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Settlement or Sellout? Agent Orange TrialBy VVAWWhen the class action suit of Vietnam veterans and their families against the manufactures of Agent Orange was suddenly settled out of court, it came as a great surprise to all (except the judge, the chemical company executives, and the tribe of lawyers on both sides). Many people, including those generally sympathetic to the problems of vets made pleased murmurs about how now the problems of the Vietnam vets were being addressed, that the wounds of war were being bound up. For many vets it took several seconds to size up the proposed settlement—it stinks. It does not assign any blame which means that the government and chemical companies are free and clear to do the same thing all over again somewhere else to another generation of vets. It provides nowhere near enough money to make easier the lives of victims of this chemical poison, let alone "compensate" for the pain and suffering already part of so many lives. Research that might lead to treatment is not mentioned. There are plenty of reasons why the settlement should be rejected; fortunately in the terms of the proposed settlement is the way for us to let the Judge know how we feel. Judge Weinstein is holding a series of public hearings around the country (see below for time and place) so that vets and others affected by Agent Orange can say their piece. VVAW urges every vet and every family member to speak out. If you can't get to one of the hearings, write to the Judge (address below) before the 30th of July; if you can get to one of the hearings, write to the Judge to make sure your name is on the hearing roster. It's our chance to sound off—no one is going to do it for us! Following is an edited text of the "Settlement" as put out by the Wisconsin Office of Vets Affairs (it has all the material in the original without a lot of the legalese). This "settlement" only goes into effect after the Judge has heard from us and has then decided the "settlement" is fair and adequate. Stipulation of Settlement in re "Agent Orange" Product Liability Litigation M.D.I. 381 It is hereby stipulated and agreed that:
So Ordered. Jack B. Weinstein That is the bones of the proposed settlement; we'll get into why we think it's so bad in a moment. First, at the end of June, the following notice appeared in selected newspapers around the country (there's some kind of legal maneuver where a notice like this can be printed in a few major papers and then be assumed to have reached most of the people concerned). Anyhow, in case you missed it, here it is (and you might have missed it—in the Chicago Tribune it was printed on the second page of the second section of the editorials in back of an article about germs). LEGAL NOTICE Notice of Proposed Settlement of class action, in re "Agent Orange" You are hereby notified of a proposed settlement of this class action, of hearings, to be held by the court to determine whether it should be approved, and of what you must do now if you believe you have a claim for adverse health effects allegedly related to Agent Orange exposure in or near Vietnam. This court has previously certified a plaintiff class consisting of those persons who were in the United States, New Zealand or Australian Armed Forces at any time from 1961 to 1972 who were injured while in or near Vietnam by exposure to "Agent Orange" or other phenoxy herbicides, including those composed in whole or in part of 2, 4, 5-trichlorophenoxyacetic acid or containing some amount of 2, 3, 7, 8-tetrachlorodibenzo-p-dioxin (collectively referred to as "Agent Orange"). The class also includes spouses, parents, and children born before January 1, 1984, directly or derivatively injured as a result of the exposure. Defendants have denied any liability or wrongdoing. The attorneys for the class representatives and the attorneys for all of the defendants have entered into a Settlement Agreement made as of May 7, 1984, which is subject to and conditioned upon the Court's approval of its terms. Under the settlement, if it is approved, the defendants collectively will pay One Hundred Eighty Million Dollars, plus interest at the average prime rate from May 7, 1984 to the date of payment into a Settlement Fund to be established and supervised by the Court for the payment of class members' claims. The Settlement Agreement confirms that the class includes persons who have not yet manifested injury, and provides that arrangements will be made to assist afterborn children from the Fund. The Settlement Agreement will not become effective unless and until the Court decides that it should be approved as a fair, reasonable and adequate compromise of the aggregate claims of the plaintiff class as a whole. In order to assist the Court in making this decision, the Court will hold hearings in the following places on the dates indicated: August 8, 9, 10, 1984, U.S. District Court, 225 Cadman Plaza East, Brooklyn, N 11201 August 13, 14, 1984, U.S. District Court, 219 S. Dearborn St, Chicago, IL 60604 August 16, 17, 1984, U.S. District Court, 515 Rusk Ave, Houston, TX 77002 August 20, 21, 1984, U.S. District Court, 75 Spring St SW, Atlanta, GA 30303 August 23, 24, 1984, U.S. District Court, 450 Golden Gate Ave, San Francisco, CA 94102 Each hearing will begin at 10:00a.m. Any class member may raise any objection he or she may have to the proposed settlement at any of the hearings. Written objections to the Settlement may also be submitted to the Clerk, on or before July 30, 1984, at the address given at the end of this Notice. If the court approves the proposed Settlement, it will subsequently conduct further proceedings with respect to the question of allocation and distribution of the Settlement Fund to qualifying class members in satisfaction of their claims asserting injuries related to Agent Orange exposure in or near Vietnam. The Court solicits and encourages and will consider recommendations and suggestions on this question from any party to the litigation, Vietnam veterans and other interested persons. Class members will be given notice about the proposed plan for allocation and distribution of the settlement Fund after it is developed, and will have full opportunity to present the Court at that time any objections they may have to that proposal, whether or not they have objected to the Settlement as a whole. In an effort to establish procedures and formulas for the allocation and distribution of the Fund, it is important to determine as soon as possible the current number and nature of the claims made by class members. If you wish to apply for compensation for adverse health effects which are already manifested, you must complete and mail a claim form (which you may obtain as indicated below) postmarked on or before October 26, 1984. IF YOU FAIL TO FILE SUCH A CLAIM FORM POSTMARKED ON OR BEFORE OCTOBER 26, 1984, YOU WILL BE BARRED FOR MAKING ANY CLAIM FOR ANY ADVERSE HEALTH EFFECT THAT IS ALREADY MANIFESTED (UNLESS THE COURT DETERMINES THAT THERE IS GOOD AND SPECIAL REASON FOR YOUR FAILURE TO MEET THIS DEADLINE). In order to obtain further information about the Settlement, including a copy of the Settlement Agreement, and a Claim Form, call 1-800-645-1355 (from outside New York State) or 1-800-832-1303 (from within New York State), or write to the following address: Clerk, U.S. District Court for the Eastern District of NY So What Does All This Mean to Me and My Family? VVAW hopes that every vet will get one of the hearings. According to a document, sent by the court to all those vets who joined the suit, here's what you do: "All written objections to the Settlement should be submitted to the Clerk in writing by July 30, 1984, at the Smithtown address given above. Class members or their representatives may appear at any of the hearings and any objections they have will be heard by the Court. Any person who wishes to be heard should notify the Clerk on or before July 30, 1984, at the address given above, stating the amount of time he or she requests. The hearings, according to the same document, are "for the purpose of considering whether the proposed Settlement is fair, reasonable, and adequate and should be approved." Any class member can appear to object—you do not have to have joined the suit; merely being a veteran of Vietnam, or a member of the family of a Vietnam vet makes you a member of the "class." VVAW has been told that the judge will also try to hear those who have not requested hearing but who are in attendance at the various court dates—we'd suggest getting there early since, as far as we can tell, that will be first come, first serve, and will depend on how many people have asked to testify already. VVAW urges all veterans to write the Judge and/or come to the hearings, whether or not you agree with our assessment of the settlement. Send or bring photocopies of your medical records or bills, photos of your kids, anything and everything that will make the Judge understand and rule against the settlement. Some veterans are planning to have their children testify also, and we're hoping that vets will do whatever necessary to have an impact. For any event in which there are so many lawyers involved and a large amount of money at stake (to say nothing of the amount that should be involved), there is much difference of opinion together with a good deal of sniping at those who disagree. One thing we've been told 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 even if we're vets. And we can read English even though it's legalese. There are conspicuous absences in the wording of this settlement. One is that there is no provision recognizing the link between exposure to dioxin-contaminated chemicals and human health problems. This is a very serious omission. If the Court does not recognize a cause and effect relationship between our exposure and our health problems, the VA will never recognize Agent Orange exposure as a service-connected disability. Can you imagine: we "win" the suit and then can't claim a disability! Which brings us to another point. Check out provision #8. It can't be more clear where the chemical companies are headed: right into the next war, with Ronald Reagan and all the rest of his cowboys. And where does that leave us? Well, the corporation's answer to Agent Orange problems has always been that our exposure was our own fault, because we didn't apply the chemicals properly. Sound familiar? It should; from the start of that war it's been the GI's who put up with their lies and contradictions in Vietnam, and we've been getting dumped on ever since. This settlement is what they call a victory?" If the settlement were to happen, 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 their birth ?defected children, plus widows and orphans' benefits, plus research. This is what the proponents of the settlement want us to think the money will be used for, plus a couple of other things not yet figured out. All of this? Never in a hundred and eighty million years—or 250 million years counting interest! And then the argument shifts. "Well, that's OK because the widows and orphans and children with birth defects can sue the government so they'll get their money that way." First, it's far from certain that any such suit would win and if it did, it would only mean that once again the American people will be paying with our tax money for Vietnam casualties—again! The taxpayers did not poison us—we are the taxpayers. Why should we have to pay for corporate lies and cover-ups—drag the money out of the corporate profits. They are the ones who profited from the Vietnam War in the first place! In Provision #9 of the settlement, the defendants—the chemical companies—will pay up—in fact they have already deposited their $180 million in the bank where it is drawing interest. And on the next day they turned right around and sued the government for $180 million. So that's what #9 is all about. We'll have to wait to see if they back out of this little agreement ten days before the public hearings. Provision #12 gives vets the chance to turn the settlement around. Rule 23(e) means that this settlement is subject to the approval of the judge, Judge Jack Weinstein. He has the final say on whether or not the settlement is settled—whether it is "just" for all concerned. It is vital to convince Judge Weinstein that the settlement is not just and that large numbers of vets do not agree with it. These public hearings are our last hope. We have neither the organization nor the money to hire a new set of lawyers, or even to rehire victor Yannacone, the man who got the whole class action suit started on behalf of Vietnam vets. (Yannacone was eliminated form the case a while back; at the time we were told it was because he ran out of money. Now it seems clear there was more to it than that, and we may never find out just what happened—if we do we will print it in THE VETERAN in the future). The attorneys who made this settlement on our behalf (without telling anyone) were appointed by the Judge. We did not go out and hire them to represent us. Many of them were already deeply involved in the case through Victor Yannacone. In any case the Judge is not going to allow us to change attorneys at this point in the progress of the suit, so the public hearings are especially important for us. It is our chance to speak for ourselves, to try to convince the Judge both of what we need and what we want. The settlement provides nowhere near enough money for what it's supposed to do. The cause and effect clause must be there; the companies must take the blame for the things they have done and then kept from everyone in the name of "trade secrets." That is the only way to move toward preventing the same thing from happening again in the future. One thing is sure; the Judge has already heard from the leadership of almost every vets' group in the country. He realized, however, that many Vietnam vets belong to no group and can only speak for themselves. Many vets are just out there, maybe seeing the notices or hearing some of the news about the suit, and wondering what it all means to them and their families. It seems very far away. But it could mean life or death to many families. Please let the Judge hear from you. The address for writing the Judge: Judge Jack B. Weinstein The people who have been involved in this suit from the very beginning are also urging veterans to participate in these hearings. The original attorney in the case, Victor Yannacone, has said, "We have to stay with it—even if it takes years! If we don't we become our own worst enemy." Rena Kopystenski, the hard-hitting coordinator of the group Agent Orange Victims of New Jersey, mentioned a case in a small town called Woodbine, Georgia. During the Vietnam War, the Defense Department had a contract with a company in Woodbline to make flares to the military's specifications. Unfortunately the government forgot to tell this little company that they should never store the finished product near heat. The make a long story short, the stuff blew up and 52 families suffered as a result. The government refused to compensate these families until recently. Rena said, ""Those poor, uneducated people stuck to it. And after taking it through 27 different courts over a period of 13 years, those families forced the government to give in, and they won $717 million! When you compare that to our settlement, we got a long way to go and we can't turn back." Maude de Victor, the courageous VA worker who originally broke the story of Agent Orange exposure among Vietnam vets, said, "The actual living veterans and their families are the real merits of this case. The merits of the case have been lost to the Judge so far, because all he sees are these hot-shot lawyers with their fancy and meaningless interpretations of our suffering. This is history in the making, like all the events that happened during Vietnam all rolled into one event—the civil rights marches, the anti-war marches, the anti-nuke marches, the World Series and the Superbowl. The bottom line is that the Judge needs to see the score!" The Court document mailed to vets enrolled in the suit (all Vietnam vets and families are members of the "class" in the suit, but a much smaller number of individuals actually signed up as plaintiffs) also has information about what will happen if Judge Weinstein agrees to the proposed settlement (everyone interested should write to the Court Clerk and request a copy of the "Notice of Proposed Settlement of Class Action and Claim Form—the document does not take "sides" in the proposed settlement, but lays out all the relevant facts). In addition to the points of the Settlement already listed, there's one added small point which will allow the chemical companies to withdraw up to $10 million from the settlement fund to settle certain claims made against the companies in state courts. If Judge Weinstein decides in favor of the Settlement, there will be further hearings about distribution of the fund; Judge Weinstein asks already for ideas and suggestions from vets or any other interested parties, and such suggestions may be part of a "preliminary oral discussion" during the hearings. More hearings will also be held in Brooklyn on the 24th and 25th of September concerning lawyers' fees; a copy of what the various lawyers are looking for in the way of bucks will be available for examination at the Brooklyn court after the 31st of August. You can bet those requests are going to be dandies! For vets and families who are affected by Agent Orange, the most important section of the document from the Court is the claim form which must be sent in to an address printed on the form by the 26th of October, 1984; persons who now have adverse health effects related to Agent Orange and do not send in the form will not get money from the Settlement Fund. For those who start to show bad health effects after the court case, they must submit the form within 120 days; there are some provisions which ease the restrictions a little, but basically, if you think you have a claim, get the claim form and send it in. (THE VETERAN will reprint claim forms in the next issue, but to make sure, send to the Clerk of Court.) The claim form is very general—when you were there, things which you believe are Agent Orange related problems in yourself or your family. You do not have to prove anything at this point. It appears that the Judge is just trying to get some idea of how many vets are affected, and what kinds of claims are going to be a part of the case. There will still be a long and careful process of determining who gets what, according to the court document, and there will be places for comments and objections along the way. Vets seem to have been fortunate in having Judge Weinstein as the judge in this case; he seems to be making all efforts to be as open and fair as possible. At the same time, the Settlement would be, for him, the best solution and he seems already to be making plans for post-settlement operations. In other words, it's up to us to let him know why we believe the Settlement is inadequate, unfair, and wrong. We've got a job ahead to convince him and no one can do that alone—we need everyone involved. Join those who are going to speak up for what we need. WHAT TO DO!
Finally, we believe that no vet can afford to do nothing. This issue is much more than simply getting money to help our brothers and their families, though that is vital. The issue runs straight to who is responsible in a war for the protection of the soldier, and who should be made to pay. Right now it's clear that Dow and other chemical companies profit from the war and it's the vets who pay and pay and pay. That must stop. Join the vets who will be heard! |
