- The Paul Reutershan claim
- Senate Hearings; The Alvin Young Reports
- The Reutershan Class Action Complaint
- The Early Veterans Claims; Marcie Smith and the Agent Orange children
- Associated Counsel Agreements;The CHAOS DBMS
- Claim Consolidation; The MDL Application
- MDL Consolidation of the “Agent Orange” Cases.
- MDL Management Operations
- Practice & Procedure; Amended Class Action Complaint
- Defendants First Wave of Motions to Dismiss.
- EPA RPAR/FIFRA Proceedings
- Federal Question Jurisdiction; Federal Common Law
- Defendants Second Wave of Motions to Dismiss
- Claims Examination; Case Consolidation
- Defendants Answers/Third Party Complaints
- Defendants Appeal to the Second Circuit; United States documents
- Government Discovery; FTCA Claims
- Discovery motions; Amend Answers
- Document discovery; claims management
- Document Motions; Class Decertification Attempts
- Defendants Non-Jury Request; Definition of “Agent Orange
- Preparation for Depositions
- Government Contractor Immunity Issues
- Depositions; in general
- Claims Evaluation; Initial Settlement Discussions
- Litton Bionetics; PSAC; Edgewood Arsenal/Camp Detrick
- The Defendants’ Motions for Summary Judgment
- Depositions of Defendants, Government witnesses
The Agent Orange litigation: A mass toxic tort odyssey
A portion of the introduction to the fee petition submitted by Victor John Yannacone, jr. following the settlement of the Agent Orange litigation coerced by Jack B. Weinstein, Chief Judge of the United States District Court for the Eastern District of New York through his appointed “settlement masters” Leonard Garment and Kenneth Feinberg. It chronicles the legal odyssey through the political miasma of the first mass toic tort class action in Anglo-American legal history.
The Claim of Paul Reutershan
6 June 1978 to 9 October 1978
125 days; 17.86 weeks
At the request of Edward J. Gorman and Peter M.J. Reilly, Jr. attorneys for the railroad union of which Paul Reutershan was a member, Victor John Yannacone, jr. reviewed files he had established during the mid-1970s when the United States Air Force proposed to incinerate the deteriorating Herbicide Orange stocks stored on Johnson Island in the South Pacific. Attorney Yannacone outlined his original plan for maintaining the Agent Orange Litigation as a class action seeking indeterminate damages and demanding equitable relief in the nature of a trust fund for the benefit of all the Viet Nam veterans who might be so unfortunate as to be afflicted with illness, suffering from disability, or who died as a result of exposure to dioxin contaminated phenoxy herbicides deployed as chemical defoliants during the war in Southeast Asia.
The Senate Hearings; The Alvin Young Reports
10 October 1978 to 13 December 1978
64 days; 9.14 weeks
On 10 October 1978, the United States Senate conducted a sparsely attended Committee hearing at which time Alvin Young presented a report he had prepared concerning the Dioxin contamination of phenoxy herbicides deployed as chemical defoliants during the war in Southeast Asia. Yannacone attended those hearings at the request of attorney Gorman. He obtained a copy of the Young report together with a number of other documents prepared by the Veterans Administration and circulated to the Committee.
After meticulously comparing the conclusions of the 1978 Young report with his copy of the Draft Environmental Impact Statement (DEIS) done in 1973–74, Yannacone concluded that there were substantial discrepancies in the two reports and much of the material on dioxin toxicity and adverse health effects contained in the 1973–74 DEIS had been either omitted, ignored, or treated as insignificant or inconclusive in the 1978 report.
Yannacone reviewed much of the original source material cited and contacted a number of his scientific colleagues who had participated in the DDT litigation with him from 1966 through 1969. During that period Yannacone had become familiar with all of the extant published literature on pesticides and their effects on non-target organisms and the environment. The collective recollection of Yannacone and his scientific col-leagues was that at no time did they ever see any data, much less any papers published in the open, peer-reviewed, scientific literature indicating that 2,4,5–Trichlorophenoxyacetic acid (2,4,5–T) might have any toxic effects upon humans or other animals associated with its use until the work of Dr. Courtney was first circulated in late 1968.
Yannacone and his colleagues did recall vividly, however, the report in Science by K. Diane Courtney of Litton Bionetics, an NCI (National Cancer Institute) contractor which suggested that there might be teratogenic effects associated with 2,4,5–T. Those effects, however, might have been associated with a contaminant of the 2,4,5–T used for the tests—a contaminant identified by The Dow Chemical Company as 2,3,7,8-tetrachloro-dibenzo-p-dioxin. Although Dr. Courtney’s report caused a furor at the December 1969 meeting of the American Association for the Advancement of Science (AAAS), most of the discussion at that meeting was associated with the work of Orians and Pfeiffer documenting the ecological damage resulting from the wholesale use of powerful chemical defoliants on the mangrove swamps of Southeast Asia.
Yannacone advised Gorman that the Reutershan case was quite weak as a products liability claim in the absence of substantial evidence that other veterans were similarly afflicted. The evidentiary problems in presenting a single claim were overwhelming and Yannacone argued that the only rational way to establish any claim would be in the context of a class action that first established liability and then general causation, while deferring the determination of proximate cause.
Attorney Gorman was reluctant to file the Reutershan case as a class action because the conventional wisdom of the plaintiff’s tort bar was that class actions with judicial control of attorney’s fees were inconsistent with contingent fee practice and philosophy. Gorman subsequently filed the Reutershan case as a conventional products liability case against the Dow Chemical Company, Monsanto Company, and Northwest Industries, Inc. in the Supreme Court of the State of New York for Westchester County. Dow promptly removed the action to the United States District Court for the Southern District of New York.
The Amended Reutershan Class Action Complaint
14 December 1978 to 8 January 1979
25 days; 3.57 weeks
On 14 December 1978, Paul Reutershan died. His friend, Frank J. McCarthy, founder of AOVI the first Viet Nam Veteran’s Organization concerned with the “Agent Orange” problem came to Yannacone’s office in Patchogue and asked him to take over the Reutershan case.
At first Yannacone refused. However, he did start to investigate the rumors within the military medical community of cancers among Viet Nam combat veterans inconsistent with their age and prior health status. Eventually, Yannacone uncovered work at the VA which, together with information from sources within the Department of Defense, indicated that Paul Reutershan’s cancer was not an isolated circumstance.
As a result, on 22 December 1978, Yannacone agreed to take over the Reutershan case from Gorman and amend the complaint to refile it as a class action on behalf of all the Viet Nam veterans so unfortunate as to be similarly afflicted.
During this period, Yannacone discussed the case with a number of attorneys besides Gorman, including, among many others, Melvin Block. All of them felt that the action had merit but the possibility of recovery was so remote that it was nothing more than a pro bono public service effort with which they did not wish to become associated. Alone, Yannacone drafted and filed the amended Reutershan complaint as a class action in the United States District Court for the Southern District of New York on 8 January 1979.
When Yannacone agreed to refile the Reutershan action as a class action in December, 1978, no other law firm was willing to take it on. There was no pay day in the offing and the Viet Nam veterans and their families were not popular. The attorneys of record for Paul Reutershan were ready to abandon the case as soon as they could find an attorney willing to accept responsibility for the claim. Yannacone accepted that responsibility and took charge of that case.
On 8 January 1979, the conventional wisdom of the plaintiff’s trial bar leaders—Melvin Belli, Philip Carboy, Melvin Block, the “Million Dollar Round Table,” the “Masters of Disaster,” the “air crash cartel,” and most especially those attorneys representing both plaintiffs and defendant’s who had created a national cottage industry for a small group of lawyers out of asbestos litigation was that class actions were not suitable for personal injury claims. At this time, Yannacone stood alone in his conviction that the Agent Orange Litigation and indeed, all mass toxic torts, should be maintained as class actions for determination of fault and generic causation.
Without Yannacone’s foresight and determination to maintain the Agent Orange Litigation as a class action, the Veterans would have been forced to follow the interminable path of the asbestos litigation through all the Courts of the United States and the 50 states. But for Yannacone’s effort to litigate the fundamental issues of the “Agent Orange” controversy—fault and dioxin toxicity—in a single class action, the Viet Nam veterans and their families would have been lost forever in the trackless miasma of state tort law and trapped in the killing fields between time billing defense counsel and the contingent fee “Masters of Disaster,” eventually meeting the same fate as the hapless asbestos victims.
The amended Reutershan complaint contained a full exposition of the entire military herbicide program during the war in Southeast Asia; a summary of all the extant published scientific literature on the effects of dioxins (PCDDs) and related compounds such as the furans (PCDFs) and polychlorinated biphenyls (PCBs); together with sufficient information about each of the major corporate defendant war contractors to support Yannacone’s theory that these corporations were of sufficient economic resources and technological sophistication as to stand in a fiduciary relationship with the Government and the veterans as to information about the products they manufactured, marketed, promoted and sold.
The amended Reutershan complaint stood for over a year as an uncontradicted “white paper” about herbicides in Viet Nam, dioxin, and corporate culpability.
The Early Veterans Claims; Marcie Smith and the Children
9 January 1979 to 22 February 1979
44 days; 6.29 weeks
During this period the full national and international scope of the “Agent Orange” problem became apparent. Hundreds of veterans called and their cases were screened by Carol and Victor Yannacone. Out of these initial screenings came the evidence that there were a number of different syndromes associated with service in Viet Nam and exposure to dioxin contaminated phenoxy herbicides.
During the first week of February, 1979, the case of Marcie Smith from Bethlehem, Pennsylvania was filed. Shortly after her claim was filed, information surfaced that there were at least five more children with the same bizarre pattern of polygenetic anomalies—a missing ear, a missing eye, cleft palate, and club foot—all of whose fathers were Viet Nam com bat veterans, marines who served at the DMZ during 1968–69.
The Yannacones immediately recognized that this pattern of congenital anomalies was similar to that found among chicks hatched from eggs laid by hens suffering from “chick edema disease” a condition we now know was caused by ingestion of dioxin contaminated feed.
Carol Yannacone analyzed the Seveso birth defect data which had been furnished by counsel for Dow and verified that the “dioxin episode” had resulted in a statistically significant number of children born within a year after the Seveso explosion who had polygenetic birth defects not generally found in Italian industrial communities.
Associated Counsel Agreements; The CHAOS DBMS
23 February 1979 to 26 April 1979
62 days; 8.86 weeks
Arrangements were made with associated Counsel throughout the United States and the ultimate “Agent Orange” Associated Counsel Plan was developed and implemented after a meeting in Chicago on 21 February 1979 with Steven Schlegel and Steven Platt.
The success of Yannacone’s early arrangements with associated counsel can be measured by the minimal amount of the settlement proceeds that Judge Weinstein distributed as attorney’s fees. Measured by fees awarded and expenses reimbursed to plaintiff’s counsel, the transaction costs associated with the Agent Orange Litigation are lower than any mass tort liability case in American legal history. The plan for associating counsel and the rules governing such association were developed by Yannacone over the vociferous objections of such “leaders” of the personal injury trial bar as Melvin Belli, Scott Baldwin, and Mel Block, among others.
The veterans claims were evaluated by the Yannacones in the context of existing epidemiological data and morbidity tables. Histories of possible confounding causes including alcohol consumption, familial disease, lifestyle, medications, and industrial or occupational exposures to toxic substances were considered. Family physicians, scientists, medical specialists and researchers were consulted. The CHAOS (Case Histories of Agent Orange Survivors) data base was designed by the Yannacones, written and debugged by Robert W. Liquori to process the information provided by Carol A. Yannacone.
Without this rigorous evaluation of the initial “Agent Orange” claims by Carol and Victor Yannacone, particularly the death claims and the early infant claims of Marcie Smith and Kerry Ryan, the medical and scientific information which ultimately drove the corporate defendant war contractors to settle the Agent Orange Litigation would never have emerged.
Claim Consolidation; The MDL Application
21 March 1979 to 26 April 1979
36 days; 5.14 weeks
After the initial pretrial conference on 20 March 1979 before Judge Pratt, lengthy discussions were conducted with Leonard Rivkin, counsel for Dow, leading to a joint proposal to consolidate all the “Agent Orange” claims by means of a petition to the Judicial Panel on Complex and Multi District Litigation. The joint petition sought designation of the Agent Orange Litigation as an MDL action consolidated for the purposes of discovery at the very least. The petition was vigorously opposed by Benton Musselwhite and his Texas colleagues, Newton Schwartz and Scott Baldwin, and their local New York counsel Melvin Block. Rivkin and Yannacone successfully argued before the MDL panel for consolidation of all the “Agent Orange” claims in the United States District Court for the Eastern District of New York before Judge Pratt. Their joint petition for MDL Certification was granted from the Bench.
The MDL consolidation set the Agent Orange Litigation on a “fast track” toward trial or settlement. No other mass tort litigation in American jurisprudence has moved with such alacrity through the system to produce such a recovery in the face of such extensive and formidable defense by and on behalf of multinational and transnational corporations with unlimited resources and no incentive to settle.
The agreement Yannacone negotiated with counsel for Dow in late March 1979 to present the “Agent Orange” litigation to the Judicial Panel on Complex and Multi District Litigation at their April sitting in St. Louis made it possible for the case to proceed quickly towards a resolution on the merits rather than become bogged down in endless procedural wrangling among warring groups of plaintiff’s lawyers and defense counsel.
Yannacone’s efforts avoided the unseemly spectacle of defense firms in all the jurisdictions vying to join the feeding frenzy represented by countless opportunities to generate hourly billings on essentially identical lawsuits each of which could be billed independently to the partially self-insured chemical companies, as well as their primary, secondary, and excess liability insurance carriers. Yannacone’s efforts similarly avoided the no less sorry spectacle of greedy, selfish plaintiffs’ lawyers led by the “Masters of Disaster” fighting for a place at the trough of what they presumed would be substantial contingent fees.
By filing essentially identical law suits in a number of unrelated judicial districts in several Circuits reflecting different statutory and common law treatment of tort litigation, all prior to the application for MDL consideration, Yannacone was able to present the MDL Panel with the opportunity to send the thousands of Viet Nam veterans and their families to a single court in what could be treated essentially as a single common law suit.
Yannacone’s efforts provided significant and substantial economies of scale to the Viet Nam veterans and their families in the management of their litigation, and resulted in enormous savings to the federal judicial system with most effective conservation of judicial resources.
MDL Consolidation of the “Agent Orange” Cases.
27 April 1979 to 28 May 1979
31 days; 4.43 weeks
Following the order of the MDL Panel consolidating the Agent Orange Litigation for pretrial and discovery matters before Judge Pratt in Uniondale, all of the outstanding cases were transferred to the Eastern District of New York. Files were opened. Attorneys were brought into association in support of the Class action. Medical information on the cases of representative plaintiffs was assembled and analyzed.. The CHAOS DBMS (Data Base Management System) was implemented.
MDL Management Operations
Victor John Yannacone, jr. was the attorney designated to receive all MDL documents dealing with the Agent Orange litigation from April 26, 1979. From 26 April 1979 through 23 October 1984, every MDL document was handled in precisely the same way in the Agent Orange Litiga-tion Center at 62 Rose Avenue in Patchogue.
Whenever an MDL transfer order or a document dealing with an MDL matter was received, Debra Wylie, the paralegal assisting Dr. Kavenagh on a full time basis would search the files to determine whether the attorney of record for the plaintiff in the transferred case was an associated counsel and whether or not a file was being maintained on the veteran plaintiff already.
If files existed they were pulled and presented to Dr. Kavenagh who compared the complaint in the transferred action with the master form com-plaint, noted any discrepancies and contacted the attorney of record for the plaintiff in the transferred case by telephone to discuss association with and participation in the class action.
In those cases where the attorney of record for the plaintiff in the transferred case was not one of the counsel already associated with Yannacone in the “Agent Orange’ class action, a set of documents establishing association was immediately sent to the attorney. Association was discussed, usually a few days later on the telephone in a conversation between the attorney and Dr. Kavenagh. When the association documents were returned, they were filed and docketed with the court under seal.
The associated counsel documents included an affidavit that the veteran’s claim had not been solicited nor had any consideration been paid to anyone for bringing the action to the attorney of record. The affidavit was adapted from a form that had been developed by the United States District Court for the Northern District of Illinois (Chicago). Yannacone refused association with any attorneys who felt they could not sign an “affidavit of no solicitation.”
The claim file, the pleading file, and the MDL file were then presented to Yannacone for review, comment, and sometimes dictation of a letter to the attorney of record. The claim file was then referred to Carol A. Yannacone for further investigation of the medical aspects of the claim and to post the CHAOS data base.
Dr. Kavenagh would conduct further discussions with the attorney of record and make the introduction and referral to one of our regional counsel, such as Steven G. Schlegel/Sullivan Associates, for administrative and liaison purposes.
The review and disposition of each MDL transferred file consumed, on an average, 90 minutes of Yannacone’s time, approximately 6 hours of Dr. Kavenagh’s time, and approximately 8 hours of Carol Yannacone’s time. Without this effort the Agent Orange Litigation could not have been presented to this Court as a single unified action with a single lead counsel responsible to the Court for all of the decisions in the litigation.
Practice & Procedure; Amended Class Action Complaint
29 May 1979 to 21 June 1979
23 days; 3.29 weeks
During this period Yannacone made a number of practice and procedure suggestions which were ultimately to shape the course of discovery in the Agent Orange Litigation. The most significant was the demand that all discovery materials be produced in microform. Microfilm made it possible for Yannacone to maintain the voluminous Agent Orange, document collection in the limited space available at 62 Rose Avenue.
The class action complaint was amended in response to suggestions from the Court.
Defendants First Wave of Motions to Dismiss.
22 June 1979 to 18 July 1979
26 days; 3.71 weeks
All of the corporate defendant war contractors moved against the class action Complaint. Yannacone responded with cross-motions, offers of proof, and affidavits/memoranda in opposition which clearly established that the Viet Nam veterans and their families were ready to continue their class action, and if necessary proceed to an immediate trial on the merits.
EPA RPAR/FIFRA Proceedings
19 July 1979 to 15 August 1979
27 days; 3.86 weeks
Some time after the Reutershan complaint was amended and the numerous Class action filings throughout the country made “Agent Orange” and its dioxin contaminant a matter of national concern, the United States Environmental Protection Agency initiated proceedings under FIFRA/FEPCA to suspend registration and terminate widespread outdoor use of 2,4,5–T.
In an effort to protect its proprietary phenoxy herbicide, silvex, Dow objected to the proposed suspension order and demanded administrative hearings. Dow then requested suspension of discovery in the Agent Orange Litigation until completion of the US EPA RPAR Hearings. Based on past experience with similar EPA proceedings, Yannacone opposed any delay in the Agent Orange Litigation. There was a flurry of activity over the EPA proceedings.
Memos on Diversity Jurisdiction, Class Actions in general, and a supplemental memo on Class Certification were prepared during this period. Motions were made by a number of the corporate defendant war contractors to dismiss or strike portions of the Amended Class Action Complaint and Yannacone responded successfully to these motions.
Federal Question Jurisdiction; Federal Common Law
16 August 1979 to 3 October 1979
48 days; 6.86 weeks
During the period following the decision denying the defendants motions to dismiss the complaints or for summary judgment, Yannacone filed the Second Amended Verified Complaint.
Northwest Industries, Inc. attempted to obtain dismissal from the action on stipulation and proof of non-involvement in herbicide supply for the war in Southeast Asia. The other corporate defendant war contractors opposed the Northwest Industries application and moved to dismiss the veterans Second Amended Verified Complaint for lack of subject matter jurisdiction.
Yannacone drafted, edited and filed memos opposing the motions to dismiss the complaint, on Federal Common Law, and Class Certification.
In addition, Yannacone prepared the notices directed to each of the corporate defendant war contractors requesting production of specific documents and demanding admissions of specific facts.
Defendants Second Wave of Motions to Dismiss
4 October 1979 to 22 November 1979
49 days; 7.00 weeks
The corporate defendant war contractors filed their second wave of motions for Summary Judgment dismissing the complaint.
The corporate defendant war contractors continued to oppose class certification and were joined in their opposition by New York attorney Melvin Block who was serving of counsel to Texas attorneys Benton H. Musselwhite, Newton Schwartz, and Scott Baldwin.
Defendant North American Phillips formally moved for dismissal on the grounds that it did not manufacture or supply dioxin contaminated herbicides for use in Viet Nam.
Yannacone responded to all these motions and prepared memos on Class Certification and a Third Amended Verified Complaint which, after it was approved by Judge Pratt, became the model for all the “Agent Orange” complaints being filed throughout the country and ultimately consolidated by the MDL Panel before Judge Pratt in the Eastern District of New York.
The Long Island Consortium, Yannacone & Associates, did not come into existence until late September 1979, only after Judge Pratt had denied the corporate defendant war contractors omnibus motion to dismiss the complaint.
During this period, the Long Island Consortium, Yannacone & Associates, conducted organization meetings, but did not provide any meaningful economic support until December. All of the original Long Island Consortium attorneys have been reimbursed for their contributions to Yannacone & Associates, but Yannacone himself has not yet been reimbursed the remaining $472,766,13 of his actual expenses in conducting the Agent Orange Litigation beyond the meager amounts contributed by the Consortium.
Claims Examination and Case Consolidation
23 November 1979 to 4 January 1980
42 days; 6.00 weeks
After Judge Pratt denied the motions to dismiss the complaints and accepted jurisdiction of the Agent Orange Litigation as a “federal question”, to be determined under “federal common law” principles, the corporate defendant war contractors moved for a stay of proceedings and certification of an immediate appeal to the Second Circuit.
Such an appeal would have only been possible with plaintiffs’ consent. Yannacone opposed allowing the interim appeal and argued for continuing directly into the Government Contractor Immunity phase of the litigation.
In return for a stipulation certifying the appeal, Yannacone was able to obtain an order from Judge Pratt on stipulation directing the corporate defendant war contractors to file their answers to the Plaintiffs complaint and make any cross-complaints, or third party complaints by 4 January 1980.
Following this decision, the existing claims files were consolidated and examined and the document management procedures established to eventually process more than 2,000,000 pages of government and chemical company documents.
Defendants Answers/Third Party Complaints; Plaintiffs’ Statement of Issues
5 January 1980 to 21 January 1980
16 days; 2.29 weeks
Pursuant to the order of Judge Pratt, the corporate defendant war contractors finally filed answers to the veterans’ complaint and filed third party complaints against the United States of America asserting what was to become known as the Government Contractor Immunity Defense, both as an affirmative defense against the Viet Nam veterans and their families and the basis for a claim of indemnification against the federal govern-ment.
In response, Yannacone prepared the first wave requests to the corporate defendant war contractors for production of documents and to take the depositions of certain employees of the corporate defendant war contractors on specific issues.
Yannacone and Dr. Kavenagh, with the assistance of the document data base management system developed by Liquori analyzed all of the Defendants’ answers, cross-complaints, affirmative defenses, and third party complaints so as to produce for the Court a Composite Statement of Issues and Marked Plaintiffs’ Third Party Amended Complaint. This document became something of a reference handbook and guide for the subsequent proceedings in the Agent Orange Litigation before Judge Pratt and Special Master Sol Schreiber.
In both form and substance, the Plaintiffs’ Composite Statement of Issues and Marked Pleadings, represented a new and unique document in personal injury litigation before the federal courts.
Defendants Appeal to the Second Circuit;
Preliminary Discovery of United States Documents
22 January 1980 to 1 May 1980
100 days; 14.29 weeks
Immediately after filing the Plaintiffs Statement of Issues, Yannacone filed additional demands upon the corporate defendant war contractors for documents and to take depositions, as well as notices to admit particular facts relevant and material to meeting the issues raised by the Defen-dants’ answers.
The Dow Chemical Company moved under Rule 34 for production of documents by the United States of America and a number of its executive agencies. Dow and the other corporate defendant war contractors moved against the United States on a variety of issues raised in their Third Party Complaints against the Government.
There was extensive discussion with the Court and among the parties concerning protective orders and the questions of privilege raised by the document demands of the parties.
The corporate defendant war contractors briefed their appeal to the Second Circuit and Dr. Kavenagh worked on the Plaintiffs response to the Defendants briefs. He continued to process new claims and assimilate associated counsel into the Agent Orange Plaintiffs team.
Over the objections of the Long Island Consortium, Yannacone continued to encourage the filing of new claims; their consolidation under MDL 381; association of their counsel with class counsel in the litigation; and active participation of the plaintiff veteran in the Class.
On 1 May 1980, Irving Lake unsuccessfully argued the appeal before the Second Circuit Panel, while Yannacone answered the Panel’s questions concerning the national scope of the litigation and the importance of its “federal’ issues. At that time only 800 individual claims had been consolidated from 24 states, and a majority of the Panel, over the vigorous dissent of Chief Judge Feinberg felt that there was insufficient “national interest’ to support “federal question’ jurisdiction.
It is now obvious that even more cases should have been filed before the appeal was argued since Judge Kearse did not seem to grasp the magnitude of the “Agent Orange” controversy at the time she wrote the majority opinion for the Second Circuit.
Government Discovery; FTCA Claims
2 May 1980 to 29 December 1980
241 days; 34.43 weeks
Following the argument in the Second Circuit, and while further proceedings directly involving the Plaintiff veterans and the corporate defendant war contractors had been stayed, the involvement of the United States in the Agent Orange Litigation took center stage. The defendants vigorously pursued their efforts to discover government documents and take the depositions of government witnesses, while the United States raised issues of “Executive Privilege” and “State Secrets”.
The Plaintiffs continued to serve notices to admit facts upon the defendants and the corporate defendant war contractors continued to raise issues of confidentiality at every opportunity.
From the filing of the Third Party Complaints against the United States and even to this day, the corporate defendant war contractors have con-ducted an all out effort to establish that the decision makers in the federal government during the War in Viet Nam had actual knowledge that the phenoxy herbicides procured for use as chemical defoliants were contaminated with dioxin and that dioxin was extraordinarily toxic.
Yannacone vigorously asserted and ultimately established that the United States of America in general, and the Department of Defense in particular, had relied on representations by the corporate defendant war contractors about the safety and efficacy of phenoxy herbicides as chemical defoliants and the assurance by the manufacturers that the phenoxy herbicides were “absolutely safe and non-toxic to humans and animals.”
However, the plaintiffs began to feel the pressure of the Draconian time limitations imposed on claims that the corporate defendant war contractors insisted should be made under the Federal Tort Claims Act (FTCA).
Efforts were made to ameliorate the technical provisions of that Act on behalf of the entire class of Viet Nam veterans and their families while local counsel were advised to assist their clients in filing individual Notices of Claim against the United States under the FTCA.
At Yannacone’s insistence, however, those individual claim forms which the veterans filed all stated that the claims against the government were based on allegations made by the corporate defendant war contractors. The veterans represented by Yannacone, the Class plaintiffs, all continued to maintain the basic theme of the Agent Orange Litigation—the corporate defendant war contractors and their dioxin contaminated phenoxy herbicides were responsible for the ills of the veterans, not the Government.
All the while the volume of documents produced on discovery continued to grow virtually without limit. Document management became a critical element of the Agent Orange Litigation and with their limited resources, the plaintiff Viet Nam veterans and their families became more dependent upon the data base management system devised by Liquori. Without that system, and its implementation by Dr. Kavenagh and Carol Yannacone, the veterans would not have been able to handle the volume of paper that was inundating the tiny Agent Orange Litigation Center at Rose Avenue.
Class certification issues continued to concern all the parties and the Court. The continued opposition to class treatment of the Agent Orange Litigation by a small group of attorneys with a limited number of clients further complicated the management task of Yannacone.
On 29 December 1980, Judge Pratt dismissed the Third Party Complaints of the corporate defendant war contractors against the United States.
Discovery Start-up; The Australian/New Zealand Claims
30 December 1980 to 30 January 1981
31 days; 4.43 weeks
During the month following dismissal of the defendants’ Third Party Complaints against the United States, Yannacone and Kavenagh managed a number of complex issues and proceedings.
The corporate defendant war contractors moved to reargue dismissal of their Third Party Complaints against the United States. Amchem moved to dismiss the few complaints that had been filed against it by individual plaintiffs not associated with the “Agent Orange” class action.
The corporate defendant war contractors continued to pursue their Government Contractor Immunity Defense with increased vigor against the plaintiff veterans since their indemnification claims against the government had been dismissed. The plaintiffs responded with appropriate memoranda as did Ashcraft & Gerel from a different position.
Ashcraft & Gerel moved to establish a steering committee and appoint liaison counsel, a position that the majority of the Viet Nam veterans and their families who favored maintaining the Agent Orange Litigation as a class action opposed.
The Class Certification issues included the proposed form of notice; proposals for notice through the media; proposed representative class plaintiffs; defendants’ opposition to class certification and to the proposed representative class plaintiffs; and responses by the plaintiffs to the defendants’ motions.
Plaintiffs and Defendants exchanged first wave interrogatories.
The Plaintiffs responded to the Defendants’ First Wave Interrogatories and the Defendants moved against the Plaintiffs’ First Wave Interrogatories.
An application was made on behalf of the plaintiff veterans to discover the documents surrounding the intentional exposure of human beings—prisoners at a Pennsylvania State penitentiary—to dioxin applied by a dermatologist, Dr. Kligman in an experiment that may have been funded by one or more of the corporate defendant war contractors; and to take the testimony of Dr. Kligman. This application was vigorously opposed by the Defendants.
Australian and New Zealand claims continued to be filed and processed.
An action was brought against the Veterans Administration to try and obtain benefits, particularly improved medical care and treatment, for Viet Nam combat veterans claiming disease and disability associated with exposure to dioxin contaminated phenoxy herbicides during service in Southeast Asia.
Discovery Motions; Defendants Amend Answers
31 January 1981 to 20 May 1981
109 days; 15.57 weeks
Benton H. Musselwhite, one of the attorneys eventually appointed to the Plaintiffs’ Management Committee, moved for an MDL Steering Committee with liaison counsel and he continued to oppose class certification of the Agent Orange Litigation. Ashcraft & Gerel moved on Class Notice seeking to encourage massive “opt outs” from the Plaintiff class.
The United States opposed the Defendants’ Motion for reconsideration of the dismissal of the Third Party Complaints and the Defendants moved for leave to amend their Third Party Complaints against the United States.
Statute of Limitations issues concerning the Australian and New Zealand veterans were briefed by all the parties as were the more general Statutes of Limitations questions affecting the claims of veterans from a variety of states with different rules.
The United States moved to dismiss the complaints of veterans against the VA.
The corporate defendant war contractors responded to the plaintiffs request for documents with voluminous indices and demands for protective orders and confidentiality agreements. Defendants also responded to the veterans’ first wave of interrogatories with information that had to be processed, managed, and made retrievable in the context of the demands of the litigation, particularly the elements of the Government Contractor Immunity Defense. Again there were extraordinary demands placed on Liquori and the data base management system he developed; and again the plaintiffs were successful in managing the flood tide of paper loosed upon them by the corporate defendant war contractors.
Ansul moved for summary judgment to dismiss those claims that had been brought against it outside the context of the “Agent Orange” class action litigation. The other “Agent Orange” Defendants opposed the motion.
The United States agreed to produce the documents requested by the corporate defendant war contractors, and the issue of the form of that production became critical. Yannacone prevailed in his demand that all document production be on microfilm with the expense of microfilming imposed on the party producing the documents. Through the efforts of Yannacone the plaintiff veterans were able to obtain the documents on microfilm at the cost of reproducing the film alone. The veterans were not required to share in the cost of filming the original documents. This saved the veterans tens of thousands of dollars and made it possible for them to successfully pursue the action to a settlement. In addition, through the efforts of Dr. Kavenagh, the veterans were able to obtain the microfilm on credit from Matthias & Carr.
During this period there was considerable discussion and argument over the location of depositions, particularly the depositions of non-party witnesses. Dr. Kavenagh conducted these negotiations on behalf of the plaintiffs and eventually agreement was reached among all the parties and the United States Attorney General which made it possible to complete all the necessary depositions within a year-an extraordinary feat in modern litigation of this magnitude.
There was litigation pending at this time against the Monsanto Company both in Nitro, West Virginia, arising out of a dioxin accident in 1948, and a more recent tank car accident in southern Illinois. Applications were made by the attorneys for the plaintiffs in those actions for leave to intervene in the Agent Orange Litigation for the purpose of obtaining access to the document discovery of the plaintiffs without in any way contributing to the cause of the Viet Nam veterans and their families.
This effort by major figures of the plaintiffs’ tort bar typifies the differences between Yannacone and the rest of the “leaders” of the personal injury trial bar at that time. Yannacone argued that mass tort actions, particularly mass toxic tort litigation, should be conducted as class actions seeking equitable relief for all the victims as a class and transfer of the burden of caring for those victims from the taxpayers to those responsible for the damages. The conventional wisdom of the tort bar, however, both plaintiffs attorneys seeking contingent fees and hourly billing defense firms, was that tort claims were unsuitable for class action treatment. To those attorneys whose vision was fixed on the “bottom line”— legal fees—tort claims, even those arising out of a common disaster, were to be prosecuted only for individual plaintiffs, producing windfalls for a few and wipeouts for most, while maximizing the costs to society, the expenses of litigation, the demands on judicial resources, and most of all, attorneys’ fees.
The Government Contractor Immunity Defense
21 May 1981 to 15 September 1981
117 days; 16.71 weeks
The corporate defendant war contractors moved for leave to amend their Third Party Complaints against the United States of America.
Hooker Chemical and its parent, Occidental Petroleum, moved for summary judgment and defendant Hoffman Taff answered the plaintiffs’ first wave of interrogatories.
The Australian and New Zealand veterans’ claims were filed and added to the CHAOS data base.
While the defendants and certain plaintiffs’ attorneys opposing class certification made motions concerning the need for, and conduct of, in extremis depositions, Yannacone conducted negotiations with representatives of the defendants on the most appropriate methods of conducting videotape depositions of seriously iii veterans such as Charles Hartz. The rules and procedures for conducting such video depositions developed during those negotiations over the Hartz videodeposition were eventually endorsed by Judge Pratt.
To post the record with the full extent of the diligent preparation for trial completed by counsel for the plaintiff veterans, Yannacone filed a motion for summary judgment to dismiss the Government Contractor Immunity Defense.
Dow sought to discover (and discredit) certain unpublished data from a series of dioxin feeding studies conducted by scientists at the University of Wisconsin. Dow caused a subpoena for the raw, unpublished data to be issued by the Hearing Officer in the EPA RPAR proceedings. Yannacone intervened before the United States District Court in Madison, Wisconsin, on behalf of the plaintiff Viet Nam veterans and their families in the Agent Orange Litigation, and Dow similarly intervened through its Washington counsel, Kirkland & Ellis.
Although the US EPA and the University of Wisconsin were the nominal parties to the proceedings to enforce the subpoena for the monkey feeding study data, the District Court agreed to recognize the Viet Nam veterans and their families in the Agent Orange Litigation, with Victor Yannacone as their representative, and The Dow Chemical Company, one of the corporate defendant war contractors in the Agent Orange Litigation with Kirkland & Ellis as its attorneys, as the real parties in interest.
There, in the Wisconsin District Court, Yannacone succeeded in quashing the subpoena and Dow appealed to the United States Court of Appeals for the Seventh Circuit. Yannacone successfully argued that appeal and established the privileged nature of scientific data from work in progress prior to publication in the open peer-reviewed literature.
The eventual publication of this data provided substantial and convincing animal evidence of dioxin toxicity and supported Yannacone’s representations to the Court concerning the biochemical mechanisms of physiological injury associated with dioxin exposure.
Document Discovery Matters; Claims Management
16 September 1981 to 16 December 1981
44 days; 6.29 weeks
Pretrial Order 29 formalized Yannacone’s suggested procedures for conduct of in extremis depositions.
Consideration was given to methods of providing notice to the class and whether broadcast notice through the electronic and print media would be adequate. There was also consideration of certifying general “non opt-out” classes under Rules 23(b)(1) and 23(b)(2) as to common issues of law and fact such as the Government Contractor Immunity Defense.
The Dow Chemical Company moved to dispose of many of its corporate documents.
Throughout this period the filing of claims throughout the country continued to meet the Second Circuit concerns on what was sure to be eventual reconsideration of federal question jurisdiction. There was further consolidation of individual independent actions under the MDL rules.
Document Motions; Class Decertification Attempts
17 December 1981 to 24 February 1982
69 days; 9.86 weeks
The corporate defendant war contractors filed a series of motions against the United States to discover documents and to prevent contact between representatives of the Department of Justice and former Government employees who might be called to testify by the defendants.
The plaintiff veterans attempted to depose officials of the Veterans’ Administration concerning the extent of VA knowledge of disease among the Viet Nam combat veterans in numbers greater than to be expected for the age and general physical condition of those veterans. The veterans wanted access to cancer registry information maintained by the VA.
The United States raised issues of privilege concerning many of the documents requested by the corporate defendant war contractors. The plaintiff veterans moved against the United States on the FTCA claims in an effort to establish an efficient, streamlined claims procedure. This effort was vigorously opposed by the Attorney General.
Dow made application to destroy many of its documents on the ground that they were now “too old” and therefore too expensive to maintain.
Ansul, the manufacturer of certain defoliants not at issue in the Agent Orange Litigation, and not a defendant in the class action cases, moved for summary judgment as did the defendant Hooker Chemical and its parent corporation, Occidental Petroleum.
The corporate defendant war contractors continued to pursue their third party complaints against the United States. Judge Pratt dismissed those claims and then certified an appeal to the Second Circuit.
The corporate defendant war contractors and certain Plaintiffs’ firms who did not wish to proceed with the Agent Orange Litigation as a class action because it might lead to abrogation of individual contingent fee contracts, made efforts to decertify the putative class.
Yannacone successfully opposed all the attempts to decertify the class, and without his successful efforts to maintain the Agent Orange Litigation as a class action, the eventual settlement would not have been possible.
Yannacone prepared a further statement of issues that ultimately guided the course of the Agent Orange Litigation to its successful conclusion.
The plaintiff veterans cross-moved against many of the motions made by the corporate defendant war contractors and the United States.
Issues concerning the Australian and New Zealand veterans claims were considered.
Yannacone and Kavenagh prepared the Petitioners’ Surreply to the Brief of the United States Solicitor General that had been requested by the United States Supreme Court on the veterans Petition for Certiorari from the decision of the Court of Appeals for the Second Circuit.
Defendants Non-Jury Request; Definition of “Agent Orange”
25 February 1982 to 18 March 1982
21 days; 3.00 weeks
The corporate defendant war contractors made the suggestion that the Agent Orange Litigation be tried on the single issue of Government Con-tractor Immunity Defense, before Judge Pratt without a jury as soon as possible.
In response to this suggestion which both the Special Master and Court seemed disposed to accept, Yannacone and Kavenagh developed a “web” model of information flow within the federal bureaucracy based on an analysis of documents produced by the United States in response to the Defendants demands.
Yannacone conducted all the arguments before the Special Master and Judge Pratt on the Defendants’ motion for a non-jury trial of the Govern-ment Contractor Immunity Defense.
Judge Pratt and the Special Master insisted on a formal definition of “Agent Orange” which would effectively limit the claims of the Viet Nam veterans and their families by defining the toxic substances they claimed were actually responsible for their illness, disability, and death.
During this period the motion to reargue the decision of the United States Court of Appeal for the Second Circuit was prepared as well.
Preparation for Depositions
19 March 1982 to 30 April 1982
42 days; 6.00 weeks
Yannacone was personally familiar with many of the documents produced by the United States of America and professionally acquainted with many of the individuals who were called as witnesses by the corporate defendant war contractors. In several cases, such as Dr. Whalen Hays, a toxicologist relied upon by the chemical companies during the DDT litigation and Dr. Harry W. Hayes, the former Director of Pesticide Registration for the United States Department of Agriculture, Yannacone had actually cross-examined these witnesses extensively during the DDT hearings in Madison, Wisconsin in 1969.
Ashcraft & Gerel, still opposing class certification, insisted upon including in the definition of “Agent Orange” all the herbicides used by the Department of Defense during the War in Viet Nam, including Agent Blue, an organic arsenical, Agent White, a Dow proprietary product, Tordon 101, as well as the 2,4–D component of “Agent Orange”.
Yannacone insisted that the Government Contractor Immunity Defense could only be overcome in the case of the 2,4,5–T contaminated with dioxin. He defined the “Agent Orange” which was the subject matter of the Agent Orange Litigation as limited to only the dioxin contaminated materials. Subsequent events have shown the wisdom of this decision which would not have been possible but for the extent of Yannacone’s specialized knowledge and information about pesticides and his personal mastery of the intricate details of the Agent Orange Litigation.
After a thorough review of the tens of thousands of documents provided by the Government, and after consultation with a number of experts and colleagues from the DDT litigation of the mid 1960s, Yannacone prepared a definition of “Agent Orange” which was found to be adequate to hold all the corporate defendant war contractors in the case. At the same time he developed a formula for apportionment of liability responsi-bility which did in fact, lead to the ultimate settlement of the Agent Orange Litigation.
The Government Contractor Immunity Defense; Depositions; in general
1 May 1982 to 23 October 1983
540 days; 77.14 weeks
During the 77 weeks from the appointment of Sol Schreiber as Special Master to manage discovery and other pretrial matters through the motions for summary judgment by the corporate defendant war contractors on their Government Contractor Immunity Defense, Victor John Yannacone, jr. spent 16 or more hours of every day actively involved in mission critical substantive Agent Orange Litigation matters for the benefit of the entire class of Viet Nam veterans and their families.
During those 77 weeks, Yannacone read and annotated documents and transcripts; briefed attorneys, argued before the Special Master and prepared the case for trial. All the while, the Agent Orange Litigation Center at 62 Rose Avenue continued to process all of the paperwork necessary to serve as liaison counsel with over a thousand attorneys throughout the United States representing more than 18,000 Viet Nam combat veterans and their families. Yannacone also monitored and participated in the regular proceedings of the MDL panel throughout the Country.
During those 77 weeks, Yannacone was personally responsible for reading and annotating every document produced by the corporate defendant war contractors for presentation to a witness at depositions. In many cases the documents were delivered the day before the deposition and at best they were delivered two or three days before a deposition.
Yannacone was responsible for presenting the attorney covering a deposition with annotated documents and a briefing on the substantive matters and issues to be covered. Yannacone was expected to anticipate just what evidence the corporate defendant war contractors would seek to elicit from the witness at each deposition and what facts the witness could actually testify to and what might be speculation.
Yannacone was on telephone standby during every deposition he did not personally conduct himself. On those depositions he did conduct personally, he was often interrupted with questions on issues raised at other depositions.
Yannacone argued most, if not all, of the teleconference objections raised during depositions and often argued before the Special Master by teleconference from other depositions.
During the 77 weeks of government depositions and government document discovery two attorneys, Victor John Yannacone, jr. and Dr. W. Keith Kavenagh until his untimely death, together with Carol A. Yannacone, supported by a small dedicated staff of clerks and paraprofession-als together with volunteers from the veteran class, beat back the concerted attack of some of the largest law firms in the world each with com-paratively unlimited economic and technical resources of the agrichemical industry at their command.
Yannacone and his small force at 62 Rose Avenue with their antiquated but cost-effective PDP-11/34 minicomputer and their IBM Copier III/60 was able to meet the challenge of the corporate defendant war contractors.
Early Discovery: Government Contractor Immunity Issues
1 May 1982 to 27 December 1982
240 days; 34.29 weeks
After the appointment of Sol Schreiber as Special Master, the corporate defendant war contractors began discovery of the United States on the issues of whether the United States had actual knowledge both that the phenoxy herbicides deployed as chemical defoliants during the war in Southeast Asia were actually contaminated with 2,3,7,8-tetrachloro-dibenzo-p-dioxin and that the phenoxy herbicides so contaminated were toxic to human beings or other animals. These were the critical elements of the “Government Contractor Immunity” Defense.
Hearings were conducted on a weekly and occasionally daily basis before the Special Master to resolve issues of document production and deposition management. Witness depositions were conducted continuously as the corporate defendant war contractors examined present and former government employees and officials in a fruitless effort to establish actual knowledge on the part of some responsible government official that 2,3,7,8-tetrachloro-dibenzo-p-dioxin contaminated the phenoxy herbicides deployed as chemical defoliants during the war in Southeast Asia and that some responsible government official with decision-making authority knew that the dioxin contaminant was toxic to human beings.
“Scope of Discovery” was a matter of constant argument between the plaintiff veterans and the corporate defendant war contractors as well as among the corporate defendant war contractors themselves.
Hooker Chemical and its parent Occidental Petroleum moved for Summary Judgment. Hooker was responsible for making a critical intermediary product (tetrachlorobenzene) necessary for the manufacture of 2,4,5–Trichlorophenoxy acetic acid (2,4,5–T) by all the corporate defendant war contractors except Dow and Hercules. Some of the corporate defendant war contractors claimed that the tetrachlorobenzene supplied by Hooker might have been the source of some of the dioxin contamination of the phenoxy herbicides sold to the Department of Defense for deployment in Southeast Asia.
Class certification issues included the perennial question of class notice and whether media notice would be appropriate as well as the more fun-damental question of class definition, criteria for class membership, and actual identification of class members.
The in extremis depositions of critically ill veterans were generally opposed by the defendants and the decisions of the Special Master permitting such depositions to go forward were often appealed to the Court. The rules for in extremis depositions Yannacone first proposed, and which had been approved by Judge Pratt for the Hartz deposition, were the subject of constant ad hoc applications for modification by the defendants.
The Hoffman Trip Report, and the problems associated with the “paper clip Nazis” recruited for the American and British CBW programs at the time of the Nazi surrender and who were relocated to suburban Maryland raised fundamental questions of “State Secrets” and “Executive Privilege.”
Authentication of critical documents created decades ago raised novel issues that had to be argued on a regular basis before the Special Master and on occasion, Judge Pratt. Throughout this period, CBS pursued its First Amendment claims to broadcast information developed during discovery.
Of particular concern during this period were documents presented under statutory assurance of confidentiality by the corporate defendant war contractors to the United States Environmental Protection Agency or its predecessor in pesticide registration, the United States Department of Agriculture. Much of this information contained proprietary data on chemical processes that could have destroyed the American Agricultural Chemical Industry had it become available to foreign or even domestic competitors. Yet, it was argued, the data might contain information relevant to the Agent Orange Litigation and so should be considered discoverable under the Federal Rules.
Because Carol and Victor Yannacone had begun the legal attack on broad spectrum, persistent, chemical biocides in 1966, and Victor Yannacone had managed all the pesticide litigation throughout the nation until 1970, he had sufficient personal knowledge and professional experience to permit the American Agricultural Chemical Industry to protect its important trade secrets without jeopardizing the claims of the plaintiff veterans and their families in the Agent Orange Litigation.
The role of the United States Department of Agriculture in the promotion of phenoxy herbicides through experiments in Puerto Rico and Hawaii became an issue during this period.
Yannacone’s success in advancing the claims of the Viet Nam veterans and their families to this point caused the Court and the parties to con-sider the question of insurance coverage and policy limits available to the corporate defendant war contractors should the Viet Nam veterans and their families obtain a judgment after trial.
Claims Evaluation; Initial Settlement Discussions
28 December 1982 to 22 February 1983
56 days; 8.00 weeks
Depositions concentrated on the recollections of members of PSAC (The President’s Science Advisory Committee) and documents with which they were supposed to be familiar including some widely circulated “Reports” reflecting White House concern with the issues raised by Rachel Carson in Silent Spring.
Settlement negotiations were conducted with representatives of The Dow Chemical Company initially and later with Hercules Incorporated. These negotiations were supposed to remain secret, and would still be unrevealed but for their disclosure by Albert J. Fiorella and David J. Dean (albeit inaccurately) to Peter Schuck for publication in a book about the Agent Orange Litigation.
By February 1983 Yannacone had established that 2,3,7,8-tetrachloro-dibenzo-p-dioxin was immunotoxic and responsible for damage to the human immune system. This became the basis for a credible theory accounting for the broad range of symptoms clinically manifest among the Viet Nam combat veterans. Without such a plausible theory of physiological action, there would have been no incentive for a settlement by the corporate defendant war contractors.
By this time, Carol Yannacone was able to state with some confidence based on the detailed examination of more than 3,295 veteran files and medical records, that the empirical evidence indicated there would be approximately 20,000 serious illnesses that could reasonably be associated with exposure to dioxin contaminated herbicides in Viet Nam, and that approximately 5,000 veterans had already died of dioxin associated disease. At that time, the Yannacones were also reasonably certain that approximately 5,000 of the catastrophic polygenetic defects among the children of veterans could be associated with damage to the sperm forming cells of the veterans as a result of their exposure to dioxin contam-inated herbicides in Viet Nam.
One of the keys to settlement with any single defendant was a determination of the extent of liability to be born by each of the corporate defendant war contractors. Yannacone was able to calculate the proper apportionment among the defendants by determining the actual amount of dioxin contributed by each of the herbicide manufacturers. Although the actual apportionment of the eventual settlement is not a matter of public record, it appears from media accounts that the corporate defendant war contractors accepted Yannacone’s method and may very well have actually reached precisely the same conclusion as to apportionment.
The amount eventually discussed as a settlement figure for Dow and Hercules (manufacturers of the least contaminated herbicide used in Southeast Asia) was $150 million with a number of structured alternatives to a direct payout that were acceptable to the veterans.
Over the Washington’s Birthday weekend in February, settlement negotiations had reached the point where a number of veteran leaders had been notified to be prepared to come to New York on short notice and participate in a major event with certain of the corporate defendant war contractors.
Eventually, settlement negotiations were terminated when the defendants decided to make one last effort to defeat the claims on a motion for summary judgment based on cumulative testimony from government employees which might constitute circumstantial evidence of actual knowledge sufficient to establish the government contractor immunity defense.
Litton Bionetics; PSAC; Edgewood Arsenal/Camp Detrick
23 February 1983 to 20 April 1983
56 days; 8.00 weeks
The Litton Bionetics report and the work of Dr. K. Diane Courtney was an essential element of the motion for summary judgment by the cor-porate defendant war contractors based on their Government Contractor Immunity Defense. It was Yannacone’s personal familiarity with all the circumstances surrounding the Bionetics report and the work of Dr. Courtney as well as the publication of the information about the dioxin contamination of the phenoxy herbicides in 1969 that enabled the plaintiff Viet Nam veterans and their families to defeat the motions for summary judgment and permit the case to be settled.
Yannacone personally conducted the depositions of the Science Advisors to each of the three presidents who authorized deployment of phenoxy herbicides as chemical defoliants during the war in Southeast Asia—Dr. Jerome Wiesner, President Emeritus of MIT, Science Advisor to President Kennedy; Dr. Hornig, Distinguished Professor of Chemistry at Harvard University, Science Advisor to President Johnson; and Dr. Lee E. DuBridge, President Emeritus of CalTech and Science Advisor to President Nixon.
Dr. DuBridge was Chairman of the President’s Science Advisory Committee (PSAC) at the time Dr. Courtney’s paper was published in Science; the AAAS annual meeting denounced the use of chemical defoliants in Viet Nam; and Congress began to worry about the dioxin contaminant of “Agent Orange.”
The Defendants’ Motions for Summary Judgment
21 April 1983 to 12 May 1983
21 days; 3.00 weeks
The defendants motions for summary judgment on the Government Contractor Immunity Defense were triggered by the initial deposition of PSAC (president 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 reestablished 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 the Agent Orange Litigation Center was over 70 pounds.
Defendants multiple motions for summary judgment based on the Government Contractor Immunity Defense represent one of the most dramatic examples of the extraordinary service Yannacone performed for the class of Viet Nam veterans and their families during the course of the Agent Orange Litigation.
By dawn on Monday morning, Yannacone had analyzed all of the motions, and together with Liquori, 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 at 62 Rose Avenue. 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 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 litigation support 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;
- Robert W. 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.
The web model which clearly tracked the passage of information throughout the maze of federal executive bureaucracy and the failure of any meaningful information of dioxin contamination or dioxin toxicity to reach any decision maker with responsibility for the deployment of phenoxy herbicides as chemical defoliants in Viet Nam.
Over the period 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. Aaron Twerski drafted responses; Steven J. Schlegel and V. Don Russo checked document references while Albert J. Fiorella supplied Italian pastries.
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 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.
Discovery of the Defendants; Government Witnesses
13 May 1983 to 23 October 1983
163 days; 23.29 weeks
During this period, while Yannacone was conducting depositions, supervising discovery, and preparing for trial, members of the Long Island Consortium were preparing their putsch to remove Yannacone as lead counsel so they could sell the cause of the Viet Nam veterans and their families to the high rollers of the tort bar. As Judge Weinstein noted, “it was clear when the [Plaintiffs’ Management Committee] was organized that money was a more sought after commodity than talent.” Judge Weinstein also felt that the investor reward provisions of the Plaintiffs’ Management Committee fee sharing agreement,“was unlikely to withstand close scrutiny.”
Because federal law has not developed comprehensive standards to govern the conduct of attorneys, and in light of the value of uniformity in regulating the bar, federal courts in this instance would look to the ABA Code of Professional Responsibility, which has been enacted by nearly every state, and to the newly promulgated ABA Model Rules of Professional Conduct.” citing Code DO 2-107(A) (division of fees between lawyers not members of a firm); Model Rule 1.5(d) (same); Code DO 5-103(A) (prohibition against acquisition of an interest in litigation); Model Rule 18(j) (same).
Judge Weinstein noted in his decision on attorneys fees,
Throughout the “Agent Orange” litigation, even after the [Plaintiffs’ Management Committee] took over as lead counsel, organization of the management committee and financing of the litigation appear to have been constant topics of discussion and, not infrequently, sources of friction. Especially in the spring and summer of 1983 many management committee meetings were devoted to problems having more to do with the committee than with the litigation. These internal difficulties—disputes about who was running the litigation and mounting pressures in the face of financial constrictions—did not further the class action; the acrimony in fact probably hindered prosecution of the case. * * *nonsubstantive meetings at which committee members aired their disputes with one another and haggled over finances were especially numerous from the spring through the fall of 1983. * * * Many telephone conferences during the spring, summer and fall of 1983 concerned the management committee’s internal problems….
Yannacone chose to ignore the internecine warfare and negotiations with the lawyers who ultimately became the “Agent Orange” Plaintiffs’ Management Committee during this period. Rather, he continued to move the case along towards a trial on the issues of corporate defendant war contractors fault, the toxicity of 2,3,7,8-tetrachloro-dibenzo-p-dioxin, and the parity of knowledge element of the Government Contractor Immunity Defense.
Judge Weinstein worried that Class actions “doubtless present many instances of duplicative work including the overstaffing of conferences and court appearances;” and opined that “Duplication of attorney work may be inevitable in any large class action run by committee.” He noted that “The potential for duplication and overstaffing is especially great when,… the case involves an enormous plaintiff class that is national, even international in scope, and a number of turnovers in management committee membership have taken place.” These are certainly statements of obvious fact of which Judge Weinstein or any other Court may take judicial notice.
Judge Weinstein’s conclusion, however, that “To some extent these factors caused a lack of effective central organization in the Agent Orange Litigation that gave rise to not infrequent repetition and duplication of effort.” applies only to the state of affairs which existed after 23 October 1983 when Judge Weinstein removed Yannacone as lead counsel and appointed his Plaintiffs’ Management Committee with Steven Schlegel its chief executive and David Dean as spokesman and trial counsel for the class.