By Laura Akgulian Laura Akgulian is a freelance writer in Washington, DC. For George Bush, the Persian Gulf War succeeded in kicking the Vietnam Syndrome. But the misery of the Vietnam era has not ended for many veterans. It is being perpetuated quietly, virtually unnoticed, in a New York courtroom. 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. The vets, who were exposed to the dioxin-contaminated defoliant while serving in Vietnam, have since suffered grave health consequences: unusual cancers, strange skin diseases, multiple sclerosis, psychological and emotional disorders, birth defects among their children and a plethora of other problems. After returning from Vietnam, veterans noticed illnesses felling their comrades at an alarming rate. "There was something strange about Pleiku," surmises Diane Carlson Evans, who was stationed there as head nurse with the 71st Evacuation Hospital in the late 1960s. Evans recalls expecting the area surrounding the hospital to be lush jungle. "But everywhere I looked--around the military base and the hospital compound--it seemed defoliated. I guess we didn't think about it at the time and make the connection to Agent Orange because we weren't part of the military action." But the consequences of working in areas sprayed with Agent Orange are now depressingly clear. "So many people who served [at Pleiku] have developed health problems," Evans says. 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 to bring the case to trial. The chemical companies fear-- with good reason--that they might be driven into bankruptcy if the vets prevail. John Sabetta, an attorney representing Monsanto, said in 1990, "the purported class of veterans suffering 'after-manifested' injuries, if certified, could equal or exceed the number of veterans [in the first Agent Orange class-action suit]." As many as 250,000 veterans might qualify as plaintiffs in this case. "It looks to me like the government is literally shielding these damn chemical companies," says R.J. Huckaby, a former scout with the 75th November Company Airborne Rangers stationed in Vietnam. The chairman of the Agent Orange committee for the Vietnam Veterans of America Texas State Council, Huckaby is totally disabled and attributes the lion's share of his health problems to Agent Orange. The unholy union of courts and contractors is nothing new to the veterans. Their first massive class-action suit died an untimely death in 1984 at the hands of the same combined forces. The first class action dead-ends in Brooklyn The Vietnam veterans' first class-action suit ended abruptly in the Brooklyn courtroom of U.S. District Judge Jack Weinstein. The vets' attorneys, who had been appointed by the judge, were forced to attend a round-the-clock bargaining session the weekend before the case was to go to trial. During those wearying days and nights, the judge told the vets' lawyers that he thought their evidence was weak and that they might go broke during a trial, since litigation could drag on for years. He urged them to take what they could get and intimated that they might be made personally liable if they did not. Faced with the prospect of trying their case before this unsympathetic judge, the disheartened attorneys finally caved in and settled at 4 a.m. Monday morning--just hours before the trial was to have begun. The settlement Judge Weinstein imposed was for $180 million--an apparently arbitrarily chosen amount so inadequate that it was later deemed mere "nuisance value" by the U.S. Court of Appeals for the Second Circuit. Yale law professor Peter Schuck, author of Agent Orange on Trial, points out that the judge never explained how he arrived at this particular figure. According to Schuck, the chemical companies were delighted with the arbitrary sum set by the judge, as they had expected to pay considerably more. The arrangement crafted by Judge Weinstein provided ridiculously small sums to individual veterans. A California vet, though totally disabled, received $2,000. A Texas vet, also totally disabled, says he was awarded more than any of the other vets he knows; his checks--which he is having trouble collecting--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. Don Braksick, a totally disabled vet from Call, Texas, who was a combat engineer in Vietnam, fumes at the mere mention of the settlement. "Nobody knows the hell we're going through, the way we live. We settled because we thought it was the best deal we could get. But to us, the amount was really an insult--a drop in the damn bucket! There's a guy I know down here in Texas who's eating dog food to survive--that's the kind of shape we're in, too sick to work, living off of Social Security and a few lousy settlement checks. That judge dealt us a rotten hand. And those people still aren't playing straight with us. We want our day in court." Judge Weinstein controlled every aspect of the settlement, including the awarding of fees to the vets' lawyers. He vindictively denied fees to those attorneys who didn't cooperate with his plan, although the denial was later overturned on appeal. Perhaps the most disturbing aspect of the settlement is that it purports to resolve all Agent Orange vets' claims--even for veterans whose injuries didn't arise until years later. Yet the lawyers in the 1984 case had a profound conflict of interest with vets whose Agent Orange-related injuries have been discovered after 1984. There is a long latency period before most dioxin-related injuries surface. Late claimants--like Shirley Ivy and the vets now bringing suit--stand a better chance of winning their cases, supported by the substantial evidence about dioxin's negative effects which has accumulated over time. The attorneys for the early claimants, not able to draw on the growing body of research on dioxin's toxic effects, had an interest in settling quickly. Hence, the early claimants' lawyers would not necessarily have been representing the best interests of later claimants--who had not yet even come forward. Yet Judge Weinstein, ignoring this obvious conflict of interest, contends that the lawyers in the 1984 case represented early and late claimants simultaneously. Opt-out cases are thrown out of court 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 to keep the "opt-out vets" away from a jury. Rather than follow the normal rule of evidence that allows a jury to decide on disputes of fact and credibility of witnesses, Judge Weinstein himself determined that the vets' experts were not credible. His refusal to put the factual issues to a jury raises "serious questions of legal process" and is "difficult to justify," writes Schuck. This change in law effectively denied the vets their right to a jury trial on the key question of causation. The judge did accept evidence presented by the U.S. government and the manufacturers of Agent Orange as valid and conclusive proof that the herbicide had not caused the vets' injuries, but this evidence has proven highly suspect. In August 1990, the Committee on Government Operations of the U.S. House of Representatives issued a report entitled "The Agent Orange Coverup: A Case of Flawed Science and Political Manipulation" [see "Agent Orange and the CDC," Multinational Monitor, September 1989]. In it, the committee accused the Reagan White House of "manipulating" a Centers for Disease Control's Agent Orange study "to the point of uselessness." The committee concluded that "the Federal Government has suppressed or minimized findings of ill health effects among Vietnam veterans that could be linked to Agent Orange exposure" The government was not alone in submitting dubious data. In a November 1990 memo, Dr. Cate Jenkins of the U.S. Environmental Protection Agency accused Monsanto of creating fraudulent dioxin studies and referred the case for criminal investigation. The falsified Monsanto studies were the evidence Judge Weinstein relied on to deny the vets a trial. The second law invented to rid the courts of Agent Orange cases was an immunity for defense contractors, known as the government contractor defense. This protective shield, which resembles the sovereign immunity granted to states, places defense contractors above the law. The government contractor defense was created specially to enable Agent Orange manufacturers to avoid liability, and it was the sole ground upheld for dismissing the vets' claims on appeal. Subsequently, a more limited version of the defense was legislated by the Supreme Court in a 5-4 decision known as Boyle. Seeing as how Congress rebuffed government contractors five times between 1979 and 1986, each time refusing to extend immunity to the defense industry, the courts' establishment of this defense is a particularly serious violation of the Constitutional separation of powers, which grants to Congress alone the power to enact law. One last chance for justice Shirley Ivy' s husband was a Marine Corps captain in Vietnam. When Donald Ivy died of liver and pancreatic cancer in 1988, his doctor attributed his death to Agent Orange. Shirley Ivy flatly refused to accept the token amount offered from the first Agent Orange settlement as a death benefit, considering it a slight to her husband's memory. 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. "There are thousands of vets who will come down with Agent Orange health problems after the 1984 settlement who have not accepted the 'nuisance' money' says Rob Hager, a public interest attorney representing Ivy. "Some of these people have already joined Shirley Ivy's lawsuit--and thousands more will do so if the federal courts follow the law and let the suit remain in Texas." 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 court--and to transfer it to the New York federal courtroom of Judge Jack Weinstein. The depressing familiarity of this scenario infuriates the vets. When Don Braksick heard that Ivy had been removed from his home state and set down before the same judge who has ruled against veterans in every previous Agent Orange case, he became so incensed that he telephoned the judge's chambers. "How can we help you?" the judge's assistant asked. "Move the Shirley Ivy case back to Texas!" Braksick said. The chemical manufacturers openly acknowledge that they wanted only Judge Weinstein to preside over Ivy. Leonard Rivkin, an attorney for Dow, framed the companies' request this way in court proceedings in 1989: "There is only one judge in the United States who has gone through over a million documents, hundreds of depositions and 140-some-odd reported decisions from that Court on this case. I think it would be somewhat unfair to ask another judge to start over again." The removal and transfer of Ivy--from Texas state court to Texas federal court to New York federal court--was contested in three federal courts before the case reached Brooklyn. Not one of the courts explained the grounds on which the federal judiciary can assert power over the suit. Federal statute permits a case to be taken out of state court and put into federal court only under certain limited conditions that do not exist in Ivy. For instance, a case can be transferred from one federal court to another only when it is being consolidated with other similar cases already pending in federal court. But there was no other Agent Orange case pending--a fact the courts must have recognized, as they refused to cite the specific case with which Ivy was being combined. "The chemical companies have asked the federal courts--without any legal grounds for doing so--to transfer the Ivy case to the Brooklyn federal court just so it could be handled by Judge Weinstein," asserts Hager. "They've denied Mrs. Ivy a fundamental aspect of due process: the right to an impartial decision-maker." After litigating the removal-and-transfer issue for 18 months, the chemical companies have suddenly embarked on a new strategy. Knowing that transferring Ivy was unlawful, they have taken the unprecedented step of asking Judge Weinstein to enjoin the Texas courts from hearing the case--even if the federal courts have no basis for jurisdiction over it. "Such an injunction--imposing federal power directly over state courts in a case not already in federal court--has never been issued before," says Hager. "It's a slap in the face to Texas. What's more, there is a rule requiring federal courts to abstain from such interference." Another novel aspect of Ivy involves notification of the plaintiffs. A person cannot be bound by a class-action suit unless he or she received reasonable notice of the lawsuit and had an opportunity to opt out. But since Donald Ivy--like many other vets--had no inkling back in 1984 that he was even ill, he never received such notice. Nevertheless, the federal courts appear willing to insist that the claims of all Vietnam veterans--even those arising in the future--were settled in 1984, whether the victims were aware of it or not. The stakes in Ivy The Ivy case raises questions with profound ramifications for Vietnam vets as well as other victims of large-scale toxic pollution: Can a class-action suit be settled on victims' behalf without their knowledge or consent? Before they are even aware of their injuries? Before they have been notified about the suit? Before they have had a chance to opt out? Can victims be forced to accept a settlement negotiated by an attorney who doesn't know their names, addresses or anything about their claims because the claims have not even arisen yet? Can victims be adequately represented by attorneys who have an obvious conflict of interest because it is in the victims' best interest to delay filing their claims until supporting evidence is strong, while it is in the lawyers' interest to settle quickly and cheaply because they lack such evidence? Will the federal courts now begin reaching into state courts and spiriting away any case they choose? Will they be permitted to place cases before a particular federal judge whose views about a subject are already well known? Judge Weinstein is expected to rule on the Ivy case in late fall 1991. If he allows the case to go to trial in Texas, the Ivy class-action suit would resolve many of these nettlesome questions. It would indicate a renewed commitment on the part of the federal judiciary to respect the law and the Constitution. It would clarify the terms by which one belongs or doesn't belong to a class-action suit. It would undermine the basic legal strategy of polluters by which cases involving latent toxic injuries to thousands of people are settled early and cheaply--to the detriment of later claimants. The ultimate affront Admiral Elmo Zumwalt, Jr., who ordered Agent Orange sprayed in certain areas of Vietnam in the early 1970s and whose son, a Vietnam vet, later died of Vietnam-related cancers, speaks boldly about the deception and fraud perpetrated regarding Agent Orange. During a congressional hearing last summer, Zumwalt said "the sad truth" of his extensive research is "not only that there is credible evidence linking certain cancers and other illnesses with Agent Orange, but that the government and industry officials credited with examining such linkage intentionally manipulated or withheld compelling information on the adverse health effects associated with exposure to the toxic contaminants contained in Agent Orange." The treatment Vietnam vets have received at the hands of the government for which they fought is an outrage. As Representative Ted Weiss, D-NY, chair of the House subcommittee that convened last year's Agent Orange hearings, said succinctly, "This is the ultimate affront" to the soldiers "who died in combat on foreign soil and who die yet today from their exposure to toxic chemicals two decades ago."