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Agent Orange "Settled": Everyone Wins! Except the Victims

By VVAW

Monday, May 7, 1984 was said by the media (some of it, anyhow) to be the last victory in the battle that Vietnam vets have been waging around Agent Orange poisoning. But little do they realize how wrong they are! In fact, the battle is just beginning.

The following is the text of what we supposedly "settled" on:

It is hereby stipulated and agreed that:

1. Defendants as a group will pay $180 million, plus interest, to the class in a manner ordered by the court. Interest is to accrue at the prime rate from May 7, 1984. The intent of the parties is to have this settlement cover defendants as well as their subsidiaries and parents.
2. Defendant will advance out of the fund expenses on account of notice and settlement administration (but not to include attorneys' fees or attorneys' expenses).
3. No other distribution will be made from the settlement fund until after an order approving settlement has become final, including appeals.
4. The settlement fund will indemnify defendants for any final compensatory judgment only, excluding defendants' costs and fees rendered against them in "Agent Orange" suits by service persons in state court. The indemnification shall be for final judgment rendered against any or all defendants up to an aggregate at $10 million on all such final judgments. The court may allow additional payments after January 1, 1990, if the payments to members of the class are assured.
5. The class definition as interpreted will specifically include those servicepersons and other members of the class who have not yet manifested injury.
6. If plaintiffs pursue claims against the U.S. within one year, they may retain documents until after any case or cases have been concluded.
7. Plaintiffs and defendants reserve all rights and claims against the U.S. and any persons not a party or a subsidiary of a party to this class action.
8. Dependants deny any liability.
9. Dependants reserve the right to reject this settlement if they feel the number of opt-outs is substantial. This right must be exercised no later than 10 days before the public hearing on Rule 23(e).
10. Any class member who has opted out shall have the opportunity to opt back in within a reasonable time as determined by the court.
11. Any party may apply for disposition of the remaining funds on order of the court after 25 years.
12. This agreement is subject to Rule 23(e) of the Federal Rules of Civil Procedure.
13. Arrangements will be made from the fund to assist afterborns.
14. The court retains jurisdiction until the fund is completely disposed of.

One thing we've heard in the last week is that those of us who oppose this settlement don't understand what it means. Well, that's a bunch of mule muffins! We're not stupid—we can read English, even if it is legalese.

There are two main things conspicuously absent from the words of the settlement. First, there is no provision that recognizes the link between exposure to dioxin-contaminated chemicals and human health problems. The omission is serious. If the court does not recognize a cause and effect relationship between our exposure and our health problems, the VA may never recognize Agent Orange exposure as a service connected disability. Can you imagine: winning the suite and not being able to claim a disability? This is a victory? If this happened, no matter how much money went into the trust fund, there would never be enough to take care of every vet with exposure related health problems, plus the children with birth defects, plus benefits for widows and orphans, plus research! This is what those who are trying to sell us the settlement would have us believe the money will go for. All these things? Never in a hundred and eighty million years.

There is an argument that widows, orphans, and birth defected children sue the government, a legal question which is not yet clear. But even if they could, big deal! That will mean that once again the American people will be paying their taxes for the Vietnam war. It's not the taxpayers who poisoned us—we are the taxpayers. We should we have to pay, again. For corporation lies and cover-ups.

Omission #2 is in provision eight—no liability. It can't be more clear where the chemical companies are headed—right in- to the next war with Ronald Reagan and the rest of his Hollywood cowboys. And where does that leave us? Well, the corporation's answer has always been that our exposure to Agent Orange was our own fault because we didn't apply it correctly. Does that sound familiar? It should. From the get it has been the GI's who screwed up everything, including losing the war. In fact, we put up with their lies and contradictions in Vietnam and we've been getting dumped on ever since!

Provision #9 also needs a note. The defendants have already deposited their $180 million in the bank where it is already collecting interest. On May 9th they turned right around and sued the federal government for $180 million. And that's what provision #9 is about: we will now have to wait and see if the companies back out of their tidy little agreement 10 days before the public hearing.

While the chemical companies were off to sue the government so that the settlement would cost them nothing, they were not, of course, saying they had won a victory or having a public celebration. Just as revealing, however, was the chemical companies' stocks on the New York Stock Exchange where all the stocks went up. Investors were sure as hell that the companies had triumphed!

There is a point where we can still turn things around. Rule 23(e), mentioned several times in the settlement, means that the settlements has to be approved by the judge, Judge Jack Weinstein. He has the final say on whether the settlement goes into effect. And before he makes his decision he will hold public hearings. We need to convince him, and the hearings are the last hope for this. We have neither the organization nor the money to hire a new set of attorneys or even to hire back Victor Yannacone, the attorney who got the case started in the first place. He was eliminated from the case awhile back, presumably because he ran out of money and could no longer afford to pay to carry the case forward. Now it seems there was much more to his exclusion from the case; we may never find out exactly what happened.

The attorneys who made this settlement, supposedly on our behalf (and without telling anyone) were appointed by the judge. We did not hire them to represent us. Less than two months before the trial was to begin, they told a group of vets that they would, under no circumstance, accept a settlement. Many of them had become involved in the case through Yannacone, but in any case it seems clear that the judge is not going to permit us to change attorneys at this point.

There is another reason why the public hearing is so all important. It is our chance to speak for ourselves, to try to convince the judge what we need. AT this point the date of the hearing has not been set, but we are urging all vets to write Judge Weinstein. Send copies of medical bills, pictures of kids, medical records—the kind of thing that will make him understand that the settlement is too small, that cause and effect must be there, and that the companies are liable for what they have done and then hidden away under the name of "trade secrets."

If you want to go to New York for public hearings, let us know—we'll try to help with arrangements (call VVAW at the Milwaukee number: 413-963-0398). The hearing can last from two days to a week, and Judge Weinstein has said that he will hear everyone who wants to speak to him concerning the settlement.

One thing is sure. The judge has already heard from leadership of most vets groups around the country. But the judge realizes that many vets belong to nothing. And the majority of vets are wondering what the settlement may mean to him and to his family. It could mean life or death to many. Let the judge hear from you—now, before it's too late. The address is: Judge Jack B. Weinstein, Federal District Court, 225 Oadman Plaza East, Brooklyn, NY 11201