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.
13
At the first “Defoliation Conference” sponsored by the Department of Defense and attended by several chemical companies (including Dow and Monsanto), General Fred J. Delmore, commanding general, US Army, Edgewood Arsenal, told the companies’ representatives that the DOD wanted to make sure that whatever it used for defoliants would be “perfectly innocuous to man and animals and at the same time will do the job.” Albert Hayward, chief of the program coordination office at Fort Detrick, told the conference that “it goes without saying that the materials must be applicable by ground and air spray, that they must be logistically feasible, and that they must be nontoxic to humans and livestock in the area affected.” In a 1964 press release, Dow asserted that its 2,4,5-T was absolutely nontoxic to humans or animals, but by 1965 the company confirmed that it contained TCDD. Dow also admitted that it had not informed the USDA or the DOD that it had discovered 2,4,5-T to be contaminated with TCDD.
14
Although the class action suit has been filed on behalf of all veterans who served in Vietnam, the number of veterans who were listed as sick or dying at the time of the interview was approximately forty thousand. More veterans will undoubtedly be added to this list in the future.