The role of money in the Agent Orange litigation

The following excerpt from the fee petition filed by Yannacone on behalf of his late colleague, Dr. Kavenagh and Carol Yannacone is unabashed advocacy but the facts are accurate and the readers may draw their own conclusions.

From 13 May 1983 to 23 October 1983, when Judge Weinstein replaced Yannacone as lead counsel for the veterans with a “Plaintiffs’ Management Committee” some of whom went on to become known as the Masters of Disaster, and while Yannacone was conducting depositions, supervising discovery, and preparing for trial, the 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 plaintiffs tort bar.

The Masters of Disaster take over and sell out the veterans

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 had 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 had 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’s observations

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. * * *non-substantive 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 the parity of knowledge element of the Government Contractor Immunity Defense.

Judge Weinstein’s comments

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.

Wrecking the veterans’ case

On 23 October 1983, by the stroke of a pen, Judge Weinstein dismantled the trim, efficient, effective, proven operations unit Yannacone had built and which was capable of responding to the demands of both Court and Defendants on demand and without delay. Yannacone had led the Viet Nam veterans and their families to the eve of trial and settlement was a foregone conclusion. The only real question was, “how much.”

Instead of the efficient and effective leadership that Yannacone had provided, the Plaintiffs’ Management Committee Judge Weinstein appointed demonstrated a singular inability to do the job. From that moment on, the Agent Orange Litigation, like a ship without a captain, foundered.

Major litigation like major surgery depends on the leadership skills of a single individual. One does not conduct brain surgery by committee. Following the guidance of Chief Justice Renquist of the United States Supreme Court, no Court should allow “Piper Cub lawyers at the controls of 747 litigation.”

Judge Weinstein pointed out that there were many difficulties resulting from the Committee operations of the Plaintiffs’ Management Committee and the resulting diffusion of responsibility and the lack of focused leadership.

Nevertheless, he handsomely rewarded those who failed in their leadership responsibility by allowing them $13 million in fees and expenses for nine months work.

To this day, there is only one attorney who has full and complete understanding of the entire Agent Orange Litigation. That attorney, Victor John Yannacone, jr., has yet to be fully and fairly compensated for the more than 10,000 hours of professional services Yannacone rendered to the class he created.

Instead, Judge Weinstein proclaimed, in denying the Yannacone fee petition, “Your services were provided in the highest tradition of the Bar, pro bono. You should be satisfied with the gratitude of the veterans for your efforts.”

Judge Weinstein’s double standard

Judge Weinstein established a double standard for compensating attorneys representing the Viet Nam veterans and their families in the Agent Orange Litigation: a relatively loose and unquestioning standard for the Plaintiffs’ Management Committee appointed by Judge Weinstein for the “work” they did after October 21, 1983, and for the Special Masters managing the Settlement Fund; but a strict and skeptical standard for all the work that Victor John Yannacone, jr. and his associate attorney W. Keith Kavenagh did prior to that time— the work that brought the Agent Orange Litigation to this Court as a class action in the first instance, maintained it as a class action, litigated it aggressively, and managed it efficiently to the point where it could be settled relatively easily.

The Agent Orange Litigation did not begin in late October of 1983 when Judge Weinstein took over the case and appointed his Plaintiffs’ Management Committee. On the contrary, the case was well-established and had been successful prior to that point. The architect of that success and the manager of the winning effort up to that point was Victor John Yannacone, jr.

Yannacone left the case ready for trial

On 23 May 1983 Yannacone turned back the last major counterattack by the corporate defendant war contractors before they would have to enter the dock as defendants and face a jury.

Yannacone’s grand strategy had been completely vindicated. He had achieved the impossible. A trial was now scheduled on the fundamental issues of liability, fault, and general causation, all issues upon which the Viet Nam veterans and their families could prevail; but without the need to face the thorny issue of proximate cause in the case of each individual veteran. Yannacone had held the class together and created a united group of more than twenty thousand (20,000) individual representative plaintiffs.

The clinical condition of the veterans themselves, together with the anecdotal evidence from industrial accidents and the results of laboratory toxicity investigations clearly established that 2,3,7,8-tetrachloro-dibenzo-p-dioxin could have been responsible for the illness, disease, disability, “and death among the Viet Nam combat veterans and the catastrophic polygenetic birth defects visited upon their children.”

The case was ready for trial and the Viet Nam veterans and their families had a reasonable and substantial chance of winning.

Without Yannacone’s vigorous attack on the Government Contractor Immunity Defense and his ability to find support for the veterans’ claims in the literally hundreds of thousands of pages of documents, there would have been no settlement of the Agent Orange Litigation