Memo to the Weinstein Plaintiffs Management Committee

After removing Yannacone as lead counsel, federal Judge Jack B. Weinstein created a “Plaintiffs’ Management Committee” to whom he appointed attorneys he believed would be more willing to settle the case than try it, Yannacone continued to support the cause of the Vietnam combat veterans and delivered a series of confidential memoranda to the Weinstein Management Committee dealing with major issues standing in the way of a successful trial on the merits or a substantial and meaningful settlement of the agent orange litigation.

These memoranda were studiously ignored by the Weinstein Management Committee and had the effects predicted which enabled Judge Weinstein to coerce his Management Committee into accepting a patently unjust settlement in the wee hours of the morning on the day the case was scheduled to go to trial.

 

The war contractors renewed motions to dismiss

25 January 1984
TO: The Agent Orange Plaintiffs Management Committee
FROM: Victor John Yannacone, jr.
re DOW/HERCULES/MONSANTO Motions to Dismiss

The DOW/HERCULES/MONSANTO Motions to Dismiss for inability to identify with specificity the particular manufacturers of the “Agent Orange” to which individual plaintiffs claiming injury and damages were exposed is the subject of the following memorandum…

This memorandum represents the first time I have specifically memorialized in writing the advice I proffered orally to some of you as individuals since as long ago as February, 1979 and it will post the record with respect to many of the causes of what appears to be “ill feelings” between certain of the former Yannacone “Associates” and myself. Its length may appear inordinate, but it should serve as a focus for reflection by all of you on the strategic and tactical considerations presented, … There may still be time for a responsible presentation of the plaintiffs’ claims.

 

The “proximate cause” problem

…I seriously question whether the evidence is presently available to establish “proximate cause” in the classic sense of that term on any negligence theory, even “failure to warn.” Under an extreme interpretation of the Bashada rule of strict liability in New Jersey, there might be a possible recovery if the product 2,4,5–T as sold to the military can be considered “defective” within the meaning of the Restatement [of Torts]. This is not as trivial a matter to prove affirmatively as the former Yannacone “Associates” used to think was justification for their neglecting the preparation of the case on causation, and there refusal to support my efforts to develop the evidence to establish that point after Professor Twerski entered the case.

 

United States Government knowledge

When Judge Pratt invited the corporate defendant war contractors to make motions for summary judgment based on the government contractor immunity defense and focused upon the independent “knowledge” of the United States Government, I advised all of the former Yannacone “Associates,” and a number of the associated regional counsel, including Steve Schlegel and Dorothy Thompson, as well as Rob Taylor and Jim Green of Ashcraft & Gerel, and Benton Musslewhite, that the corporate defendant war contractors intended to build a web of government knowledge from fragments of testimony and isolated documents developed during their extensive examination of government witnesses and government documents produced on the government contractor immunity defense.

I predicted that their plan would be to present a coherent logical web that would ensnare the few high level witnesses at the decision-making level of the Executive Branch of Government who denied any knowledge about dioxin contamination of the phenoxy herbicides selected for use in Vietnam or knowledge of dioxin toxicity. I still believe that the defendants are committed to this tack and intend to rely upon the political factors which will promote disbelief of government officials at the Secretarial and White House level, especially where the Vietnam War is concerned. The Hercules memorandum is clear and convincing proof of the continuation of this strategy.

The corporate defendant war contractors are represented by counsel who may lack some of the “street smarts” of the original Long Island “Consortium” trial team, but they certainly are not stupid. With their limited talent in jury trial litigation, they have, nevertheless, searched for and found the unprotected heel that makes the Agent Orange claim vulnerable on trial—the culpability of the Executive Branch of the Federal Government.

Government culpability will be predicated on showing that the “crop destruction” program in Southeast Asia was morally reprehensible and that the management of that program by certain Agencies of the federal bureaucracy, particularly the United States Department of Agriculture, the Food and Drug Administration, and the Department of Defense was so inept or unconcerned as to cry out for some kind of public admonition.
The final plea to the jury by the corporate defendant war contractors will focus on the disregard by President Johnson of the advice from his Science Advisor, Dr. Hornig and his Science Advisory Committee to discontinue the crop destruction and defoliation program in Viet Nam.

I first described the long term strategy for winning the Agent Orange cases… that no one in authority had sufficient knowledge to recognize the danger inherent in the deployment of dioxin contaminated 2,4,5–T as a chemical defoliant in Southeast Asia… even before [Leonard] Rivkin fabricated the government contractor immunity defense in its present form.

In May, 1982 when discovery was to begin, I argued to the Consortium for active participation in the depositions of government witnesses. I identified all the elements of the defendants’ strategy and anticipated [the] tactics each of the defendant law firms would employ during these depositions. I pleaded with the Consortium to purchase the government document microfilm and assign the film for reading and abstracting.

 

Government reliance on Industry assurances

After consultation with many of the individuals who were involved with me in the DDT litigation which began in 1966 and concluded in 1971, Dr. Kavenagh and I prepared a chart of the relationships among the several government departments concerned with herbicides during the 60s. The heart of our attack on the claims of parity in government knowledge with the corporate defendant war contractors was found in the cross examination of Dr. Harry Hays, Director of Pesticide Registration for the U.S. Department of Agriculture during the 60’s and his admission during the Wisconsin DDT trial that the federal pesticide regulators relied entirely on Industry-supplied data in making determinations about pesticide safety and efficacy. ***

Members of the Law Committee refused to read anything that had to do with matters of evidence. They felt such efforts were not “lawyering” as they saw it and were properly to be considered by the “Trial Committee.” The “Trial Committee” did not want to be bothered with any scientific details so long as they felt only the legal issue of government contractor immunity would be tried and that our success was assured so long as no high level government official admitted knowledge about the dioxin contamination of 2,4,5–T and its potential dangers to the troops.***

Throughout the 4th of July [1982] weekend, I read microfilm continuously; napping only intermittently throughout the days and nights… a mind-numbing experience, but what makes it so fascinating is the clear evidence of mind-boggling bureaucratic ineptitude, the callous disregard for the American serviceman and the Vietnamese people, the lack of any identifiable political focus for the war effort, and the absolute control of government regulation of health and safety maintained by the Chemical Industry.

 

The Government Contractor Immunity Defense: No evidence of dioxin toxicity

It should also be obvious now… that the defense cleverly masked as the claim of government contractor immunity really includes two distinct and independent elements. More apparent is parity of government knowledge, but just as effective is the argument that there is still no significant evidence of toxicity to human beings associated with sublethal, subacute, asymptomatic exposure to dioxin contaminated products.

Even a brief look at the original class action complaint filed on January 8, 1979 shows that I anticipated this defense by pleading only significant physiological injury at the biochemical, molecular, and cellular level manifest as a wide variety of clinical dysfunction in tissues and organs. The position that cancer was caused by exposure to dioxin was never really pleaded, rather, I set the stage for establishing that the basic biochemical, biomolecular, genetic, and physiological processes which eventually may become clinically manifest as cancer can be caused by exposure to dioxin contaminated phenoxy herbicides.

 

Biomolecular and physiological mechanisms of dioxin toxicity

The complaint hypothesized a variety of biomolecular and physiological mechanisms whereby this can occur and on the strength of these allegations, all of which were supported by the then extant scientific and medical literature, as well as the considered professional opinion of a large number of scientists, I began to state publicly that “2,3,7,8-tetrachloro-dibenzo-p-dioxin (TCDD or ‘dioxin’) was the most toxic small molecule known to science, certainly as dangerous to public health as plutonium.”
It is obvious that the whole world began to accept that statement as the scientific fact it still appears to be…

Nevertheless,… I explained to anyone who cared to listen that proving causation in the Agent Orange cases would require us to establish, at least at the level of scientifically acceptable hypothesis, a rational basis for an association between exposure to dioxin contaminated products and manifestation of a variety of clinically ascertainable syndromes which have come to be known collectively as “cancer.”

I used to say that the scientific effort to support the veterans claims in the Agent Orange case could very well lead to a better understanding of the cause of cancer.

The former Yannacone “Associates” were not interested in understanding the causes of cancer or the biomolecular phenomena that underlie the disease processes in human beings, much less animals, except where it might touch their family or personal lives. Any effort to discuss scientific investigation through statistical analysis of epidemiological evidence was ignored or even ridiculed, much the same way that the “know-nothing” faction among the fundamentalists ignores the complexities of biblical exegesis and the investigations of geologists and biologists.

 

Causation and epidemiology

Even Tom Henderson who was brought into the case because he had some experience with disease litigation [asbestos] failed to grasp the importance of multi-factorial statistical analysis of variance in the context of the Agent Orange litigation and the need to not only understand but utilize the methods of discriminant analysis. In fact, the most fascinating aspect of the initial discussion with Tom Henderson was his total lack of concern with acquiring any understanding of the basis for these techniques sufficient to mount a proper cross examination against chemical company epidemiologists as a pre-requisite for becoming a member of the management team.

Because epidemiological studies take many years to design, conduct, and validate, and because conventional epidemiological studies require some matching of exposed and control populations, a fact so consistently noted by Dow’s experts, and could not possibly be statistically powerful enough in the “Agent Orange” controversy short of replicating the ABCC (Atomic Bomb Casualty Commission) study of the biological effects of ionizing radiation on human beings exposed after the Hiroshima and Nagasaki atomic bomb blasts, Carol and I began to develop a data base for an epidemiological study of the sick and disabled Vietnam combat veterans utilizing discriminant analysis, cluster analysis, and factor analysis, rather than more conventional methods.

The appropriate database was designed and the computer software written by Bob Liquori. This work was supported entirely by my firm and my family and Bob Liquori personally. It was opposed so vigorously by the majority of the Long Island “Consortium,” the former Yannacone “Associates” that they are singlehandedly responsible for dismantling our efforts just at the point they were ready to produce meaningful results. It appeared as if some of the members of the “Consortium” trial team were actually not interested in finding out with a reasonable degree of scientific certainty just which of the many disease processes afflicting the Vietnam combat veterans were actually associated with exposure to dioxin contaminated herbicides.

 

The Nova Scotia 2,4,5–T/silvex trial

When the Nova Scotia 2,4,5–T/silvex forest spraying plan was being forced to trial by Dow and other chemical companies who apparently had already co-opted the provincial government of Nova Scotia, I pleaded with the “Consortium” to take over the management of that case, particularly the presentation of expert testimony on behalf of the plaintiffs and the cross examination of the expert witnesses supplied by the chemical and forestry industry.

Not only was this plea refused, I was ordered not to participate in the case in any way or permit “Agent Orange” material to become a part of that case. This was so even after a number of scientists I indicated would be crucial to our veterans’ cases had agreed to testify in Nova Scotia at the request of the Plaintiffs’ counsel who incidentally was an American veteran of the Viet Nam war who had settled in Nova Scotia.

I tried to explain to the “Consortium” members that our scientists required support by counsel competent to handle the scientific and technical aspects of the trial before a hostile judge in a common law equity jurisdiction. The catastrophic effect upon the Agent Orange cases of the denial of even the limited injunctive relief sought in Nova Scotia on the grounds that the evidence was insufficient to establish the toxicity of dioxin and dioxin contaminated phenoxy herbicides to human beings has been ignored by the new Agent Orange Plaintiffs Management Committee.

 

Dow/Hercules/Monsanto Motions to Dismiss

It now appears that what the new Agent Orange Plaintiffs Management Committee has in mind is the trial of five individual plaintiffs’ cases much the way Paul Pratt tried his railroad workers in Southern Illinois and intends to try the cases of the Monsanto workers in Nitro, West Virginia.
Perhaps Dr. Carnow is waiting in the wings to testify as he did in Illinois, however, this time the FELA is not there to create sufficient presumptions in the area of liability so as to defeat the government contractor immunity defense, much less the basic motion to dismiss for failure to prove a prima facie case, and Dow’s experts are waiting for Dr. Carnow.

 

Proving the Veterans Claims

…I have said consistently since the day I filed the Agent Orange class action on January 8,1979: To prove that dioxin contaminated herbicides caused physiological injuries to any member of the class of veterans exposed to dioxin contaminated herbicides deployed as chemical defoliants in Southeast Asia requires that a plausible biochemical/biomolecular/genetic mechanism for cellular injury attributable to dioxin be established by a fair preponderance of the substantial credible scientific evidence. Those hypotheses must be supported by in vitro and in vivo studies. Such studies, probably performed in cell cultures or on animal models, must be supported by epidemiological evidence of human health hazards.

Since January of 1979 when I began representing the plaintiff veterans and their families, their position, simply stated, is that there is sufficient evidence to establish that dioxin causes physiological injury by acting on certain cellular processes and systems, particularly electron transport in the oxidative phosphorylation process of cellular metabolism. Since oxidative phosphorylation is a fundamental cellular process common to all mammalian cells, and the process of electron transport is involved in certain metabolic processes associated with carcinogenesis, we have always been able to establish quite clearly that dioxin is one of the most toxic substances known to biological science.

There is no need to become more specific on the fundamental issue of toxicity. “Toxicity” is what general causation as an element of liability in the context of a mass tort class action is all about. This is perhaps the most significant difference between the present position of the Agent Orange Plaintiffs Management Committee and the position I have consistently advocated since I originally refiled the amended Reutershan complaint as a class action and managed the ensuing “Agent Orange” litigation until May of 1983.

 

The Class Action

…the claims of the entire class of Agent Orange victims can be vindicated only in the context of a class action certified under Rule 23(b)(1) for the purpose of trying the issue of liability, the elements of which are defendants’ fault and the toxicity of dioxin and dioxin contaminated phenoxy herbicides.

The scientific evidence, even that developed by the defendants and the Veterans Administration, supports our contention that dioxin is, in fact, “toxic.” The documentary evidence supports the cause of action based on negligent failure to warn the Department of Defense during the war. The government contractor immunity defense fails as long as the issue is limited to knowledge at the decision making level of the Department of Defense independent of that possessed by the corporate defendant war contractor chemical companies.

 

The Edgewood Arsenal/Camp Detrick briefings

In spite of repeated pleas to all of the attorneys representing the plaintiffs at depositions of Edgewood and Detrick witnesses to be “wary of the tentative agenda for the PSAC briefing” concerning the toxicity of herbicides that the defendants have relied so heavily upon to establish knowledge at the highest level of the executive department of government, defendants counsel were repeatedly given the opportunity to lead unsuspecting and unprepared government witnesses into accepting as fact that which never occurred, or if it did occur, simply reiterated the chemical company misrepresentations about the safety of dioxin contaminated phenoxy herbicides. The alleged “briefing” of the President’s Science Advisory Committee (PSAC) simply repeated—if it occurred at all—the safety assurances of V.K. Rowe and the other Dow researchers.
What is even more damaging to the cause of the plaintiff veterans is the failure of the Long Island “Consortium” to ever establish clearly in a deposition that V.K. Rowe was the principal source of the Edgewood and Detrick determinations that 2,4,5–T was safe for deployment as a chemical defoliant in Southeast Asia.

The Dow memorandum of law on the alternate theories of liability, supported by the Hercules summary of the facts showing government knowledge and the combined effort of both Dow and Hercules to establish that there is no evidence from which to prove proximate cause in the first instance, are very persuasive.

On the merits, these defendants are correct in arguing that plaintiffs will be unable to establish the elements of “enterprise liability,” or call the principal of “market share liability” into play because of the gross differences in dioxin contamination levels among the products manufactured by the several defendants [Dow and Hercules the least; Monsanto and Diamond Shamrock the most dioxin contamination of the 2,4,5–T] and even in the products manufactured by the same defendants over several years.

There is even technical support for a defense to our civil conspiracy claim, although the conspiracy can be inferred with some difficulty from the evidence already elicited [the 1965 Meeting of all the manufacturers at which Dow disclosed the existence of the toxic dioxin contamination odf the 2,4,5–T sold to the government].

The problem with the conspiracy theory is that the depositions of chemical company witnesses have suffered from lack of real understanding of the American Chemical Industry, during the 1960’s in particular, and its relations with government regulatory agencies such as U.S.D.A. [United States Department of Agriculture] , the P.H.S. [United States Public Health Service] , and the F.D.A. [United States Food & Drug Administration].
The failure of the former Yannacone “Associates” and other attorneys engaged in taking depositions of chemical company and government witnesses to establish the government/industry/media milieu surrounding publication of ,em>Silent Spring in 1962 and the report Restoring the Quality of our Environment, The Chemical Basis for Action by the [American Chemical Society] ACS in 1969, and the politics of pesticides and cancer during the “Bionetics” years have cost the veterans dearly.
More than mere professional embarrassment is at stake now and I still do not see any significant efforts to recoup the plaintiffs’ losses, restore the setbacks in the plaintiffs’ cases, and recover the momentum that enabled us to maintain both tempo and position during this lawsuit through May, 1983.

 

The inadequate [Judge] Weinstein appointed “Plaintiffs Management Committee” strategy

Much of the bitterness between certain members of the “Consortium” and myself can be traced to my constant Jeremiad that failure to read all the documents available was malpractice per se. I feel the same way about neglect in reading the available scientific, technical, and medical literature, particularly the literature concerning the manufacture of phenoxy herbicides, the chemistry of dioxin, and the health affects of chlorinated dioxins and other enzyme inducers such as the PCBs.
This desire to be informed forms the basis for the difference of opinion between Tom Henderson and me over the proof of causation. I contend that it is the height of professional irresponsibility to attempt to try a case in which counsel is not prepared and competent to deal with the expert witnesses presented by all the parties as a peer, at least in the context of the litigation.

It is amazing that in one of the most complex cases in the history of personal injury litigation, a lawsuit which raises scientific questions that are at the leading edge of biomedical research, attorneys such as Tom Henderson and David Dean who, in their respective areas of special competence—asbestos litigation and medical malpractice—would not attempt to conduct a trial unless they felt the professional equal of any physician who might be presented by a defendant, now believe that they need not become the scientific peers of the defendants’ witnesses before they attempt to cross-examine them.

 

The deposition strategy that never was

Another significant cause for the dissension between the former Yannacone “Associates” and me was in the strategy for participating in the depositions of government witnesses conducted by the defendants.

My strategy has always been to attack each document offered in the presence of the witness for the purpose of alerting the witness to the defendants’ strategy and in order to lay the foundation for objecting to admission of those documents at the trial and striking any deposition testimony relating to those documents that might be unfavorable to the position of the plaintiff veterans and their families. This tactic was particularly important with respect to those documents which defendants would contend demonstrated government knowledge or awareness of the hazards or risks associated with herbicide use.

The most obvious example is the continued reference by the defendant attorneys to a PSAC report on pesticides in the environment in 1963 which they claim indicated government awareness of problems associated with 2,4,5–T.

I tried to explain on any number of occasions to the former Yannacone “Associates” that this report was commissioned as a result of the furor following publication of Silent Spring. Herbicides were generally considered the safest pesticides available and were often touted as model pesticides (except for aquatic weed control in drinking water reservoirs) until late 1968.

In fact, because of the procedural and methodological defects in the Bionetics study, the 2,4,5–T teratogenic data was discounted by most knowledgeable pesticide scientists until the dioxin contaminant was identified and became recognized as the more likely culprit. Nevertheless, many government witnesses were pummeled with this report and intimidated into admitting that there was some government concern with herbicides when in fact there was none.

The pusillanimous objections as to form without any substantive support that were made by many of the attorneys who would not in their own private practices have been nearly so inarticulate is further evidence of their lack of preparation and now form the basis for defendants’ latest motion to dismiss.

 

Monsanto and Punitive Damages

Of all the defendants, Monsanto is the company most likely to be subject to punitive damages. Their corporate history of “ripping off” German chemical patents on saccharin and aspirin, their abysmal performance in the area of hazardous waste disposal (they always had the Missouri River handy) and their reckless disregard of basic research and analytical chemistry stand in sharp contrast to Dow.

What I have been concerned about is the lack of coordination between our Monsanto efforts and those of Paul Pratt in Illinois and West Virginia. It is critically important to make the details of the Monsanto settlement on the eve of trial in the Illinois railroad worker cases, a matter of the public record in the Agent Orange case. The reasons are obvious:

• the railroad workers were not “sick” to the same extent that the Agent Orange victims are; the railroad workers were not as disabled as are the veterans;
• Monsanto liability in the railroad cases was speculative at best even if strict liability rules were applied;
• the settlements averaged over $100,000 per man and that means that Monsanto has placed a “nuisance value” on cases of confirmed dioxin exposure of more than $100,000 per case;
• the exposure of the victims to significant levels of dioxin outside the parts per billion range was never established, and exposure may have been as low as one or two parts per billion;
• depositions of the Monsanto employees revealed nothing like what has been established in the Nitro workers cases much less the Agent Orange cases;

t should be obvious now that the relationship between the United States Public Health Service and the Kettering Laboratory was so close as to be academically and professionally incestuous. Dr. Susskind and his colleagues will be the witnesses the corporate defendant war contractors will rely upon to establish actual knowledge in the United States Public Health Service during the mid 60’s about dioxin toxicity and dioxin contamination of phenoxy herbicides.

It is my considered professional opinion that the case against Monsanto for punitive damages must be fully developed and supported with substantial credible documentary and deposition evidence as a response to the Monsanto motion to dismiss the Complaint.

Our response to the motion to dismiss by Monsanto must be a documentary avalanche that will stand as the Monsanto indictment. It cannot incorporate other materials by reference. They must all be part of an integrated, well crafted, properly organized presentation in the nature of a “white paper.”

It goes without saying that this should be the rule in all submissions on behalf of the plaintiff veterans and their families regardless of whether the Law Committee wishes to save paper or typing time. After all, that is what word processing and databases are for.