Waiting for an Army to Die (17 page)

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.
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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,
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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 exposure, 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.”

Before Yannacone sent me upstairs to talk with Keith Kavenagh, I asked about the lawsuit he has pending against the Veterans Administration. Yannacone explained that Dow had actually told
him about the kind of treatment, or lack of treatment, veterans were receiving at VA clinics.

“After the war the VA’s treatment of Vietnam veterans was so bad, Dow told us, that much of the illness and death and serious disability among Vietnam veterans might be due to the negligence, carelessness, and disregard of the Veterans Administration. We checked this out, and found it to be true, and that’s why we’re suing the VA. But it wasn’t our intention to sue them. We pleaded with the VA in private meeting after private meeting to please look at our victims, look at our data. And we asked the famous Dr. Paul Haber, the VA’s medical director, if he would consider our liver damage among Vietnam combat veterans. And he said, ‘I don’t see any cases of porphyria cutanea tarda.’ Now porphyria cutanea tarda is a terminal state of liver derangement where you turn jaundiced yellow, your eyeballs turn yellow, and you’re very, very sick. I said, ‘Doctor, I’m not interested in porphyria cutanea tarda. I’m interested in urinary porphyria derangements which are premonitory of the final stage. Let’s treat it before the guy dies!’ And he accused me of trying to practice medicine without a license. And I told him, I said, ‘I can’t believe that a physician at the head of the VA could be so stupid as to ignore the current scientific literature which I lay on the table in front of you, if you don’t have the wit and wisdom to read it in your own library.’ I said, ‘It’s not my quote. It’s from the literature.
Here it is
.’ And their reaction, by the way, was not to have physicians at this meeting, but there was Paul Haber and seven lawyers! I wasn’t suing the VA. That was February 1979, one month after we filed the lawsuit against Dow. But we were not suing the VA.”