No “Government contractor immunity”!
- Major Litigation
- The Agent Orange Litigation
- The Agent Orange Litigation Timetable
- The Agent Orange Litigation Chronicle
- Carol Annia Yannacone & the Agent Orange victims
- The Nuremberg Defense
- AO & dioxin: Web of knowledge
- The 1963 Defoliation Conference
- The path to settlement
- The “Agent Orange” databases
- The role of money in the Agent Orange litigation
- Memos to Weinstein Management Committee
- Protecting the integrity of scientific research
- Chemical defoliation or chemical warfare?
No “Government contractor immunity”! for Agent Orange manufacturers! was the headline, but the way to that decision was more complicated.
The story of the frantic 21 days from 21 April 1983 to 12 May 1983 describes the tipping point in the Agent Orange litigation which ultimately led to the settlement. During those three weeks, the evidence was assembled to completely refute the chemical company war contractors’ claims that they were only following US government orders—the Nuremberg defense— when they delivered dioxin contaminated phenoxy herbicides for use in the war in Southeast Asia. the claims
The Defendants Motions for Summary Judgment
The defendants motions for summary judgment on the Government Contractor Immunity Defense were triggered by the initial deposition of PSAC (President’s Science Advisory Committee) member Dr. Gordon E.F. MacDonald. Dr. MacDonald had been led by a series of grossly improper questions to make an inference that was patently inaccurate, but yet became the basis for the claim by the corporate defendant war contractors that the highest levels of Presidential advisors had actual knowledge of the dioxin contamination of the phenoxy herbicides and that dioxin was toxic to human beings and other animals.
Upon receiving the telephone call from the Ashcraft & Gerel representative covering the deposition that Dr. MacDonald had admitted actual knowledge of a “dioxin” problem in the mid-1960s rather than 1969 as was actually the case, Yannacone immediately moved before the Special Master to conduct a further deposition of Dr. MacDonald on an emergency basis.
Yannacone personally conducted that deposition before the Special Master and re-established the basic element of the plaintiff’s case necessary to defeat the Government Contractor Immunity Defense—that no member of the Executive Branch of the United States government with decision making authority in the area of herbicide deployment in Viet Nam had any actual knowledge of the dioxin contamination of the herbicides, much less that dioxin was toxic to humans and other animals.
On the late afternoon of 21 April 1983, each of the corporate defendant war contractors, except Monsanto and Diamond Shamrock (the two companies which manufactured the 2,4,5–T most heavily contaminated with dioxin) filed and served motions for summary judgment based on the Government Contractor Immunity Defense without addressing the fundamental issue of corporate culpability.
The motions were filed independently by each of the defendants and they appeared on a Friday afternoon in a variety of forms with no common reference system and enormous numbers of duplicate documents and fragmentary references to extensive documents. The total weight of all the motions and supporting documents served on Yannacone at his Agent Orange Litigation Center next door to his hoe in Patchgue was over 70 pounds.
By dawn on Monday morning, Yannacone had analyzed all of the motions, and together with Liquori (a computer scientist) sorted, cross referenced, and tracked all of the documents cited, and placed them in their proper context.
Yannacone had also organized the efforts of a number of attorneys, word processing operators, clerks and veteran volunteers into an efficient, effective force. He was ready to meet the challenge of the corporate defendant war contractors without the need to petition the Court for additional time to reply. Yannacone would not let the Agent Orange Litigation timetable be delayed.
In three weeks of around-the-clock effort, Yannacone marshaled enough substantial credible evidence from the enormous document data base and from his successful handling of significant depositions to defeat the Dow motion for summary judgment.
Dow, Monsanto and Diamond Shamrock were still in the dock scheduled to face a jury in a trial during which national attention, perhaps even live television coverage, would be focused on their corporate culpability for selling the government a dioxin contaminated herbicide and maintaining a 30 year cover-up of dioxin toxicity.
The only resources available to the plaintiff Viet Nam veterans and their families during this critical final battle over Government Contractor Immunity were:
Victor John Yannacone, jr. with his encyclopedic knowledge of the Agent Orange Litigation and his personal familiarity with all the documents produced on discovery, as well as the practices and policies of the pesticide industry after the publication of Silent Spring and during the War in Viet Nam;
The dedicated clerical staff and veteran volunteers who performed countless hours of clerical service;
Carol A. Yannacone with her knowledge of the veterans claims and her analysis of the chemical company laboratory data concerning tests claiming to assure the United States Government of the safety of 2,4,5–T;
Liquori with his knowledge and experience in data base management; his administrative assistant, and their small talented staff of data processors;
Robert A. Taylor of Ashcraft & Gerel, Washington D.C. who was familiar with many of the Dow documents; read German; and had attended many of the government witness depositions;
Dorothy Thompson of Greenwald & Greenwald, Los Angeles, CA who had been coordinating Agent Orange Litigation matters on the West Coast since February 1979; was knowledgeable in the ways of bureaucracy and a talented writer and a skilled editor who, like Edward F. Hayes, III, had been following Dr. Kavenagh’s search for information paths through the federal bureaucracy.
Edward F. Hayes, III, who had worked closely with Dr. Kavenagh since the beginning of the Agent Orange Litigation and who was familiar with much of Dr. Kavenagh’s preparation for this motion, particularly the “web” model of government agencies which Yannacone and Kavenagh had prepared from the government documents and whose encyclopedic knowledge of federal common law and procedure provided the “law” for then response; and
W. Keith Kavenagh, the historian turned lawyer late in his academic career just in time to join Yannacone in the Agent Orange litigation at its start, but who had died suddenly only a few months before the Summary Judgment motions were filed.
The web model Dr. Kavenagh and Yannacone had developed from their reading of the hundreds of thousands of microfilmed pages of government and chemical company document which clearly tracked the passage of information throughout the maze of federal executive bureaucracy clearly showed thadt there was no path by which any meaningful information of dioxin contamination or dioxin toxicity could reach any decision maker with responsibility for the deployment of phenoxy herbicides as chemical defoliants in Viet Nam.
Over the weekend 22 April to 23 April 1983, Liquori and Janet Vandervoort prepared a composite compilation of all the documents and transcript references contained in the Defendants papers with complete and accurate cross-references. This compilation was presented to the Court before the return of the motion and appears to have been of considerable assistance to Judge Pratt in reaching a prompt decision on the motions.
From 22 April 1983 through 27 April 1983, Yannacone, Liquori, Taylor, Thompson, and Hayes sat at video display terminals drafting and editing memoranda and affidavits. They ate at their terminals, napped in their chairs, and left their work stations only to visit the bathroom or take a shower. Through it all, Yannacone led, directed, and managed the entire process which produced the response that saved the case for the veterans and ultimately led to the Agent Orange Litigation settlement.
During this frenetic period, other individuals also contributed some time and effort. Law professor Aaron Twerski drafted substantive legal responses; attorneys Steven J. Schlegel from Chicago and V. Don Russo, an Allstate Insurance defense trial lawyer checked document references, while attorney Albert J. Fiorella made regular round the clock deliveries of Italian pastries to the workers.
The demise of the Government Contractor Immunity defense
By Memorial Day, 1983 there was no effective Government Contractor Immunity Defense. Yannacone had thwarted the efforts of the corporate defendant war contractors to establish parity of knowledge about dioxin between the government decision makers and the chemical companies. He had discredited the Bionetics argument and taken the depositions of the three highest ranking scientists in government during the War in Southeast Asia—President Kennedy’s science advisor, Dr. Wiesner of MIT; President Johnson’s advisor, Dr. Hornig of Harvard; and Dr. DuBridge who advised President Nixon. As Yannacone had told the Court in 1979, none of these world renowned scientists and academics had ever even heard of dioxin prior to the publication of the Dow footnote to Diane Courtney’s article on the Bionetics study in Science in November 1968.
At this point, Thomas W. Henderson of Basin & Sears who had declined all prior invitations to participate in the Agent Orange Litigation, suddenly appeared and expressed a willingness to “take charge.” With eventual settlement all but certain, lawyer greed was about to devour the Viet Nam veterans and their cause.