Download PDF of this full issue: v19n1.pdf (9.7 MB)

Agent Orange Lawsuit: This Settlement Wasn't Made For Me And You

By John Lindquist

The longest struggle in VVAW history began in March, 1978—the battle for testing, treatment and compensation for those exposed to the chemical defoliants used by the U.S. government in Southeast Asia. We fought longer on the issue of the class-action lawsuit filed against the manufacturers of Agent Orange than we did to end the war in Vietnam. And unlike the final victory in Vietnam, bringing our brothers and sisters home, we never did win the Agent Orange lawsuit. Even today we are still fighting against the continued use of the same chemicals, and for the just medical care and treatment for our affected children.

In March, 1978, the Maude DeVictor story, "Deadly Fog" broke in Chicago. The Agent Orange story was picked up by veterans groups around the country. VVAW at its national meeting in Chicago in 1978 started our battle for testing, treatment and compensation for Agent Orange victims. At the same time, Paul Reutersham was dying of cancer from exposure to Agent Orange in Vietnam. With the help of Victor Yannacone, a class action lawsuit against the chemical companies which manufactured the herbicides was filed in federal court. This lawsuit and the need to educate veterans and the world about Agent Orange formed the main thrust in organizing veterans to fight for testing, treatment and compensation for Agent Orange poisoning.

VVAW was one of the leaders in this fight. 1978 saw demonstrations and takeovers at VA offices and medical centers demanding action and medical care for exposed veterans. In 1979 the organization joined with other groups which had already formed the national task force on Agent Orange. Our main goal was education, a national meeting, agitation and signing up as many veterans as possible for the class action lawsuit against the chemical companies. One of the high points of that year was "Operation Triad" which included camping out on the lawn of the capitol building in Madison, Wisconsin.

The early 1980's saw vets organizations popping up around the country to fight around the Agent Orange issue. A National Association of Concerned Veterans (NACV) pigroast in Missouri, a national task force on Agent Orange meeting, teach0ins, and an Arlington Cemetery protest in Washington, DC all went on in 1980 and '81. A movement was growing around the country, and finally, even the traditional veterans organizations called for the government to stop dragging its feet.

1982 saw VVAW once again occupying land on the Mall in Washington, DC. "Operation Dewey Canyon IV" had 300 people, but we spoke for thousands of Vietnam veterans around the country. Our day in court was coming and the veterans of America had gotten the whole world talking about Agent Orange. Just maybe—veterans, our children who were affected and the Vietnamese would get some justice!

This brings us almost up to date. During early 1984, a group of money-hungry lawyers took over control of the class-action suit by forcing Victor Yannacone out of the case. Thirty minutes before the start of the Agent Orange trial, an "out-of-court settlement" was reached. Even though over 85% of the veterans who gave testimony were against the settlement, the lawyers and the court rammed it down our throats. In 1988 the settlement was upheld by the Supreme Court.

Relevant portions of the letter from the court follow:

"For the over 280,000 veterans who had already signed up for the 'Agent Orange' suit, you should have received in the mail from the court your certificate of enrollment along with cover letters. The $180 million is now $240 million and the court's plan for distributing the settlement fund creates two programs. The first program, the Agent Orange Veteran Payment Program will distribute cash payments to certain disabled Vietnam veterans and to survivors of certain deceased Vietnam veterans. The second program, The Agent Orange Class Assistance Program, will use a portion of the settlement ($52 million) for the class members—that is, Vietnam veterans."

"To be eligible to receive money from the payment program, you must be:

• A Vietnam veteran who is long-term totally disabled, or
• A surviving spouse or dependent child of a deceased Vietnam veteran.

In addition, to receive a payment, both veterans and survivors of veterans must show that the veteran was exposed to Agent Orange using an exposure test adopted by the court and must show that the death or disability did not result from an accidental, traumatic or self-inflicted injury."

"Whether you already filed a preliminary claim form or are signing up for the first time, you must submit an application for payment. Either detach and mail the lower portion of the certificate the court sent you or call 1-800-225-4712 and they will mail you one."

"The goal of the payment program is to distribute these (tiny) funds quickly to those class members with the greatest needs."

The summary of the court's form letter continues with questions and answers.

Q: Who may apply for this program?

A: Nam vets who were exposed to Agent Orange while serving in or near Vietnam at any time between January 1, 1962 and December 31, 1971, and who became totally disabled before their 60th birthday.

Surviving spouses or dependent children of deceased Vietnam veterans who were exposed to Agent Orange....

It is very important that if you are not a member of a group described, please do not request an application for payment kit right now. Your cooperation will keep the administrative costs of the program down, and help ensure that your fellow veterans or their families will receive their payments as quickly as possible. You may request an application kit in the future if you become eligible before the program ends on December 31, 1994.

Q: What kind of evidence must I submit to show that the veteran was exposed to Agent Orange?

A: To meet the courts test of exposure, you will have to supply information about the veteran's activity, locations and movements within Vietnam. You may submit other evidence of exposure if you wish. You will not be required to prove that the veteran's death or disability was caused by Agent Orange.

Q: How will payments be made under this program?

A: Veterans who are eligible to receive disability payments will receive a payment for each year they are disabled during the life of the program. The size of each payment will depend on the number of eligible applicants, the veteran's age, and length of time he or she has been disabled. Survivors of deceased veterans will receive one lump payment. The amount of payment will depend on the number of eligible applicants, the year of death and the veteran's age at the time of death.

Q: If I become totally disabled at some time in the future, may I apply for benefits?

A: Yes, veterans who are not now totally disabled but who become totally disabled but who become totally disabled before December 31, 1994, and apply for payments within 120 days of becoming totally disabled will be covered. Survivors of a veteran who dies while this program is still in effect must apply for payments within 120 days of the veteran's death. To request an application for a payment kit call 1-800-225-4712 even if you did not file a preliminary claim form. All veterans who previously signed up for the Agent Orange Suit must apply for this kit."

Well, as you can see from the above summary of the court mailing, the settlement is lacking in true compensation, it is restrictive with nothing awarded to children born with birth defects, and is practically a military secret. VVAW fought against this settlement along with thousands of other Vietnam vets and our families. It is now, unfortunately, a fact of law until December 11, 1994.

We will save the explanation of the actual form to be filled out until the next issue of THE VETERAN, but I would like to summarize a letter from Ashcraft and Gerel about the loss of the suit.

"The Supreme Court, on June 30, 1988, denied petition for appeal. The Supreme Court ruled in the case that government contractors, which the chemical companies were at the time of the production of Agent Orange, are immune from suit when they manufacture products for the government. The same government that betrayed us in Vietnam won't accept responsibility for the decision to use Agent Orange in Vietnam. It would have been too burdensome for the courts to accept such cases and too expensive for the government to pay compensation. Because of these pragmatic reasons they have turned their backs on the Vietnam veterans. We are back to square one and must begin to fight the battle on another front.

"All deceased veterans' families will be entitled to between $5,700 to $72,800. Second, all veterans who are now permanently and totally disabled based on the social security definition of total disability will be entitled to between $1,800 to $3,400.

History and the future will prove that Agent Orange caused countless human misery. Maybe action through Congress is the answer. We in VVAW know that having normal diplomatic relations with Vietnam—where research into Agent Orange continues in a country most affected by the herbicides—is a must for veterans and their families, for our country and for the people of Vietnam. This would help further the fight for testing, treatment and compensation for Agent Orange victims.

—By John Lindquist, VVAW National Office