20. "JUSTICE" AND THE TRIALS OF AMERICA'S
AGENT ORANGE VETS
For the second time in the past decade,
Vietnam veterans and the families of deceased vets have brought a class-action
suit against the manufacturers of the lethal herbicide Agent Orange.
Hoping to hold the defense contractors that produced Agent Orange accountable
for causing their health woes, veterans and their families have filed
a class-action suit, Shirley Ivy et. al. v. Diamond Shamrock Chemical
Co., et. al. But the U.S. federal courts and six defendant chemical
companies, among them Dow, Monsanto, Uniroyal and Diamond Shamrock,
have managed to stifle every initiative the vets have taken.
unholy union of courts and contractors is nothing new to the veterans. The first
suit ended abruptly in the Brooklyn courtroom of U.S. District Judge Jack Weinstein.
The judge told the vets' attorneys, whom he had appointed, that their evidence
was weak and urged them to take what they could get. Weinstein also intimated
that the attorneys might be held personally liable if they did not settle. As
a result, the arrangement crafted by Judge Weinstein provided ridiculously small
sums to individual veterans. A Texas vet, totally disabled, was awarded "more
than any other vet he knows"; his checks will total $6,000. Shirley Ivy was
offered approximately $3,000 as compensation for her husband's death. The tens
of thousands of vets who had suffered debilitating injuries but were not completely
disabled received nothing.
Some veterans chose not to cooperate with the
settlement and opted to sue independently of the class-action. But not one of
their cases survived Judge Weinstein, who created two new rules of law. Rather
than follow normal rule of evidence that allows a jury to decide on disputes of
fact and credibility of witnesses, Weinstein himself determined the vets' experts
were not credible. The second law invented to rid the courts of Agent Orange cases
was an immunity for defense contractors. The government contractor defense was
created specifically to enable Agent Orange manufacturers to avoid liability,
and was the sole ground for dismissing the vets' claims on appeal.
Shirley Ivy flatly refused to accept the token amount offered from
the first Agent Orange settlement. In May 1989, she filed suit in Texas
state court against the manufacturers of Agent Orange. Her case constitutes
the second massive class-action suit on behalf of Agent Orange vets.
The federal courts, however, have not let the lawsuit proceed unimpeded.
In fact, federal judges have created novel rulings to wrest the case
away from Texas state courts and to transfer it to the New York federal
courtroom of Judge Jack Weinstein.
Federal statute permits a case to be
taken out of state court and put into federal court only under certain limited
conditions that did not exist in Ivy's case. Nonetheless, the case was transferred
to New York. On October 4 Judge Weinstein dismissed the case.
RESEARCHER: ANNE BRITTON
SOURCE: MULTINATIONAL MONITOR, P.O. Box 19405, Washington, DC 20036
DATE: July/August 1991
TITLE: 'The Agent Orange Trials"
AUTHOR: Laura Akgulian
COMMENTS: Investigative journalist Laura Akgulian describes
the extraordinary efforts she made to get more coverage for this important
issue. "It's difficult for freelancers to place self-generated
articles, particularly about sensitive topics. So when the Los Angeles
Times and The Washington Post rejected an Agent Orange article I'd written,
I thought vets might be better served by having staff writers cover
this story and began contacting journalists in all media -- reporters
and columnists at The New York Times, The Washington Post, The Los Angeles
Times, The Wall Street Journal, The New Yorker, Newsday, The National
Law Journal, The American Lawyer, The Village Voice, etc.; Bob Edwards
at NPR; Dan Rather and a senior investigative reporter at CBS Evening
News; a Donahue Show producer; and many others. "Most print journalists
yawned. The notable exception was a sympathetic reporter at The Wall
Street Journal. A Newsday reporter wrote a piece, then called to apologize.
'I don't think you're going to like it,' she ventured. I didn't think
to ask if it had been edited to say something she hadn't intended.
"A producer on Dan Rather's staff told me CBS Evening News was
very interested, but despite some frantic faxing, nothing materialized.
The Donahue producer announced, 'We don't do stories about Vietnam;'
her executive producer automatically nixes them, she confided. One might
surmise that GE, a major defense contractor and NBC's parent company,
wouldn't relish a show pitting the defense industry against dying veterans
and their genetically damaged children. I did manage to arrange a talk
show on Washington's WAMU-FM featuring Shirley Ivy's two public interest
lawyers and retired Admiral Elmo Zumwalt, Jr.
"Motivating others, it seemed, was even more taxing than trying
to place freelance articles, so I reverted to my own writing. In addition to the
Multinational Monitor article, my pieces have run in The Texas Observer and In
These Times, with additional articles slated to appear in The Progressive and
The Village Voice.
"I also hope to delve into related topics, including
the curious relationship between The New York Times and key players in the Agent
Orange drama. This story has so many angles that several reporters could examine
its intricacies simultaneously with little overlap. I will continue passing along
data to other authors in the hope that this sordid saga will out, especially now
that Judge Weinstein has dismissed Ivy and a follow-up ruling is imminent."