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August 8, 2004
http://www.nytimes.com/2004/08/08/nyregion/08orange.html
Agent Orange, the Next Generation
By WILLIAM GLABERSON
In 1984, after years of battles over science and damage tabulations,
seven American chemical companies settled a huge class-action suit by
Vietnam veterans who claimed that the defoliant Agent Orange caused
cancer, birth defects and a nightmarish brew of other health problems.
The companies paid out $180 million. By 1997, after the last payments
had been made, 291,000 people had received benefits. The settlement was
reached after a federal judge persuaded the companies to buy themselves
out of protracted litigation. It was called a landmark legal peace on a
brutally contentious issue, and it was supposed to be the final word
from the courts on Agent Orange, a defoliant containing the deadly
substance dioxin.
But today, a new cast of plaintiffs, this time Vietnamese as well as
American, has returned to the same American court seeking justice and
dollars. One suit filed on behalf of as many as four million Vietnamese
says their land and people were so poisoned by Agent Orange that
supplying it to the military amounted to war crimes by the chemical
companies.
In other suits, American veterans say they have only now come to learn
of their devastating health problems, with the money gone.
The claims are more than empty reminders of an old fight. Judge Jack B.
Weinstein, whose aggressive handling of the Agent Orange case in Federal
District Court in Brooklyn in the 1980's brought him wide attention and
considerable anger, has said that the Vietnamese suit raises serious
issues. The United States Supreme Court has said that the new cases by
American veterans cannot be automatically barred.
The chemical companies say fairness dictates that the time for the legal
battle they thought they had ended a generation ago has come and gone.
They claim the science still does not prove that Agent Orange was
responsible for any of the medical horrors its name has long brought to
mind.
Whatever the fate of the suits, the revival of the Agent Orange battle
means that these days, there are ghosts in the Brooklyn federal
courthouse - of a divisive war, of modern battle tools, of hard feelings
by people in two countries who were caught up in combat long ago.
"Doesn't it ever end? When will Agent Orange become history?'' said
Kenneth R. Feinberg, a Washington lawyer who was a special master in the
Agent Orange case 20 years ago and recently ran the 9/11 Victim
Compensation Fund.
Lawyers for Dow Chemical, Monsanto, Hercules and more than a dozen other
chemical companies named in the legal battle say that the claims of war
crimes by the companies are unsupportable. They note that the companies
were ordered by the Pentagon to make Agent Orange and say that if there
is to be any compensation to Vietnam, it should be a result of
negotiations between the two governments.
The lawyers also say that the new suits are as baseless as the old. A
lawyer for Dow, Andrew L. Frey, said in an interview that people
suffering life's random hardships sued because "it's human nature to
look for something to blame.''
But in recent interviews in Vietnam and the United States, people who
say they are victims of Agent Orange echoed one another in the strength
of their conviction that a wrong is yet to be fully righted.
In a sparsely furnished Hanoi apartment, one of the Vietnamese
plaintiffs, a doctor, described working since the war with people she
believed were victims of Agent Orange. Many were spurned for years, said
the doctor, Phan Thi Phi Phi, because of a belief in Vietnam that people
who had malformed children were paying the price of their ancestors'
immoral lives.
Dr. Phi Phi, a small woman who spoke softly, said she was a victim
herself. During the war she worked in a mobile hospital in an area of
South Vietnam that was a target of American spraying. She had four
miscarriages, she said, and nearly died. Agent Orange, she said,
"destroys human life for many generations.'' Joe Isaacson, a school
administrator and Vietnam veteran from Toms River, N.J., has been
fighting cancer since the 1990's. His simmering anger about Agent Orange
sounded much like Dr. Phi Phi's. "We didn't know,'' he said, "that it
was more dangerous than the enemy.''
In a modest house on a quiet street in Haiphong, east of Hanoi, a frail
former soldier for North Vietnam, Nguyen Van Quy, remembered the acrid
odor when it rained along the Ho Chi Minh trail. That smell, he said,
was a sign that Agent Orange had killed all life, down to the roots of
plants that hungry soldiers ate in the wide, dead areas along the trail.
Mr. Quy, 49, has cancer and two children born with birth defects.
Someone, he said, should be held accountable. "Somehow,'' he said, "our
misery, our hardship can be lessened.''
By telephone from Cape Coral, Fla., not long after Mr. Quy had spoken in
Haiphong, Daniel R. Stephenson remembered the foul smell too, and the
black hillsides. He is a Vietnam veteran who struggles with the pain of
multiple myeloma that he believes came from exposure to Agent Orange.
"It'll kill vegetables, but it'll also kill other things, too,'' he
said.
Judge Weinstein, now 82, has said over many years that he does not
believe lawyers can prove that Agent Orange causes specific diseases,
other than a minor skin irritation. He repeated that recently in a
tentative ruling on the claims of Mr. Isaacson and Mr. Stephenson.
But lawyers for the plaintiffs argue that there is new scientific
evidence about the dangers of Agent Orange that was not available in the
1980's. Gerson H. Smoger, a lawyer for Mr. Stephenson and Mr. Isaacson,
said Judge Weinstein's understanding of the scientific information was
outdated.
William H. Goodman, a New York lawyer handling the suit for the
Vietnamese, said his clients deserved to present their case against
Agent Orange. "We have generation after generation suffering from its
consequences,'' he said.
The scientific issue remains one of the most debated over Agent Orange.
In recent years, the Institute of Medicine of the National Academy of
Sciences has said there is an "association" between exposure to Agent
Orange and some diseases, including soft-tissue sarcoma and
non-Hodgkin's lymphoma.
Guided partly by the institute's list of diseases, the Department of
Veterans Affairs gives Vietnam veterans compensation for many illnesses
that it presumes were caused by exposure to Agent Orange. But the
chemical companies say the "association" finding provides nothing like
the clear proof required to establish in court that Agent Orange is the
cause of any serious disease.
The Institute of Medicine also says there is inadequate evidence to
determine an Agent Orange association with many of the diseases cited by
veterans, including many types of cancer and most birth defects.
But some public health experts say it would be wrong for the courts to
assume that the level of scientific knowledge has remained static. Since
the 1984 settlement, said Jeanne Mager Stellman, a Columbia University
public health professor, "There is much more evidence about
dioxin-contaminated herbicides.''
Dr. Stellman, who was a consultant to the special master in the Agent
Orange case years ago, added that most experts agree that Agent Orange
is one of the planet's most deadly substances. As they did in the
1980's, the chemical companies argue that the courts need not decide the
issue of what the health effects of Agent Orange may be. They say the
companies cannot be held liable because they were ordered by the
Pentagon to make Agent Orange. Under sovereign immunity, the American
government cannot be sued; government contractors are often shielded
from suits as well.
In February, Judge Weinstein said he planned to rule for the companies.
He said his decision would take effect in October unless he was
persuaded to change his mind. He said the companies were contractors who
were ordered to supply herbicide that met specifications set by the
military. Plaintiffs' lawyers have long said the chemical companies knew
more than the government about the dangers of Agent Orange and should
not qualify for protection.
Judge Weinstein said he planned to rule that the veterans could not
proceed with their case against the chemical companies because of the
government-contractor shield. He added that he thought it doubtful that
the Supreme Court, which permitted the veterans' case to go forward by a
4-to-4 vote, "has fully considered the significance of reopening these
Vietnam War issues."
But Judge Weinstein also said from the bench this spring that he was not
sure whether, when considering the war-crime claim, the "I was told to
do it" argument could protect the chemical companies.
The companies' lawyers answered that chemical executives could not
possibly have intended to commit war crimes when they supplied Agent
Orange in the 1960's since, even now, there is debate about whether it
is as harmful as the suits claim.
Judge Weinstein said he expected to make his final rulings in October
and they would likely set the stage for appeals in both the veterans'
and the Vietnamese cases.
The veterans' suits before Judge Weinstein involve only Mr. Stephenson
and Mr. Isaacson. But there are at least nine other cases in Federal
District Court in Brooklyn filed by other veterans who say they became
ill after the settlement fund was depleted. Judge Weinstein said
hundreds of other cases could follow.
The companies say that reopening the case will reduce the chances of
settlements in other cases. Businesses offer settlements in mass injury
cases, they say, to ensure total peace - and the end of litigation. "If
future claimants are not bound by settlements, companies will be more
likely to litigate than settle,'' said William A. Krohley, a lawyer for
Hercules. In the Brooklyn courthouse, the cases are moving at the slow
pace of the law. In other places, people who say Agent Orange devastated
their lives are trying to make sense of the legal battle that is a
remnant of a long-ago war.
Mr. Isaacson, 56, the New Jersey school administrator, has non-Hodgkin's
lymphoma. He was grateful, he said, that his 17-year-old daughter was
healthy. He was an Air Force crew chief who worked on the planes that
sprayed Agent Orange to clear away the jungle. "I am sure,'' he said,
"there could have been other methods that wouldn't have hurt the
veterans."
In Haiphong, Mr. Quy, the former North Vietnamese soldier, seemed weak
as he mentioned the acrid spray from the American planes.
Listening as he spoke was his teenage son, whose face moved in spasms,
and his daughter, who could not speak. His wife, Vu Thi Loan, cried
quietly. "We were unlucky,'' she said. "We have to endure our hardship
and there is no other way.''
Doan Bao Chau contributed reporting from Vietnam for this article.
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