Winning Peace with Honor

By Jacob V. Lamar Jr.

A truce is negotiated in the Battle of Agent Orange

Private First Class Michael Ryan had just arrived in Viet Nam with the 11th Armored Cavalry Regiment in 1966 when he and his squad were sent into an area that had been sprayed with the herbicide known as Agent Orange. Soon thereafter he lost almost 50 lbs. and developed mysterious lumps on his groin and rashes all over his body. Army doctors dosed him with penicillin and sent him back to duty. Five years later, while serving as a policeman on Long Island, N.Y., Ryan fathered a daughter. Born with multiple birth defects including deformed limbs and organs and a hole in her heart, she will be confined to a wheelchair and need constant care as long as she lives.

Ryan, last week, was among those who won, or at least reached a negotiated settlement of, their longest battle of the Viet Nam War. His family and four others acted as plaintiffs representing thousands of Viet Nam veterans and their families in a massive class action against manufacturers of the herbicide. They charged that Agent Orange caused, among other things, cancer and liver damage in many of the soldiers, miscarriages in some of their wives and birth defects in some of their children. The five-year legal struggle, which came to symbolize the bitter suffering and frustration of the veterans of America's most unpopular war, culminated in a $180 million out-of-court settlement, the largest mass-damage award ever negotiated.

Judge Jack Weinstein hammered out the settlement at federal district court in Brooklyn, N.Y., shortly before dawn of the day that jury selection was scheduled to begin. The seven corporate defendants--Dow Chemical, Monsanto, Uniroyal. Diamond Shamrock, Hercules, T.H. Agriculture and Nutrition and the now defunct Thompson Chemical--denied any liability for the veterans' illnesses: their position was that Agent Orange had not caused the health problems and that they had merely manufactured the defoliant according to the military's instructions. Nonetheless, the companies agreed to place $180 million into a fund that will be used to compensate victims and their families. The fund is expected to last for 25 years. With interest, currently accruing at $61,000 a day, the initial deposit could result in payments totaling as much as $750 million. Judge Weinstein plans to hold hearings to allow comments from others before approving the negotiated agreement. If, as expected, the settlement is upheld, the judge will design and oversee a system that will award payments to veterans and their families on a case-by-case basis.

Both the plaintiffs and the chemical companies insisted that their side had enough legal ammunition to win the case. They agreed to the compromise in order to avoid a lengthy, expensive, emotional and uncertain jury trial. Although some corporate executives felt that the chemical companies had surrendered to an unjustified payoff, the share prices of the five companies on the New York Stock Exchange rose after the news. Some veterans felt that their side had sold out. "This was the settlement the chemical companies were looking for," said Lee Covino, a Viet Nam veteran in New York City. "The vets had no say in this." But most seemed to agree with Frank McCarthy, president of the Vietnam Veterans Agent Orange Victims. "It's an incredible start," he proclaimed. "We wanted a trust fund, and we got it without going through a trial and opening old wounds."

The U.S. first began spraying Agent Orange over Viet Nam in 1965 to defoliate the jungles and roadsides that the enemy was using for cover. The herbicide got its name from the bright orange stripes on the steel drums that contained it. By itself, Agent Orange is not considered unusually dangerous to humans, but a compound produced in its manufacture, dioxin, is one of the most toxic chemicals known. A tiny amount of dioxin can kill some laboratory animals and in others produce liver disorders, various cancers and birth defects. In 1970 the U.S. military stopped using Agent Orange over Viet Nam. By that time some 11 million gallons of the herbicide had been sprayed over the country. It has been estimated that 50,000 to 60,000 servicemen were exposed to the chemical. Said Veteran Al Marcotte: "We bathed in it, drank it and slept in it."

Despite dioxin's effect on laboratory animals, it has never been conclusively established if dioxin-contaminated Agent Orange is directly responsible for ailments in humans more serious than chloracne, a disfiguring skin problem. But after a 1976 explosion at an Italian chemical plant, which spread dioxin over a village and resulted in chloracne and the widespread death of animals, many veterans became convinced that Agent Orange was responsible for most of their ailments.

Victor J. Yannacone Jr., a Long Island lawyer who fought to ban the insecticide DDT in the '60s, filed a class action against the manufacturers of Agent Orange in 1979. (He later withdrew from the case in a dispute with other attorneys for the veterans.) During the next five years the case provoked waves of other suits, countersuits, motions and medical examinations, as well as conflicting claims about the harmful effects of dioxin on humans.

The settlement reached last week was due mainly to the forceful prodding of Judge Weinstein. He appointed three prominent lawyers to work as intermediaries. In the final stages of the negotiations, the veterans sought $250 million plus interest; the chemical companies offered $100 million without interest. During the weekend before jury selection was to start, two of the mediators worked round the clock, shuttling between empty courtrooms in the cavernous Brooklyn federal courthouse with proposals and counterproposals. The lawyers napped on tables and benches, munched on delicatessen sandwiches, played cards and studied the latest offers. At midnight before the Monday trial, the sides were still $70 million apart and in disagreement over interest payments, but Judge Weinstein refused to delay the case. Less than three hours later he was able to tell the veterans' lawyers: "The case is over if you take 180." They did. Some 50 lawyers and corporate officials then crammed into Weinstein's chamber to crack bottles of champagne and celebrate the unprecedented settlement.

For both sides the issue of culpability is as important as compensation, and that question still lingers. The veterans and chemical companies both point the finger at Washington. "The real culprit here is the Federal Government," said a lawyer involved in the case. "The companies were told to make the Agent Orange at Government specifications. A lot of this was really misdirected." Attempts by the veterans to sue the military have thus far been blocked by a 1950 decision, Feres vs. United States, in which the U.S. Supreme Court ruled that the Government cannot be held liable for injuries that a soldier suffers while on duty. In addition, the Veterans Administration has balked at paying for treatment of many ailments that the veterans believe are related to Agent Orange, thus adding to their outrage.

Last week's settlement will not end the fight to have the Government accept some responsibility for the problems as cribed to Agent Orange. Dow Chemical announced that it would sue the Government to recover the money. Some lawyers believe that families of the affected veterans may be entitled to sue the Government even though the Feres decision prevents the former soldiers from doing so. Democratic Congressman Thomas Daschle of South Dakota, a Viet Nam veteran, demanded that the Government accept a measure of responsibility and join in providing some compensation. "If the companies can do it, then the Government can as well," said Daschle. He sponsored a bill, which has already passed the House, that would allow service-connected disability benefits for some Agent Orange victims.

To many veterans the possible monetary compensation is less important than winning recognition and respect for their Viet Nam service--something the American public took far too long to grant to those who fought in that divisive war. This yearning too makes some restitution by the Government all the more important. Yannacone said last week that he planned to file a class action on behalf of the wives and children of Viet Nam veterans against the Veterans Administration, the U.S. Public Health Service and the Food and Drug Administration. Said Ryan, whose wife and daughter will be representative plaintiffs in the coming suit: "The trial will take place against the Government. That's where we want our day in court."

-- By Jacob V. Lamar Jr. Reported by Reported by Timothy Loughran and Peter Stoler/New York

With reporting by Timothy Loughran, Peter Stoler/New York