“Why,” demanded a veteran at the New York State dioxin hearings, “is every Vietnam veteran given a psychiatric examination first? Or, if you are admitted to the hospital, it is always under a psychiatric guise. Why can no proper diagnosis be made? Men have a history of a multitude of psychological, organic, and/or neurological problems that are not being assessed or documented properly at the Veterans Administration. They are denying men their rights. They are committing a crime. They are violating the Federal Code of Regulations, Title 8, as it is. And doctors are violating their code of ethics.”15
On February 21, 1980, Max Cleland, testifying before the Committee on Veterans’ Affairs, US Senate, answered the question about the VA’s penchant for seeing Vietnam veterans’ problems as “psychological.” After telling the committee that Vietnam veterans had a lower unemployment rate than the US population as a whole, were going to school, buying homes, and thanks to the concern and generosity of the Veterans Administration, generally adjusting rather nicely to civilian life, Cleland said: “Vietnam era veterans are utilizing VA outpatient health care facilities at about the same rate as veterans of other wars but have a lower rate of hospitalization due to their younger age when compared to veterans of other wars. As may be expected with younger veterans, those Vietnam era veterans treated have relatively fewer physical medical problems than do older veterans and, conversely, as a result for those treated, their care is more apt to be for psychiatric disorders. Of those VEVs [Vietnam era veterans] discharged from VA hospitals during FY 1979, 46 percent had received care for psychiatric disorders, including alcohol and drug abuse.”16
There can be little doubt that being sent to war as a hero only to be greeted upon one’s return home as a pariah has angered, frustrated, and confused many veterans. Nor would anyone deny that the horrors of guerrilla warfare have taken their toll on veterans of America’s longest and most unpopular war. But in its attempt to invalidate the veterans’ claims for service-connected disability, the VA has resorted all too frequently to labeling the symptoms of dioxin exposure as just one more example of “post-Vietnam syndrome.” A veteran in his early thirties who is told that his ailments are incurable and who is then turned down for disability payments is very likely to experience depression, and sleep disturbances, and other symptoms commonly associated with his tour of duty in Vietnam. By arguing that the sudden weight loss, chronic skin rashes, migraine headaches, gastrointestinal pains that thousands of Vietnam veterans have complained of are symptomatic of a collective neurosis, the VA is attempting to place veterans who were exposed to Agent Orange in a no-win situation. Ironically, the VA would have veterans believe that whatever ails them can be traced directly to their experience in Asia, just as long as that experience does not include exposure to toxic herbicides.
It would be unfair, of course, to deny that there are dedicated doctors, nurses, administrators, and bureaucrats within the VA; but the agency’s failure to conduct an outreach program or to provide genetic counseling and family support services, and its refusal to begin an epidemiological study until ordered by Congress to do so (Public Law 96–151), have tarnished the VA’s reputation and posed serious questions about the protection Americans can expect from government agencies. Speaking of the VA’s denial of all disability claims based on Agent Orange, Senator Alan Cranston, chairman of the Senate Veterans’ Affairs Committee and floor manager of the bill signed into law by President Carter mandating the VA to conduct an epidemiological study, said: “The denial of almost all Agent Orange claims by the VA is viewed by some Vietnam veterans as suggestive that a deliberate cover-up or irresponsible action by the federal government is being carried out in much the same way as information about the adverse health effects from radiation was withheld from nuclear weapons test participants in the 1950s and 1960s.”17
Yet even after Congress ordered the VA to begin an epidemiological study of Vietnam Veterans, the agency continued to exclude veterans and independent scientists from participating in the planning of the study. Before the actual study could begin, the VA needed to develop a design or protocol that would assure the study’s scientific objectivity and accuracy. (Although it did not have an epidemiologist on its staff, the VA planned to “contract out” only for the study design and to use its own personnel to conduct the study.) To secure a study design the VA developed a “request for proposals,” which it intended to send out to scientists who might be interested in participating. But at this stage the National Veterans Law Center confronted the VA once again, arguing that its “request for proposals” lacked scientific validity. “Examples of defects in to solicitation are legion,” said NVLC attorneys. “The proposal omitted important… data that would be necessary to develop a scientifically valid epidemiological study design, such as the facilities of the agency, the personnel to be used, the type of study population available for the study, the nature of access to the study population, or the funds available to gain access to the study population. The absence of this essential data is not typical of other government research proposals. Indeed, scientists who reviewed this proposal for the law center concluded that only a scientist with inside information about the study design could likely submit an acceptable proposed deisgn.”18
Moreover, the “request for proposals” also stated that “anyone associated with a prior position regarding the effects of phenoxy herbicides and/or their constituents on human health” would be disqualified from bidding for the study design. This, said the VA, would assure that the study would be free of bias. By excluding anyone who may have published a paper or written an article on phenoxy herbicides, the VA was denying virtually all of the leading scientists in the field of dioxin research the chance to bid for the study. And while the exclusionary clause would keep highly qualified scientists from bidding for the study design, it did not prevent industry scientists or consultants from making a bid for the study. Consistent with its obstructionist position, the VA had devised just one more Catch-22 that hindered progress.
When the VA finally did award the contract for the epidemiological master plan, it was to a UCLA epidemiologist who would be quoted by the New York Times as telling a California assembly committee: “ ‘Agent Orange was used primarily in areas where few or no troops were located,’ and therefore, ‘the likelihood of substantial exposure to ground troops in Vietnam’ was not great.
“Dr. Spivey also told the panel that ‘there is to date little evidence’ of any specific human health effects’ as a result of the powerful herbicide. ‘The fear which is generated by current publicity is very likely to be the most serious consequences of the use of Agent Orange,’ he said.”19
Two years after Congress ordered the VA to begin an epidemiological study of Vietnam veterans, Dr. Spivey submitted his protocol to the American scientific community and Congress’s Office of Technology Assessment. But the protocol was rejected by scientists and members of the OTA. After reviewing the protocol, John Sommers, deputy director of the American legion’s National Veterans’ Affairs and Rehabilitation Commission, said, “The design is incomplete and unacceptable as presently written. The authors are so obsessed with secrecy that information pertaining to diseases or symptoms if interest to the study and details relating to veterans they consider to be in a high or low exposure groups have been withheld.”20[12] Sommers also told a Senate Veterans’ Affairs Committee that even the protocol’s authors admitted that their work was incomplete because, said Sommers, “the investigators were denied access to certain classified military records because the VA failed to obtain a security clearance for the contractor or his assistants.”21
Vernon Houk of the Center for Disease Control was also critical of the protocol. In fact, said Houk, the proposal “had such insufficient information that we did not indeed even classify this as a protocol.”22 Following the scientific review and comments from the OTA officials, the protocol was returned to UCLA for modifications. After twenty-four months, the epidemiological study was still mired in the
planning stages.
The revised protocol was returned to the National Academy of Sciences for review, but even if the NAS had found the design acceptable it would have been years before the VA reached any conclusions on the health effects of Agent Orange. Although the agency said it was planning several new studies, including one of identical twins, one of whom served in Vietnam, officials continued to insist that the epidemiological study could not be finished until 1987. And while VA officials were searching for ways to improve the agency’s credulity among veterans, Illinois State Senator Karl Berning told a VA panel that he sensed “a lack of commitment, a lack of concern, a lack of interest on the part of the national government” regarding this issue.23 While conceding that studies may be necessary, Berning told the panel: “However, I remind you that while you and I are talking, men and women, our fellow citizens, are suffering and dying now—and, from what we have had in the way of testimony, with little or no help from their government.”24
On March 3, 1982, four years after the VA first responded to Agent Orange claims, I asked Victor Yannacone, lawyer for the 2.5 million Vietnam veterans who are suing companies that manufacture Agent Orange, whether he had seen any change in the VA’s attitude in recent months. Yannacone had been cheerfully, almost endearingly bellicose during our interview, answering my questions with the candor and compassion that have won him the trust and respect of Vietnam veterans. But when I asked about the VA he paused, rose slowly from his chair, and, facing my tape recorder as though it were a jury, shouted: “Yes, the attitude has become militantly anti-Vietnam veteran. The management has become, if anything, more inept. And the trail of broken bodies and dying veterans is getting longer.”
On October 14, 1982, Robert P. Nimmo, who just a few days before had announced his resignation as VA director, informed reporters that the VA had decided to turn over its much-delayed and controversial study of the health effects of Agent Orange to the Center for Disease Control in Atlanta. While denying that the VA had intentionally stalled the study, Nimmo conceded that a “broad consensus” had developed to support the “belief that it would be in the best interests of veterans to have a non-VA scientific body conduct the Agent Orange epidemiological study.”25 Two weeks later the General Accounting office released a report that had taken its auditors two and a half years to complete. The report states that the VA did not actively attempt to locate and screen veterans suffering from symptoms potentially related to Agent Orange. It also chastises the VA for its inconsistent procedures at the agency’s 172 hospitals. In its rebuttal the VA argued that the GAO’s evidence was dated and that treatment at VA hospitals has improved considerably since the GAO’s auditor did his research.
7. When You Can’t Sue the Government that Kills You
Victor Yannacone has been called flamboyant, arrogant, a genius, and, I’m sure, many less complimentary things by those whose vested interests he challenges in the name of what he calls the “public good.” Certainly he is not overly modest, calling the Agent Orange class action suit “the most important product liability case in the history of the United States.” Nor is he always gracious or polite, thundering like an evangelist, occasionally answering questions with the clipped irritability of a man who has little time for fools, because he knows only too well that they can be depended on to lose: and Yannacone doesn’t intend to lose when he goes to court on behalf of 2.5 million Vietnam veterans and their families.
He can be charming. He will bring you coffee, buy you lunch and spend the morning, perhaps even part of the afternoon, helping you sort things out, defining legal terms correcting misconceptions, and speaking always with the confidence of a man who, through his successful campaign to remove DDT from the market, has shown that the chemical industry and its multi-million-dollar Washington lobby is not invincible. Yannacone loves a good joke, a humorous story, or a satirical account of court proceedings, but he is not a cynic, and beneath the bravado it is easy to see the intense compassion he feels for the “kids” who served in Vietnam and returned home with what Yannacone calls “an aging disease.”
Victor Yannacone possesses another important attribute. To men who have been lied to, misled, maligned, treated as pariahs, psychopaths, malingerers, hypochondriacs, and disposable war matériel, he just may be the one man in America whom Vietnam veterans feel they can trust.
I am waiting for him to finish a rather long story about how he once defended a man who wanted to keep pigs in his backyard on Long Island. Somehow Yannacone managed to prove that the pigs’ ancestors had provided a valuable service to the community and, he laughs, to convince the judge that the pigs therefore had every right to be where they were. At a nearby desk Carol Yannacone sorts through mail, examines and files autopsy reports on Vietnam veterans and their children. She explains that “many times they don’t really know why the children are born dead or don’t live long after birth. Everything seems to be perfectly normal, but the child dies. So the doctor just files an autopsy report and we get them from lawyers who are working on the class action suit. It is a sad job, sometimes too sad.”
In nearby rooms typewriters clack, computers hum, and Vietnam veterans phone from all over the country seeking advice, asking for help, offering assistance. People enter the office, ask questions, leave notes, and exchange bits of information or gossip with Carol and Victor.
Although he was aware as early as 1969 that defoliants may have resulted in permanent damage to Vietnam mangrove forests, Victor Yannacone’s involvement in the Agent Orange controversy did not really begin until August 1978, when he accepted a luncheon invitation from a group of Long Island attorneys who wished to discuss the Paul Reutershan case. Reutershan, the lawyers told Yannacone, was a young Vietnam veteran who never drank or smoked; he considered himself a “health nut” but was dying of cancer. As a helicopter pilot in Vietnam he had flown through herbicidal mists on numerous occasions, and he believed that his exposure was responsible for his terminal cancer. He had filed a $10 million damage claim against Dow Chemical and two other Agent Orange manufacturers.
Yannacone left the luncheon saddened by what he had heard, but unconvinced that a large number of Vietnam veterans might be suffering from symptoms similar to those that had destroyed Paul Reutershan’s health; however, during the next few months he continued his own research into veterans’ claims that they had been poisoned by Agent Orange. By December 1978 he had learned about Maude DeVictor’s documentation of at least one hundred cases of possible dioxin poisoning; and following Reutershan’s death at age twenty-eight on December 14, 1978, Yannacone began receiving numerous calls from Frank McCarthy, a Vietnam veteran, Paul’s close personal friend and a cofounder of Agent Orange Victims International. Convinced that many of his fellow veterans were suffering from herbicide exposure, McCarthy insisted that Yannacone take legal action against companies that manufactured herbicides for use in Vietnam. On January 8, 1979, having concluded that at least four hundred veterans might have been poisoned by herbicides—but due, in large part, to McCarthy’s persistence—Yannacone filed a class action suit against Dow Chemical et al. on behalf of “all those so unfortunate as to have been and now to be situated at risk, not only during this generation but during generations to come.” The risk was exposure to dioxin, and the lawsuit demanded:
An immediate ban on all advertising, promotion, distribution, marketing and sale of the contaminated herbicides;
A declaration that the corporate defendants are trustees of the public health, safety and welfare, with a fiduciary responsibility to the public.
Disclosure of everything the companies know about the dangers of the contaminated herbicides.
Establishment by the companies of a tax-exempt reserve fund sufficient to cover damages from use of herbicides (reimburse the VA and Social Security Administration for benefits, compensate victims and their families and protect consumers from any attempt to pass along cost of damages resulting from use of utility or railroad rights-of-way).1
&nb
sp; According to the Chicago Tribune (February 1979), the estimated reserve fund would require more than $4 billion.
Soon after Yannacone refilled Reutershan’s initial lawsuit as a class action, Yannacone’s office was deluged with calls from Vietnam veterans and veterans’ widows seeking advice and asking to join the lawsuit. By May 1979 it appeared that at least four thousand claims would be included in the suit, possibly more. According to Yannacone, the question of how the litigation was to be managed became equally as important as the immediate problem of defeating the chemical companies’ various motions to dismiss the complaint. Yannacone was also receiving calls and letters from attorneys throughout the country who wanted to work on the case, and he knew that he had to devise a workable scheme for organizing a task force that would be separated by great geographical distances and, unless the attorneys involved made a very concerted effort to avoid it, the traditional competitiveness of their profession.
“Normally,” explains Yannacone, “in a personal injury case of this magnitude there would be a certain amount of, oh, I wouldn’t say ambulance chasing, that’s not the appropriate expression, but let’s just say jockeying for leadership roles. And because of the size of the litigation that we were envisioning early on—four thousand cases is what we were thinking of—we decided to try something new in the history of personal injury litigation. We would make an agreement with each attorney to divide that case into two parts: liability and damages. We here in New York would handle liability and what we call ‘Cause in Fact’ or Generic Causation. In other words, how toxic is dioxin? And just what can it do? Not what did it do to a particular veteran, but what could it do? Then each individual attorney around the country would handle his own client as a personal injury case as far as proximate cause and damages were concerned, proximate cause meaning: ‘Did this particular veteran manifest the kind of symptoms that would be attributed to dioxin-contaminated herbicides used in Vietnam? And if so, how much damage is he suffering?’ We agreed also to divide whatever fees were awarded by the courts equally, and we agreed from the very beginning—and this is also unique—that we would subject our fee rating to the court for supervision. We then agreed that we would limit out fees, which are contingent of course only on winning, to no more than one-third of recovery, even though some states still allow 50 percent. We also adopted a rule requiring every attorney to file an affidavit saying they didn’t chase the case, they didn’t offer anybody money to get the case, and they violated no disciplinary rules or ethical considerations in acquiring the case. And we have those filed from all of our attorneys. The fact that we’ve filed our agreements and made our financial arrangements known from the beginning is unique in personal injury litigation.”
Waiting for an Army to Die Page 12
