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The Nuremberg Defense

Rather than respond to the massive indictment of their sale of the dioxin contaminated phenoxy herbicides to the government for use in Southeast Asia, the chemical company war contractors issued a midnight press release claiming, “They were only following orders” from the US government. This was quickly dubbed, “The Nuremberg defense” after the defense raised during the war crime trials following the end of World War II when those responsible for managing the Nazi and Japanese death camps sought to evade responsibility for their atrocities.

The chemical company war contractors tried, unsuccessfully, to convince the media to refer to their defense as “government contractor immunity.”

Shortly after the defense was raised, a well-known New York attorney who was a leader of the asbestos litigation plaintiff bar published a front-page op-ed in the widely read New York Law Journal denouncing the way Yannacone and US District Court Judge George Pratt were managing the Agent Orange litigation now that all of the cases throughout the country had been consolidated by the federal Multidistrict Litigation Panel (MDL) for management by Judge Pratt on Long Island in the Eastern District of New York.

The op-ed elicited two responses, one from Yannacone and Dr. W. Keith Kavenagh, the academic historian turned lawyer who at that time was analyzing the history of herbicide use by the military and the Department of Defense, and another from Leonard L. Rivkin, attorney for the defendant Dow Chemical Company. Those letters clearly indicate some of the complex procedural issues involved in the Agent Orange litigation, which at that time was both the first and the largest mass toxic tort case ever filed in a United States court.

 

The Yannacone-Kavenagh plaintiff’s response

April 8, 1982 to the Editor-in-Chief, New York Law Journal

In “Agent Orange and Nuremburg Defense,” ((N.Y.L.J., March 24, 1982), Stanley J. Levy attempts to place all parties in the “Agent Orange” product liability litigation, (MDL 381), especially the Court, in untenable positions.

Three main threads are woven into the polemical fabric of his editorializing.

First, he accuses Judge Pratt of base and vile motive in intending to dispose of the case quickly in derogation of the rights of the litigants.

Second, he would have us believe that by merely raising the affirmative defense of derivative sovereign immunity as government war contractors, the chemical company defendants have gained the sympathy of the Court and will be allowed to evade their moral and legal responsibility for the injuries they caused.

Finally, having had sleepless nights over seeing millions of dollars in contingent fees on each individual veteran’s claims being swallowed up by a single quantuum meruit fee in the class action, Levy laments that the Rule 23 class certification will subvert the goal of our legal system, which is to “ensure that all litigants in all cases receive a just and fair opportunity to resolve their cases.”

Interwoven with the first thread is the Brobdingnagian denunciation of Judge Pratt for standing “usual and accepted” court procedure on its head. Mr. Levy’s “normal” high-button shoes procedure would have the litigation commence with the causation issue, involving as it does exhaustive review, coding, and indexing endless amounts of government documents (12 thousand cubic feet; ~10,000,000 pages), scientific and medical literature (47,000 articles), and chemical company files (more than 40,000 documents) and the individual medical records of all those claiming to have been exposed to dioxin contaminated phenoxy herbicides (approximately 2.46 million Viet Nam veterans).

After causation has been considered, it would then proceed to the product liability phase of the litigation with all that it entails and, finally, to consideration of the government contractor immunity defense.

This scenario, with all of its time and expense spread over many years, would, in traditional and unimaginative legal lockstep, eventually arrive at the fundamental question: Can the defendant war contractors be sued at all?

“Levy’s” Federal Rules of Civil Procedure are reminiscent of the attempt by the Swedish Navy in the 17th century to build the world’s largest man-of-war.

After expending countless manhours, endless board feet of valuable timber, and extravagant sums of money, it was launched. Top heavy, it sank immediately. The admirals had neglected to ask the fundamental question: Will it float?

As for the affirmative defense of government contractor immunity, any accusation that Judge Pratt oversimplified its elements and thereby absolved the defendants of the many duties the law normally imposes on manufacturers of products is patent nonsense. Judge Pratt concisely explained and qualified the three elements of the defense in accordance with well-known, established and accepted case law.

Inextricably intertwined among the elements of the defense are the conduct of the manufacturers, the quality of their products, their knowledge of the toxicity of the product, and the duty of the corporate defendant war contractors to warn the United States Department of Defense during the war and the veterans after the war.

The Court succinctly stated that a duty to warn in fact existed. Nevertheless, we suggest that Littlehale v E. I. duPont deNemours & Co., 268 F.Supp. 791 (S.D.N.Y. 1966), aff’d 380 F.2d 274 (2nd Cir. 1966); Person v Cauldwell Wingate Co., 176 F. 2d 237 (2nd Cir. ), cert. den. 338 U.S. 886 (1949); Saner v Ford Motor Co ., 144 N.J. Super. 1, 64 A.2d 43, aff’d 154 N.J.Super. 407, 381 A.2d 805 (1977); Dolphin Gardens v U.S., 243 F.Supp. 824 (D.Conn. 1965) be reread in light of Mr. Levy’s assertion that Judge Pratt has cavalierly ignored fundamental principles of common law.

The writer of a lead article in the New York Law Journal also has a duty; a duty to write accurately.
Misleading contentious allegations that, “the duty to learn of health hazards associated with one’s product and to warn foreseeable users is cast aside,” not only displays a lack of knowledge and failure to appreciate the issues, but performs a disservice to the Court, the litigants, and the Bar.

Whether cloaked in concern for protecting the individual rights of injured victims or nothing more than a device for hiding one’s fear of losing 2.46 million individual contingent fees is not important. But to argue that Judge Pratt intends to disregard the rights of the individual plaintiff veterans and make the government contractor defense and class certification a “death knell” that will dispose of the “Agent Orange” case in one short burst of “judicial calendar clearing” is a gratuitous insult to the Court and evidences a lack of understanding of the need for, and the purpose of, Rule 23.

Mr. Levy would insist that 2.4 million Viet Nam veterans come into court and present their individual claims that exposure to certain dioxin contaminated phenoxy herbicides manufactured by a few multinational conglomerate chemical companies caused irreparable physiological damage to themselves and genetic damage to their unborn progeny.

2.4 million judges would hear motions; 2 .4 million attorneys would try to accumulate, index, sort, and read all the relevant scientific and medical literature; witnesses would be deposed 2.4 million times. 2.4 million judges would then preside over 2.4 million trials on the merits. Surely, Mr. Levy cannot be serious.

Rule 23 was expressly promulgated to avoid interminable clogging of court calendars with repetitious actions brought on by many plaintiffs against the same defendant(s) based on identical or closely parallel questions of fact or law. It modernizes a policy that began when the English Court of Chancery first recognized the efficacy of such “class action” treatment of real property actions in the 17th century.

Had Mr. Levy been counsel to Ramses II, only one Jew would have been allowed to leave Egypt each year and we would still be witnessing the Exodus. Fortunately, Moses found a better way. So too has Judge Pratt.

Victor John Yannacone, jr.
W. Keith Kavenagh

 

The Rivkin defense response

March 30, 1982 to the Editor-in-Chief, New York Law Journal

I read with interest Stanley J. Levy’s article on Judge Pratt’s recent Agent Orange decision (Law Journal, March 24, 1982). Mr. Levy criticized Judge Pratt’s definition of the government contract defense and the Court’s decision to resolve the issues raised by that defense in a preliminary “Phase I” trial.

As national counsel for The Dow Chemical Company in the Agent Orange litigation, my views regarding Judge Pratt’s decision may be somewhat less than objective. However, Mr. Levy is hardly a detached, neutral observer. My understanding is that he represents hundreds of plaintiffs in asbestos litigation throughout the country. Perhaps Mr. Levy’s criticism of the Agent Orange decision was motivated by a fear that the government contract defense will ultimately be applied in those cases. At any rate, the article reflects Mr. Levy’s obvious pro-plaintiff bias, and I feel the need to present the defendant’s viewpoint.

Mr. Levy writes as if Judge Pratt thrust the concept of phased trials upon unwilling, objecting plaintiffs . This is not the case. The idea of phased trials in Agent Orange was first suggested by the plaintiffs, and it was the defendants who vehemently objected.

Although the plaintiffs did not specifically propose that the first phase of the proceedings should involve a trial of the government contract defense, plaintiffs applauded when Judge Pratt announced that he intended to try that defense first.

According to an article in the January 19, 1981 issue of the National Law Journal, Victor Yannacone, lead counsel for the Agent Orange plaintiffs, said that he “welcomes the opportunity for an early challenge to the defendants’ theory.” Mr. Yannacone is further quoted as saying: “If we win, we’re on our way, and if we lose, it’s all over without an enormous expenditure.”

Mr. Levy also writes as if Judge Pratt’s substantive rulings regarding the elements of the government contract defense were fashioned in total disregard of applicable legal precedent.

To the contrary, there is a long line of cases upon which Judge Pratt relied in reaching his decision. The cases are discussed at length in briefs currently on file in the Eastern District of New York and in Judge Pratt’s first Agent Orange decision, reported at 506 F. Supp. 762. Briefly, the cases recognize, among other things, that, as a matter of public policy, ordinary principles of tort liability which apply to manufacturers who place consumer goods in the stream of commerce should have no application to manufacturers who produce weapons for the military in time of war in compliance with design specifications furnished by the Government. To impose tort liability upon manufacturers under those circumstances would seriously hinder the Government’s efforts to protect national security.

Accordingly, although Judge Pratt’s use of a Phase I trial on the government contract defense may be a departure from ordinary procedure, the substance of his rulings is well established in law.

From the very beginning of the Agent Orange litigation, Judge Pratt has been concerned with devising an effective case management plan. There are those who believe that a Phase I trial of the government contract defense would go a long way toward achieving that goal. The defense is valid as a matter of law, it is potentially dispositive of all of plaintiffs’ claims, the issues raised by the defense as defined by Judge Pratt can easily be separated out for a preliminary resolution, and a finding in favor of the defendants will eliminate the need for extensive and costly discovery and lengthy and duplicative trials. Under those circumstances, it certainly can be argued that the decision to try the government contract defense first was a good one.

Rather than criticize Judge Pratt, asbestos attorneys such as Mr. Levy should take a lesson from the manner in which the Agent Orange litigation has been handled. While thousands of asbestos cases clog the dockets of state and federal courts throughout the country, every single Agent Orange claim is pending before Judge Pratt in the Eastern District of New York.

Even without a Phase I trial, Judge Pratt’s handling of the Agent Orange litigation has done much to ease the burden, financial and otherwise, which complex litigation has imposed upon the parties and upon our judicial system.

Notwithstanding Mr. Levy’s contention to the contrary, none of plaintiffs’ rights in the Agent Orange cases have been sacrificed by the implementation of the Phase I proceedings. Judge Pratt’s order merely requires the parties to litigate a potentially dispositive affirmative defense first, rather than proceed from the outset with proof relating to plaintiff’s prima facie case.

Plaintiffs will have a full and fair opportunity to defeat the government contract defense and, if they succeed, they will then have the opportunity to establish the liability of the defendants under applicable legal principles.

Finally, we note that Mr. Levy seems to assume in his article that, absent the government contract defense, the liability of the Agent Orange defendants is a foregone conclusion. This view is simply not supported by the evidence.

One example of a glaring gap in plaintiffs’ case is the issue of causation. We have seen no proof that Agent Orange caused the injuries complained of. Rather, there appears to be a consensus in the scientific and medical community that Agent Orange was not the cause of plaintiffs alleged damages. We would hope that, as an attorney, Mr. Levy would not prejudge the Agent Orange controversy, but would keep an open mind until both sides have presented their case to the appropriate trier of fact.

Leonard L. Rivkin

Nuremberg defense fails! No government contractor immunity

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—when they delivered dioxin contaminated phenoxy herbicides for use during the war in Southeast Asia.

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. In fact the documents from a 1963 conference at the United States Army Biological Laboratories at Fort Detrick clearly established that at the start of the War in Sourtheast Asia the intention of the United States military was to use chemical defoliants as an alternative to heavy artillery and napalm as a means of clearing jungle and that the chemical defoliants were to be non-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.

 

70 pounds of motions

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 Robert W. 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.

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 office 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;
  • Robert W. Liquori, 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;

 

in memoriam W. Keith Kavenagh, AB, MA, PhD, JD

W. Keith Kavenagh, an established academic historian who became a lawyer late in his career just in time to join Yannacone in the Agent Orange litigation at its start, conducted the painstaking and thorough analysis of the obscure pathways and relationships among all the many federal agencies which might have known anything about the dioxin contamination of the phenoxy herbicides or about dioxin. Unfortunately, Dr. Kavenagh died suddenly only a few months before the Summary Judgment motions were filed, but not before completing the research which became the basis for defeating the government contractor immunity defense on the issue of government knowledge.

 

The federal bureaucracy web

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 clearly tracked the passage of information throughout the maze of federal executive bureaucracy clearly showed that 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.

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.

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.

In three weeks of around-the-clock effort, Yannacone marshaled enough substantial credible evidence from the enormous document database and from his successful handling of significant depositions to defeat the Dow motion for summary judgment.

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.

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 beginning of the end for the veterans

At this point, Thomas W. Henderson of Basin & Sears, a well known asbestos lawyer 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.

Shortly after striking down the government contractor immunity defense, Judge Pratt was elevated to the United States Court of Appeals for the Second Circuit and on the eve of trial summarily removed from handling the Agent Orange litigation. The Agent Orange case was transferred to Chief Judge Jack B. Weinstein who immediately appointed removed Yannacone as lead counsel for the veterans and replaced him with a “Plaintiffs’ Management Committee,” and two settlement masters.

From his first pre-trial conference, Judge Weinstein expressed doubt about the veteran’s claims and proceeded his rush to settle the case without a trial regardless of the merits of the veterans’ claims.