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d. Torture.
e. Assault and Battery.
f. International Infliction of Emotional Distress.
g. Negligent Infliction of Emotional Distress.
Defendants, it is claimed, carelessly and negligently inflicted emotional distress through wanton and reckless conduct in manufacturing and supplying herbicides contaminated with dioxin for use in herbicidal warfare. As a direct result of defendants’ wrong acts, it is contended, plaintiffs and plaintiffs’ immediate family members have suffered and will continue to suffer significant physical injury, pain and suffering and extreme and severe mental anguish and emotional distress. This conduct allegedly constituted the negligent infliction of emotional distress.
h. Strict Product Liability
The negligence of the defendants, their servants, employees and agents consisted, according to the complaint, in manufacturing and supplying the herbicides without making proper and sufficient tests to determine their dangers and contraindications, in that defendants knew, or in the exercise of reasonable diligence, should have known that the herbicides were unsafe and unfit for use by reason of the dangerous effects to human health and the environment, in negligently failing to adequately warn the public and the United States and RVN governments of the dangers and contraindications of the herbicides, in failing to properly inspect the herbicides, and in concealing the dangers and contraindications of the herbicides from the public and from the United States and RVN governments in order to profit from the manufacture and supply of the herbicides. It is contended that defendants are liable jointly and severally to the plaintiffs under the doctrine of strict product liability.
APPENDIX 2
Vietnamese Studies on Agent Orange/Dioxin
Ba Thinh, Hoang. A Hero of the Armed Forces who Met Uncle Ho Three Times and His Children and Grandchildren Affected by Agent Orange/Dioxin. Hanoi: Research Centre on Gender, Family and Environment in Development (CGFED), 2005.
———. “A Family with Three Generations Affected by Agent Orange/Dioxin.” Hanoi: CGFED, 2003.
Din Cau, Hoang. Environment and Health in Vietnam (30 years after the Operation Ranch Hand), Hanoi: Nghe An Publishing House, Centre on Studies and Dissemination of Encyclopedic Knowledge, 2003.
Dai, Le Can. Agent Orange in the War in Vietnam—Situation and Consequences. Hanoi: Red Cross, 1999.
Minh, Tu Binh, et al. “Chapter 11 Persistent Organic Pollutants in Vietnam: Levels, Patterns, Trends, and Human Health Implications.” Developments in Environmental Sciences 7 (2007): 515–555.
Ministry of Health. Summary Report of the Vietnam-US Symposium on the Impacts of Agent Orange/Dioxin on Human Health and Environment. Hanoi, 2002.
Ministry of Labour, Invalid and Social Affairs. Analysis of Children with Disabilities in Vietnam. Hanoi: UNICEF, 2004.
Sajor, Indai and Le Thi Nham Tuyet. “Agent Orange: Impact of Chemical Warfare on the Reproductive Rights of Women and Men in Vietnam.” Hanoi: CGFED, 2000.
Tlhi Xinh, Phan, et al. “Unique Secondary Chromosomal Abnormalities are Frequently Found in the Chronic Phase of Chronic Myeloid Leukemia in Southern Vietnam.” Cancer Genetics and Cytogenetics 168, no. 1 (July 2006): 59–68.
Tuan, Anh Mai, et al. “Dioxin Contamination in Soils of Southern Vietnam.” Chemosphere 67, no. 9 (April 2007): 1802–1807.
Tuyet, Le Thi Nham and Annika Johansson. “Impact of Chemical Warfare with Agent Orange on Women’s Reproductive Lives in Vietnam: A Pilot Study.” Reproductive Health Matters 9, no. 18 (November 2001): 156–164.
Tuyet, Le Thi Nham and Pham Huong Thao. Case Study of Mr. Nguyen Dinh Hanh, Bien Hoa City, Dong Nai Province. Hanoi: CGFED, 2005.
MORE SCIENTIFIC STUDIES
Bajgar, Jiri et al. “Global Impact of Chemical Warfare Agents Used Before and After 1945.” Handbook of Toxicology of Chemical Warfare Agents, 2009, 17–24.
Dwernchuk, Wayne L. et. al. “Dioxin Reservoirs in Southern Vietnam—A Legacy of Agent Orange.” Chemosphere 47, no.2 (April 2002): 117–137.
Ginevan, Michael E. et al. “Assessing Exposure to Allied Ground Troops in the Vietnam War: A Quantitative Evaluation of the Stellman Exposure Opportunity Index Model.” Chemosphere 75, no. 11 (June 2009): 1512–1518.
Hall, Wayne. “The Logic of Controversy: The Case of Agent Orange in Australia.” Social Science & Medicine 29, no. 4 (1989): 537–544.
Kalter, Harold. “Teratology in the 20th Century Environmental Causes of Congenital Malformations in Humans and How They Were Established.” Teratology in the Twentieth Century, Elsevier, 2003: 131–282.
Mortelmans, Kristien et al. “Mutagenicity of Agent Orange Components and Related Chemicals.” Toxicology and Applied Pharmacology, 75, no. 1 (August 1984): 137–146.
Palmer, Michael G. “The Legacy of Agent Orange: Empirical Evidence from Central Vietnam.” Social Science & Medicine 60, no. 5 (March 2005): 1061–1070.
Schecter, Arnold et al. “Dioxins: An Overview,” Environmental Research 101, no. 3 (July 2006): 419–428.
———. “Chlorinatead Dioxin, Dbenzofuran, Coplanar, Mono-ortho, and Di-ortho Substituted PCB Cogener Levels in Blood and Semen of Michigan Vietnam Veterans Compared with Levels in Vietnamese Exposed to Agent Orange.” Chemosphere 27 (1993): 241–252.
———. “Dioxin and Dibenzofuran Levels in Blood and Adipose Tissue of Vietnamese from Various Locations in Vietnam in Proximity to Agent Orange Spraying.” Chemosphere, 25 (1992).
———. “Human Adipose Tissue Dioxin and Dibenzofuran Levels and ‘Dioxin Toxic Equivalents’ in Patients from the North and South of Vietnam.” Chemosphere, 20, no. 7–9 (1990): 943–950.
———. “Elevated Body Burdens of 2,3,7,8-tetrachlorodibenzodioxin in Adipose Tissue of United States Vietnam Veterans.” Chemosphere, 18 (1989): 431–438.
———. “Adipose Tissue Levels of 2,3,7,8 TCDD in Vietnamese Adults Living in Vietnam, 1984–1987.” Chemosphere, 18 (1989): 1057–1062.
———. “Levels of 2,3,7,8-TCDD in Silt Samples Collected Between 1985–1986 from Rivers in the North and South of Vietnam.” Chemosphere, 19, no. 1–6 (1986): 547–550.
Verger, R, et al. “Correlation Between Dioxin Levels in Adipose Tissue and Estimated Exposure to Agent Orange in South Vietnamese Residents.” Research, 65, no. 2 (May 1994): 226–242.
APPENDIX 3
VA: Veterans’ Diseases Associated with Agent Orange Exposure
Acute and Subacute Transient Peripheral Neuropathy
A nervous system condition that causes numbness, tingling, and motor weakness. Under the VA’s rating regulations, it must be at least ten percent disabling within one year of exposure to Agent Orange and must resolve within two years after the date it began.
AL Amyloidosis
A rare disease caused when an abnormal protein, amyloid, enters tissues or organs.
B Cell Leukemias
Cancers which affect B cells, such as hairy cell leukemia.
Chloracne
A skin condition that occurs soon after dioxin exposure and that looks like common forms of acne seen in teenagers. Under the VA’s rating regulations, it must be at least ten percent disabling within one year of exposure to Agent Orange.
Chronic Lymphocytic Leukemia
A disease that progresses slowly with increasing production of excessive numbers of white blood cells.
Diabetes Mellitus (Type 2)
A disease characterized by high blood sugar levels, resulting from the body’s inability to respond properly to the hormone insulin.
Hodgkin’s Disease
A malignant lymphoma (cancer) characterized by progressive enlargement of the lymph nodes, liver, and spleen, as well as by progressive anemia.
Ischemic Heart Disease
A disease characterized by a reduced supply of blood to the heart.
Multiple Myeloma
A cancer of specific bone marrow cells that is characterized by bone marrow tumors in various bones of the body.
Parkinson’s Disease<
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A motor system condition with symptoms that include trembling of the limbs and face and impaired balance.
Porphyria Cutanea Tarda
A disorder characterized by liver dysfunction and by thinning and blistering of the skin in sun-exposed areas. Under the VA’s rating regulations, it must be at least ten percent disabling within one year of exposure to Agent Orange.
Prostate Cancer
Cancer of the prostate, one of the most common cancers among men.
Soft Tissue Sarcoma (other than Osteosarcoma, Chondrosarcoma, Kaposi’s sarcoma, or Mesothelioma)
A group of different types of cancers in body tissues such as muscle, fat, blood, lymph vessels, and connective tissues.*
* Source: United States Department of Veterans Affairs, 2009.
APPENDIX 4
Agent Orange: Important Dates
1940s. Arthur W. Galston, a graduate student at the University of Illinois, discovers that chemicals that inhibit plant growth can also increase the number of floral buds and harvestable pods produced on soybean plants getting ready to flower. Scientific studies on the effects of growth inhibiters continue during World War II at Ft. Detrick, Maryland.
1950. President Dwight Eisenhower refuses to sign an order that would allow the use of herbicides in Korea.
1950s. Research on herbicides continues at Ft. Detrick, Maryland.
1959. The United States military experiments with herbicides at Fort Drum, New York.
1961. President John F. Kennedy approves of using herbicides in Vietnam. Tests of herbicides on the Vietnamese countryside begin in August 1961, and continue through December.
1962. The first shipment of Agent Orange arrives in Vietnam. Systematic testing continues for years.
1965. Operation Ranch Hand, “Only we can prevent forests,” uses Agent Orange in Vietnam.
1966. Professor Arthur W. Galston and twelve colleagues from the American Society of Plant Physiologists send a letter to President Lyndon B. Johnson expressing their concerns that herbicides might harm human beings in Vietnam, and challenging the use of herbicides to destroy food crops.
1967. A team of Japanese filmmakers talk with Vietnamese who live in areas where Agent Orange has been used.
1969. Dr. Bert Pfeiffer and other scientists from the Council of the American Association for the Advancement of Science pass a resolution urging the Department of Defense to “immediately cease all use of 2,4-D and 2,4,5-T in Vietnam.”
1969. Bionetics Laboratories of Bethesda, Maryland, releases the results of its study, completed in 1965, which demonstrates that even in the lowest dose given, 2,4-5-T causes cleft palates, missing and deformed eyes, cystic kidneys, and enlarged livers in the offspring of laboratory animals.
1970. Congress directs the Department of Defense to engage the National Academy of Sciences to conduct a comprehensive study of the ecological and physiological effects of Agent Orange in Vietnam.
1970. On April 15, 1970, Deputy Secretary of Defense David Packard announces the immediate suspension of the use of 2,4,5-T in Vietnam. Also, the Surgeon General reports to the Hart committee on the restrictions placed on 2,4,5-T: suspension of liquid formulation for home use, suspension of all aquatic uses, intent to cancel registration of nonliquid formulations for use around homes and on all food crops.
1970. Thomas Whiteside writes in the June 20, 1970, issue of the New Yorker that the sale and use of 2,4,5-T continues within the United States.
1978. Paul Rheutershan announces that he “died in Vietnam and didn’t even know it.” Beginning of class action lawsuit on behalf of Vietnam veterans and their families.
1979. Environmental Protection Agency issues emergency suspension of 2,4,5-T and 2,4,5-TP (Silvex) in the United States.
1984. Vietnam veterans’ class action lawsuit is settled out of court for $180 million.
1984. “Fairness Hearings” into out-of-court settlement begin in Brooklyn Federal Court.
1990. Admiral Elmo Zumwalt Jr. completes a classified study for the Department of Veterans Affairs.
1991. The Agent Orange Act directs the Secretary of Veterans Affairs to request the National Academy of Sciences to conduct a comprehensive study of scientific studies and medical information on the health effects of exposure to herbicides in Vietnam. The Academy will include in their study the possible effects of dioxin on human beings.
1994. Wayne Dwernychuk, a scientist working with Hatfield Consultants, meets with Committee 33 in Vietnam.
2004. Lawyers acting on behalf of Vietnamese victims of Agent Orange launch a class action suit charging Dow Chemical, et al. with war crimes.
2005. Judge Jack B. Weinstein dismisses the Vietnamese lawsuit. Lawyers file an appeal.
2007. A court of appeals rules against Vietnamese plaintiffs’ attempt to reinstate their class action lawsuit.
Acknowlegments
I would like to thank the following people for their love and support of victims of chemical warfare, for their support of and belief in this book, and for their excellent advice and professional editing:
Dr. Professor Nguyen Trong Nhan, Dr. Nguyen Thi Ngoc Phuong, Nguyen Thi Hien, Nguyen Thi My Hoa, Chairman Nguyen Dinh An, Nguyen Thi Nga, Dr. Pham VietThan, Professor Phung Tuu Boi, Nguyen Mai Phuc Minh, Dr. Wayne Dwernychuk, Professor John Marciano, Dr. Michael Viola, Paul Sutton, Howard Zinn, Noam Chomsky, Jeff Cohen, Jack Hopper, Maura Stephens, George Sapio, Adelaide Gomer, Kenneth J. Herrmann, Richard Hughes, Dean Kokkoris, Trinh Kokkoris, Rev. Peter Phan Khac Tu, Gabe Espinal, Elizabeth DeLong, Dan Simon, Ruth Weiner, Beverly Cherweznik, Joyce Garwood, Marian MacCurdy, Sandi Strait, Jerry Strait Sandra Steingrabber, Elizabeth McAlister, Phoebe Wilcox, Gilea Hurley, Danica Wilcox, and Brendan Wilcox.
Notes
INTRODUCTION
No notes.
CHAPTER 1: ECOCIDE
1. Memorandum from Secretary of State Rusk to President Kennedy, November 24, 1961. Quoted in “Memorandum of Law in Support of Defendants’ Motion to Dismiss All Claims in Plaintiffs’ Amended Class Action Complaint for Lack of Jurisdiction over the Subject Matter and for Failure to State a Claim upon Which Relief Can Be Granted.” U.S. District of New York, 2005: 9.
2. Constantine P. Kokkoris, Amended Complaint in The Vietnam Association for Vietnam Victims of Agent Orange/Dioxin, et al., v. The Dow Chemical Co., U.S. District Court for the Eastern District of New York, docket No. 04CV 0400: 14.
3. Ibid., 17.
4. Ibid., 15.
5. Ibid., 18.
6. Ibid., 15.
7. “Memorandum of Law,” 11–12.
8. Barry Weisberg, The Ecology of War (San Francisco: Canfield Press, 1970) 18–19.
9. Ibid., 4.
10. Secret Confidential Report, Operation Pink Rose, 1967. Declassified and Re-graded, By order of the Secretary of the Army, 1988, 3.
11. Allied Leaflet, AH 23365.
12. Operation Pink Rose.
13. Ibid.
14. Ibid.
15. Ibid.
16. Ibid.
17. Weisberg, The Ecology of War, 69.
18. Tom Mangold and John Penycate, The Tunnels of Cu Chi (New York: Ballantine Books, 2005.)
19. Arthur H. Westing, “Chemical Warfare Against Vegetation in Vietnam,” Environmental Awareness 25, no. 2 (2002), 51–58.
20. Vo Guy, “The Attack of Agent Orange on the Environment in Vietnam and its Consequences,” presented at International Conference on Agent Orange/Dioxin, Paris, 2005.
21. Ibid.
22. Westing, “Return to Vietnam: the Legacy of Agent Orange,” lecture, Yale University, 2002.
23. “Statement on the Geneva Protocol of 1925 and the Biological Weapons Convention January 22, 1975.” The American Presidency Project. http://www.presidency.ucsb.edu/ws/index.php?pid=5049&st=Geneva+Protocol&st1=#axzz1HiN7DpbE.
24. Thomas Whiteside, Defoliation (New York: Ballantine, 1970), 74.
25. Ibid., 99.
CHAPTER 2: TRANSFORMATIONS
1. Fred A
. Wilcox, Waiting for an Army to Die: The Tragedy of Agent Orange (New York: Random House, 1983), 51–53.
2. Ibid.
3. Ibid.
4. Michelle Mason, The Friendship Village (Cypress Park Productions, 2002), DVD.
5. Ibid.
6. “Nation: Where is My Country?” Time, February 25, 1980, http://www.time.com/time/magazine/article/0,9171,952592,00.html.
7. Louis Edwards, “Genetic Damage in New Zealand Vietnam War Veterans,” Institute of Molecular Biosciences (Massey University, 2006), 12.
8. Ibid.
9. Ibid.
10. “Johnny can’t read, sit still, or stop hitting the neighbor’s kid. Why?” 7 vols. Mount Sinai School of Medicine, Center for Children’s Health and the Environment, no date.
11. Ibid.
CHAPTER 3: PROMISES
1. Dr. Professor Nguyen Nhan, “The Chemical Warfare and Its Consequences in Vietnam” Proceedings of The International Conference of Victims of Agent Orange/Dioxin, March 28–29, 2006, 11.
2. Ibid., 12–13.
3. Nhan, “To The American People: An Open Letter,” Hanoi: Vietnam Association For Victims of Agent Orange/Dioxin, August 6, 2004.
4. Le Thi, Anthropology Review, January 1, 2006, 49–50.
5. Ibid.
6. Ibid.
7. Ibid.
8. Nhan, “To the American People,” 2004.
9. Ibid.
10. Ibid.
11. Ibid.
12. Nhan, “Agent Orange and the Conscience of the USA,” presented at annual conference of the American Studies Association in Albuquerque, October 2008.