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 triaclass="underline" 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.”
Yannacone persisted in his efforts to avoid a lawsuit and to persuade the VA to recognize that Vietnam veterans needed help. He talked to Max Cleland in Los Angeles, and agreed on an arrangement to meet again with Haber and other “experts” to work out a cooperative program of dermatological investigation. The plan was to use the expertise of World War II dermatologists who knew “what jungle rot really was,” as well as industrial dermatologists from Dow and the workmen’s compensation board who could recognize chloracne. Clinics would then be established in all the major veterans hospitals throughout the country on a “road-show basis,” and Yannacone would produce fifty to one hundred of his clients at each of the clinics to determine whether they had “chloracne or just spots.” All this was agreed, says Yannacone, in the presence of cameramen from one of the major networks. But “in front of ABC-TV in the Patriot’s Hall in L.A., Max Cleland reneged on that agreement and said there was no evidence and they would not cooperate with the plaintiffs on the Agent Orange suit. They were not going to do anything to help a lawsuit, Cleland said, that they believed to be nothing more than a publicity stunt. Well, Dow sure as hell doesn’t think it’s a publicity stunt.”