Agent Orange use led to class-action lawsuit


By Harold B. Wolford - Veterans Corner



Editor’s note: This is part two of a four-part series on Agent Orange.

U.S. veterans, while in Vietnam, were told not to worry and were persuaded Agent Orange was harmless. After returning home, Vietnam veterans began to suspect their ill health or the instances of their wives having miscarriages or children born with birth defects might be related to Agent Orange and the other toxic herbicides to which they had been exposed in Vietnam.

Veterans began to file claims in 1977 to the Department of Veterans Affairs for disability payments for health care for conditions they believed were associated with exposure to Agent Orange, or more specifically, dioxin, but their claims were denied unless they could prove the condition began when they were in the service or within one year of their discharge. In order to qualify for compensation, veterans must have served on or near the perimeters of military bases in Thailand during the Vietnam Era, where herbicides were tested and stored outside of Vietnam, veterans who were crew members on C-123 planes flown after the Vietnam War, or were associated with Department of Defense projects to test, dispose of, or store herbicides in the United States.

By April 1993, the Department of Veterans Affairs had compensated only 486 victims, although it had received disability claims from 39,419 soldiers who had been exposed to Agent Orange while serving in Vietnam.

In a November 2004 Zogby International poll of 987 people, 79% of respondents thought the U.S. chemical companies which produced Agent Orange defoliant should compensate U.S. veterans who were affected by the toxic chemical used during the war in Vietnam. Also, 51% said they supported compensation for Vietnamese Agent Orange victims

The United States fought secret wars in Laos and Cambodia, dropping large quantities of Agent Orange in each of those countries. According to one estimate, the U.S. dropped 475,500 gallons of Agent Orange in Laos and 40,900 in Cambodia. Because Laos and Cambodia were neutral during the Vietnam War, the U.S. attempted to keep secret its wars, including its bombing campaigns against those countries, from the American population and has largely avoided compensating American veterans and CIA personnel stationed in Cambodia and Laos who suffered permanent injuries as a result of exposure to Agent Orange there.

Since at least 1978, several lawsuits have been filed against the companies which produced Agent Orange, among them Dow Chemical, Monsanto and Diamond Shamrock. Attorney Hy Mayerson was an early pioneer in Agent Orange litigation, working with environmental attorney Victor Yannacone in 1980 on the first class-action suits against wartime manufacturers of Agent Orange. In meeting Dr. Ronald A. Codario, one of the first civilian doctors to see affected patients, Mayerson, so impressed by the fact a physician would show so much interest in a Vietnam veteran, forwarded more than 1,000 pages of information on Agent Orange and the effects of dioxin on animals and humans to Codario’s office the day after he was first contacted by the doctor. The corporate defendants sought to escape culpability by blaming everything on the U.S. government.

In 1980, Mayerson, with Sgt. Charles E. Hartz as their principal client, filed the first U.S. Agent Orange class-action lawsuit in Pennsylvania, for the injuries military personnel in Vietnam suffered through exposure to toxic dioxins in the defoliant. Attorney Mayerson co-wrote the brief that certified the Agent Orange Product Liability action as a class action, the largest ever filed as of its filing. Hartz’s deposition was one of the first ever taken in America, and the first for an Agent Orange trial, for the purpose of preserving testimony at trial, as it was understood that Hartz would not live to see the trial because of a brain tumor that began to develop while he was a member of Tiger Force, special forces, and LRRPs in Vietnam. The firm also located and supplied critical research to the veterans’ lead expert, Dr. Codario, including about 100 articles from toxicology journals dating back more than a decade, as well as data about where herbicides had been sprayed, what the effects of dioxin had been on animals and humans, and every accident in factories where herbicides were produced or dioxin was a contaminant of some chemical reaction.

The chemical companies involved denied that there was a link between Agent Orange and the veterans’ medical problems. However, on May 7, 1984, seven chemical companies settled the class-action suit out of court just hours before jury selection was to begin. The companies agreed to pay $180 million as compensation if the veterans dropped all claims against them. Slightly over 45% of the sum was ordered to be paid by Monsanto alone. Many veterans who were victims of Agent Orange exposure were outraged the case had been settled instead of going to court and felt they had been betrayed by the lawyers.

“Fairness Hearings” were held in five major American cities, where veterans and their families discussed their reactions to the settlement and condemned the actions of the lawyers and courts, demanding the case be heard before a jury of their peers. Federal Judge Jack B. Weinstein refused the appeals, claiming the settlement was “fair and just.” By 1989, the veterans’ fears were confirmed when it was decided how the money from the settlement would be paid out. A totally disabled Vietnam veteran would receive a maximum of $12,000 spread out over the course of 10 years. Furthermore, by accepting the settlement payments, disabled veterans would become ineligible for many state benefits that provided far more monetary support than the settlement, such as food stamps, public assistance, and government pensions. A widow of a Vietnam veteran who died of Agent Orange exposure would receive $3,700.

In 2004, Monsanto spokesman Jill Montgomery said Monsanto should not be liable at all for injuries or deaths caused by Agent Orange, saying: “We are sympathetic with people who believe they have been injured and understand their concern to find the cause, but reliable scientific evidence indicates that Agent Orange is not the cause of serious long-term health effects.”

In 1980, New Jersey created the New Jersey Agent Orange Commission, the first state commission created to study its effects. The commission’s research project in association with Rutgers University was called “The Pointman Project.” It was disbanded by Gov. Christine Todd Whitman in 1996.

During the first phase of the project, commission researchers devised ways to determine small dioxin levels in blood. Prior to this, such levels could only be found in the adipose (fat) tissue. The project studied dioxin (TCDD) levels in blood as well as in adipose tissue in a small group of Vietnam veterans who had been exposed to Agent Orange and compared them to those of a matched control group; the levels were found to be higher in the former group. The second phase of the project continued to examine and compare dioxin levels in various groups of Vietnam veterans, including Army, Marines and brown water riverboat Navy personnel.

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By Harold B. Wolford

Veterans Corner

Harold B. Wolford is president of the Vietnam Veterans of America Chapter 1095. He served in the United States Army from 1970 to 1973.

Harold B. Wolford is president of the Vietnam Veterans of America Chapter 1095. He served in the United States Army from 1970 to 1973.