Disclosure of everything the companies know about the dangers of the contaminated herbicides.
Establishment by the companies of a tax-exempt reserve fund sufficient to cover damages from use of herbicides (reimburse the VA and Social Security Administration for benefits, compensate victims and their families and protect consumers from any attempt to pass along cost of damages resulting from use of utility or railroad rights-of-way).1
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.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.