Demilitarized Zone, on Thai Air Force bases, at other locations, and who flew on or worked on C-123 Aircraft.

The Department of Veterans Affairs compensates veterans for certain diseases related to service in Vietnam and exposure to herbicides containing dioxin. Whenever the Secretary determines, on the basis of sound medical and scientific evidence, that a positive association exists between the exposure of humans to an herbicide agent, and the occurrence of a disease in humans, the Secretary prescribes regulations providing that a presumption of service connection is warranted for that disease.

The current DVA compensation policy provides that in making determinations, the Secretary shall take into account reports from the National Academy of Sciences and all other sound medical and scientific information and analysis. In evaluating any study for the purpose of making such determinations, the Secretary shall take into consideration whether the results are statistically significant, are capable of replication, and withstand peer review [38 USC 1116 (b)(2)]. An association between the occurrence of a disease in humans and exposure to an herbicide agent is considered to be positive if the credible evidence for the association is equal to or outweighs the credible evidence against the association [38 USC 1116 (b)(3)]. Proposed regulations on compensation or denial of compensation for these diseases are published in the Federal Register. The DVA solicits comments from the public before final regulations are issued.

In May 1983, the Australian government established a commission to inquire about the use of chemical agents in Vietnam during the Vietnam era; the effects on Australian personnel of exposure to the chemical agents used; and the operation and administration of relevant Australian laws relating to claims by Australian personnel of chemical-caused disabilities (Evatt, 1985).

National Academies of Sciences, Engineering, and Medicine. Veterans and Agent Orange: Update 11 (2018). Washington, DC: National Academies Press, 2018. Accessed at -and-agent-orange-update-11-2018 on February 9, 2023.

Agent Orange is the name used to describe a particular type of herbicide that was used by the military in Vietnam from 1962 to 1971. It was used to remove unwanted plant life and leaves which otherwise provided cover for enemy forces. The name "Agent Orange" came from the orange strip on the 55-gallon drums in which it was stored. Agent Orange was a mixture of chemicals containing nearly equal amounts of the two active ingredients, 2,4-D (2,4-dichlorophenoxyacetic acid) and 2,4,5-T (2,4,5-trichlorophenoxyacetic acid). During the manufacturing process of these ingredients, a contaminant 2,3,7,8-tetracholordibenzo-p-dioxin or TCDD (also called "dioxin") was produced in very small quantities.

Others used Galston's findings in the development of the powerful defoliant Agent Orange, named for the orange stripe painted around steel drums that contained it. The chemical is now known to have contained dioxins, which have proven to be associated with cancers, birth defects and learning disabilities. From 1962 to 1970, American troops released an estimated 20 million gallons of the chemical defoliant to destroy crops and expose Viet Cong positions and routes of movement during the Vietnam War.

Under principles of agency law, knowledge in the possession of an agent here a government employeewho has a duty to transmit or receive the information is knowledge in the possession of the principal here the United States or an appropriate agency. As the Restatement (Second) of Agency 272 puts it:

See also Restatement of Agency 275 ("principal is affected by ... knowledge which an agent has a duty to disclose to the principal or to another agent of the principal to the same extent as if the principal had the information"); id. 277 (principal not affected by knowledge that agent should have but did not acquire). Under the agency law standard, the fact that information did not get to a person with final decision-making authority would not be material.

The case law on imputation of knowledge within the government is consistent with the Restatement standard. Thus, the knowledge of employees of one agency may be imputed to those of another if there is some relationship between the agencieseither some reason for the agency without knowledge to seek the information or a reason for the knowledgeable agency to transmit the information. See, e.g., J.A. Jones Construction Co. v. United States, 390 F.2d 886, 182 Ct.Cl. 615 (1968) (in contract action for premium wages, the necessity of which was caused by action of one agency, knowledge imputed to contracting agency because knowledgeable agency was acting as its agent and sharing information). See also United States v. Currency Totalling $48,318.08, 609 F.2d 210, 215 (5th Cir.1980) (knowledge of customs agent not attributed to government since claimant could not prove agent had duty to reveal knowledge). Some relationship is required: "a truly independent federal agency should not be charged with knowledge of what another is doing simply because both are components of the same federal government." J.A. Jones Construction Co., 390 F.2d at 891.

As will be seen in the next few pages where the government's knowledge is outlined, it is clear that the relationship between those in possession of the relevant knowledge and those in a position to decide the fate and direction of the herbicide program was much more than that of "simply [different] components of the federal government." Id. Certainly where the failure to transmit the knowledge can create serious dangers, it is appropriate to charge the United States with the knowledge of any responsible employees who could reasonably be expected to alert the government. See, e.g., Pina v. Henderson, 586 F. Supp. 1452, 1456-57 (E.D.N.Y.1984) (citing cases on charging the government with information for Brady purposes regardless of whether the prosecutor had the *797 information if another government agent had information). Cf. Federal Tort Claims Act cases applying state law; Emelwon, Inc. v. United States, 391 F.2d 9 (5th Cir.) (liability for spraying by independent contractor where employee of government knew of dangerous condition), cert. denied, 393 U.S. 841, 89 S. Ct. 119, 21 L. Ed. 2d 111 (1968); Barron v. United States, 473 F. Supp. 1077 (D.Hawaii 1979), aff'd, 654 F.2d 644 (9th Cir.1981) (knowledge of some government employees that contractor had failed to comply with contract); Schwartz v. United States, 230 F. Supp. 536, 539-40 (E.D.Pa.1964) (doctor in malpractice action).

The Agent Orange produced by the defendants was by government order shipped in fifty-five gallon drums. Under the contract, each drum had an orange stripe on it and a "contract identification number" enabling the government to identify the specific manufacturer. Unlike the equivalent commercial product sold to civilians, the contract called for no warning on the drums about precautions and dangers. The defendants had no control over how the government used the product after it was delivered, although they were aware of how in fact it was used. The drums were sent to a number of central transportation points for shipment to Vietnam. In Vietnam, in preparation for spraying, the drums were drained into large tanks and their contents mixed with those of other drums, making identification of the individual manufacturer's Agent Orange impossible. Even if the Agent Orange had not been mixed, connecting an individual defendant's product with a person in contact *819 with it would be virtually impossible because of lack of records.

The power of defendants' objections are further attenuated when it is realized that while it makes sense to require that the manufacturers of all potentially causal agents be joined when, as in the DES cases, it is within plaintiff's power to do so, it does not necessarily follow that this requirement should be retained when, as here, it is not within plaintiff's power. For example, defendants contend that one possible carcinogen to which plaintiffs were exposed was aflatoxin, a rice fungus occurring naturally in Vietnam. It is obviously impossible to join as defendants the Vietnamese peasants whose rice contained the aflatoxin. Furthermore, to the extent that the other toxic agents acted not independently, but synergistically with Agent Orange, defendants' argument is without merit; if the manufacturers of the Agent Orange are joint tortfeasors with the other causative agents, they may be entitled to implead the manufacturers of those agents, if possible, but they are not entitled to a judgment in their favor if they cannot. Finally, and most importantly as developed more fully in the next section on Duty to Warn, the evidence may show that defendants should be estopped from asserting the inability to identify a particular defendant's connection to a particular plaintiff to bar a plaintiff's claim. e24fc04721