Meanwhile, the five chemical companies named in the suit filed various motions to dismiss, arguing, among other things, that “its very length was an affront to the Federal Rules of Civil Procedure.” The chemical companies also held that no federal interests were involved and the veterans’ complaints should therefore be heard in state rather than federal courts. If the case were heard in state courts, Yannacone countered, “a nightmare of court administration would begin that would make the present disastrous state of affairs in the asbestos cases look like good management.”
Had the chemical companies been granted their wish and the case heard in state courts, each veteran would have been required to file and serve a document alleging that he had been an American serviceman and that while in the US military had spent time in Southeast Asia. He would also have had to document that while there he had been exposed to phenoxy herbicides such as 2,4,5-T which were “manufactured, formulated, advertised, marketed, promoted, and sold” by subsidiary corporations of the chemical company defendants, even though the companies knew that the herbicides were contaminated with “toxic synthetic organic chemicals.” Each dying or disabled veteran would then have to file a claim arguing that his illness was directly related to his exposure to herbicides. If he believed that his child or children’s birth defects were due to this exposure, he would also have to file this claim separately. The veteran’s wife or widow, or both parents of a child suffering from development defects, would have been required to file a claim. And each plaintiff would have claimed money damages ranging from $10 million to $100 million, depending on the veteran’s age or loss to his family, loss of services, and developmental damage claims. These claims would be filed and served in the home jurisdictions of each veteran, a process, says Yannacone, that could easily take more than a lifetime of all the plaintiffs involved.2
On November 22, 1979, District Judge George C. Pratt, to whom the Multidistrict Litigation Panel had assigned the cases at Dow’s request, refused to accept the chemical companies’ motions to dismiss the complaint and grant “summary judgment in favor of the defendant war contractors.” Pratt also accepted jurisdiction as a federal question, holding that “some federal common law rule would be applied uniformly to the claims of all the veterans regardless of the state in which the action may have originated.”3 The chemical companies (war contractors) did not like this ruling and appealed, arguing that because the US was not a party, the case lacked substantial federal interest. On November 24, 1980, two Second Court of Appeals judges accepted this logic, reversing Judge Pratt and stating that there really was no “clearly identifiably federal or national interest in the outcome of the veterans’ claims sufficient to concern the federal courts as ‘federal questions.’” But Chief Justice Feinberg dissented, setting the stage for a “certiorari petition to the US Supreme Court, which caused that Court to invite the Solicitor General of the US to brief the question of national interest.”
On June 18, 1981, the US Supreme Court met in conference to examine petitions from Yannacone, and counterpetitions from the war contractor defendants, regarding the question of federal interest in the Agent Orange lawsuit. After perusing the arguments before them, the Chief Justice decided to seek opinion of the executive arm of the federal government on “the substantiality of federal interest.” To secure this opinion the court asked the attorney general to inquire into the matter. After questioning officials at the Department of Defense and Veterans Administration, who told him they could see no reason why there would be federal interest in the case, the solicitor general returned to the Supreme Court and, according to Yannacone’s associate, Keith Kavanagh, announced: “Oh my, how could you ever have thought there was any federal interest in this case? Good heavens, how misled could you be? At that point, of course, the Supreme Court denied our petition, which put us in the stance we are in now, which is diversity jurisdiction as one private party against another. But the Court, contrary to a number of misleading articles, did not dismiss the case. All they did was deny our petition because they didn’t really want to be bothered reviewing it. And by denying the petition they simply said they would allow the Court of Appeals decision to stand.”
Faced with a lawsuit on behalf of thousands of angry Vietnam veterans and their families, the war contractors resorted to what has become a classic American corporate reaction to being sued: you simply sue some “third party,” someone related tangentially but significantly to the case, to whom you can shift the blame. So Dow decided to sue the Department of Defense because, said Dow, it had sold its product to the DOD in good faith and from then on it was really the government’s responsibility to use it properly. If anyone was injured by herbicides in Vietnam, and according to Dow this remains to be proven, it was the government’s fault, not theirs. Secondly, as a government war contractor the company was only following orders; and government contractors who follow orders cannot be sued, even if the resulting action happens to injure, maim, or kill friendly troops.
Claiming that the doctrine of sovereign immunity protected it against lawsuits, the US government moved to dismiss Dow’s third-party suit. But for Dow the government’s reluctance to be sued was only a temporary setback. Even if the courts ruled negatively on Dow’s attempts to sue the government as a ‘war contractor,” Dow Chemical could not be sued. To advance this argument the corporate defendants filed a motion to dismiss the veterans’ complaints based on the claim of derivative sovereign immunity, an ancient doctrine that Yannacone says has “fallen into disfavor in this country because the people with a capital P are the sovereign. In England the sovereign was the king and of course the king could not be sued. The government of the US as a general rule can not be sued either. And there is a rule of law that during combat, mistakes, no matter how dramatic they may be, are not actionable. A classical example is the “Charge of the Light Brigade.” Somebody made a big mistake. But the survivors and the widows couldn’t sue. Because it is the duty of every soldier to go ‘Onward into the valley of death, down into the volleying and thundering’ and all the rest of that. So in Vietnam no matter how wrong the command decisions might have been the soldiers can’t complain.
“But what we’re saying in the Agent Orange lawsuit is that our soldiers ran the risk of being killed, both through the action of the enemy and the ineptitude of their leadership, but they did not accept the risk of being poisoned by their own war materials. The chemical companies say that whatever happened is not actionable in the courts of this country because it occurred during wartime and ‘we the war contractors were only following orders and are just the same as fellow soldiers. And just as you can’t sue your fellow soldier for dropping a live round, or a short round, on you, you can’t sue the company that manufactured the defective round.’
“Well, we say that is utter nonsense. The government contracted to get war materials, but under no circumstances did the government contract to have its own men poisoned or killed.[13]4 Therefore, the material that the contractors delivered was not what the government expected, and that means that the contractors were in fact liable. But they say, ‘No, whatever occurred did so during wartime, and we were only following orders. We’re war contractors and you can’t sue us.’ That’s their definition of derivative sovereign immunity, but it’s really no more than the good Nazi defense that was used at Nuremberg back in 1946, a defense that is a little discredited by the fact that some of the people who used it were hung. Of course, not everyone was hung, and both Krupp and I. G. Farben are back in business.” On December 29, 1980, Judge Pratt denied the chemical companies’ motion to dismiss the class action suit on the basis of derivative sovereign immunity.
In opposing the first of many motions to dismiss their complaint, Vietnam veterans and their families made it clear to the court that they did not want to become recipients of public assistance. They also expressed their belief that American taxpayers should not have to bear the burden of medical care and treatment for veterans and their children. They
wanted, said the plaintiffs, “to compel the corporate defendants to make restitution to the American people by reimbursing those federal and state agencies that have provided benefits, medical care and treatment… for conditions attributable to the toxic effects of contaminated phenoxy herbicides…”5 They also wanted a resolution to the scientific controversy over the toxic effects of phenoxy herbicides contaminated with toxic synthetic organic chemicals “such as polychlorinated dibenzo-p-dioxins (PCDDs) and the polychlorinated dibenzo furans (PCDFs) fomented by the promotional efforts of the corporate defendants…”6 They challenged the claims of those who were still making phenoxy herbicides that their products were safe, and sought punitive damages in an amount that would “convince corporate management they serve as trustees of the public health, safety and welfare to an extent commensurate with the economic power and technological resources of the corporation they manage.”7
The corporations, says Yannacone, owe the veterans a “non-delegable fiduciary duty of care,” a concept which, to proponents of laissez-faire, must sound like unadulterated socialism. But Yannacone argues that he and the consortium have taken this approach because they have no desire to bankrupt the chemical companies. Nor are they advocating nationalizing any of the Fortune 500. They are asking that corporations assume responsibility for their products from “cradle to grave” and that the task of monitoring the effect of a product on the environment and the health of the American people not be the sole responsibility of inefficient and frequently ineffective bureaucracies like the Environmental Protection Agency and the Food and Drug Administration.
“You see,” Yannacone explains, “the chemical companies manufacture a product, and if it doesn’t kill you within forty-eight hours of use, they assume that their responsibility toward the consumer is over. But we know that in the Agent Orange suit there may well be over forty thousand victims,[14] and if each one asked for and was granted the appropriate amount of damages it would be possible to bankrupt all the companies we are suing. The whole thrust of this lawsuit is to impose on the chemical industry and its leaders a non-delegable fiduciary obligation as trustees of the public health, safety, and welfare to notify the public when there is any indication that there might be something wrong with the material being sold. We feel that Dow, Hercules, Monsanto, Diamond Shamrock, or Uniroyal are so large and their advertising promotion and public relations budgets so much greater than the federal regulatory budgets that this is hardly an unreasonable thing to ask. And I’m more than willing to pay the extra penny for the product to see the Dow diamond or some other symbol that I recognize, knowing that company will do what it can to make sure that the product is safe, and more efficient, because the company’s image is one of the long-term service to the public. And I would like to impose this obligation on these companies just as a matter of law. So in the Agent Orange class action suit we’re saying that if anyone has been injured, then the companies are responsible for the people whose health was damaged by their product.”
The class action is not only unique but ironic in many ways: 2.5 million Vietnam veterans suing chemical companies that were, theoretically, manufacturing a product that would save American lives in Vietnam; the chief attorney for the veterans confiding that he gets his most incriminating information on the effects of dioxin from scientists who work for one of the plaintiff war contractors; and the chemical companies arguing, they were just “following orders” when they made Agent Orange, some of which was fifteen to fifteen thousand times more contaminated with dioxin than the 2,4,5-T sold for domestic use.
Perhaps the most fascinating thing about Victor Yannacone is that while scientists may spend another decade quibbling over the effects of dioxin on human beings, and refusing, for one reason or another, to come to a conclusion that would affect governmental regulatory decisions, he has no doubts that dioxin is a killer. So little doubt, in fact, that he has put his legal reputation on the line and, because many of his veteran clients are impoverished, has worked for years with little remuneration to prove this point.
“There’s enough evidence to convict dioxin by even criminal standards today,” he says forcefully, half standing, pointing at me as though I am the jury that will decide the most important product liability case in the history of the United States. “If you had an alleged criminal with the kind of evidence against him that we have against dioxin, he’d be convicted no matter who was sitting on the Supreme Court or how the evidence was obtained. But just what do we know about Agent Orange? We know that during the Vietnam era eight million young men were in military service. And the average age was eighteen and a half years old, and those kids were duly certified by at least one and in some cases three agencies of the federal government as the healthiest people in America. The people who weren’t healthy stayed home. So we’re saying that if you count the cancers, birth defects, suicides, and serious illnesses among the 2.5 million that went to Vietnam and compare those statistics to the approximately six million who did not go—all of them chosen by the same rigorous standards—you will find that the group that went to Vietnam is much, much sicker than the group that didn’t. The kids in Vietnam were exposed to something that seems to have accelerated their aging processes. They are suffering from the diseases of old age, and they are only in their thirties.
“So we’ve established clearly that the Vietnam veterans are sick, and we’ve identified a known toxicant to which they were exposed that is capable of causing the illnesses or the aging that we see in the combat veterans. The burden now shifts to Dow, Monsanto, and the other manufacturers of toxic materials to show that it wasn’t their fault, that the products they have made didn’t poison our army. We’ve done our job. Let’s see what they’ve got.”
Unfortunately, seeing what they’ve got may take a lot longer than Yannacone or anyone involved in the case, with the possible exception of the war contractor defendants, had anticipated. By filing various motions to dismiss the Agent Orange suit, the defendants actually delayed replying to the suit for one year, and through appeals and other legal maneuvering more than three years will have passed before the “war contractor” defense is actually heard in court. Still, Yannacone has no doubt that he will win “on the merits of the case.” The government contractor immunity defense will be tried first, and if the “jury doesn’t buy it, then we go to trial on the issue of fault. That is: did the chemical companies make the product? Was it contaminated with dioxin? If it was contaminated with dioxin, did they know the dioxin was toxic, and did they have a duty to warn the Defense Department and the president during the war, and the veterans and the Veterans Administration after the war? If the answer to all those questions is yes, then the next question will be ‘What is it that dioxin can do?’ That’s the long trial: that will take some time. The others are relatively short. If we win and establish the toxicity of dioxin, then the cases go back to their individual jurisdictions where the individual veterans face their home juries and prove two things: first, that they were in Vietnam, and second, that they are sick.”
After years of waiting, Vietnam veterans suffering from the effects of dioxin poisoning will still not be home free—even if Yannacone wins his case against the war contractor defendants. Because there is one more roadblock, one more “legal means” by which the chemical companies can attempt to prevent veterans from winning compensation for their injuries. The roadblock, says Keith Kavenagh, is the statute of limitations; and he believes it is quite possible that the war contractors will make use of this tactic to thwart, perhaps for the final time, veterans’ efforts to secure compensation for their injuries. In some states the statute of limitations is determined by the “time of injury.” This means that a Vietnam veteran exposed to dioxin in 1967 but suffering no ill effects until five or ten years later would be time-barred by that state’s three-year statute of limitations. In other states the statute of limitations begins only after discovery of one’s illness. Regardless of how much time has elapsed since the original exp
osure, a veteran can file a claim for compensation two or more years after he becomes ill. Because toxic chemicals often do not cause illness or death until years after the original exposure, veterans’ advocates argue that a statute of limitations based upon “time of injury” is inherently unjust. Responding to the veterans’ complaints, at least one state legislature, New York, has revised its statute of limitations law so that veterans will have two years from the time the law was passed, or twenty-four months after the discovery of their injury, to file a claim—depending on which time span happens to be longer. Should Yannacone win the suit against Dow and veterans then return to their local jurisdictions in order that the amount of their compensation can be determined, the issue of statute of limitations will, says Kavenagh, “loom large in the war contractors’ defense.”
Waiting for an Army to Die Page 13