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N7GCW > VETS 24.03.05 21:12l 223 Lines 11548 Bytes #999 (0) @ WW
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Subj: Agent Orange "knocking down Windmills"
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Agent Orange Lawsuit
Knocking Down Windmills
Gerson H. Smoger
[The article, "Knocking Down Windmills" originally appeared in the
Symposium "Risky Business," TRIAL, July 2003 and is reprinted with
permission of TRIAL Magazine, the copyright holder.]
It was 1995, and I was having lunch with colleagues at an ATLA
convention in San Francisco. We were talking about our plans for
litigation. As I discussed my ideas, a colleague turned to me and
smiled. "You're always chasing windmills," he said.
Three years earlier I had agreed to help retired navy
admiral Elmo ("Bud") Zumwalt gain compensation for Vietnam War veterans
who had been exposed to Agent Orange. Most veterans hadn't received
compensation from an earlier settlement because they were diagnosed with
Agent Orange-related illnesses "too late." It seemed contrary to our
justice system that a settlement entered by other plaintiffs long before
many veterans even knew they were injured could prevent them from
obtaining justice.
Nearly 25 years ago, veterans first brought claims involving
exposure to Agent Orange and other herbicides that had been sprayed over
6,000 square miles of rice paddies, riverbanks, roadsides, and jungles
in South Vietnam during the 1960s and 1970s. The herbicides were used to
destroy enemy cover, eliminate crops, and clear military base
perimeters. It was later publicly revealed that the herbicides contained
the chemical dioxin, one of the most toxic substances.
The cases were consolidated before the U.S. District Court
for the Eastern District of New York, and a settlement was reached in
1984. (In re "Agent Orange" Prod. Liab. Litig., 597 F. Supp. 740
(E.D.N.Y. 1984), aff'd, 818 F.2d 145 (2d Cir. 1987).)
The certified class included military personnel who had
served in the war from 1961 to 1972 and were exposed to the chemicals.
Also among the class were family members-including spouses and children
born before January 1, 1984-who suffered Agent Orange-related injuries.
The settlement specified that the class included people "who
have not yet manifested injury," and it indemnified the defendants
against future state court actions alleging the same claims as those
already addressed. It required the defendants to pay into a fund from
which parties to the settlement would receive payments for 10 years,
beginning January 1, 1985, and ending December 31, 1994. Injuries
manifested after 1994 were not eligible for payment.
The $180 million settlement was separated into funds that
were allocated for organizational grantees, Vietnam veterans, and their
eligible children, with $10 million placed into a reserve fund to
indemnify the defendants against future state court actions alleging the
same claims. Individual payments to about 50,000 veterans rarely
exceeded $5,000.
The settlement was subject to several appeals, but the
Second Circuit consistently upheld it, and the U.S. Supreme Court
refused to review it.
A mission to right wrongs
Admiral Elmo "Bud" Zumwalt Jr. contacted me several years
after the 1984 settlement, shortly after I had represented the first
plaintiff to win a jury verdict in a case involving exposure to Agent
Orange. The "Admiral," as we called him, had served as a commander of
the U.S. forces in Vietnam and later as chief of naval operations and a
member of the Joint Chiefs of Staff during the Vietnam War. His son,
Elmo Zumwalt III, served as a lieutenant captain on a riverboat in
Vietnam and was exposed to a significant amount of Agent Orange. When
Elmo III was diagnosed with non-Hodgkin's lymphoma, a type of cancer
associated with Agent Orange exposure, the Admiral made it his mission
to gain compensation for victims of the herbicides that he had ordered
to be sprayed. His son died of the illness in 1988.
As part of his effort, Admiral Zumwalt had organized the
Agent Orange Coordinating Council, comprising various veterans service
groups and providing a forum to coordinate their interests in
representing the Vietnam veterans who had been affected by Agent Orange.
The council advocated compensation from the Department of Veterans
Affairs, the recognition of a connection between herbicide exposure and
cancers and other health problems, and ways to hold the manufacturer of
the chemicals accountable for the injuries-beyond the nuisance-value
settlement. The Admiral asked me to represent the council pro bono.
The 1984 settlement had already been challenged
once-unsuccessfully. In 1989 and 1990, two class actions were filed in
Texas courts (later removed to federal court in New York and
consolidated)-Ivy v. Diamond Shamrock Chemicals Co. and Hartman v.
Diamond Shamrock Chemicals Co.-on behalf of veterans who were afflicted
with cancer after the original settlement. The new actions alleged that
the Agent Orange agreement impermissibly settled cases for plaintiffs
who had suffered no cognizable injuries by the settlement date.
The federal district court-and, on appeal, the Second
Circuit-concluded that the plaintiffs had been treated no differently
from those plaintiffs who had suffered injuries before the settlement.
According to the district court, "Class action settlements simply will
not occur if the parties cannot set definitive limits on defendants'
liability." The court said that making settlements "too difficult will
work harms upon plaintiffs, defendants, the courts, and the general
public." In essence, the rights of potential future plaintiffs were
trumped by the "interests of presently injured plaintiffs, as well as
defendants, in achieving a settlement." (Ryan v. Dow Chem. Co., 781 F.
Supp 902, 920 (E.D.N.Y. Oct. 4, 1991) (Ivy/Hartman I).)
The Second Circuit concurred, stating that the deprivation
of an individual's constitutional rights was justified by "society's
interest in the efficient and fair resolution of large-scale
litigation." (In re "Agent Orange" Prod. Liab. Litig., 996 F.2d 1425,
1435.)
When the Ivy/Hartman plaintiffs, as they came to be known,
petitioned for certiorari, Admiral Zumwalt enlisted me to prepare an
amicus brief on behalf of the Agent Orange Coordinating Council, asking
the U.S. Supreme Court to find that the Agent Orange settlement violated
Vietnam veterans' due process rights. In what was probably an
unprecedented display of unity, of service organizations joined the
brief, which included: the American Legion; Vietnam Veterans of
America; the Veterans of Foreign Wars of the U.S.; Disabled American
Veterans; Amvets; Jewish War Veterans of the USA; Retired Enlisted
Assoc.; Marine Corps League; Catholic War Veterans, USA, INC.; American
Ex-Prisoners of War; Blinded Veterans Assoc.; Military Order of the
Purple Heart of the USA, Inc.; Army and Navy Union, USA; Polish Legion
of American Veterans, USA; Paralyzed Veterans of America; Regular
Veterans Assoc. of the U.S.; Italian American War Veterans of the USA;
Women's Army Corps Veterans Assoc.; American War Mothers; Legion of
Valor of the USA, Inc.; Congressional Medal of Honor Society; The
Retired Officers Assoc.; National Vietnam Veterans Coalition; Fleet
Reserve Assoc.; The Veterans of the Vietnam War, Inc.; National Assoc.
of Military Widows; New Jersey Agent Orange Commission; Oklahoma Agent
Orange Foundation; Agent Orange Data Base; and the Agent Orange Victims
and Widows Support Network.
Attorneys general for all 50 states, plus the District of
Columbia and Puerto Rico, signed on to another amicus brief asking the
Supreme Court to hear the case. The Court, however, denied the petition,
and the matter appeared to be closed.
Opportunity seized
I continued to work with the Admiral on securing government
compensation for veterans and promoting more studies to assess ailments
they were suffering. I promised him that when an appropriate case came
along, I would do all I could to show the courts that binding veterans
to the Agent Orange settlement was morally and legally unpalatable,
particularly given the knowledge we now had about the herbicides' health
risks.
In 1998, I received a call from a high school vice principal
who had served at an airfield in Vietnam from which planes took off to
spray Agent Orange. He called me at the suggestion of the Vietnam
Veterans of America to see if I would file a lawsuit on his behalf. He
had been exposed to Agent Orange and was suffering from non-Hodgkins
lymphoma. I decided that his case was the one I had been waiting for.
In 1998, my co-counsel, Mark Cuker, and I filed suit against
the manufacturers of Agent Orange, including: The Dow Chemical Co.,
Monsanto Co., Hercules, Inc.; Thompson Hayward Chemical Co.; T-H
Agriculture & Nutrition Co.; and Ultramar Diamond Shamrock Corporation.
Since all the Agent Orange settlement funds had been
depleted by the end of 1994, no new claimants could get any compensation
from the fund. Nevertheless, the defendants convinced the trial court to
dismiss the claim, arguing that they had paid what they had agreed to in
the settlement. The chemical companies contended that their due process
rights would be violated unless they were released from every single
veteran's future claims.
On appeal, I argued to the 2nd Circuit Court of Appeals in
New York that the settlement had created two separate subclasses of
future claimants: those eligible for compensation if their injuries
occurred before December 31, 1994, and those who first manifested
injuries after 1994, a "no compensation" group.
Reversing the lower court, the unanimous Second Circuit
panel-which included a judge who had previously ruled in favor of the
settlement-held that because co-plaintiffs Daniel Stephenson and Joe
Isaacson had learned of their illnesses only after the settlement fund
had expired and they were no longer eligible for compensation, they had
not been adequately represented when the case settled. Therefore, they
could not be bound by the settlement or barred from bringing suit. The
Second Circuit concluded that its ruling did not expose the defendants
to double liability because the inadequately represented plaintiffs
could not have been parties to the original suit. (Stephenson v. Dow
Chem. Co., 273 F.3d 249 (2d Cir. Nov. 30, 2001).)
A glimmer of hope
But the battle was not over: The defendants successfully
petitioned the Supreme Court for certiorari, arguing that not only this
case but every other class action could be reopened. On February 26, I
argued the case against a former U.S. solicitor general, who was hired
for the argument. While everyone believed the Court took the case to
reverse our success, the justices split 4-4, thus affirming the Second
Circuit. (Justice Stevens had previously announced that he could not
participate in the vote.) (Dow Chemical Co. v. Stephenson, No. 02-271,
2003 WL 21310274 (U.S. June 9, 2003).)
Eighteen years after the Agent Orange class action was
settled, Vietnam veterans finally have hope that they may receive
compensation for their devastating injuries. As for me, I'll never
forget a voice-mail message I received the day the Second Circuit issued
its opinion: "I suppose if you go after enough windmills, you can
finally knock one down."
Gerson H. Smoger is a partner with the Smoger Law Firm in Oakland,
California, and Dallas.
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