Waiting for an Army to Die (16 page)

On March 3, 1982, four years after the VA first responded to Agent Orange claims, I asked Victor Yannacone, lawyer for the 2.5 million Vietnam veterans who are suing companies that manufacture Agent Orange, whether he had seen any change in the VA’s attitude in recent months. Yannacone had been cheerfully, almost endearingly bellicose during our interview, answering my questions with the candor and compassion that have won him the trust and respect of Vietnam veterans. But when I asked about the VA he paused, rose slowly from his chair, and, facing my tape recorder as though it were a jury, shouted: “Yes, the attitude has become
militantly
anti-Vietnam veteran. The management has become, if anything, more inept. And the trail of broken bodies and dying veterans is getting longer.”

On October 14, 1982, Robert P. Nimmo, who just a few days before had announced his resignation as VA director, informed reporters that the VA had decided to turn over its much-delayed and controversial study of the health effects of Agent Orange to the Center for Disease Control in Atlanta. While denying that the VA had intentionally stalled the study, Nimmo conceded that a “broad consensus” had developed to support the “belief that it would be in the best interests of veterans to have a non-VA scientific body conduct the Agent Orange epidemiological study.”
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Two weeks later the General Accounting office released a report that had taken its auditors two and a half years to complete. The report states that the VA did not actively attempt to locate and screen veterans suffering from symptoms potentially related to Agent Orange. It also chastises the VA for its inconsistent procedures at the agency’s 172 hospitals. In its rebuttal the VA argued
that the GAO’s evidence was dated and that treatment at VA hospitals has improved considerably since the GAO’s auditor did his research.

Victor Yannacone has been called flamboyant, arrogant, a genius, and, I’m sure, many less complimentary things by those whose vested interests he challenges in the name of what he calls the “public good.” Certainly he is not overly modest, calling the Agent Orange class action suit “the most important product liability case in the history of the United States.” Nor is he always gracious or polite, thundering like an evangelist, occasionally answering questions with the clipped irritability of a man who has little time for fools, because he knows only too well that they can be depended on to lose: and Yannacone doesn’t intend to lose when he goes to court on behalf of 2.5 million Vietnam veterans and their families.

He can be charming. He will bring you coffee, buy you lunch and spend the morning, perhaps even part of the afternoon, helping you sort things out, defining legal terms correcting misconceptions, and speaking always with the confidence of a man who, through his successful campaign to remove DDT from the market, has shown that the chemical industry and its multi-million-dollar Washington lobby is not invincible. Yannacone loves a good joke, a humorous story, or a satirical account of court proceedings, but he is not a cynic, and beneath the bravado it is easy to see the intense compassion he feels for the “kids” who served in Vietnam and returned home with what Yannacone calls “an aging disease.”

Victor Yannacone possesses another important attribute. To men who have been lied to, misled, maligned, treated as pariahs, psychopaths, malingerers, hypochondriacs, and disposable war matériel, he just may be the one man in America whom Vietnam veterans feel they can trust.

I am waiting for him to finish a rather long story about how he once defended a man who wanted to keep pigs in his backyard on Long Island. Somehow Yannacone managed to prove that the pigs’ ancestors had provided a valuable service to the community and, he laughs, to convince the judge that the pigs therefore had every right to be where they were. At a nearby desk Carol Yannacone sorts through mail, examines and files autopsy reports on Vietnam veterans and their children. She explains that “many times they don’t really know why the children are born dead or don’t live long after birth. Everything seems to be perfectly normal, but the child dies. So the doctor just files an autopsy report and we get them from lawyers who are working on the class action suit. It is a sad job, sometimes too sad.”

In nearby rooms typewriters clack, computers hum, and Vietnam veterans phone from all over the country seeking advice, asking for help, offering assistance. People enter the office, ask questions, leave notes, and exchange bits of information or gossip with Carol and Victor.

Although he was aware as early as 1969 that defoliants may have resulted in permanent damage to Vietnam mangrove forests, Victor Yannacone’s involvement in the Agent Orange controversy did not really begin until August 1978, when he accepted a luncheon invitation from a group of Long Island attorneys who wished to discuss the Paul Reutershan case. Reutershan, the lawyers told Yannacone, was a young Vietnam veteran who never drank or smoked; he considered himself a “health nut” but was dying of cancer. As a helicopter pilot in Vietnam he had flown through herbicidal mists on numerous occasions, and he believed that his exposure was responsible for his terminal cancer. He had filed a $10 million damage claim against Dow Chemical and two other Agent Orange manufacturers.

Yannacone left the luncheon saddened by what he had heard, but unconvinced that a large number of Vietnam veterans might be suffering from symptoms similar to those that had destroyed Paul Reutershan’s health; however, during the next few months he continued his own research into veterans’ claims that they had been poisoned by Agent Orange. By December 1978 he had learned about Maude DeVictor’s documentation of at least one hundred cases of possible dioxin poisoning; and following Reutershan’s death at age twenty-eight on December 14, 1978, Yannacone began receiving numerous calls from Frank McCarthy, a Vietnam veteran, Paul’s close personal friend and a cofounder of Agent Orange Victims International. Convinced that many of his fellow veterans were suffering from herbicide exposure, McCarthy insisted that Yannacone take legal action against companies that manufactured herbicides for use in Vietnam. On January 8, 1979, having concluded that at least four hundred veterans might have been poisoned by herbicides—but due, in large part, to McCarthy’s persistence—Yannacone filed a class action suit against Dow Chemical et al. on behalf of “all those so unfortunate as to have been and now to be situated at risk, not only during this generation but during generations to come.” The risk was exposure to dioxin, and the lawsuit demanded:

According to the
Chicago Tribune
(February 1979), the estimated reserve fund would require more than $4 billion.

Soon after Yannacone refilled Reutershan’s initial lawsuit as a class action, Yannacone’s office was deluged with calls from Vietnam veterans and veterans’ widows seeking advice and asking to join the lawsuit. By May 1979 it appeared that at least four thousand claims would be included in the suit, possibly more. According to Yannacone, the question of how the litigation was to be managed became equally as important as the immediate problem of defeating the chemical companies’ various motions to dismiss the complaint. Yannacone was also receiving calls and letters from attorneys throughout the country who wanted to work on the case, and he knew that he had to devise a workable scheme for organizing a task force that would be separated by great geographical distances and, unless the attorneys involved made a very concerted effort to avoid it, the traditional competitiveness of their profession.

“Normally,” explains Yannacone, “in a personal injury case of this magnitude there would be a certain amount of, oh, I wouldn’t say ambulance chasing, that’s not the appropriate expression, but let’s just say jockeying for leadership roles. And because of the size of the litigation that we were envisioning early on—four thousand cases is what we were thinking of—we decided to try something new in the history of personal injury litigation. We would make an agreement with each attorney to divide that case into two parts: liability and damages. We here in New York would handle liability and what we call ‘Cause in Fact’ or
Generic Causation
. In other words, how toxic is dioxin? And just what can it do? Not what
did
it do to a particular veteran, but what
could
it do? Then each individual attorney around the country would handle his own client as a personal injury case as far as proximate cause and damages were concerned, proximate cause meaning: ‘Did this particular veteran manifest the kind of symptoms that would be attributed to dioxin-contaminated herbicides used in Vietnam? And if so, how much damage is he suffering?’ We agreed also to divide whatever fees were awarded by the courts equally, and we agreed from
the very beginning—and this is also unique—that we would subject our fee rating to the court for supervision. We then agreed that we would limit out fees, which are contingent of course only on winning, to no more than one-third of recovery, even though some states still allow 50 percent. We also adopted a rule requiring every attorney to file an affidavit saying they didn’t chase the case, they didn’t offer anybody money to get the case, and they violated no disciplinary rules or ethical considerations in acquiring the case. And we have those filed from all of our attorneys. The fact that we’ve filed our agreements and made our financial arrangements known from the beginning is unique in personal injury litigation.”

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.
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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.”
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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.”